Volume 78 — Georgia Reports

<p>3. Where, in 1855, a deed was made to a trustee for the sole and separate use of a married woman during her natural life, free from the control or debts of her present or any future husband, and at her death to convey the property to any person whom such usee might appoint by deed, will or other proper writing, and on failure of such appointment, the property was to be equally divided between her children; and where, on a suit brought by the successor of the original trustee against the person holding the land, the defendant offered in evidence a tax fi. fa. against the married woman, together with a sheriff’s deed thereunder, dated more than seven years before the beginning of the suit, it was admissible as color of title if for no other reason.</p> <p>2. The mere bringing of an action which is dismissed and not prosecuted to a successful termination, is no disturbance of possession so as to prevent a prescriptive title from ripening; and on a second suit, brought more than six months after the dismissal of the first, the record of the former suit was properly rejected from evidence.</p> <p>3. The trust stated in the first head-note above became executed on the passage of the act of 1866, which made a feme covert a feme sole as to her separate property, and prescription ran against the woman for whose benefit the trust was created, although the originaL trustee died and there was a lapse of a number of years before the appointment of a successor.</p> <p>(a) This court is satisfied that nothing was sold by the sheriff or purchased by the bidder, except the interest of the married woman in the land.</p> <p>4. Where a plaintiff in ejectment made out a case which would entitle him to recover, and the defendant introduced testimony which would entitle him to recover, it was error to grant a nonsuit. The case should have been left to the jury, under proper instructions from the court, although the court may have correctly been of the opinion that the plaintiff could not recover.</p>

<p>A marriage settlement, made in 1857, provided, in brief, as follows: The separate estate of the wife should so remain, and not vest in the husband or be subject to his debts or control; the title should vest in a trustee for the sole and separate use of the wife; in the event of her death before that of the husband, one-half of the estate was to vest in a son born to her of a former marriage and such other child or children as might be born of the contemplated marriage and be living at her death, share and share alike. If she died leaving no child, the half of the estate was to go to and vest in her next of kin; the other half of the estate, upon her death, was to vest in her husband for life, and at his death was to vest in his son by the former marriage and such child or children as might be born of the contemplated marriage and be living at the death of the husband. In the event that there should be no child of either marriage living at the death of her husband, the half of the estate held by him for life was to vest in the wife’s next of kin. If the husband should die before the’wife; the whole estate was to vest in her. Provision was made for sales and reinvestment, and as to other property which might come to the wife pending coverture :</p> <p>Held, that the marriage settlement created a life estate in the wife, with remainder over; and when, by virtue of the act of 1866, she became sui juris, there being no necessity for a trustee to protect her against the marital rights of her husband, the trust ceased, and she could sell or mortgage her interest in the property and create a valid lien thereon; and where, in 1868, the husband and wife executed a mortgage on realty included in the marriage settlement, to secure the payment of a promissory note made by them, the trustee at that time being dead, it created a valid lien on the property as to the interest of the wife therein, and upon a foreclosure and sale thereunder, conveyed all the rights and interest of the wife in the property to the purchaser, and the latter held such title unaffected by a judgment subsequently obtained against the wife and her trustee.</p>

<p>Homestead. Parties. Mortgage. Estoppel. Before Judge Simmons. Decatur Superior Court. November Term, 1885.</p> <p>Reported, in the decision.</p>

<p>1. Motion for new trial being made in term, and by an order, set down for hearing in vacation, and the brief of evidence being filed during the term, bu>t not approved by the court:</p> <p>Held, that approval at the time of hearing the motion was sufficient, and the judge having then approved and ordered the brief to be filed, it could come up as a part of the record, though the clerk did not enter the filing after the approval, but left the evidence of filing to stand as entered on the brief during the term. (Headnote by the court.)</p> <p>2. - Where the evidence tending to show the corpus delicti, on a trial for murder, made a close case, and rested, in part, on whether a certain red stain in the sand was blood or not; and where a physician, who was a witness for the defendant, stated that he would not testify that anything was blood unless he had analyzed it and knew it to be blood, it was error tending to the injury of the defendant for the presiding judge to say to the witness that, if he should come down town and find a man lying on the sidewalk with his throat cut, and should find red spots on the pavement, would he not say that was blood?</p> <p>3. It was error to refuse to charge that, if there was apparent conflict in the evidence, k was the duty of the jury to reconcile it if they could, and not impute perjury to any witness.</p>

<p>Since the adoption of the constitution of 1877, requiring justices’ courts to be held monthly at fixed times and places, and the passage of the act of December 6, 1880 (acts 1880-81, pp. 56, 57), requiring a garnishee in a justice’s court to answer at the term of that court to which the garnishment is made returnable, instead of within ten days after the service of the summons, the act of 1873 (acts 1873, p. 48), which required the garnishee to answer within ten days after the service of the summons, allowed the plaintiff ten days within which to traverse the answer, and required him, within five days after the filing of a traverse, to give written notice to the opposite party in interest, or his attorney, of the time of hearing the issue formed thereon, to be appointed by the justice not less than ten days after the filing of the traverse, has become inoperative. Therefore where, at the term to which the summons was returnable, the garnishee answered and the plaintiff traversed the answer, it was error, at a subsequent term, to discharge the garnishee on motion, on the ground that no written notice was given to him or his counsel of the traverse and the time appointed for hearing it.</p>

<p>1. It is unnecessary to decide whether the special lien of a landlord for rent takes precedence of a bona fide purchase without notice of the lien, the jury in the case having found that the purchase was not bona fide because the purchaser had notice, and that the purchase was made with a view to defeat or, at least, to postpone the lien.</p> <p>2. The facts were sufficient to sustain the verdict.</p> <p>3. Although on the day the distress warrant was issued, the landlord demanded of his tenant the cotton reserved for rent, and although ths latter stated to him that he had set apart and carried to the gin a sufficient quantity to meet that demand, and although, in fact, a few days subsequently, he delivered it at the place designated in the contract of rent, and subsequently delivered cotton at another place, yet where the landlord also had a claim for supplies advanced, and all the cotton delivered did not pay the demand for both rent and supplies, and the tenant gave no express direction as to the appropriation of the payments thus made to either of the demands, and when informed that they had been applied to the account for supplies, consented thereto, the landlord was under no obligation to so apply these payments as to jeopardize the collection of one of his own demands, so as to release other cotton from the lien he had fixed on it by the levy of a distress warrant; especially so as to one who, with notice, sought to defeat or postpone the collection of his claim.</p>

Administrators and Executors. Estates. Legacies. Inheritance. Before Judge Boynton. Spalding Superior Court. February Term, 1886. On November 23d, 1885, B. S. Akin applied to the ordinary of Spalding county to be appointed administrator de bonis non with the will annexed of Elisha Akin, deceased.

<p>County Matters. Constitutional Law. Tax. Before Judge Boynton. Newton Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>Written Instruments. Practice in Superior Court. Contracts. Construction. Before Judge Fain. Murray Superior Court. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>Under §3293 of the code, an attachment for purchase money may issue, if the property, for the purchase of which the debt was created, is in possession of any one holding the same for the benefit of the debtor, or it may issue also if the property is held in fraud against such creditor; but the affidavit to procure the attachment must state positively on which ground it is based, or else that both grounds exist. It is not sufficient to state the grounds in the alternative. If this be done, the attachment will be dismissed on motion.</p>

<p>Possessory Warrant. Before Judge Lawson. Morgan Superior Court. March TErm, 1886.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Negligence. New Trial. Before Judge Lawson. Putnam Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>The dormant judgment acts are not merely statutes of limitations, and as against junior judgment creditors, dormancy was not prevented by an entry on an execution in these words: “December 1st, 1881. Paid on the within execution five dollars; balance due and unpaid; ” signed by the defendants.</p> <p>(a) The case of Darsey vs. Mumpford, 58 Ga. 120, differs from this, being between the parties to the execution themselves.</p>

<p>Corporations. Judgments. Pleadings. Parties. Judicial Cognizance. Before Judge Fain. Bartow Superior Court. January Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

New Trial. Evidence. Practice in Supreme Court. Before Judge Simmons. Sumter Superior Court. October Adjourned Term, 1885. David Limberger brought suit against J. Waxelbaum & Company, in Sumter county court, alleging that he had been employed at a salary of $1,000 per annum, and had been discharged after about four months’ service. The suit was brought for a month’s salary succeeding the time of discharge.

<p>Railroads. Damages. Negligence. Nonsuit. Before Judge Lumpkin. Taliaferro Superior Court. August Term, 1886.</p> <p>Reported in the decision.</p>

<p>Partnership. Amendment. Judgments. Parties. Before Judge Lumpkin. Hancock Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>Damages. Cattle. Stock-Law. Fences. Actions. Before Judge Willis. Talbot Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

Money Rule. Justice Courts. Before Judge Fain. Catoosa Superior Court. February Term, 1886. Under a mortgage fi. fa. in favor of Inman, a constable sold certain property and brought the fund before the court. It was claimed by Bridgman. Inman brought a rule against the constable, which was made absolute by the justice. Bridgman carried the case to the superior court by certiorari, which was subsequently dismissed and the judgment of the magistrate affirmed.

<p>A debtor, on being sued in a justice’s court, having acknowledged service and made in writing a general waiver of objections to the jurisdiction, and said to the magistrate that he might enter up judgment, that he had no plea to offer, and having after judgment frequently told the levying officer that he would pay the debt, and having after the levy rented to the officer space in his store-room to store the property, and having just before the sale assisted the officer in opening the way through which to carry it out of the store-room to the place of sale, and being present at the sale or.so near by that he could easily have objected, and in fact making no objection but allowing the sale to proceed and the purchaser to buy and pay his money, is estopped from recovering the property or its value from the purchaser, though the officer, as such, had no legal authority to sell.</p>

<p>Practice in Superior Court. Pleadings. Ejectment. Before Judge Fain. Dade Superior Court. March Term 1886.</p> <p>Reported in the decision.</p>

<p>1. Where a mortgagor described in his mortgage a certain stock of goods and located them in a certain house in a city named, he is estopped from denying the truth of these statements in his mortgage, and from setting up, as a defence to the foreclosure thereof, that there was no such stock of goods as that described.</p> <p>2. A mortgage is good as between the original parties, without a witness, and therefore the fact that it may have been attested by the attorney of the mortgagees, as a notary public, furnishes no ground of defence to the mortgagor.</p>

Minors. Parties. Pleadings. Amendment. Witness. Evidence. Practice in Supreme Court. New Trial. Before Judge Bower. Decatur Superior Court. May Term, 1886. Edgar A. Simpson and his wife, and said Edgar A. as nest friend of Annie Moore, a minor, filed their bill against B. F. Lasseter and others, alleging, in brief, as follows: In 1864, Augustus Moore died, leaving certain real and and personal property.

Criminal Law. Sales. Duress. Title. Before Judge Kibbee. Pulaski Superior Court. May Term, 1886. Love was indicted for larceny from the house. The property charged to have been stolen was certain corn be • longing to one Grace. The defendant was convicted. He moved for a new trial, which was refused, and he excepted. The other facts are reported in the decision.

<p>Criminal Law. Continuance. Attorney and Client. Witness. Jury and Jurors. Officers. Practice in Superior Court. Before Judge Harris. Heard Superior Court. September Adjourned Term, 1885.</p> <p>Reported in the decision.</p>

<p>Alimony. Husband and Wife. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886.</p> <p>Alice Clark filed her petition, addressed to the judge of Fulton superior court, alleging, in brief, as follows: She was married to the defendant on March 12th, 1883, and had made him a true and affectionate wife. He treated her cruelly, and finally sent her to a distant city for her health, but failed to provide her any means of support while there, and on her return, refused to live with her, and they are now living in a bona fide state of separation. He earns $8.00 to $9.00 a week, while, on account of bad health, she is unable to earn a living. The prayer was, that the judge would decree a sufficient amount to be paid to her for her maintenance, and $25.00 attorney’s fees in this litigation.</p> <p>A rule nisi was issued, returnable March 13. The defendant answered, setting up bad conduct on the part of the petitioner; that she had left of her own accord; that he had not refused to allow her to return; and that he had not mistreated her, but she preferred to run about in idleness and keep bad company.</p> <p>On the hearing, the evidence was conflicting. The presiding judge awarded the plaintiff $4.00 per month until further order, and $25.00 attorney’s fees. The defendant excepted.</p>

<p>Judgments. Parties. Set-off. Attorney and Client. Liens. Injunction. Practice in Superior Court. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>Landlord and Tenant. Liens. Debtor and Creditor. Money Rule. Before Judge Harris. Carroll Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>The city court of Carrollton having concurrent jurisdiction with the superior court in all cases where the amount sued for is over $100 and less than $300, it was error to dismiss a suit in that court on the ground of want of jurisdiction, where the aggregate sum sued for was between those amounts, though made up of debts no one of which amounted to $100.</p>

<p>Criminal Law. Witness. Practice in Superior Court. Jury and Jurors. Before Judge Carswell. Tattnall Superior Court. April Term, 1886.</p> <p>Reported, in the decision.</p>

<p>Promissory Notes. Laches. Equity. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

Charge of Court. Witness. Criminal Law. Accomplice. Alibi. Before Judge Fain. Gordon Superior Court. August Term, 1885. Sam. Simpson and Dick Hall were indicted for burglary. Simpson was placed on his trial and pleaded not guilty. The evidence for the State showed, in brief, as follows : The store of Reeves & Malone, in the town of Calhoun, was broken open.

Criminal Law. Burglary. Evidence. Confessions. Words and Phrases. Before Judge Richard H. Clark. Fulton Superior Court. September Term, 1885. George Daniels was indicted for burglary. It was charged that he had broken and entered the building of the Western and Atlantic Railroad Company, where valuable goods were stored, with intent to steal, and after so breaking and entering, did steal and carry away $2.60 worth of U. S. postage stamps.

Criminal Law. Charge of Court. Practice in Superior Court. Verdict. Before Judge Adams. Chatham Superior Court. December Term, 1885. In addition to the report contained in the decision, it is necessery to add only that the following were among the grounds of the motion for a new trial: (1)-(2) Because the verdict is contrary to law and evidence.

Criminal Law. Charge of Court. Before Judge Adams. Chatham Superior Court. December Term, 1885. Monses was indicted for keeping open a tippling-house on Sunday, and on his trial, was convicted.

<p>1. It is most manifest, from the evidence in this case, that the defendant was guilty of the offence of keeping open a tippling-house on the Sabbath day.</p> <p>2. Section 4710 of the code, which provides that the cases on the criminal docket shall be called in the order in which they stand on that docket, unless the defendant be in jail, or otherwise, in the sound discretion of the court, is directory and not mandatory. The exception, “or otherwise in the sound discretion of the court,” confers the right on the judge to use that discretion in taking up a case out of its order. Even if the judge had no right to call the docket and take up a case out of its order, before a party could be heard to object, he must show injury to himself, resulting from the act of the court.</p>

<p>Railroads. Bonds. Contracts. Parties. Equity. Before Judge Roney. Richmond Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>Since the act of October 15, 1885 (acts 1884-5,p. 96), a judgment against the garnishee is a condition precedent to a judgment on the bond given to dissolve the garnishment. Therefore where it appeared from the answer of the garnishee that none of the funds in his hands were subject to garnishment, it was error to enter up a judgment against the principal and sureties in the bond given to dissolve the garnishment.</p> <p>(а) That act took effect from and immediately after its passage, and applied to cases then pending as well as to those thereafter commenced, and to judgments already obtained as well as those obtained subsequently.</p> <p>(б) Where, six days after the approval of that act, a bond was given to dissolve the garnishment, conditioned to pay the debt, instead of as prescribed by that act, it was not a statutory bond, and judgment could not be rendered on it as prescribed by the statute. If it were a good common law bond, it would have to be enforced by suit, and would be subject to the defence that the effects in the hands of the garnishee were exempt from the debt sought to be enforced.</p> <p>(c) Directions given to the superior court,</p>

<p>The right to tax railroads and the property used by them in their business as common carriers, is reserved to the State, and no municipal corporation has any power to lay such a tax. Therefore where the ordinance of a city “ to fix the annual and specific taxes . . . on business occupations and professions for the year 1886, and to provide for the collection of the same,” levied a tax of $500 on all railroads, and executions were issued therefor, their enforcement was properly enjoined, it appearing that the complainant companies did no other business in the city except such as was authorized by their charters as carriers of freight and passengers.</p>

<p>In counties where liquor is allowed to be sold, the county commissioners (if there be any) are invested with discretion to grant or refuse licenses to retail; and if the'y refuse such a license, a mandamus will not be granted to compel them to issue it.</p>

<p>Administrators and Executors. Bonds. Trusts and Trustees. Actions. Before Judge Lumpkin. Taliaferro Superior Court. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>Auditors. Verdict. Practice in. Superior Court. Before Judge Bower. Dougherty Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. There was sufficient evidence to sustain the verdict, and there was no abuse of discretion in refusing to set it aside on the ground that it was contrary to law and evidence.</p> <p>2. Where it is sought to set aside a verdict on the ground that it was rendered in consequence of corrupt and wilful perjury, it should appear that the person charged with the perjury has been thereof duly convicted, and that the verdict could not have been obtained without the evidence of such perjured person. Neither of these conditions exists in this case.</p> <p>3. A witness on the trial having testified as to the point on which the newly discovered testimony bore, such newly discovered testimony, which was merely cumulative as to what such witness swore, or tended to impeach the statements of another witness, did not require a new trial.</p>

<p>Promissory Notes. Consideration. Notice. Before Judge Simmons. Dooly Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

Equity. Practice in Superior Court. Before Judge Estes. Hall Superior Court. August Term, 1886. On December 8, 1885, Mrs. Rebecca Williams filed her bill against Thomas A. Haynes et al., alleging, in brief, as follows: On January 6, 1867, she married Thomas Williams. Prior to that time, she was a widow, owning a lot of land. Williams took entire charge of her property and endeavored to change the ownership of it to himself and his two children by a former marriage.

Practice in Supreme Court. Practice in Superior Court. New Trial. Appeal. Jurisdiction. Justice Courts. Damages. Charge of Court. Before Judge Adamson. Carroll Superior Court. April Term, 1886.

<p>New Trial. Practice in Superior Court. Before Judge-Harris. Douglas Superior Court. January Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. Where one claiming title to land brought ejectment therefor against the tenant in possession, and by agreement of the defendant and counsel for the plaintiff a consent verdict was rendered, finding for the plaintiff four-sevenths of the property and for the defendant three-sevenths, this was conclusive on the parties and their privies; and in a subsequent action of ejectment, brought by one who claimed under a sheriff’s sale made under a judgment against the real claimant, under whom the tenant in possession had held, and a grantee under the plaintiff in the original ejectment suit, the parties could not trace their right to the premises further back than the judgment in ejectment; nor could they-rely on the title-involved in that issue, and which existed at the time the verdict was taken, to overturn it.</p> <p>2. Although the term of the tenant in possession may have ended before the rendition of the judgment, yet as he remained in possession during the trial and after the verdict was rendered, the presumption is that he remained there as tenant in common of the parties, and in subordination to the title of the person under whom he held. Nor could he attorn to the plaintiff in ejectment and become his tenant, without having first surrendered the possession to the person under whom he held.</p> <p>(а) There can be no adverse possession against a co-tenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession.</p> <p>(б) When the plaintiff in the original ejectment cause conveyed the entire land to another, who took possession thereunder, this operated as a disseisin and ouster of the other tenants in common, and would have barred their rights after the expiration of seven years from its execution, but that time had not elapsed before the bringing of this suit.</p> <p>3. Substantial improvements made on the land of a permanent character, and their value, might have been shown as a set-off against mesne profits, had the offer of such evidence been specific and made at the proper time; but where, after the close of the testimony and pending the argument, counsel for defendant offered in general terms to produce evidence to show such improvements, and that they were worth more than the mesne profits claimed, and stated that he had intended to make such proof, hut had unintentionally omitted to do so, there was no abuse of discretion in refusing to reopen the case and admit the testimony.</p> <p>4. Where, pending the introduction of testimony, a recess was taken by the court, and the jury were allowed to disperse, under instructions not to suffer any one to talk to them about the case; and where counsel for the plaintiff arose in open court and stated that he had learned that a juror named knew some facts about the case, and that he might desire to examine such juror as a witness after the recess, and asked the privilege of inquiring of him during the recess what he could testify; and where the court, knowing the juror to be one of the most respectable citizens of the place, directed, over the objection of defendant’s counsel, that counsel for plaintiff might converse with the- juror about that point and for that purpose only, stating that the other side could have the same privilege; and where it seems that the privilege so granted was not abused, this furnishes no ground for a new trial.</p> <p>5. The verdict was justified, if not required, by the evidence.</p>

<p>Husband and Wife. Principal and Agent. Evidence. Charge of Court. Before Judge Lawson. Morgan Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>The ordinary of Baldwin, county had jurisdiction, of a proceeding to remove obstructions from a private way existing by prescription across the commons of the city of Milledgeville, where the municipal authorities sold a portion, of the commons, and its vendees fenced in the property sold, and thereby obstructed the way. Such a proceeding was a contest between individuals, which required judicial determination, and was beyond the police powers of the municipality; nor did the claim of easement on the portion of the commons sold stand on the same basis as an obstruction of a street or square, so as to vest exclusive jurisdiction in the municipal authorities.</p>

<p>Where, in 1882, a husband and wife, being indebted to another, made to him a deed to secure the money, and he executed to them a bond, whereby he agreed to reconvey the land within three years if the money, together with $120 annually as rent, should be paid to him, the debtors retaining possession of the land; and where the uncontradicted testimony showed that the intention was to secure the debt with twelve per cent, interest thereon, and that the rent named in the contract was really twelve per cent, interest on the indebtedness, and was called rent to evade the usury laws, the title was tainted with usury and was void.</p>

<p>Where, on a proceeding to procession certain land, an adjoining landowner, between whose land and that of the applicant the disputed line lay, was given ten days’ written notice of the time of marking the line, but on the day appointed for the purpose, the line could not be traced, on account of the severity of the weather, and it was postponed to a future day, of which such adjoining owner had verbal notice, and on that day, the processioners proceeded to discharge their duty, and caused a plat of the survey to be made and delivered to the applicant, and a return to the superior court was made, this was a substantial compliance with §2385 of the code; and on a subsequent action of trespass guare clausum fregit by the applicant against the adjoining land-owner, involving the land processioned, the return of the processioners was admissible in evidence.</p>

<p>1. Where an election was held in a county to determine the question submitted to the voters for or against the sale of spirituous liquors, under the act of 1885, and at one precinct one of the three superintendents who managed the election was neither an ordinary, justice of the peace nor freeholder, the election at such precinct was illegal, and the ordinary acted properly in refusing to count the vote thereof.</p> <p>2. Where an election was held at a place three miles from that which had been established as an election precinct, it was illegal, and there was no error on the part of the ordinary in refusing to count the vote so cast.</p> <p>3. There is no provision made in the act of 1885, in cases of contest, for any costs, nor for requiring the payment thereof; nor is there any general law on the subject. There being no provision for awarding costs, it was error to award them against the county.</p> <p>4. Before the docket of the circuit to which these cases belonged was reached, it being brought to the attention of the court that in the case of Sanford, ord’y, vs. Walker et al., the clerk of the superior court had failed to mark the bill of exceptions filed in office or to certify the same, on motion, it was ordered that the bill of exceptions be returned to such clerk, with directions to endorse on the bill of exceptions the true date on which it was filed in his office, or, if it never was filed, to send his certificate to that effect in answer to the order of court, and if the bill of exceptions was filed in his office and was the true original, so to certify the same, or, in default thereof, to show cause, on the call of the case, for his failure to do so. The clerk returned the bill of exceptions with an entry of filing thereon and a certificate attached thereto. (Bep.)</p>

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

<p>Where land is sold, pa'i of the purchase money paid cash, and notes given for the balance, if these notes he transferred without indorsement or guaranty, the purchaser’s equity in the land becomes complete as against this vendor; the land is subject to levy and sale at the instance of any other creditor; and the purchaser of the notes who takes them by mere delivery is nothing more than an ordinary creditor, and is not entitled to be first paid from the proceeds of the land, under §3586 of the code.</p>

Criminal Law. Jury and Jurors. Assault and Battery. Pleadings. Before Judge Adams. Chatham Superior Court. June Term, 1886. Turner was indicted, together with one Studstill, for assault with intent to murder, charged to have been committed on William Sullivan. On the trial, Turner filed pleas in abatement, which are set out in the decision, and they were overruled.

<p>Wills. Estates. Remainders. Construction. Slaves. Administrators and Executors. Bona Fides. Betterments. Mesne Profits. Before Judge Adams. Chatham Superior Court. June Term, 1886.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Principal and Surety. Parent and Child. Code. Laws. Before Judge Harden. City Court of Savannah. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>New Trial. Practice in Superior Court. Before Judge Boynton. Monroe Superior Court. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Verdict. Practice in Superior Court. Practice in Supreme Court. Before Judge Stewart. Monroe Superior Court. August Term, 1885.</p> <p>Reported in the decision.</p>

<p>Where suit was brought against an administrator, a plea of plene administravit filed, and verdict rendered in favor of the plaintiff for a certain sum of money to be paid from the estate of the decedent, before the judgment creditor would be entitled to file a bill and recover from the distributees of the estate, who had received sufficient property from the administrator to have paid the debt, he should show that all of his remedies against the administrator and the sureties on his bond have been exhausted. In the absence of any proof that the administrator or his sureties were insolvent, or that his effects were beyond the jurisdiction of the court, the creditor would not be entitled to recover against the distributees. Nor was an entry of nulla bona on the execution issued on the judgment above stated sufficient for that purpose.</p>

<p>Landlord and Tenant. Trespass. Injunction. Before Judge Lumpkin. Hancock Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

Jury and Jurors. Before Judge Boynton. Rockdale Superior Court. February Adjourned Term, 1886. A petition was filed for the opening of a public road in Rockdale county, and Almand, through whose land it would run, filed a petition claiming damages. A jury was summoned to try that question.

Witness. Evidence. Debtor and Creditor. Set-off. Statute of Limitations. Before Judge Willis. Chattahoochee Superior.Court. March Term, 1886. B. F. Davis brought assumpsit against W. W. Shipp, as surviving partner of the firm of Shipp & McLester, based in part on a note and in part on an account.

<p>1. While an application for a homestead should state out of whose property it is to be granted, and where an application by a wife fails so to state, the homestead will be invalid as against creditors of the husband, yet where a husband and wife live together on the land sought to be set apart, which belonged to him, and he had notice that his wife had applied to have it set apart, and made no objection thereto, the grant of the homestead bound him and those claiming under him as heirs.</p> <p>2. Although the husband may have died, yet where he left surviving him his wife and several.children, one of whom was still a minor, the homestead estate still existed; and on the application of the wife on behalf of herself and her minor child, the judge of the superior court could grant an order for the sale of the property and reinvestment of the proceeds. A sale effected under such an order would convey to the purchaser the title, divested of any claims which the heirs at law of the husband might have upon the property.</p> <p>(a) Prior to the adoption of the constitution of 1877, this court held that there could be no alienation of the homestead property, even with the approval by the ordinary; but since its adoption, such power has been given, upon approval of the judge of the superior court.</p>

<p>Where, in 1863, a testator, by his will, bequeathed all his property to a woman in trust for the sole and separate use of her son, and provided that if he should die before he should arrive at twenty-one years of age, his mother should have the use of the property for life, and after her death, it should go to two friends of the testator, thus creating an executory trust continuing until the son attained his majority; and where, after the death of the testator, the surviving member of a firm, of which the testator had been a member, conveyed the property in dispute, and his grantee and those holding under him held adversely for more than seven years, prescription ran against the trustee, and she being barred, the minor son likewise was barred.</p>

<p>Waiver. Process. Service. Damages. Yendor and Purchaser. Before Judge Willis. Taylor Superior Court. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>Trusts and Trustees. Claim. Levy and Sale. Before Judge Willis. Chattahoochee Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>While a deed made to secure the payment of money is void if tainted with usury, yet if a deed was made, not as a security, but as an absolute sale, in payment of a debt, and if subsequently thereto the grantee agreed that he would reconvey the land to his grantor upon payment of a certain sum, which included the amount paid by him for the land with usurious interest thereon, this would not avoid the deed. The jury were warranted in finding that such were the facts in this case.</p>

<p>Interrogatories. Evidence. Witness. Negotiable Instruments. Laws. Comity. Corporations. Before Judge Ingram. City Court of Columbus. July Term, 1886.</p> <p>The First National Bank of Jeffersonville, Indiana, a corporation of that State, brought suit against Flournoy & Epping on an accepted draft, drawn by M. A. Sweeney & Brother on defendants, dated September 29, 1885, payable thirty days after sight, accepted October 14, made payable thirty days thereafter, and protested for non-payment November 16, 1885. This was endorsed by the drawers. The jury found for the plaintiff. The defendants made a motion for a new trial, and the following grounds of error, in substance, were set out therein :</p> <p>(1) Because the court refused to sustain a motion in writing to suppress a set of interrogatories on the grounds that it did not appear that the person who answered them was the same person who was mentioned in the commission, though having the same name; that no preamble to the answers appeared, nor did the place of execution. The answers were headed, “ Georgia, Muscogee county,” together with a statement of the case, and the court in which it was pending. Then followed the answers signed by the witness. After them came the heading, “ State of Indiana, Clark county,” followed by a certificate, signed by the commissioners, that the foregoing answers were answered, subscribed and sworn to before them on July 2, 1886.</p> <p>(2) Because the court rejected two letters from the drawers to the acceptors, dated July 11, 1885, offering certain terms as to the contract, a telegram from the drawers (without date) accepting terms offered by the acceptors, and a letter, dated August 3, 1885, from the drawers, relating to the contract, and stating that they were responsible for their work and guaranteed satisfaction in all cases.</p> <p>(3) Because the court rejected two telegrams from the drawers to the acceptors, dated September 3,1885, to the Steam Barge Company, stating shipment of machinery, and one stating that there had been an unavoidable detention.</p> <p>(1), (5) Because the court refused to allow counsel for defendants to ask one of them to detail a conversation between him and one of the drawers after the draft had gone to protest, or to allow the witness to be asked whether the member of the drawers’ firm in that conversation said that plaintiffs owned the draft; the avowed object of the question being to show that the drawers then owned the draft and claimed it, and offered to settle it, and did not claim that the draft was owned by the plaintiff or mention the plaintiff. The drawers were not sworn as witnesses in the case.-</p> <p>(6) Because the court rejected a letter from the drawers to the acceptors, dated December 5, 1885, denying items of a bill claimed against them, but offering to make a certain payment and shipment as a settlement of that claim. The avowed object of this testimony was to show that the drawers recognized the Steam Barge Company in the contract, and to show that they then owned the draft after it was due.</p> <p>(7) , (8) Because the court refused to permit one of the defendants to testify that the machinery was not delivered according to contract with the drawers, and was not according to the specifications agreed on; that money had been laid out and the interest lost on it, and delay in running boats, and consequent loss, had accrued from the delay of the drawers to comply with their contract; and because the court refused to admit evidence of damages to defendants or the barge company, in which they were interested, arising from the breach of contract by the drawers.</p> <p>(9) Because the court admitted the interrogatories of the president of the plaintiff, touching plaintiff’s connection with the draft, after having ruled out the above stated evidence, the defendants insisting that the testimony was not in rebuttal.</p> <p>(10) Because the court refused to charge as follows: (1) “ If it should appear from the evidence that plaintiff discounted the draft sued upon and gave Sweeney & Brother credit for the same on their books and upon the account of Sweeney & Brother with said plaintiff, and that, after said discount and the giving of credit to Sweeney & Brother, the said Sweeney & Brother continued to do business with said bank (plaintiff) and deposited enough money with said bank to pay all indebtedness of Sweeney & Brother due said bank, then said bank is not the legal owner of said draft sued on, and the draft would be the paper of Sweeney & Brother, and suit should be brought m the name of Sweeney & Brother, and not in the name of said bank.” (2) “I charge you that when a bank discounts a draft or note for a customer, and the party whose draft or note is so discounted has a deposit account at the bank, the bank has no lien on the deposit of such customer until the discounted draft or note shall have become due and payable; but when such paper shall have become due and payable, then I charge you that the bank did have such a lien on the deposit account of such customer to the extent of the amount of such discounted paper, and can hold enough of said customer’s funds in their hands to pay said draft.” (3) “I charge you further, that if you believe from the evidence that a draft was drawn, accepted and then discounted by the First National Bank of Jefferson-ville, Indiana, and that said draft is the foundation of this action, and that the discount was at a greater rate of interest than seven per cent, per annum, by the so doing, the title to said draft does not pass to the bank making the discount, and that the plaintiff cannot maintain an action on the same.”</p> <p>(11), (12) Because the verdict was contrary to law and evidence.</p>

County Matters. Roads and Bridges. Injunction. Before Judge Mershon. Charlton County. At Chambers, August 5, 1886. Crabtree and others, as citizens and tax-payers of Charlton county, filed their bill against Gibson, the ordinary, Paxton, the county treasurer, Mattox and Dowling, alleging, in the original and amended bill, in brief, as follows: Under recommendation of the grand jury, the ordinary advertised for bids for building a county bridge.

<p>1. Where a suit for damages was brought, and it was alleged that the defendant had cut the plaintiff with a knife, and on the trial, it appeared that a difference as to a certain indebtedness arose between the parties; that the plaintiff made a statement, and defendant responded, “It is not sothat plaintiff said it was so, and upon the defendant’s repeating that it was not so, the plaintiff struck him, and then seized him from behind, catching his arms and crushing him down upon the floor, and while m this condition, the defendant took out a knife and stabbed the plaintiff in the leg; it was error for the court to charge that the words so spoken by the defendant, whether in a mild, kindor’insulting manner, were not opprobrious words, and that the manner in which they were spoken would not make them so. It should be left to the jury to determine whether, under all facts and circumstances of the case, the words were opprobrious and abusive or not, and whether or not the battery on the part of the plaintiff upon the defendant was justifiable.</p> <p>2. The facts in this case required a verdict for the defendant, and a new trial will not be required by the erroneous charge of the court. Even if the words were opprobrious and justified the giving of the blow, the plaintiff followed up his battery with another without justification; and if it were necessary to the escape of the defendant for him to use his knife, he was justifiable in so doing.</p>

<p>1. Where the defendant in.a bill in equity filed an answer in the nature of a cross-bill, praying relief against the complainants, the latter could not dismiss the bill so as to defeat any rights which the defendant might have under the cross-bill.</p> <p>2. Where suit was brought on a promissory note, and the presiding judge granted an order or judgment that “there being no issuable defence filed, ordered that the plaintiffs have leave to enter up judgment against the defendant,” signed by the presiding judge, this, construed with the pleadings in the case, was, in effect, a judgment for the plaintiff for the amount sued for in the declaration, and was sufficient.</p> <p>(а) Where such an order authorized the plaintiff’s attorney, who was an officer of court, to enter the judgment, and it was so entered by him, this was, in effect, the action of the court itself, and was a sufficient compliance with the requirement of the constitution of 1868, art. 5, sec. 3, par. 3, which provides that the court shall render judgment without the verdict of a jury in all cases founded on contract, where no issuable defence is filed on oath.</p> <p>(b) ’Where such a judgment was rendered in 1869, and an execution issued thereon was levied on certain property, to which certain parties interposed a claim, but subsequently withdrew it and filed a bill, but in neither case attacked the validity of the judgment, . but subsequently sought to dismiss the bill, and upon the trial of a cross-bill filed by the plaintiff in ft. fa., which was heard in 1886, moved to dismiss the levy on .the ground that the judgment was invalid, it was too late for them to do so, and they were estopped therefrom.</p> <p>3. It appearing that the property levied on and claimed had been sold and the money appropriated by the claimants, and that it was more than sufficient to pay the claim of the plaintiff in fi. fa,., a decree rendered in his favor against the claimants for the amount due him was proper.</p>

<p>Railroads. Damages. Amendment. Statute of Limitations. Before Judge Bower. Dougherty Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>A municipal corporation is not liable to an action for damages resulting from the negligence or inefficiency of its fire department, or the insufficiency of the supply of water, although it may levy an annual water tax, and may have in its employment officers whose duty it is to keep the fire-plugs in good order and the mains filled with water, and although there may have been similar negligence by the firemen on previous occasions.</p> <p>(a) "Wherever the negligence or non-feasance of the ordinary agents and servants of the corporation, as distinguished from that of its officers, causes the injury, or when the loss results from acts merely ministerial, as distinguished from such as are legislative and governmental in character, exercised for the sole and immediate benefit of the public, or where the corporation is exercising, as a corporation, its private franchise powers and privileges, which belong to it for its immediate corporate benefit, or is dealing with property held by it for its corporate advantage, gain or emolument, though inuring ultimately to the benefit of the general public; then, and only then, it becomes liable for the negligent exercise of such powers, precisely as are individuals.</p>

Parties. Amendment. Trusts and Trustees. Ejectment. Title. Notice. Husband and Wife. Before Judge Harris. Fayette Superior Court. March Term, 1886. To the report contained in- the decision, it is necessary to add only the following: Both plaintiffs and defendant claimed under M. M. Tidwell. Plaintiffs, through their guardian, filed a bill, or petition in the nature of a bill, against M. M. Tidwell, as executor of Wm. M. Hill, for an account and settlement.

Interest and Usury. Contracts. Before Judge Cars-well. Burke Superior Court. May Term, 1886.

Criminal Law. Riot. Before Judge Harris. Coweta Superior Court. March Term, 1886. Clark Fisher and several others were indicted for riot. Fisher pleaded not guilty. The evidence for the State showed, in brief, the following facts: A policeman arrested one Beadles; whereupon a large crowd of negroes gathered about the officer and the prisoner, declaring that the latter should not be imprisoned. Other police arrived, and the prisoner was safely conducted to jail.

<p>Jury and Jurors. Practice in Superior Court. Master and Servant. Damages. Before Judge Eve. City Court of Richmond County. March Term, 1886.</p> <p>Reported in the decision.</p>

Judgments. Res Adjudicata. Ejectment. Before Judge Bower. Worth Superior Court. April Term, 1886. To the action of ejectment brought by Linton against Harris, the defendant pleaded the former recovery, attaching to his plea the record of the case reported in 70 Ga. 831. The case was submitted to the presiding judge without a jury. He sustained the plea, and rendered a judgment for the defendant; and the plaintiff excepted.

<p>One creditor of an insolvent debtor cannot recover from another usury which has been paid to the latter by the debtor, either in money or in property.</p> <p>(a) This case differs from that of Pope vs. Solomons et al., 36 Ga. 541, where the usury had not been paid, but the money of an absconding debtor was in the hands of a trustee to be paid.</p>

<p>1. If a street in a city be occupied by the side-tracks of a railroad company and its cars and engines, without authority of law, it is a public nuisance. If the owner of adjoining-property suffer special damage therefrom, in which the public do not participate, this entitles her to maintain an action. And if the injury, from its nature, is not susceptible of being adequately compensated by damages at law, or’is such that, from its continuance, a permanent mischief must occasion a constantly recurring grievance, .which cannot be otherwise prevented, equity will enjoin it.</p> <p>2. Under the act incorporating the city of Columbus, as construed by this court, the fee in the streets is in the State and the use in the public; and the municipal authorities have no power to authorize any obstructions to be placed in the streets, legislative action being necessary for that purpose. The act of 1857 authorized the connection of the Muscogee Railroad with the Opelika Branch Railroad and the Mobile and Girard Railroad at Columbus, by extending their roads through the city commons and streets, with such side-tracks, turn-outs and sheds as might be necessary for the convenience of freights and passengers, provided they first obtained the consent of the people of the city, upon such terms as might be agreed on and should be satisfactory to them. But where the municipal authorities, by resolution, proposed to the people to vote “connection” or “no connection,” only submitting the question of allowing a connection by a single track, and the vote was in favor of “connection,” this action, without more, did not authorize the laying of side-tracks in the street. Nor could the mayor and council, without further authority, grant such power.</p>

<p>1. Although where a husband and wife were jointly in possession of realty, the presumption would be that the possession was that of the husband, yet where, in a suit by the wife for damages to the realty resulting from the grading of a street, the husband testified that the joint possession was in right of the wife, and where a deed to the wife was put in evidence, this was sufficient evidence of ownership by the wife to warrant a recovery by her, and a non-suit was properly refused. If the deed was introduced at any stage of the trial before verdict, a new trial will not be granted because of a refusal to grant a nonsuit.</p> <p>2. There was no error in admitting evidence in respect to damage to flooring, papering and the brick walls of the house, because such damage was to the freehold. The possession of a married woman under a deed to her was sufficient title to authorize a recovery by her for such injury to the realty.</p> <p>3. Where suit was brought against a municipal corporation for damages resulting from the grading of a street, or the construction or change of a sewer, or other like improvements necessary to the city’s advancement and prosperity, if the work was done with reasonable and proper care and skill, any increase of value arising to the property from the grading could be set up to diminish the damages, or defeat a recovery if equal to the damage. But if the work was negligently, carelessly and unskillfully done, and this caused the damage, the rule announced would not apply, and increase of value arising from grading the street could not be set up to diminish or defeat the recovery of damages resulting from such negligence.</p> <p>(a) Prior to the constitution of 1877, a municipal corporation was not liable for damages resulting from the legislative act or exercise of judgment in ordering a street to be graded or a sewer therein to be constructed; but if the ministerial work of constructing such improvement was negligently done, the city was liable. Under the constitution of 1877, the municipal corporation is made liable for damages resulting from such work, however skillfully done. It is against such damages, where the work is carefully done, that increase of value by reason of the work may be set up. For damages from careless, unskillful and negligent ministerial work, such set-off never was allowed.</p> <p>(b) There being evidence tending to show that a part of the damages resulted from the change of grade of the street, as to damages resulting from that cause increase of value arising therefrom could be shown, and evidence for that purpose was admissible.</p> <p>4. Where an ordinance of a municipal corporation prohibited any connection with its main sewers from any lot without its permission and except under its supervision, and imposed a penalty for so doing, if a connection was made, the presumption of innocence of crime would raise an inference that- permission was obtained and the law complied with. But this presumption was subject to be rebutted, and was so rebutted in this case.</p> <p>(a) If the city recognized this connecting sewer by having it worked upon by those engaged in working on its own sewers, or by other acts of recognition of it as under the care of the city, on clear proof thereof, it might be estopped from enforcing the ordinance, and the property owner might be enabled to recover for damages connected with such sewer, in spite of the trespass of herself or ancestors in the title upon the city’s sewers without leave; but the fact that a contractor to lay sidewalks merely moved the pavement and put it back, would hardly estop the city; and there was no evidence to work such result in this case.</p>

<p>Practice in Supreme Court. Streets and Sidewalks. Damages. Charge of Court. Evidence. Practice in Superior Court. Notice. Before Judge Van Epps. City-Court of Atlanta. March Term, 1886.</p> <p>Patrick H. Enright brought suit against the City of Atlanta to recover damages for injuries sustained by falling into a hole or excavation in a sidewalk in one of its streets. The evidence for the plaintiff tended to show that he was walking along the street at night with and slightly in advance of some comrades; that he came to what appeared to be a rough place in the sidewalk and crossed to where the opposite sidewalk ought to have been, and there fell into the hole, causing the injury. The testimony of one of the party accompanying him showed that such witness knew that the sidewalk was dangerous, but he did not think of the rapid gait at which the plaintiff was walking, or he would have called to him. There was other testimony as to the nature and extent of the injury. The plaintiff and his witnesses admitted that he had frequently been drunk both before and since the injury, and had had a number of cases in the recorder’s court on account of drunkenness, but it was denied that he was drunk on the night of the injury.</p> <p>The testimony for the defendant tended to show that the plaintiff was drinking on the evening of the injury, and he had been known to be drunk several times previously; and a physician testified that he examined the plaintiff and found no evidence of any injury resulting from the fall; that from the plaintiff’s account of the injury, he thought it might, with proper treatment, have been cured in a month or six weeks; and that the fall could not have produced certain symptoms testified to, but they might have arisen from excessive use of liquor, and a man who had been drinking would be more susceptible to the shock than one who had not.</p> <p>The jury found for the defendant. The plaintiff moved for a new trial on the following grounds:</p> <p>(1)-(4) Because the verdict was contrary to law, evidence, justice and the charge of the court.</p> <p>(5) Because the court erred in charging the jury as follows: “If the jury believe from the evidence that the corporate authorities of the city of Atlanta did not exercise all reasonable care and supervision over that portion of the street and sidewalk where the injury is alleged to have occurred to keep it in good repair and in safe condition for travel, and by that means allowed it to become defective and unsafe; and if the jury further believe from the evidence that the plaintiff, in attempting to walk along that portion of the sidewalk, by reason of such defect, was injured, and has sustained damage thereby, as charged in this declaration, and that he was at the time exercising reasonable care and caution to avoid such injury, the defendant is liable, and the jury should find for the plaintiff.”</p> <p>(6) Because the court charged as follows : “ If the plaintiff was not in the use of ordinary care and diligence while walking along said street in the night-time, to avoid injury, he cannot recover.”</p> <p>(7) Because the court charged as follows : “ If the injury of which the plaintiff complains was the result of accident, and was not occasioned- either by his own negligence or that of defendant, as explained in these instructions, he could not recover.”</p> <p>(8) Because the court charged as follows : “The jury are further instructed that reasonable care and diligence required of the plaintiff, as mentioned in these instructions, means that degree of care and caution which might be expected reasonably from an ordinarily prudent person under the circumstances surrounding the plaintiff at the time of the alleged injury. Ordinary diligence involves a reasonable use of all the resources, mental and physical, which are at the command of a traveler along a street or sidewalk. Ordinary diligence on the part of the city is that care which every prudent municipality takes to put its streets in safe order and keep them so. On the part of the passenger of average powers and capacity, it is that care which every prudent person takes to pass over them without sustaining any injury or inflicting any.”</p> <p>(9) Because the court charged as follows: “ If you believe from the evidence that the plaintiff was intoxicated, or so far under the influence of intoxicants as to affect his conduct at the time he was injured, and that for that reason, or any other, he failed to exercise ordinary care and diligence and was injured as a result of his own negligence, he could not recover. Mere proof, however, of a habit of using liquor, or of instances of its use by plaintiff to excess, even if on the very day of the alleged injury, would not bar his recovery, if the jury believe that its effects did not extend to the time he was injured, or that he was, notwithstanding, in the exercise of ordinary care and diligence.”</p> <p>(10) Because the court charged as follows : “Notwithstanding the jury should find from the evidence that the street, at the time of the alleged injury, was defective, yet this fact alone would not he sufficient evidence of negligence on the part of the defendant. In order to charge the defendant with negligence, it must further appear that such defect was actually known to the city through some of its officers, servants or agents, or that the defect had existed for such a length of time prior to the alleged injury that the city, if exercising ordinary diligence, would have known of the defect or ought to have discovered the fact.”</p> <p>(11) Because the court charged as follows: “If the jury believe from the evidence that the plaintiff was injured by reason of the defendant’s negligently failing to keep its streets and sidewalks in reasonably good' repair, or negligently allowing them to remain in an unsafe condition, as explained in these instructions, and without fault on his part, and that he has sustained damage, then the jury have a right to find for him such an amount of damages as the jury believe from the evidence will compensate him for the actual injuries sustained.”</p> <p>(12) Because the court charged as follows: “If the jury should find that the plaintiff was not negligent, and that the city was negligent, and that the- plaintiff was injured in the manner alleged in the declaration, and that the city is liable therefor, the jury should only award such damages as would, in common reason and -fairness, compensate him for his injuries sustained.”</p> <p>(13) Because the court charged as follows: “So far as such injuries are capable of being accurately estimated in money, that sum, and that sum only, should be allowed, and you would look to the evidence to ascertain it. Such would be a claim for expenses of medical treatment, of time lost, of clothes injured, or other special injury which is shown in the evidence.”</p> <p>(14) Because the court charged as follows: “ So far as cuts, wounds or bruises or internal injuries are concerned, and the pain and suffering resulting therefrom, if any such be shown, the court instructs the jury that they should carefully bear in mind, in estimating the plaintiff’s damages, if they should find any damages, that the verdict should truthfully and impartially express only the amount which the jury believe is the actual amount of injury sustained by him. The pain and suffering which the plaintiff is shown to have sustained, if any, are not of a nature susceptible of exact mathematical computation as to injuries of this sort; no measure of damages can be prescribed, except the enlightened conscience of impartial jurors, acting cautiously, taking the evidence and all the evidence as their guide, and fixing fairly and impartially between the parties such a sum as an award of damages, if any, as the jury may think proper and right in view of all the facts and circumstances proved on the trial.”</p> <p>(15) Because the court admitted, over objection, testimony to prove that the plaintiff had been intoxicated on several occasions prior to the date of the injury, from a witness who knew nothing of his condition at that time.</p> <p>(16) Because the court erred in allowing the city attorney, when cross-examining the plaintiff, and when addressing him, to call him “ Pat.” This manner was objected to by the plaintiff’s counsel as tending to bring the plaintiff into contempt with the jury, but the court refused to interfere with the city attorney, and allowed him to continue this manner of examination.”</p>

<p>Practice in Supreme Court. Practice in Superior Court. Certiorari. Levy and Sale. Officers. Before Judge Harris. Fayette Superior Court. March Term, 1886.</p> <p>A. J. McBride made an affidavit to obtain' a distress warrant against Thomas J. Simpson. The writ was issued December 20, 1882, and levied on certain personal property. The defendant interposed a counter-affidavit. The justice rendered a judgment in favor of plaintiff. The defendant appealed to a jury in that court, and they found a verdict for the plaintiff. The defendant then carried the case to the superior court by certiorari. He contended that he owed the plaintiff nothing, and that he rented the land not from the plaintiff, but from B. F. McBride. On this point the evidence was conflicting. Defendant complained that he had served a notice on A. J. McBride, requiring him to produce in court a deed to the land made by the father of A. J. to B. F. McBride; and that the plaintiff admitted that he had the deed, but the justice refused to compel its production. The justice, in his amended answer, stated that he could not recall the entire matter to mind at that distance of time; that he did not remember the exact testimony sought to be introduced, but it was something in regard to the title to the land and was ruled out by the court.</p> <p>Another ground of error was that the magistrate refused to grant a continuance. In his answer, the justice stated that he remembered that the court was under the impression that both parties had announced ready, and the case had proceeded to trial, and that after several hours, counsel for defendant moved for a continuance, alleging that he had not announced ready; hut as the court was under a different impression, he overruled the motion.</p> <p>Another error assigned was that the court erred in admitting in evidence the distress warrant and levy, over objection on the ground that the constable could not write and had made his mark, but that the entry and signature so made were not attested. The justice stated in his answer that the entry of levy was made and properly signed by the bailiff, who turned over the papers to the court; that it was true the bailiff could not write, but the objection appeared to him as simply an effort for a continuance, and was overruled.</p> <p>In 1884, exception was taken to the answer of the magistrate, and he filed an amended answer, stating that it was a correct answer to the exceptions, so far as he could recollect them at that date. In 1886, when the case was called for trial, it was moved that further answer be required from the magistrate. This was refused.</p>

Res Adjudicata. Equity. Injunction. Parties. Before Judge Hutchins. Gwinnett Superior Court. September Term, 1886. Held: for injunction against dispossession, and for general relief. It was alleged that several of the new parties brought into the litigation by the bill were insolvent.

Administrators and Executors. Sales. Intruders. Before Judge Willis. Chattahoochee Superior Court. March Term, 1886. John Stephens proceeded to dispossess W. W. Bagley of certain land as an intruder thereon. The defendant filed a counter-affidavit. On the trial, the testimony showed, in brief, as follows: The executors of William Bagley sold certain lands, including that in dispute, at public outcry on the first Tuesday in November, 1885. The defendant bid in this land.

<p>1. Where suit was brought against a railroad company for damages resulting from the stopping up of a sewer-pipe which carried off water from a “dry well’’ on the plaintiff’s premises and discharged it on the defendant’s land, but the declaration failed to show any reason or ground for the exercise of the right to subject the defendant’s land to such use, or why the defendant was not entitled to the free and unobstructed enjoyment of its land, or that the plaintiff had an easement either by prescription or by grant from any former proprietor, of which the defendant had notice, no cause of action was set out in the declaration, and it was demurrable.</p> <p>2. Where the original declaration set forth no cause of action, there was nothing to amend by, and it was error to allow an amendment-alleging a right of easement.</p> <p>(a) The court having erred in allowing the amendment, but having thereafter dismissed the suit, the latter ruling will be sustained.</p>

<p>Verdict. Title. Ejectment. Charge of Court. Practice in Supreme Court. Before Judge Estes. Lumpkin Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>Principal and Agent. Promissory Notes. Indorsement. Contracts. Before Judge Hutchins. Clarke Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

Criminal Law. Assault and Battery. Riot. Before Judge Boynton. Spalding Superior Court. February Term, 1886. Alex, and Chas. Perkims were indicted for riot.

<p>The power conferred by the constitution upon the courts to grant charters to corporations is legislative and not judicial in its character; and there is no provision of law authorizing any one to appear and object to the grant of corporate powers by the courts, nor is there any provision for a review by this court, by writ of error or otherwise, of the action of the superior court in granting corporate powers to private companies.</p>

<p>Damages. Practice in Superior Court. Evidence. Torts, Practice in Supreme Court. Before Judge Branham. Polk Superior Court. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>Justices and Justice Courts. New Trial. Certiorari. Before Judge Willis. Muscogee Superior Court. November Term, 1885.</p> <p>Reported in the decision.</p>

<p>Where a suit against a married woman, based on a promissory note, was defended by her on the ground that she signed the note as security for her husband and gave a mortgage as additional security for the husband’s debt; that the husband was not her agent in the purchase of the goods for which the note was given; that the plaintiffs never sold the goods to her or to her husband as her agent; and that he did not conduct the business in which the goods were employed for her benefit or on her account; it was incumbent on her to establish her defence. The facts in this case sustained the defence, and did not warrant a verdict against the wife.</p> <p>(a) Where the note sued on was signed by both the husband and wife, and the word “security” appeared after her signature and before his, this was a circumstance, with the other facts in the case, sufficient to put the plaintiffs upon inquiry, which might have led to a knowledge of the truth of the transaction, and might have disclosed the relation in which she stood to the paper.</p>

<p>While a principal is responsible for the fraud of his agent, acting within the scope of his authority, about the business with which he is entrusted, yet the principal is not liable for. the fraud or deceit of such agent arising out of transactions beyond the scope of his agency. Therefore where the road-master of a railroad was authorized to contract for the entire job of building a depot to completion, including the painting of it, and did contract with a contractor for the entire work, the company would be bound thereby; but where the road-master made representations to a subcontractor, who painted the building, to the effect that the subcontractor need not record his lien; that the company owed the contractor largely more than the latter owed the subcontractor; that it was the intention of the road-master not to settle with the contractor until all debts for work done on the building were brought in and included in the settlement; that the company had other work for the contractor to do; and that the subcontractor was certain of his money; thereby causing the subcontractor to fail to record his lien; and where the road-master immediately thereafter settled with the main contractor and paid him in full, the company was not liable in an action of deceit; and on a suit therefor against the company, a nonsuit was properly awarded.</p>

Partnership. Promissory Notes. Before Judge Hutchins. Walton Superior Court. February Term, 1886. George C. Selman, as bearer, brought suit against Brown, Nunnally & Company on two promissory notes, signed in the firm name of the defendants, and payable to Malsby & Avery or bearer.

<p>1. Where it appeared that the cattle of the defendant were running at large upon the prosecutor’s premises, and were taken up and impounded under the stock law, which was in force in that county; that, with several others, he went to the premises of the prosecutor and endeavored to release the cattle from the pound; that the wife of the prosecutor demanded the payment of damages done by the cattle, and resisted the defendant’s attempt to release them and an altercation ensued, in the course of which the defendant said, “Go to hell, God damn you,” such facts warranted a verdict of guilty of using opprobrious words or abusive language tending to cause a breach of the peace, without provocation.</p> <p>2. General objections to testimony, without stating the grounds therefor, will be disregarded by this court.</p>

<p>New Trial. Practice in Superior Court. Interest and Usury. Set-off. Before Judge Mershon. Wayne Superior Court. October Adjourned Term, 1885.</p> <p>Reported in the decision.</p>

<p>New Trial. Before Judge Prior. City Court of Hall County. April Term, 1886.</p> <p>Report unnecessary.</p>

<p>Where a bill was filed under the act of September 28, 1881, alleging that the defendant corporation had failed to pay a promissory note made by it, and payment of which had been demanded after maturity, and that the corporation was insolvent and proposed to contract more debts by issuing first mortgage bonds; and where these allegations were denied by the answer, and issue was made as to the validity and justice of the debt, and as to the insolvency of the corporation, and in respect to these questions the evidence was conflicting; there was no abuse of discretion in granting an injunction and appointing a receiver, especially where the representative and president of the company was so appointed.</p>

<p>Criminal Law. Verdict. Evidence. New Trial. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>Interest and Usury. Promissory Notes. Before Judge Fain. Bartow Superior Court. July Term, 1886.</p> <p>Reported in the decision.</p>

<p>J. was arrested for disorderly conduct, and in the municipal court, before which he was arraigned, was fined, and paid his fine. He was represented on this trial by one W., an attorney at law. He was required by the mayor to find bail for his appearance before the superior court for carrying concealed weapons. In default of bail, the mayor instructed the marshal to allow J. to turn over to him $25. This was done by W., the attorney. The money was paid over to the treasurer of the city by the marshal, and subsequently the treasurer paid it to W., the attorney of J. J., having been informed of the matter, gave an order to a creditor of his on W. for the money, which the latter failed and refused to comply With. J. then brought suit against the city:</p> <p>Held that, under the facts, the city was authorized to pay the money to W., as the attorney of J., and such payment was, a full discharge of its liability.</p>

<p>"Where, in an action of ejectment, a joint demise is laid in the declaration, evidence of a joint interest in the plaintiff’s lessors must he given, and without it, there can he no recovery on that demise; and the same rule applies to the statutory form of action when used as a suhstitue for the action of ejectment.</p> <p>(a) A judgment of nonsuit would haveheen the proper disposition of this case.</p> <p>(&) Directions given.</p>

<p>Judgment affirmed.</p>

<p>1. The act of 25th December, 1883, enacting “ that if any person shall sell, lease, rent or otherwise convey to another any lot or parcel of land or the timber thereon, the title of which is forged or the grant or any deed or conveyance thereof is forged, knowing the same to be'forged, . . . shall be guilty of a felony,” etc., is very broad, and the strict pleading in forgery is not required by this statute, but the indictment is sufficient if it describes substantially the title alleged to be forged; and a demurrer that it is not set out in hseo verba, is not good; nor is a demurrer that it does not allege that the acts of defendant were done with intent to defraud or injure any one, the statute not requiring such allegation.</p> <p>2. Objection to the admission in evidence of the plat and grant, and the deeds “ on the ground that they were not set out or described in the indictment,” is not good so far as the objection rests on their not being set out, and so far as they are alleged as not described ; it is not good because it is not specified which is not described, or wherein any or all are not described.</p> <p>3. The charge, “that if a party has a forged instrument and passes it and utters it, the presumption of law is that he does it with a knowledge of the fact that it is a forgery; still, gentlemen, that is a presumption subject to be rebutted by proof or the facts and circumstances of the case, and while it is a presumption on the one hand, it would be subject to be rebutted by the evidence or the facts and circumstances of the case; after all, it would be for you to say what the truth of the matter istaken all together and read in the light of the entire charge and all the facts of the case, if too broad in a single item, is not such error as requires a new trial, especially as the part of it objected to is not specified in the ground of the motion on which alone error is assigned.</p> <p>4. Nor, read with the entire charge and in the light of the fact that deeds from 1836 up to a recent date all purported to have been attested by justices of the peace in Bibb county, was it error to charge as follows: “I will state that when the State puts before you a certificate from the executive department, if they have done so, showing who were in office in the county of Bibb when the, deeds purported to have been made at the date of these several deeds, showing no such officers or j ustices of the peace were in commission or in office in that county at the time of the date of the deeds, if it does show that, that raises a prima facie presumption that the deeds are forgeries. That makes out such a case as would cast the burden on the other side, so far as the question of forgery is concerned.”</p> <p>5. The evidence is overwhelming against the plaintiff in error, if it does not imperatively demand the verdict.</p> <p>(Head-notes by the court.)</p>

<p>Whilst conviction cannot be sustained on the evidence of an accomplice alone, yet slight evidence that the crime was committed by the defendants, identifying them with it, will corroborate his testimony and warrant the finding.</p> <p>(Head-note by the court.)</p>

<p>On a petition for partition of real estate in this State, the statute provides that “if any of the parties reside without the limits of this State, the court may order service by publication as in its judgment is right in each case.” In the case at bar, the service upon plaintiff in error, a citizen of North Carolina, was ample, by publication and in accordance with the statute, in a former partition of the lands to which he was a party:</p> <p>Held, that the service binds the plaintiff in error and that the plea of res adjudicata is a bar to a suit by him petitioning for a new partition. Act 1767, Cobb’s Dig. p. 582; Code, §3998.</p> <p>(Head-note by the court.)</p>

<p>Practice in Supreme Court. Parties. Service. Master in Chancery. Auditors. Evidence. Bill of Exceptions. Amendment. Contempt. Administrators and Executors. Before Judge Roney. Richmond Superior Court. October Term, 1886.</p> <p>On November 1, 1880, William H. Harison, as executor of his deceased wife, Mary G. Harison (formerly Jones), filed a bill, in Richmond superior court, against James S. "Warner, trustee, a non-resident, who was represented by attorney, and Frances L. and Anna M. Harison, individually and as executrixes, non-residents, represented by resident attorneys, William A. Walton and Joseph S. Bean, trustees, of said county, Robert H. Gardiner, a nonresident, Wallace S. Jones and Noble Jones, as executors of George Noble Jones, deceased, non-residents, the Mechanics’, and Traders’ Bank, of Tennessee, the Bank of Rome and numerous others of the classes of creditors stated hereafter. The bill and exhibits made, in brief, the following case:</p> <p>The complainant’s wife and her sister, Sarah Fenwick Jones (afterwards Gardiner), were tenants in common of a large amount of real estate in the city of Augusta, which they had inherited. Sarah F. intermarried with R. H. Gardiner sometime in 1842, and a marriage settlement was entered into between them, whereby all interest of Sarah F. was conveyed to trustees therein named, for the separate use of Sarah F. during the joint lives of herself and her husband, and to the use of the survivor of them for life, with remainder to the heirs by blood of said Sarah F. Afterwards, on January 8,1852, the complainant and his wife were married, and a marriage settlement entered into between them, whereby the interest of the wife in the realty was conveyed to trustees for her separate use, containing a power to her of disposing of her separate property by deed, will or other writing, which power was exercised as hereinafter stated.. After complainant’s marriage, a division of the realty was had between the tenants in common. In 1863, the trustees of Sarah F. Gardiner, under power contained in her marriage settlement, sold to the trustees of complainant and his wife, the entire interest (with an unimportant exception), held by them under such niarriage settlement, the consideration of the sale being two bonds for $40,000 each, and an agreement in writing, signed by Mrs. Harison’s trustees and by complainant, whereby they granted to R. H. Gardiner and wife, out of the trust estate possessed by them, an annuity of $5,000, payable semi-annually, during the joint lives of Gardiner and wife and the life of the survivor, Mrs. Harison giving, granting, limiting, ordering and disposing of said annuity out of her separate and distinct estate. The bonds, for $40,000 each, were signed in the same way and payable to the trustees of R. H. Gardiner and wife immediately after the death of the survivor. The. object of executing these papers was, first, to secure an annuity to Gardiner and wife, and second, to create a debt from the trust estate of Mrs. Harison, for the benefit of those entitled to the Gardiner estate in remainder, after the termination of the life estate. The annuity was regularly paid during the joint lives of Gardiner and wife, and since her death has been paid to him, he being still in life. Mrs. Gardiner died in 1869, leaving as her only blood heirs, her sister (the wife of complainant), and her brother, George Noble Jones. The complainant’s wife died October 21, 1870, and Geo. Noble Jones died in 1878.</p> <p>Complainant is advised that one of the two $40,000 bonds, payable on the death of Gardiner, has become, by virtue of the marriage settlement of Mrs. Gardiner, the property of the estate of complainant’s wife, and the other the property of the estate of Geo. Noble Jones, and that the bond falling to Mrs. Harison’s estate has thereby become extinguished, but the other is a valid and subsisting claim against the estate, payable on the death of Gardiner, and that in the meantime, the annuity of $5,000 is a subsisting claim against the estate, and that these debts must be provided for in preference to the claim of any legatee or of any grantee of such legatee. Upon the death of Mrs. Harison, she left a will, which is set out in exhibit B, the legatees under which are the Protestant Episcopal Church of the Diocese of Georgia, or those whom it claims to represent, the complainant and his three sons, ¥m. H. Harison, jr., R. M. Harison and Noble W. Harison. The complainant, supposing the estate in his hands was ample to meet the debts due to Gardiner and the executors of Jones, above stated, and being desirous of providing for his son, Wm. H. jr., who had become of age, executed to him deeds conveying certain parts of complainant’s wife’s estate, in value about what his share would be upon a division of such estate after making allowance for prior claims thereon, with the exception of the annuity to Gardiner. In view of the liability of the estate to pay this annuity, it was understood between the complainant and his son that the rents of the property so transferred should be collected by the complainant and used in the payment of the liability of the estate; and this hitherto has been done. While these conveyances to his son purport to be for a valuable consideration, no consideration, in fact, passed, but the property was turned over to the son as an advance upon his claim as one of the residuary legatees, with the consideration above stated. A large amount of the estate left by the complainant’s wife consisted of vacant lots in the city of Augusta, which yield no income and upon which the taxes amount to between three and four thousand dollars annually, and owing to the shrinkage of rents of the estate, the whole income is not quite sufficient to pay the necessary expenses and the annuity of Gardiner; and if the property conveyed to complainant’s son be withdrawn from the estate, the income will be wholly insufficient to meet the charges upon the property so conveyed.</p> <p>After making the conveyances to his son, the son mortgaged the same property to Wm. A. Walton and Jos. S. Bean, trustees, to secure the payment of $30,000 worth of bonds issued by him, the principal of which was to fall due on default of the payment of interest therein specified. Default has been so made, and the trustees threaten to foreclose the mortgage and sell the property. Wm. H. Harison, jr., mortgaged' the property in one of the conveyances to him from complainant to James C. Warner, as trustee, to secure such notes of the firm of Hazelton & Harison as Wm. H., jr., might thereafter endorse. Complainant is informed that Wm. H., jr., endorsed notes of the firm to the extent of about $18,000, and that all the notes have been, protested for non-payment, and Warner is advertising the property for sale under the power conferred on him in the mortgage. The interest which the Episcopal church takes under the bequest to it in the will of complainant’s wife is. a matter of dispute and is the subject of pending litigation. Numerous creditors of the firm of Hazelton & Harison, of which Wm. H., sr., was a member, and which lately did business in Chattanooga, Tennessee, are proceeding to enforce their claims against complainant. Some have taken out attachments, alleging that complainant is a non-resident,'and have levied on his interest in the property réceived from his wife; others have sued and obtained judgments; still others have sued, but notyet obtained judgments. Creditors of Wm. H., jr., are likewise proceeding, some by levy of attachments, others by suits, and some have garnished the complainant individually, as executor and as trustee of his wife. If these various claims are allowed to proceed against the property, and those in suit to be reduced to judgments and levied, it will greatly embarrass him to administer the estate.</p> <p>The complainant waived discovery and prayed for direction as to the administration of his testatrix; that the defendants should establish their priorities and show to what extent they could legally subject the assets of the estate to the payment of their claims; that the rights of creditors and legatees of the estate be protected; that Warner and Walton and Bean be enjoined from selling under the mortgages held by them; and that all the creditors of complainant made parties defendant to the bill, except the Misses Harison, be enjoined from levying upon any of the property of the estate, by attachment or otherwise, or in any manner attempting to subject it to the payment of their claims, until the creditors of the estate and the legatees who are not debtors to the defendants, and whose claims are equal or superior to those of the complainant and ¥m. H., jr., are provided for and secured ; also for subpoena and general relief.</p> <p>This bill was verified by the affidavit of Mr. W. W. Montgomery, who stated that his client was absent from the State, and that from information derived from said client, he believed the statements of the bill, where they related to complainant’s acts and deeds, to be true; that he knew the statements in relation to the debts of Mary G. Harison and Geo. N. Jones were true, as also the statements in relation to the annuity of R. H. Gardiner, having drawn the papers creating these obligations ; and that as to all statements in the bill relating to the acts and deeds of others, he believed them to be true.</p> <p>Attached to the bill as exhibits were a copy of the annuity contract, dated August 31, 1861 (this shows no entry of having been recorded) ; a copy of the bond for $10,000 to the trustees of Gardiner and wife; the will of Mary G. Harison, headed “ Georgia, Richmond county,” the body of which was as follows :</p> <p>First. To my husband, William H. Harison, nereinafter appointed sole executor hereof, I give and bequeath the entire net income of my estate, of whatsoever consisting, for and during the term of his natural life, and invest him, as executor, with full power to control and manage said estate as he may think proper, and especially with the power, in his own discretion, without the order or permission of the ordinary or other officer, or of any court, by public auction or private sale, at such time and place and on such terms as he may deem expedient, to sell any part or the whole of my estate and invest the proceeds of sales thereof, and from time to time to change the investment of the same as he may think expedient. It is my will that no division of my estate be made during his lifetime, and that he shall be, and he is hereby, relieved from all obligation to make any inventory whatever of my estate or any returns to the ordinary, or to any other officer or person, of his actings and doings as executor under this my last will and testament.</p> <p>Second. It is my will, and I so direct, that of the net value of my estate as it may be estimated at the time of the payments about to be provided for, one-tenth (1-10th) part, assumed for present purposes, to be equal to fifteen thousand dollars ($15,000), shall be devoted, and I hereby devote the same, to charitable uses in the manner following, that is to say: First, I set apart and appropriate five thousand dollars ($5,000) to the purchase of a church lot in the city of Augusta, and the erection thereon of an Episcopal church for the use of persons of color, to be consecrated as soon as convenient, and title thereto vested in the bishop of the diocese. Hoping that others may hereafter contribute to this good work, and thereby render unnecessary the expenditure of this entire sum of five thousand dollars in the purchase of a lot and the erection of a church edifice, I desire that whatever may, after such purchase and erection, remain of the sum thus appropriated under this will, shall be by my executor safely invested to the best advantage, and the income derived therefrom applied to the support of said church by those who may have charge of its secular interests. Secondly, to the treasurer, for the time being, of “The Permanent Eundforthe Support of the Episcopate in the Diocese of Georgia” (of which Dr. James Camak is now treasurer), I set apart and give the like sum of five thousand dollars ($5,000); and thirdly, the like sum of five thousand dollars ($5,000) to the “Trustees for the Eelief of Widows and Orphans of Deceased Clergymen of the Episcopal Church of the Diocese of Georgia” (of which the wardens of Christ Church, Savannah, are the trustees).</p> <p>Third. If the said one-tenth (1-10th) part of my estate should fall short of the sum of fifteen thousand dollars (assumed in the preceding clause), it is my will, and I so expressly direct, that the sum of five thousand dollars, first above mentioned (set apart for church lot and edifice), shall not be reduced or in anywise diminished, but that the two last mentioned sums of five thousand dollars each shall be equally reduced, so as to bring the aggregate of the three down to the then ascertained amount of one-tenth (1-10th) of my estate. If, on the other hand, one-tenth (1-10th) part thereof should exceed the said assumed sum of fifteen thousand dollars ($15,000), it is my will, and I so direct, that the surplus or excess over and above that sum shall be applied to charitable purposes by my husband, or in case of his dying testate before the execution of this portion of my will, by the qualified executor or executors of his last will; and</p> <p>Fourth. In case it should hereafter appear that there is any misnomer or defect in the designations of the persons or associations intended to be legatees or beneficiaries under the second (2d) clause of this will, or any real or supposed want of capacity in them or any of them to take under the same, having, as I think, made my intentions evident to others, as they are well known to my husband and intended executor, I hereby invest him with full power so to dispose of the said one-tenth (1-10th) part of the net value of my estate as will prevent any failure of my said intentions in relation to the same. To prevent possible detriment to my estate and inconvenience to my executor in providing for the several sums above bequeathed, it is my will that the time of payment thereof shall be determined by the executor himself, in his own uncontrolled discretion, and that no interest shall accrue on said sums, or either of them, by reason of any delay in the payment thereof.</p> <p>Fifth. All the rest and residue of my estate, subject to the provisions hereinbefore contained, I give, bequeath and devise to my husband, the said William H. Harison, in the manner following; that is to say, one-fourth (1-4th) part thereof to him, the said William H., as his own absolute property; and the remaining three-fourths (3-4ths) to him as trustee, for the use and benefit of our surviving children, upon the following trusts: that is to say, in trust that he will, by deed or provisions to that effect, to be contained in his last will and testament, convey, transfer and secure the said remaining three-fourths (3-4ths) of said residue for the use and benefit of our surviving children in such proportions, equal or unequal, as he may deem expedient, either directly to them in their own right or to such trustee or trustees as he may select, and under such conditions, limitations, and trusts as he may deem it expedient to provide in the case of each of said children. If my said husband should depart this life without having, by deed or will, provided for the disposition to be made of the said three-fourths of the residue of my estate, as above authorized, it is my will that the same shall be equally divided among my surviving children, share and share alike.</p> <p>Sixth. I nominate, constitute and appoint my husband, the said William H. Harison, executor of this my last will and testament, written on this and the three preceding pages, identified by my signature in the margin of each of them.</p> <p>(This will was attested by three witnesses and admitted to record at Newark, N. J., December 29, 1875. The probate and copy of the recorded will was certified January 3, 1876, and attached is a certificate from the ordinary of Richmond county, dated January 21, 1880, that the transcript and probate are true and correct copies from the records of the court of ordinary.)</p> <p>The following also were attached as exhibits to the bill: Abstracts of the deeds from the complainant to Wm. H., jr., purporting to be for a valuable consideration, and one of them having the consent of Richard M. Harison upon it. One of these deeds, made August 1, 1878, recites the will, the authority of the executor thereunder, the deeds previously made, and concludes as follows:</p> <p>“I, William H. Harison, of Newark, N. J., individually and as life tenant and remainderman, and as trustee and executor, with testamentary power as to the three-fourths interest in remainder under said will of Mary G. Harison, hereby ratify, confirm and make good and effectual against me in any and every way whatsoever, and also the estate of William H. Harison, the said lots of land heretofore conveyed to William H. Harison, jr., on payment therefor, and I hereby covenant irrevocably with said William H. Harison. jr., his heirs and assigns, never, by deed, will or otherwise, to make or seek to make any other or further disposition of said land or any part thereof other than now made, nor to hold him or his assigns at any time hereafter responsible for the use or enjoyment of the same; this covenant to be binding on me in every way known to the law, and to be considered binding, in the event of my dying intestate, as a deed-made pursuant to said will disposing of the residuum to the extent of the said land hereinbefore described.”</p> <p>A copy of the mortgage to Walton and Bean, trustees, to secure the $30,000 worth of bonds covering certain of the property conveyed to William H., jr., and containing a power of sale, also was exhibited. Also a mortgage from Wm. H., jr., to Warner, trustee.</p> <p>On October 28, 1880, the judge to whom the bill was presented passed an order, calling upon the defendants to show cause why injunction should not issue, and providing “ that this order do operate as a restraining order to enjoin and restrain each and all of said defendants in accordance with the prayer of said bill, until the further order and decree of the court.”</p> <p>To this bill, on November 5, 1880, certain of the creditors filed a demurrer on the grounds that there was no equity in the bill; that there was a want of proper parties; that there was an adequate remedy at law; and that complainant had not complied with the fourth equity rule and annexed exhibits of the papers set out in the bill. This demurrer was subsequently amended by adding a ground that the sons of the complainant, and the complainant in his capacity of trustee, had not been made parties; also that the bill was not supported by any proper affidavits, that of the solicitor being insufficient, and there being no affidavit of want of collusion between the complainant and either of the defendants, nor that the bill was not filed to hinder and delay; that the complainant is estopped by the terms of the deed exhibited to the original bill, made August 1, 1878, he having, as life tenant, remainderman and trustee with testamentary power, conveyed a portion of the property therein described; because the bill fails to set out the laws of New Jersey, where the complainant was appointed executor, or invoke the comity of States to be recognized; and because no steps have been taken to perfect service upon any creditor or legatee of Mary G. Harison set out in the bill, or to bring before the court any parties but the individual creditors of the executor.</p> <p>On November 25 and December 4, 1880, before the hearing on the rule to show cause against the issuing of injunction, the Mechanics’ and Traders’ Bank, the Bank of Rome and others filed answers and cross-bills, making, in brief, the following case:</p> <p>The defendants admit that they are creditors and have instituted suits by attachment and at common law, and that the attachments have been levied on the life estate and remainder interest of Wm. H. Harison passing under the copy will found in the office of the ordinary of Richmond county; they admit the marriage settlement between the Gardiners. and Wm. H. Harison, the deed of partition between the tenants in common and the conveyance by the Gardiner trustees on August 31, 1861. They have no knowledge of the papers beyond the records, and they pray strict proof as to them. They deny that the contract as to the annuity or the bonds made, constituted any lien on the property, but aver that if valid they created only a simple debt, payable from such property as was conveyed by the Gardiner trustees. They admit that Mrs. Harison died testate, and that her will was probated at Newark, N. J., but say that beyond this the complainant has done nothing, and has not filed anywhere an inventory or statement of the property owned by her at the time of her death, and has not qualified or undertaken to qualify under the will in Georgia. They deny that the deeds from complainant to his son, Wm. H.,jr., were without consideration, and say that when the third deed was made, Wm. H., jr., executed and delivered to the executor a receipt for $46,000, as an advance to him under the fifth item of the will, and for which he should account without interest, if so directed by the will of the executor, as a portion of his share in remainder. They admit the rendition of the common law judgments and the proceedings had under the attachments. They allege that complainant was a resident of New Jersey at the time of the issuing of the attachments against him, and was insolvent. By way of cross-bill, the defendants prayed for the appointment of a receiver; that all liabilities of the testatrix, including the annuity, be determined to be paid only out of the property conveyed to the guardian and trustees; that complainant be required to file an inventory of the property of the testatrix at the time of her death, a statement of sales made by him, his vouchers for payments to R. H. Gardiner, or any child of complainant, as an advancement or otherwise; that a decree be rendered, directing the receiver to sell all the property passing under the will of complainant’s testatrix within the State, to pay the debts and the legacy of the Episcopal church ; to apply the commuted value of the life estate of complainant with his one-fourth interest in remainder to the payment of his debts; to require Wm. H. Harison, trustee of his children, to charge the interest of Wm. H., jr., with the value df all property turned over to him, and in the event it is sold and does not pay the mortgage, the defendants claim to direct payment out of the residuum coming to Wm. H., jr., under the will; to require complainant, as trustee for his children, to charge the interest of R. M. Harison with all the liability of a surety on the bonds filed in the ordinary’s office of Richmond county, under which the executor undertook to comply with the act of the legislature of Georgia of February 28,1876, and made sales of the property of the estate, without paying its debts or the legacies under the will. Some of the defendants charged, on information and belief, insolvency of the complainant, of Wm. H. Harison, jr., and of Hazelton & Harison.</p> <p>Exhibited to the cross-bill were copies of the receipt from Wm. H. Harison, jr., to Wm. H., executor, dated August 1, 1878; also a deed, dated the same day, reciting that the executor had filed and obtained the approval of bonds by the ordinary of Richmond county, and was authorized to sell the real estate under the will and ratify the conveyances previously made on payment of the purchase money described in' the deeds.</p> <p>On December 6, 1880, the complainant amended his bill by making Wm. H. Harison, jr., R. Morley Harison and Noble W. Harison, children of complainant and testatrix, and Wm. H. Harison, as trustee under the will, parties. On the same day, his attorney acknowledged service on the cross-bills.</p> <p>On January 3, 1881, the chancellor, after hearing the application for injunction and receiver on the original bill, refused the injunction as to the parties claiming under the mortgages of Wm. H. Harison, jr., and granted it “as to all the creditors of legatees or devisees of Mrs. Harison, so far as to restrain them from levying their executions against said legatees or devisees upon any property of said Mrs. Harison’s estate now in the hands of the executor; not restraining said creditors who have not as yet obtained judgment on their claims against such legatees or devisees from proceeding to do so.” The injunction prayed for as to the attachments of the Mechanics’ and Traders’ Bank, which were levied upon the equity of redemption in the property mortgaged by Wm. H. Harison, jr., to James S, Warner, trustee, and Wm. A. Walton and Jos. S. Bean, trustees, was refused as to that property. The receiver prayed for in the cross-bills of the defendants was refused.</p> <p>On April 20, the defendants filed an amendment to their answers and cross-hills, alleging, in brief, as follows: At the April term, 1881, of court, they obtained judgments against Hazelton & Harison and Wm. H. Harison, individually, upon the evidence of indebtedness set out in the original answer. Wm. H. Harison, the only defendant served personally in these common law cases, is now totally and entirely insolvent. The defendants are enjoined from enforcing their executions under the order of January, 1881, and there is no other property in Georgia subject to levy, in which Wm. H. Harison has any interest, except that passing to him by virtue of his marriage settlement with Mary G. Harison, and which he is now in possession of as executor of. her will, admitted to probate at Newark, N. J., where she and all of the complainants resided at the time of her death, 1875. Under the laws of New Jersey then and now of force, the husband was entitled, in the event the testatrix left children, to a life estate by courtesy in all her land, regardless and independent of any provision contained in her will to the contrary, which life estate is subject to levy and sale, independent of the provisions of the will; and the law is applicable to all the complainants and all persons dealing with them by private contract as to rights and interests passing under the will. On Saturday, April 16, when the defendants’ solicitor made inquiries of F. W. Capers, jr., Escp, named in the bill as one of the solicitors of Anna M. and Frances L. Harison, respecting the-suits instituted by them, which were endorsed to the April term, 1880, of court, defendants’ solicitor learned that, although the dockets of the court showed the granting of an award on December 4, 1880, service was not perfected 'until June 1, 1880, and the award had not been entered on the minutes of the court; that while the restraining order of this court was of force, the complainant, with full knowledge thereof, by himself and the solicitor of Anna M. and Frances L. Harison, had signed and undertaken to deliver to said solicitor an instrument whereby he sought to convey to the said Anna M. and Frances L., individually and as executrixes' of J. C. Harison, in settlement of an indebtedness, all the interest to which he was entitled by virtue of the will in all that part of the estate of his wife remaining in his hands and not previously disposed of, such interest being described in the instrument as the right to receive and enjoy the net income of such estate remaining in his hands for and during his natural life. This paper was sent on April 16,1881, by F. W. Capers, jr., Esq., to W. W. Montgomery, Esq. On Tuesday, April 19, defendant’s solicitor called upon the solicitor for the complainants to ascertain why Anna M. and Frances L. Harison, individually and as executrixes, Robert H. Gardiner and the executors of George Noble Jones, had not been served or a return made. In the conversation which ensued, he learned that the complainant, Wm. H. Harison, had, at or about the time of making the instrument just above stated, executed an instrument purporting to convey to Wm. H., jr., his “one-fourth part of the remainder vested in said Wm. H. Harison, under the provisions of the will of said Mary G. Harison, in payment of liabilities assumed by said Wm. H. Harison, jr., for the firm of Hazelton & Harison, of which W. H. was a member.” It was averred that,’ until the payment of the legacies passing under the will, and the creditors holding claims against the estate of Mary G. Harison, the original complainant had no interest as life tenant or remainderman, under the laws of either New Jersey or Georgia, and that the above stated conveyances are absolutely void. The conveyance to Anna M. and Frances L. is void as a deed for uncertainty, for failure to describe the property with sufficient certainty, as violative of the interlocutory order of the court, for inadequacy of consideration, for want of proper delivery, because it purports to convey property not in possession at the time, and if intended as a mortgage or preference, it never was recorded prior to the filing of the amended answer and the judgments at common law. These defendants are bona fide creditors of Wm. H. Harison, and extended credit to Mm on the faith of his ownership of a large amount of real estate located at Augusta, Ga., the particulars of which they never knew until after his failure, but which is the property now in his possession. The marriage settlement between Wm. H. Harison and his wife is not valid against these defendants, because it was not recorded within three months after its execution in the county of the residence of the husband and wife. It was executed beyond the limits of this State, and was recorded December 31,1852, without probate or valid attestation. Such imperfect record, and actual notice thereof since their debts were created, cannot affect the rights of creditors or their judgment liens. The property now in the hands of Wm. H. Harison, executor, as shown by his tax returns of June 30, 1880, amounts to $235,150. Since the grant of the injunction of January 30,1881, he has taken no steps to perfect service upon the other defendants. The bill cannot be finally passed upon until the April term, 1882; and it is the object of the complainant to retain possession, use and enjoyment of the income without making returns, to deprive all but his children and sisters from obtaining anything upon their claims, and to make sales of land as a foreign executor.</p> <p>The prayers were to enjoin the complainants from dismissing their bill as to each other or the defendants'; to enjoin Wm. H., jr., and Anna M. and Frances L. Harison, individually or as executrixes, from conveying or creating liens upon the property of which conveyances were made to them as described above; to prevent any alteration in the existing condition of the litigation or property in controversy; that the conveyances to Wm. H., jr.; and to Anna M. and Frances L , made pending the bill, be can-celled and set aside, both as a deed and mortgage; that Wm. H., jr., and Anna M. and Frances L., individually ' and as executrixes, account with the defendants as to the validity and justice of the indebtedness sought to be preferred; that the marriage settlement be declared void as against the defendants, and the will of Mary G. Harrison be construed; that a receiver be appointed, with authority to collect rents, make sales and hold the proceeds; that the case be referred to an auditor or master to take testimony and render an account as to interest of all parties, creditors, legatees and heirs, and how to account; that all the parties be required to interplead, and a final decree be rendered making proper distribution; and for general relief; the prayer being without prejudice to the judgment or attachment liens of the defendants.</p> <p>Attached to this cross-bill as an exhibit was the conveyance from Wm. H. Harison to Anna M. and Frances L. Harison, having attached to it after the signature, and referred to as so attached, a schedule of the property.</p> <p>A temporary restraining order and rule nisi was granted April 21, 1881. Service was acknowledged by complainant’s solicitor on April 28, and was perfected on ¥m. H, Harison, jr., personally, on May 2.</p> <p>The defendants, the Mechanics’ and Traders’ Bank et al., on April 27, 1881, filed a plea, alleging, in brief, as follows: Wm. H. Harison, named as executor of the will of Mary G. Harison, is a large creditor of the estate and indebted thereto to the amount of $100,000, of which debt hé has not undertaken to enforce payment in any way, and it is well known to exist by each of the complainants and by each of the persons alleged by the original bill to be creditors of the estate. This indebtedness arose in the following way: After his marriage, he was appointed attorney in fact for George Jones and George J. Pollock, two of the trustees, until after a division with them as trustees of Mrs. Gardiner, when he became attorney for all of the trustees named in the marriage settlement between himself and wife, and as such made numerous sales of the assets of the estate, until Robt. H. Gardiner, the other trustee, removed from the State of Georgia, the same being made with Gar-diner’s express knowledge, from December 29, 1852, to August 31, 1861, the date of his removal. During this time, large sums of money of the assets of the estate came into the hands of said "Wm. H., and so remained August 31, 1861, with the knowledge and consent of said Robert H. and his co-trustees and George Noble Jones, all of whom accepted the bonds, etc. described in the original bill, with full knowledge that said Wm. H. then had a sufficient sum to pay off the consideration coming to them and the trustees of Sarah F. Gardiner for the property then conveyed. From August 31, 1861, until the death of Mary G. Gardiner, said Wm. H. acted as sole attorney in fact of the trustees (all of whom, except Gardiner, resigned December, 1860,) and received the proceeds from sales made of the assets of the estate; he has used them for his sole benefit, and realized from the proceeds of cotton during the war, and sales thereafter, and other property acquired since, large profits which he has never paid over or accounted for. He is now indebted to the trust estate the sum of $100,000, and as such debtor, retains the property of the testatrix; and he has made no inventory of his debt or return to any court whatsoever.</p> <p>On February 24, 1880, the complainants and the creditors set out in the original bill filed a bill against the Episcopal church, which is claiming the legacy for charitable purposes under the will, and to enjoin an application for administration with the will annexed of Mary G. Harison, in Georgia. In this bill the creditors of George Noble Jones alleged that, as creditors, they were entirely satisfied with the administration of Harison, and protested against any change in such administration; and R. H. Gar-diner made like allegations. This was advisedly done, with information of the previous acts of Harison, and es-tops these complainants from seeking injunction against these defendants.</p> <p>On April 29, 1881, the defendants filed a notice of an intention to move for a rule against Wm. H. Harison, individually and as executor and trustee, to show cause why he should not be attached for contempt in executing the conveyances of December 4, 1880, after obtaining the restraining order of October 28, and after Wm. H., jr., had been made a party complainant; also for the appointment of a receiver; also for' the revocation of the order of January 3, 1881, granting an injunction; also'that the case be referred to a master in' chancery to take testimony, investigate and report as to the matters of law and fact at issue, and the validity, character and amount of claims held by creditors, heirs and legatees of Mary G: Harison, and to have determined whether the estate ever went into the possession of Wm. H. Harison, life tenant or trustee, and if so, in what capacity; what advances had been made to the remaindermen, with the amounts, character and the time and circumstances thereof; and to determine what conveyances had been made by the original complainants to any of the defendants or co-complainants or otherwise; and what is the value of the life estate of Wm. H. Harison, and the remainder subject to his disposition in case he had not become insolvent, and the legacies and debts of the estate unpaid ; also for an order to make parties of all the defendants not served, and thereafter, to proceed to sell all the property of the testatrix in the possession of the original' complainant free from liens, and pay off the same- according to their priorities; also giving notice to produce the original deed exhibited to the bill, and the deed to W. H. Harison, jr., set out in the cross-bills, and the-books and accounts showing amounts received by complainants from the property of the testatrix. This was served April 29, 1881.</p> <p>On May 21, the defendants again amended their answers and cross-bills, alleging, in brief, as follows: They adopt the allegations of the plea above stated, and set out extracts from the sworn answer of Wm. H. Harison, executor, to the bill filed by the Episcopal church in aid of the application for the appointment of an administrator with the will annexed, and for the purpose of obtaining the legacy under the will of Mary G. Harison. Among these extracts is a statement that the executor could not give the actual value of the estate of the testatrix at the time of her death, but gives an estimate, making the net amount $193,855. He alleged that the whole of the estate, with the exception of a bond for $9,000, was in Georgia; that the income was $59,877.65; commissions, repairs, insurance and annuity for R. H. Gardiner were $67,358.33, showing a deficit of $7,481.68; in income and net proceeds, $22,535.54. The only payment made to residuary legatees was to Wm. H. Harison, jr., of the three pieces of property, of which the city valuation was $63,000. No money was paid for them, and a conveyance was made at the joint request of the two elder sons, Wm. H., jr., and R. M. Harison, both of full age, and for the benefit of both. He also stated that he had no real or personal property in Georgia, other than that derived from the will, and that he expected to contest the application for administration in Georgia. R. H. Gardiner ceased to be a citizen of Georgia on August 31, 1861, and the statute of limitations has ceased to run against him. As co-trustee under the marriage settlement, and as sole trustee from their resignations in March, 1869, and by express delegation of his authority in favor of Wm. H. Harison, he has become reponsible for all waste committed on the estate by Wm. H., and for all proceeds of sales of land not accounted for by the latter, amounting to over $100,000. None of this indebtedness was set out in the answer of Wm. H. Harison, above stated, and both he and R. H. Gardiner entirely failed to recognize it or to make payment to the estate. The children of Wm.H. and Mary G. Harison are of full age, and they failed and refused to hold their father and uncle liable to their mother’s estate in Georgia or New Jersey. Wm. H. has never filed an inventory or return anywhere, and claims to be a resident of Georgia without domicile elsewhere. Under the laws of New Jersey, a life tenant cannot receive his estate until bond and security is given to account to the remaindermen, and this William H. does not demand from Frances L. Harison and Anna M. Harison; to whom he has seen fit to convey it- away.</p> <p>The prayers were that Wm. H. Harison, as attorney in fact of the trustees under the marriage settlement between himself and his wife, be required to account fully and particularly for all the corpus of the estate received, and the disposition made thereof up to the death of testatrix; that the debt found to be due by him individually be determined against him, and until the same is paid, a decree be rendered that no net value of the estate passed to him for life, nor any remainder now or hereafter subject to alienation by him, and that as such debtor residing in Georgia, in the position of a foreign executor, until full payment is made by him, shall not assent so as to make valid the conveyance of the property devised to him, and defeat the rights of the judgment creditors; that R. H. Gardiner, trustee under the Harison marriage settlement, be required to account for all their liability, and any amount found to be due by Robt. H. Gardiner, as trustee or individually, be set off against his annuity, if the sum is found chargeable against the whole or any part of the estate, and for any excess, a decree be rendered against him personally, anything to be found due Gardiner or the executors of Jones, being chargeable only on the land remaining unsold that passed under the provisions of the Gardiner marriage settlement; that the debt claimed in favor of the executors of George Noble Jones should only be payable from the proceeds of the same property; that the sisters of the executors be required to give bond and security to conform to the New Jersey law, before they can receive property conveyed to them, if the conveyance is found valid; and that Wm. H. Harison, jr., render a full and complete statement of what indebtedness he had become liable for December 2, 1880; what portion of it was in judgment, and in whose favor any arrangement to re-convey was made; that a receiver be appointed-; and that all this relief be subject to the rights of any legatee or creditor or other person in interest, to have administration granted with will annexed.</p> <p>On October 17, 1881, a demurrer was filed to these cross-bills for want of equity; because no facts authorizing the grant of an injunction and receiver wereset out, and the cross-bills were not properly verified by affidavit; and because the marriage settlement attacked was not attached as an exhibit, ñor was it alleged that it was not probated, but only that the probate does not appear of record, nor is it alleged that the defendants attacking it were creditors during the coverture. This demurrer, on October 22d, 1881, was amended as to the claim of the cross-bills to subject the one-fourth interest in remainder of Wm. H. Harison which had been conveyed by him, on the ground that it appeared from the cross-bills and amendments that the whole estate' of Mary G. Harison, without deducting any debts due by it, wás only $235,150, and it further appears that Wm. H. is indebted to the estate in the sum of $100,000.</p> <p>On October 17, 1881, Wm. H. Harison filed an answer to the defendants’ cross-bills, in brief, as follows : Admits the obtaining of the judgments,- the insolvency of the complainant and the injunction obtained January 3, 1881. Denies that he is in possession of property passing to him by virtue of his marriage settlement with his wife, but says he is in possession by virtue of her will. Denies that he is a non-resident, but says he is a resident of Augusta, Ga. Admits that the will was probated in New Jersey, but denies that'the laws of that State have anything to do with the case. Admits the conveyances of December 4, 1880, but says they were made bona fide, for a valuable and sufficient consideration, which is set out in detail. Denies that there' was any restraining order on him at the time he made the conveyances. Asserts that they were delivered. Asserts that the marriage settlement was properly recorded, but says its record is immaterial in tbe case. Denies that it is bis object to retain possession and to use and enjoy tbe income without making returns, and to deprive all but bis children and sisters from obtaining anything upon their claims. States, asan evidence of his good faith, that he offered to put his one-fourth interest in the hands of an assignee, to be sold for the benefit of his creditors, but the offer was not accepted. Says he has been greatly embarrassed and hindered by the course pursued by the defendants. Refuses his assent to the appointment of an auditor on the ground that.he is advised that it is not a proper case therefor. Denies that R. H. Gardiner, the representative of Geo. Noble Jones and Anna M. and Frances L. Harison, individually or as executors, have been made parties, and says it is the business of defendants to make them so if they desire it.</p> <p>On October 21, 1881, the chancellor passed the following order:</p> <p>“This court having granted a rule nisi to show cause why an injunction should not issue, as prayed for in the answers and cross-bill of the Mechanics’ & Traders’ Bank, filed April 20, 1881, and concurred in by the Bank of Home and others, which rule nisi was returnable June 6, 1881, and an order having been taken by consent of parties, June 29, 1881, for a hearing of the same in vacation, with other matters specified in the order and the same having been con" tinued by consent of all the solicitors until Monday, October 17, 1881, when the same came on to be heard in term time on the notice filed April 29, 1881, it was upon consideration that day and upon October 18, 1881; and after hearing the affidavits and other evidence submitted pro and eon, and after the arguments of counsel as to the matters involved in the motion, ordered and decreed:</p> <p>“First. That a rule nisi to show cause why he should not be at. tached as against William H. Harison, executor and trustee and individually, be, and the same is hereby, refused.</p> <p>“ Second. The appointment of a receiver is hereby refused.</p> <p>“Third. The interlocutory order of January 3, 1881, is hereby affirmed and directed to remain of force.</p> <p>“ Fourth. The case, as made upon the original bill, the plea of the defendants and the several answers and each of them, with the matters at issue under them of law and of fact, is hereby referred to Hansford D. D. Twiggs, Esquire, master in chancery of this court, to take testimony and to investigate and report as to all the matters at issue raised by the pleadings, pursuant to law and in conformity to the act of the General Assembly, approved September 24, 1881.</p> <p>“ Fifth. That the injunction asked for in the cross-bill be refused, and the temporary restraining order, granted thereon April 27, 1881, be set aside.”</p> <p>On the same day, on motion of defendants’ counsel, he ordered service to be perfected by publication on Anna M. and Frances L. Harison, individually and as executrixes of J. C. Harison, and upon R. H. Gardiner and Wallace S. and Noble Jones, as executors of George N. Jones.</p> <p>On October 22, defendants amended their answers and cross-bills, attaching a copy of the conveyance from Wm. H. Harison to Wm. H., jr., dated December 4, 1880 (without the schedule), and attacking it as illegal.</p> <p>On October 22, the chancellor passed the following order:</p> <p>“ This case coming on to be heard in term time upon the demurrer filed November 5, 1880, to the original hill filed November 1, 1880, and also upon the amendments to the grounds of said original demurrer, it is, on motion of complainant’s solicitor, ordered that said original demurrer and the amendments thereto be, and they are hereby, overruled.</p> <p>“The case further coming on to be heard upon the plea filed by the Mechanics’ and Traders’ Bank, the Bank of Rome and others, at the appearance term, April 27, 1881, it is upon the demurrer thereto, verbally made, of 'the complainants, William H. Harison, executor, and of William H. Harison, jr., R. Morley Harison and Noble W. Harison, and of said William H. Harison, sr., as their trustee, made parties by order of December 6, 1880, ordered that said demurrer be sustained and said plea stricken.</p> <p>“The case coming on further to be heard upon the demurrer filed by each and all of the said parties complainant to the relief prayed for in the cross-bills filed by the defendants, the Mechanics and Traders’ Bank, of Chattanooga, Tenn., the Bank of Rome and others, November 25, 1880, December 4, 1880, April 20, 1881, and May 21, 1881, ordered that the same be sustained, and said answers and each of them, so far as the relief prayed for in the cross-bills, be, and the same are hereby dismissed.</p> <p>“Ordered further that the case stand for trial upon the original bill, and parties complainant as amended December 6,1880, on the matters alone responsive thereto in the answers of the several defendants, exclusive of the matter set forth in the cross-bills of the defendants, filed as above stated.”</p> <p>The complainants filed exceptions pendente lite to the reference to a master. The defendants excepted pendente lite to the refusal to attach complainant, the refusal to appoint a receiver and to revoke the order of January 3, 1881, and to the revoking of the restraining order granted oh the cross-bills. They also excepted pendente lite to the order of October 22, above set out, in so far as it sustained the demurrer of complainants to the plea of defendants and to their cross-bills, but did not assign error on the last portion of that order.</p> <p>The defendants carried the base to the Supreme Court on this writ of error, and the oomplainants assigned error on their exoeptions pendente lite. The deeision appears in 68 Ga. 463. On the return of the remitter, the exceptions by defendants not adjudicated on the writ of error, were allowed to be filed as pendente lite. Service by publication was also declared by order, dated June 15th, 1882, perfected on R. H. Gardiner, W. S. Jones, executor of Geo. N. Jones (the other executor being dead), and Anna M. and Frances L. Harison, individually and as executrixes ; and it was ordered that the case made by the complainants’ bill and “said cross-bill, as to the relief prayed against them,” proceed to trial at the next October term of the court. The defendants protested to the master against proeeeding before him on the following grounds:</p> <p>(1) Because the motion to refer to the master was made by these defendants and granted over the objection of the complainants’ solicitors, who filed exceptions thereto,pendente lite, October 27th, 1881, which have never been waived or withdrawn.</p> <p>(2) Because the order of reference, dated October 21, 1881, was revoked by the order of October 22d, 1881, sustaining the demurrer of complainants to the relief prayed for in the cross-bill and amendments of these defendants, which order expressly directs the case to stand for trial upon the original bill, as amended December 6th, 1880? and the matters responsive thereto, exclusive of the cross-bills.</p> <p>(3) Because the order of reference has expired, the same never having been renewed at any succeeding term of the court thereafter, to-wit: April term 1882, or October term, 1882, or at the April term, 1883. That subject only to this protest and these grounds do the defendants, without waiving any right in the premises, and particularly objecting and averring that the hearing can be had only on their motion now join issue before the master.</p> <p>This protest was overruled, and the hearing proceeded.</p> <p>On December 31, 1883, the master made a report, the material portion of which was as follows:</p> <p>The property sought to be made liable for the debts of Wm. H. Harison is his life interest in the net income of the estate left by the will of Mary G. Harison and the one-fourth interest in the remainder left him by the same. It will be kept in mind that the creditors who are seeking to subject this property are not creditors of the estate of Mary G. Harison, of which Wm. H. Harison is the executor, but creditors of Wm. H. Harison as -a legatee under her will, and the property sought to be reached is legacies passing under the same. Before proceeding to a determination of the issues made by the pleading and by counsel for complainants and respondents respectively, I beg to call attention to a difficulty which confronts, in my judgment, the attaching creditors, so far as the levies of the attachments upon one branch of the property levied on is concerned, and which seems to have escaped the notice of counsel. It will be seen that these levies referred to were upon what is termed and treated as the life estate of Wm. H. Harison. Now did the will of Mary G. Harison leave a life estate in the land belonging to her estate, to her said husband? If so, I have failed to find it, and this is what has been levied on.</p> <p>The language of the will, as contained in the first item on this subject, is as follows: “ To my husband, Wm. H. Harison, I give and bequeath the entire net income of my estate of whatsoever consisting; for and during the term of his natural life.” It may be said that this language necessarily imports a life estate in the land from which this income is derivable. I do not think so. There are certain incidents at common law which belong to every life estate in the land, unless expressly negatived by the instrument creating it. Do such incidents appertain to a legatee who, ex m termini, is entitled only to the “net income,” and which income is subject to constant variation in value? How can such an interest be reached by a levy of any kind? On what is it to be levied, and what would the purchaser at a sale under such a levy take by his purchase, and what would the sheriff put him in possession of?</p> <p>I know of no mode of reaching such an interest as, to my mind, Wm. H. Harison took by the will, except by resort to a court of equity, and the appointment of a receiver to take charge of the income and disburse the same. Now all that could be reached as to this particular portion of the property would be the net income, and that term, as I understand it in this case, means the residue which passes to the legatee after paying the taxes, expenses and liabilities of the estate. Granting, therefore, that the creditors had established in the proper way a lien on the interest specified, if there is no net income, there is nothing to be levied on, and the proof shows that, after payment of the taxes and expenses and the annuity of $5,000 annually (which latter is a yearly charge upon the property, so long as K. H. Gardiner remains in life), there is no net income left. I do not believe, however, that such an interest as Wm. H. Harison took by the first item of the will was leviable by attachment, and therefore the levies established no lien as to this life interest.</p> <p>I come now to the main consideration of the two questions involved in the case, for there are but two. The first is, whether the attachments of June, 1880, are valid liens on either branch of the property levied on; and secondly, if not valid, whether the common law judgments, dated April 15th, 1881, are superior to the conveyances made by Wm. H. Harison to his son, Wm. H. Harison, jr., and to Frances L. and Anna M. Harison, dated December 4th, 1880. Now it is clear that if the said attachments were valid liens, at the time they were levied, then the aforesaid conveyances, whether bona fide or not, are void as to them, having been made at a date subsequent to the levies of the same. Now were these attachments valid ? It is urged by complainants that they are not for the following reasons: First. Because the ground of the attachments, as set forth in each of the affidavits, is not true, to-wit: That Wm. H. Harison resided out of the State, and that the said ground has been successfully traversed by the proofs submitted on this subject. Second. Because the interest of a legatee in an estate unadministered is not leviable under summary process. Third. Because the attachments were sued out against the firm of Hazel ton & Harison, and the levies were made upon the individual property of Wm. H. Harison, which, it is claimed, cannot be done under the code.</p> <p>As to the first ground, it is urged by the solicitor for the creditors that I have no power to pass upon it, because there is no legal evidence before me that the grounds of attachment were traversed at law, and that the evidence of W. W. Montgomery, Esq., W. H. Harison and S. H. Crump on this subject was illegally admitted. While I do not think that this is a question of practical importance, for the reason hereinafter given, I think the evidence was proper to show the fact sought to be proved. Pending, however, the adjudication of the matters in issue at law and before the particular issue could have been tried upon the alleged traverses, equity acquired jurisdiction of the entire subject-matter, and the ground of attachment was expressly denied in the bill of complaint and distinctly formed a part of the relief therein prayed for. A court of equity having, therefore, acquired jurisdiction of the subject-matter, it is bound to pass upon the issue of residence or non-residence of complainant. While the evidence on this subject is to some extent conflicting, it will be found, upon a careful scrutiny, that the weight of the same in support of the claim of residence in the State is in favor of complainant. The testimony of Wm. H. Harison is both positive as to his residence in Georgia and of his intention to change his domicile; among other facts and circumstances to denote this purpose is the evidence of a letter offered in proof and written by-the said Wm. H. Harison at a time when he could have had no knowledge nor entertain any expectation that the question of residence or non-residence would ever be made. After duly weighing this testimony, I am forced to hold that the traverse has been successfully maintained by the proof. Independently, however, of this question, I am of the opinion, and so decide, that the interest of a legatee in an estate not distributed or settled, and when no assent has been given to the legacy, is not liable to attachment. At the time the attachments were levied, the estate of Mary G. Harison had not been administered, nor the debts paid, and it nowhere appears by evidence before me that there was, either in express terms or by implication, an assent to the legacies levied upon. In legal effect, therefore, these legacies were at the date of said levies part and parcel of Mrs. Harison’s estate, because no legacy passes to the legatee until the debts of the estate are paid, unless assented to. Indeed, it is urged by the solicitor for the creditors, as a reason why the conveyances by Wm. H. Harison to his son, and to Anna M. and Frances Harison, are void is, Decause the debts of the estate had not at that time been paid, and because there had been no assent to the legacies. If, therefore, this was true at the time of these conveyances, and that the said Wm. H. could not convey because he had no title in the property conveyed, how could he have an interest which could be levied on by attachment at a date prior in time to said deeds ? Having shown that the levy of attachments must necessarily fall and are not valid liens upon the interest levied on, it is not necessary that I should pass upon the third ground of objection, to-wit: That as the attachments were sued out against the firm of Hazelton & Harison, the levy of the same could not be made upon the individual property of Wm. H. JBarison, although the position on this point is not without legal force.</p> <p>The attachments having been eliminated from the case, there remains but one other question for determination, and that is as to the legality and validity of the conveyances made by Wm. H. Harison to Wm. H. Harison, jr., and to Frances L. and Anna M. Harison, dated December 4th, 1880. It is claimed by the solicitor for respondents that the master has no jurisdiction to pass upon the matter of said conveyances, because, under the order of reference, the same is not before him, the cross-bill which set forth the said deeds having been stricken on demurrer. It is replied, on the other hand, that at the date of the order of reference, said cross-bill had not been stricken, and that the law which governs the master is the said order which, when passed, embraced the issues made by the cross-bill and answers to same; tha t while the cross-bill was stricken, no order was passed by the court transmitting the same to the master; that it is his duty therefore to disregard this judgment on demurrer and proceed to the determination of the case as it existed when the order of reference was passed. Various authorities were cited in support of this position, but I do not think they determine /the question. As I am expected to deal with this subject practically, suppose exceptions should be filed to this report and all the issues made by the pleadings submitted to the court and jury for trial. If I should disregard the judgment of the court striking the cross-bill, the court that passed the order certainly would not. If, therefore, the order striking the cross-bill does in law necessarily exclude the consideration of the subject-matter of these deeds, how could the court determine rights not before it in the pleadings, and what is the practical good of having the cross-bill before me which could not be before the court upon the trial of exceptions ? I do not, therefore, sustain the position of complainant on this point. It is further urged, however, by complainant that the order referred to only dismisses the cross-bill “as to the relief prayed for therein.”</p> <p>It is true that the order further recites “ that the case stand for trial upon the original bill, and parties complainant as amended December 6th, 1880, on the matters alone responsive thereto in the answers of the several defendants, exclusive of the matters set forth in the cross-bill of the defendants filed as above stated.” While, therefore, this language of this order seems to fully dispose of all the issues formed by the cross-bills, it will be observed that the first paragraph qualifies it to the extent of dismissing as to the relief prayed. Be this as it may (and I confess that I am not without doubt on this point), does this order, the strict language of which is relied upon, also carry out of the case the answers to the said cross-bill, which answers fully set out the rights of the grantees under these several deeds of conveyance ? As this is the main question in this case, because without its consideration-there is nothing practically for the decision of the master, would not the complainant,Wm. H.Harison, and the said grantees (they having been made parties) have filed a supplemental bill by way of amendment to the original setting up these equities intervening since the filing of said original bill and answers ? This obviously would have been done if the cross-bills had not been filed.</p> <p>Now, as the practice of filing supplemental bills is abandoned in Georgia, and the matter usually set up in such bills is only brought to the attention of the court by amendment, do not the answers to the cross-bill stand in equity as amendments to the original bill?</p> <p>A court of equity deals with the substance to the sacrifice of form ; and if, therefore, rights, substantial in themselves, are brought before the court, does it matter how they may be labeled, or in what legal name they may be baptized? Again, if a defendant in an equity cause may use his answer to an original bill asa cross-bill (see code, §4181), why may not a complainant use his answer to a cross-bill as a supplemental bill? I therefore hold that the pleadings in this case give to the master jurisdiction of this subject-matter, and shall therefore proceed to the determination of the same. It is further urged by the solicitor for the judgment creditors that Wm. H. Harison had no legal right to convey his interest in the legacies left to him after filing his bill against the respondents; that this resort to a court of equity, under the matters set forth therein, was, in equity, an impounding of the assets for legal and equitable distribution among the creditors, and that any conveyance made by him, after filing the bill in question, is null and void; that the creditors were restrained by injunction from enforcing the payment of their claims and thereby placed at a disadvantage.</p> <p>Second. Because there was no assent of the executor to the legacies at the time of the deeds. After careful consideration, I am unable to find any authority, which goes to the extent claimed, in support of the position that the filing of a bill by an executor of an estate amounts to an impounding of the assets of a legatee. This original bill was filed by Wm. H. Harison, as executor, in the intez’est of the estate which he represented, and in the interest of creditors of same, and was not filed by Harison as legatee. And while the executor and legatee may be united in the same individual, they are distinct and separate entities in law. If the bill had been filed against the creditors of the estate who were complaining, there would be force in the position assumed, but I know of no legal impediment to a sale by a legatee under such circumstances, who does so bona fide, or what is equivalent to a sale conveying his interest in extinguishment of a pre-existing indebtedness. It is true, in this case, that the injunction was of force at the time of these conveyances, but it only operated to restrain the creditors from enforcing the payment of their claims. It did not restrain them from reducing their respective debts to judgment, which they did; how, therefore, were they restrained so as to affect their rights as j udgment creditors ?</p> <p>These deeds purport to have been given for not only valuable, but adequate consideration, and no proof whatever has been offered to the contrary. The holder of a promissory note is presumed to be such bona fide and for value (code, §2787), and no proof has been furnished which negatives this legal presumption. The several deeds were executed on the 4th of December, 1880, and, so far as appears to me, in the exercise of a legal right to prefer the claims of the grantees as bona fide creditors. The judgments were rendered April 15, 1881, several months thereafter. They were, therefore, not liens upon the property in question, unless the said conveyances were void ab initio, and it is said that they are, because there had been no assent to the legacies at the time of their execution. Even if it were true that the act of the grantor, who was both executor and legatee, in conveying this property, did not amount to an assent, I am unable to understand how this question can be raised by the creditors of a legatee. The question of assent is one only which affects the creditors or others interested in an estate, and how could the act of a legatee, in conveying for value his interest in an estate, be void. It may be in some cases voidable as to the creditors of the estate, but not void even as to them. If there be any debts due by the estate, which would defeat the title of the legatee, in what better position is the creditor of a legatee than that of the legatee himself? I know of no reason why a legatee cannot convey what interest he may possess in an estate in the absence of the assent of the executor. The purchaser in such a sale would simply stand in the shoes of the legatee, and take by his purchase just such interest as the legatee had, subject to the debts of the estate. Wm.H. Harison having, therefore, according to the proofs before me, conveyed his interest in the estate of his wife, Mary G. Harison, for valuable consideration, before the rendition of any judgment against him, and there being no evidence to negative the bona fides of these several deeds, I am constrained to hold and decide that the purchasers, Wm. H. Harison, jr., Frances L. and Anna M. Harison, acquired by these several conveyances a title superior to the rights of the said judgment creditors.</p> <p>The defendants submitted to the master a motion to exclude various pieces of testimony; also to report that there was nothing submitted under the evidence requiring a report under the original bill, the evidence, other than documentary evidence, relating to matters contained in the stricken cross-bills. This motion was overruled. The defendants excepted to the report on the following grounds;</p> <p>(1) In entertaining jurisdiction in this case as such master, over the written protest filed with him, a copy of which is annexed, marked “A,” and proceeding to hear evidence in the case April 30th, 1883.</p> <p>(2) In exercising jurisdiction, when by two orders of court, one October 22d, 1881, dismissing the plea and cross-bills of these defendants on demurrer of complainant, and one June 15th, 1882, passed after the hearing the case before the Supreme Court, February term, 1882, 68 Ga. R. 463, the case was ordered to stand for trial at the next October term of the court.</p> <p>(3) Because the master having entertained jurisdiction under the order of reference of October 22d, 1881, paragraph fourth, failed to comply therewith as to the matters in the original bill, particularly the value of the estate, how it is to be kept together, the amount of income and the disposition thereof, and what are the valid outstanding claims against the estate to be paid.</p> <p>(4) Because the master, at the close of the evidence, refused to entertain any one of the motions made to exclude evidence admitted over objection of defendants, which motions were reduced to writing, filed with the master and are returned by him and filed with the report certified to as correct, and to which reference is made as if again set out.</p> <p>(5) Because the master refused to take action in favor of the defendants, as moved for, upon any one of the several grounds set forth in said motion so of file and certified to, and which are referred to and relied on as if again set out herein.</p> <p>(6) Because the court admitted in evidence, over defendants’ objection, the deed from Wm. H. Harison to his sisters, dated December 4th, 1880, the same never having been recorded and proved by the conveyancer and attesting witness, Maj. J. B. Cumming, one of the solicitors of complainant, who filed the bill and obtained the restraining order, to have been delivered to F. W. Gapers, attorney for one of the co-defendants, then bound by restraining order after December 6th, 1880; — the ground of objection being, that under the allegations in the bill and the terms of the restraining order, the motion of defendants, then of file and served, and answer praying for the appointment of a receiver, such acts were invalid to pass title against defendants, as they constituted a preference void in equity.</p> <p>(7) Because the court admitted in evidence, over defendants’ objection, the paper of Wm. H. Harison to his son, dated December 4th, 1880, the same never having been recorded and proved by the conveyancer and attesting witness, J. B. Cumming, Esq., one of the solicitors of complainant, who had filed the bill and obtained a restraining order, to have been delivered, after December 6th, 1880, to W. W. Montgomery, Esq., another of complainants’ solicitors, on his return thereafter from Washington county; —the ground of objection being, that under the allegations in the bill and the restraining order, the motion of defendants then of file, and the cross-bill served December 6th, 1880, with the relief prayed for therein, the act was void, and the instrument passed no title thereby or by its terms, these two solicitors not being authorized in equity to consummate thereby a preference not previously existing by contract or operation of law.</p> <p>(8) Because the master, when the record showed that after the reference to him October 22d, 1881, the relief prayed for by the answers of these defendants in lieu of a cross-bill had been stricken by another order, and nothing remained except what was responsive to the original bill, reported that the answers to the cross-bill so stricken, and which were filed October 17th, 1881, presented matters which, over the objection of defendants, he would allow to be considered, and did entertain and adjudicate upon it, as an amendment to the original bill, and granted thereunder relief to the sisters of complainant not represented or asking it, as to the deeds of December 4th, 1880.</p> <p>(9) Because the master reported as follows : It is admitted that the aforesaid mortgages have been foreclosed and the property covered by them sold and the proceeds applied to the payment of the liabilities of said firm, — not qualifying it as having occurred after the filing of this bill and decision of January 3d, 1881.</p> <p>(10) Because the master reported as follows: I do not believe, however, that such an interest as Wm. H. Harison took by the first item of the will was leviable by attachment, and therefore the levies established no lien as to the interest; — the error being in ruling upon the validity of the levy on the life estate, complainant not having prayed for it in his bill and no defendent asking it at his hands.</p> <p>(11) Because the master reported as follows: I am of the opinion, and so decide, that the interest of a legatee in an estate not distributed or settled, and when no assent has been given to the legacy, is not liable to attachment at the time the attachments were levied; — the error being that the question was not raised by the pleadings properly before him, and contrary to the evidence that sufficient time had elapsed from his qualification to presume assent, and he had done other acts from which the law implied it.</p> <p>(12) Because the master, under the prayers of the original bill, filed November 1st, 1880, to which was annexed exhibit 0 3, whereby individually, as life tenant and remainderman, and as trustee and executor with testamentary power as to the three-fourths interest in remainder under the said will of Mary G. Harison, Wm. H. Harison, ratified and confirmed previous conveyances as executor to Wm. H. Harison, jr., and stated the same to be considered binding, in the event he died intestate, as a deed made pursuant to said will, disposing of the residuum to the extent of said land hereinbefore conveyed, reported that it nowhere appears by evidence before me that there was, either in express terms or by implication, an assent to the legacies levied on. In legal effect, therefore, these legacies were, at the date of said levies, part and parcel of Mrs. Harison’s estate. — The error appears from the record aforesaid, which made him assent so far as his creditors were concerned, and from the time which elapsed after the record of the will in Georgia.</p> <p>(13) Because the master reported as follows: Be this as it may (and I confess that I am not without doubt on this point), does this order, the strict language of which is relied upon, also carry out of the case the answers to the said cross-bills, which answers fully set out the rights of the grantees under these several deeds of conveyance ? As this is the main question in this case, because without its consideration there is nothing practically for the decision of the master, would not the complainant, Wm. H. Harison, and the said grantees, they having been made parties, have filed a supplemental bill by way of amendment to the original, settingup these equities intervening since the filing of the said original bill and answer? This obviously would have been done if the cross-bill had not been filed. — The error being in not sustaining the doubt, and ruling upon matter not before him properly in stating, “ This is the main question in the case as made,” and in considering the fact that the grantees were made parties; this having been moved for by the defendants as to their cross-bill, when the complainants objected, as shown by the order of June 29th, 1881, and which grantees were not made parties until after the return of the case from the Supreme Court, June 15th, 1882.</p> <p>(14) Because the master reported as follows: I therefore hold that the pleadings in this case give to the master jurisdiction of this subject-matter, and shall therefore proceed to the determination of the same. — This is error upon its face, as there were no pleadings but what were left under the decision of the Supreme Court.</p> <p>(15) Because the master reported as follows: Even if it were true that the act of the grantor, who was both executor and legatee, in conveying this property did not amount to an assent, I am unable to understand how this question can be raised by the creditors of a legatee. — This is error, as such assent only arose after the bill was filed and other creditors enjoined, and because the creditors of this legatee were parties to the bill, was the main ground of sustaining jurisdiction.</p> <p>(16) Because the master, after it was shown by the record that after service of the restraining order on defendants, November 3d, 1880, and of their motion to appoint receiver on complainants’ motion, November 12th, 1880, and the filing of answers of defendant, November 25th, 1880, in which cross-relief was prayed to apply the value of the life estate of Wm. H. Harison with his one-fourth estate in remainder to his debts established under this bill, reported, “but I know of no legal impediment to a sale by a legatee under such circumstances, who does so Iona fide, or, what is equivalent to a sale, conveying his interest in extinguishment of a pre-existing indebtedness”; — the error being in stating an abstract proposition of law and applying it to just such circumstances as were disclosed in evidence before him.</p> <p>(17) Because the master reported as follows: Wm. H. Harison having, therefore, according to the proofs before me, conveyed his interest in the estate of his wife, Mary G. Harison, for valuable consideration, before the rendition of any judgment against him, and there being no evidence to negative the lona fides of these several deeds, I am constrained to hold and decide that the purchasers, Wm. H. Harison, jr., Frances L. and Anna M. Harison, acquired by these several conveyances a title superior to the rights of the judgment creditors. — This is error, as the matter was not before the master, and is a side issue brought into the case under the present pleadings to sustain what was attacked by the cross-bills of defendants, and as to which they could not be heard.</p> <p>(18) Because the entire report is contrary to law and equity, and outside of the questions raised by the pleadings, and improperly before him, if he had jurisdiction to proceed, which was denied.</p> <p>These were subsequently amended April 14th, 1884, as follows:</p> <p>(1) For not fixing and determining the present value of the estate of Mary G. Harison, in Georgia or elsewhere, as to which complainant in the original bill prayed for instructions how to administer the same.</p> <p>(2) For not determining who were creditors of the said estate, in Georgia or-elsewhere, the amount of indebtedness and how the same was to be provided for.</p> <p>(3) For not determining whether complainant was in possession of the property as executor, life-tenant, trustee or remainderman at the filing of the bill, and what the estate was which was in his hands for direction at that time.</p> <p>(4) For not fixing and determining the value of the estates of Mary G. Harison at the time of her death, what amounts had been advanced therefrom by complainant, William H. Harison, as executor to his co-complainants, William H. Harison, jr., R. Morley Harison and Noble W. Harison, and what was the effect of such advancements in reference to the personal interest of Wm. H. Harison, sr., in the estate to be held for his life use, with remainder to be disposed of by him.</p> <p>(5) For not construing the provisions of said will so far as the same affects the rights of the creditors of Wm. H. Harison, parties to the bill, and particularly in view of his failure to administer the estate and qualify in Georgia.</p> <p>(6) For not determining, as between complainant and his creditors, the effect of his failure'to make any returns from the date of his qualification in New Jersey until the filing of the master’s report, for any act of his as executor, beneficiary for life, trustee or remainderman.</p> <p>(7) For not determining what was the duty of the executor as to keeping the property together, or selling and distributing the same, nor within what time or in what manner distribution should be made.</p> <p>On June 27,1885, the exceptions of law were overruled, and the defendants excepted pendente lite.</p> <p>Notice was given by complainants of an intention to move to amend the bill and claim damages against the defendants on account of injury growing out of the litigation. It was alleged that all of the defendants thus sought to be pursued were non residents of Richmond county, and all non-residents of the State, except the Bank of Rome, and that they were represented by Frank H. Miller, Esq. The defendants objected on the ground that such an order was not authorized under the law and the condition of the pleadings, and because it introduced matter not referred to the auditor, whose report was of file. Other objections were presented, because the particular complainants were not disclosed, and whether the supplemental relief sought was joint or several; because it comes too late after report of the master and exceptions filed thereto; because the act of September 24, 1881, under which the reference was made, authorizes no such action to be taken, and no proper application has been, filed thereto; and because the court had no power to pass such an order without referring the matters put in issue to the master. (These objections were filed February 15, 1884.) On the same day, an order was passed overruling the objections, but leaving open the right of excepting to the validity or sufficiency of the amendment or service. Defendants excepted pendente lite.</p> <p>On March 11, 1884, complainant Wm. H. Harison, executor, who alleged that in that capacity he represented the interests of R. H. Gardiner, the estate of Geo. N. Jones, the holders of W. H. Harison’s life estate in the property of the testatrix sold by him on December 4, 1880, to Frances L. and Anna M. Harison, and all other creditors and legatees of the estate of testatrix not complainants to the bill; also Wm. H. Harison, jr., as legatee and purchaser, and Wm. H., sr., of his interest in remainder under purchase of December 4, 1880, and. Bichare! M. and Noble W. Harison, legatees under the will, filed a “supplemental amendment” to the bill, alleging, in brief, as follows: Eecited the making of the deeds; that “he was and is advised by counsel he had a right to do so under the laws of Georgia;” and also the action had in suing out attachments and the cross-bills by original defendants and the assignee of the Bank of Eome; claimed, for suing out the attachments, obtaining restraining order on cross-bill and being stubbornly litigious, damages for E. M. Harison, $10,000 ; Noble W. Harison, $20,000; all the complainants, $50,000; thereafter averred that W. H. Harison, jr., had, on August 12,1882, by letter to the assignee of the Bank of Eome, offered to the creditors of W. H. Harison, sr., $ 10,000 in compromise; called for the production of the letter as evidence of damages resulting from the date of the letter; and closed with prayer, waiving discovery, “for a decree against said defendants, jointly and severally, for such damages as a jury may think each and every one of them are entitled to under the circumstances.”</p> <p>This amendment was served, with subpoena, upon Frank H. Miller, as the solicitor of the original defendants, and personally upon Robert T. Fouche', then assignee of the Bank of Rome. At the April term, 1884, after such service, the sheriff’s return was traversed as to the sufficiency of the service to bind the defendant as to the matters set forth in the amended bill, which traverse was overruled, and the defendants excepted. They then demurred to the bill, as so amended, upon the following grounds:</p> <p>(1) Because there is a misjoinder of parties with the original complainant.</p> <p>(2) There is no sufficient cause set forth in the amendment to the bill to entitle the complainants to be heard as to matter arising since the commencement of the suit.</p> <p>(3) The amendment sets forth a separate and independent cause of action, which can only be enforced after personal service upon these defendants at the place of their domicile, or by foreign attachment against their property; and service upon their counsel is only good and effectual so far as it may affect the rights of these defendants to prosecute these claims, now enjoined under the provisions of the original bill, separately and independently from the matters involved in the cross-bills of these defendants, which have been stricken on demurrer of the complainants, and to which interlocutory exceptions are now on file.</p> <p>(4) Because the bill, with the amendment, is multifarious, vague, uncertain, and claims damages too remote to be recoverable, and particularly against these defendants, who, if liable at all, are severally responsible.</p> <p>(5) Because the allegations in the amended bill show such conduct on the part of the original complainant and his co-complainants as amounts to an estoppel in pais on their part.</p> <p>The bill was amended, under announcement from the bench, by alleging that the damages were done by the defendants from malice and without probable cause.</p> <p>The demurrer was renewed, and it was added that the complainants had an adequate remedy at law ; that a new cause of action was added, making the original bill multifarious; that the amendment was not sworn to, and claimed relief which could not be granted, because the original proceedings for which damages were claimed had not terminated. The demurrer and motion to strike were overruled, and exceptions pendente lite were filed.</p> <p>On April 21, 1884, the Cleveland National Bank filed an application to remove the case to the Circuit Court of the United States, under the act of 1875. The petition alleged that, at the date of the amendment of March 11, 1884, all the complainants were citizens of Georgia, New York, Maine and Florida, and all the defendants to the original bill, who levied attachments, etc., were non-residents, and all were so, except the Bank of Rome. The bond was made payable to “Wm. H. Harison, executor of Mary G. Harison, and others.” On the same day, the Soddy Coal Company filed a petition for removal, under the act of 1867. The bond was payable to “Wm. H. Harison, as executor of Mary G. Harison, and other complainants.” The petitions were overruled, and exceptions pendente lite were filed.</p> <p>On June 16, 1884, the defendants filed objections to the passing of an order allowing fees to the master, on the following grounds : Because the court has no jurisdiction in the premises; because, if the amendment be germane, it must be referred to the master and passed on; because the exceptions to the report have not been finally passed on, and no verdict or final decree rendered; because the master’s costs are for determination on final decree ; and because, so far as claimed against defendants, they are' excessive.</p> <p>At the April term, 1885, the court passed an order allowing the master $575 as fees, one-half to be paid by each side, “provided always this order shall remain open and subject to exception until final decree, and may be reviewed by either party at that time, except as to the sum fixed hereby as value of services.” The defendants excepted pendente lite.</p> <p>On December 8, 1886, R. T. Fouche', assignee of the Bank of Rome, and successor of Reynolds in that office, filed an answer to complainants’ bill, including a cross-bill. He alleged that, since the filing of the original bill, R. H. Gardiner, the annuitant, had died, and that there is substantially no indebtedness against the estate of Mary G. Harison, unless something should be found to be due the estate of Geo. N. Jones. He denied the right of Wm. H. Harison to represent the interests of others, and prayed that the legality and validity of the indebtedness to the estate of Geo. N. Jones be determined, and that, after paying the claims equal or superior to the interest of Wm. H. Harison in the estate of Mary G., receiver be appointed and distribution made among all his creditors, without preference, except as allowed by law, as they stood at the filing of the original bill on November 1, 1880.</p> <p>On December 8, 1886, on motion of complainants’ counsel, so much of the amendment to the bill and the amendment thereto as claimed damages against defendants, was stricken, and the amendment was allowed to stand only so far as to put in issue all matters in dispute before the master and upon which proof was offered before him, but which may not be sufficiently put in issue by the original bill; and this order was granted without prejudice. The death of R. H. Gardiner having been suggested, it was entered of record, and the case was ordered to proceed.</p> <p>Complainants’ solicitors moved that the case proceed under the act of October 16, 1885, regulating practice as to master’s reports. Defendants’ solicitor claimed that the trial should be had under the act of 1880 (code, §3097 (a)), exceptions having been filed before the passage of the act of 1885 ; and that the act of 1885 was unconstitutional and inapplicable to the case, and limited the right to try issues of fact before a jury. The court ruled with the complainants on this point, and this is assigned as error.</p> <p>Defendants then, demurred to the original bill as amended December 8, 1886, and moved to strike from it all allegations of the amended bill filed March 11, 1884. and particularly the answer of the complainant, Harison, filed October 17, 1881, to the answers and cross-bills of the defendants, which were stricken on demurrer, the master having found the answer of complainant to be a part of his pleadings as a supplemental bill and giving the master jurisdiction. This demurrer and motion to strike were overruled, and the defendants excepted.</p> <p>The case then proceeded on the exceptions of fact to the master’s report. Complainants demurred to the first exception as immaterial and one which could not affect the case under the findings of the master. They also moved to dismiss it on the ground that the finding of the master thus excepted to was not erroneous, and in support of this motion submitted the evidence relating to this finding.' The demurrer and motion were heard together, and the exceptions dismissed. Defendants excepted.</p> <p>Complainants then moved to strike the other grounds as matters of law overruled by the court in his order approving the master’s report, and also because, so far as the exceptions were exceptions of fact, it did not appear that error had been committed, and they presented no issue to be submitted to the jury. Pending this argument, the defendants moved to be allowed to amend their exceptions of fact as follows: “Because the master found that the deeds dated December 4, 1880, from Wm. H. Harison individually to Wm. H. Harison, jr., and Frances L. and Anna M. Harison, were not void and not made for the purpose of hindering and delaying these defendants as creditors of Wm. H. Harison.” This amendment was refused on the ground that this question had not been passed upon by the master. The motion of the complainants was then granted, all the exceptions stricken, and the complainants’ solicitors directed by the court to take a verdict in accordance with the finding of the master’s report. To this the defendants excepted.</p> <p>Further action was then postponed until December 10. Defendants requested the court to decree as follows:</p> <p>(1) That the only matter remaining for final decree was what was contained in the original bill.</p> <p>(2) That the evidence required the appointment of a receiver.</p> <p>(3) That the interest of William H. Harison, passing under the will of his wife, was subject to levy of the attachments.</p> <p>(4) That the deeds of December 4th, 1880, to William H. Harison, jr., were invalid, because the consideration was furnished out of the estate from a sale of the estate’s property made after the filing of the bill, and the granting of the restraining order which impounded all the interest of William H. Harison, sr., in the estate and prevented him from alienating or altering the condition of the same.</p> <p>(5) That under the statements in the bill, the validity of the attachments was not in issue.</p> <p>(6) That the service of the notice for the appointment of a receiver prior to the date of the deeds estopped the complainants from making the conveyances,- and the grantees. from accepting them, and that the grantees could not be heard through William H. Harison, as executor, or his co-complainants under this bill, to set up their rights under those deeds by amendments made after the filing of master’s report, averring himself to be suing for the use of the grantees.</p> <p>(7) That no-relief should be granted to the grantees in these deeds under the pleadings in the case.</p> <p>These requests were refused, and the defendants excepted.</p> <p>The court then passed an order, reciting the overruling of the exceptions of law, dismissing the exceptions of fact, and referring the question to the jury in order that a verdict might be taken in accordance with the findings of the master. The following verdict and decree was then taken:</p> <p>“We, the jury, find and decree that, at the time that the said affidavits were made for the purpose of obtaining attachments in favor of the creditors of Hazelton & Harison and of Wm.H.Harison, sr., and at the time of the levy of said attachment upon the interest of the said Harison, sr., in the estate of the said Mary G. Harison, the said Wm. H. Harison, sr., was a citizen andresident of Georgia. We further find and decree that traverses of the ground upon which said attachments were issued were filed at the proper time by said Wm. H. Harison, and that the traverse has been successfully maintained by the proof. We further find and decree that there was, neither in express terms nor by implication, any assent to the legacies levied on by said attachments, and that said legacies were, at the date of said levies, part and parcel of Mrs. Harison’s estate, which had not been administered, nor had its debts been paid.</p> <p>“We further find and decree that the two deeds made by fm. H. Harison, sr., on December 4, 1880 (the one-half of his life interest in the estate to his sisters and the other half of his one-fourth interest in remainder in said estate to his son, W. H. Harison, jr.), were for a valuable and adequate consideration, and made and executed by him Iona fide in payment of debts due by him to the grantees, and that said deeds were duly accepted by said grantees in full satisfaction of said debts and passed the interests intended to be conveyed by them to the grantees. We further find and decree that said deeds were executed and delivered by the grantor and accepted by the grantees prior to any judgment obtained by the excepting creditors against said W. H. Harison. *</p> <p>“We further find and decree that in all other respects the findings of the master are correct, and we hereby affirm the same and make them a part of this verdict.</p> <p>“We further find and decree that the cost of suit be paid' by said excepting defendants, to-wit, the Mechanics’ and Traders’ Bank, the Soddy Coal Company, the Cleveland National Bank, the Roane Iron Company and the Bank of Rome.”</p> <p>When the verdict was presented, it was objected to on the ground that it was not a simple finding sustaining the master’s report, but set out other and additional findings of the jury; because it did not cover the issues raised under the prayers in the original bill; because it passed upon the allegations made under the amendments to complainants’ bill, filed March 11, 1884, and February 4, 1885, and the answer of Harison to defendants’ cross-bill (which was stricken on demurrer), all prayers under the same having been stricken at the commencement of the trial, December 8, 1886. These exceptions were each overruled, and the defendants excepted.</p> <p>Defendants excepted to the decree also because it failed to cover the issues set forth in the original bill by establishing the outstanding claims against the estate of Mary G. Harison in favor of the creditors thereof; and because it confirmed conveyances made by Wm. H. Harison to his sisters and his son on December 4, 1880, after the filing of the original bill and the granting of the restraining order of November 1, 1880. This exception was overruled, and the defendants excepted.</p> <p>Fouche', assignee, also excepted to the decree on the ground that it failed to grant any of the relief prayed for in his cross-bill. Error was assigned, both on the rulings set forth in the main bill of exceptions, and on those filed pendente lite.</p> <p>The defendants in error also filed a cross-bill of exceptions, assigning error on the following ruling of the court; On December 4, 1886, during the October term of court, complainants’ counsel moved to strike the exceptions filed by the defendants to the master’s report, on the ground that the defendants were in contempt of court in failing to obey the order requiring them to pay one-half the master’s fees, and that the defendants could not be heard until the contempt was purged. In support of this motion, complainants introduced the affidavit of the master, showing that the defendants had declined to pay any portion of his fees, and that all of them were non-residents, except the Bank of Rome, which was insolvent, The master stated that the motion to strike was not made at his instance, that he knew of no property in the State on which an execution could be levied, and had not asked for an execution to issue. The court suggested that the motion to strike could not be entertained until the defendants were adjudged to be in contempt. The complainants then took a rule nisi against the defendants to show cause why they should not be adjudged to be in contempt. Through their counsel, they showed for cause that it appeared that the motion was not made at the instance of the master; that the order for fees expressly provided that it should remain open and subject to exceptions until final decree; that exceptions pendente lite had been filed theretothat a failure to pay fees was a matter personal to the master, to be enforced by execution, and no execution was issued; and because the resident defendent, the Bank of Rome, had failed and its assignee was not authorized to make such payment, and the State of Georgia was a depositor in the hank and entitled to priority of payment.</p> <p>The court discharged the rule, and the complainants excepted on the ground that he should have made it absolute, and should have stricken the exceptions to the master’s report.</p>

<p>1. Past cohabitation alone would not render a gift by the party holding such a relation to a woman, void or illegal.</p> <p>(a) A contract to make compensation for the injury done in consequence of illegal cohabitation, which contained no stipulation for future intercourse, has been held to' be valid; and even where such-a contract had been-fully executed and the intercourse was kept, up, afterwards, yet if it did not appear that the - subsequent cohabitation was made a stipulation in the contract, it has been maintained. ' Where there was no evidence of any promise or understanding other than that inferred from the fact of the future illicit intercourse between the parties, this did not affect the validity of the transaction.</p> <p>(b) Neither at the testator’s death nor when the will was executed could a continuance of the relations between Eubanks (the putative father of the children, who, with their mother, were leading benefíciáries) and Amanda (the mother of such children and the putatiye child of the testator) have been contemplated, Eubanks then being dead; nor is there anything in the case to show that the testator had knowledge of any illicit intercourse between one of the persons whom he appointed as his executor and Amanda, occurring subsequently to the death of Eubanks. No offspring resulted therefrom, nor is there anything in proof to charge the testator with knowledge of it or to show that he in any way encouraged it; 'nor did his will make provision for carrying on of such intercourse or for the maintenance and support of any offspring therefrom.</p> <p>(c) Illicit intercourse between persons of the same race, as well as persons of different races, is made penal by the law of this State, as also is intercourse between persons standing in near relation of consanguinity or affinity to each other, whether taking place in consequence of prohibited marriage or otherwise. A white man may be guilty of fornication with a colored woman, and vice versa; and a white or colored man, if a child is begotten in consequence of such illicit intercourse, may be held liable for bastardy. There is no difference in this respect between the rights and liabilities of the different races.</p> <p>(d) Under the 14th amendment of the constitution of the United States, it has been held by the Supreme Court of the United States that all colored persons born in the United States and subject to its jurisdiction, are citizens of the United States, and of the States in which they reside, and our State constitution declares that all citizens of the United States, residing in this State, are citizens thereof. All distinctions as to the rights pertaining to citizenship between the two races are abolished, and as to their civil rights, they stand upon the same footing. Therefore, whatever rights and privileges belong to a white conqubine, or to a bastard white woman and her children, under the laws of Georgia, belong also to a colored woman and her children, under like circumstances, and the rights of each race are controlled and governed by the same enactments or principles of law.</p> <p>(e) Among the rights of citizens enumerated by the code of this State are the right to the acquisition and enjoyment of private property and the disposition thereof, the right to vote, hold office, etc. A testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the State. Most persons are deemed capable of taking under will, and the exceptions as to those who are incapable of so taking are carefully enumerated and rest generally upon grounds of public policy; among these are alien enemies and others whose participation in such benefits could, in any sense of the word, be called immoral; as, if a will makes a devise or bequest to further or carry into effect some illegal purpose which the law regards as subversive of sound public policy and good morals,-or if a condition be imposed tending to a separation or divorce between husband and wife, or other like restraints upon testamentary disposition which local law sees fit to enforce; and these may differ in different, jurisdictions and different times.</p> <p>(f) There is nothing in the law of this State prohibiting á putative father from making provision for his illegitimate child, or for the illegitimate offspring of such child. And even conviction of treason or felony, or any lower grade of crime, works no corruption of blood or forfeiture of estate.</p> <p>(g) Courts hold themselves bound to the observance of rules of extreme caution, when invoked to declare a transaction void, on grounds of public policy; and prejudice to the public interest . must clearly appear before a court will he warranted in pronouncing the transaction void' on this account. It is not to be lightly inferred from facts and circumstances of doubtful import and meaning, or which may admit of different construction, one consistent with and the other opposed to unquestioned policy. Courts are not invested with legislative powers in such matters.</p> <p>(h) There is no constitutional or statutory provision, and no decision of the courts of this State, which holds it to be immoral or wrong for the putative father to make provision for his illegitimate child, whether that child he white or colored, or for the legitimate offspring of such child, whatever the complexion of such offspring may he, or for any one who has lived in violation of the public law, and thereby become a criminal either to a greater or less extent, unless that provision is the result of a previous understanding that led to the commission of the offence and induced a breach of the law and sound public policy of the State.</p> <p>2. Whether the will in this case was procured by the fraud of Amanda and her mother, in inducing the testator to believe that Amanda was his daughter, and that her offspring were the children of Eubanks, and whether they were not so in fact, and whether such representations had the effect of procuring the will, were submitted to the jury; and taking the part of the charge excepted to in connection with other portions of the charge on the same subject, the questions were properly submitted and the charge was not too restricted.</p> <p>3. Apart from the representations as to the paternity of Amanda and that of her children, no effort was made to exert any influence over the testator, nor is it made clear that he was subject to such influence, or that his will was so weak and his purpose so infirm as to justify a belief that either could have been overcome in that manner.</p> <p>4. The remaining grounds of the motion for a new trial have not such merit as would authorize this court to interpose and set aside the will. No error appears, either in selecting the jury from the panel of grand jurors, or in drawing and summoning that panel, or in the reception or rejection of testimony, or in the assignments of errors in the various charges as given or refused, or in the rules laid down for judging of the credibility of witnesses, or in refusing to hold two of the jurors who tried the case to be biased or prejudiced.</p> <p>5. This case was argued before a full bench of three justices. After the argument, Chief Justice Jackson died. After his death, counsel for plaintiffs in error, before the delivery of a decision, moved to have the case reargued before a full bench. This was denied. Subsequently, but still before the decision was rendered, counsel for plaintiffs in error again moved for a rehearing, on the ground that, after the death of one of the justices who heard the case, the other two had no power, under the law, to proceed to decide it. Chief Justice Bleckley being disqualified, it was suggested that a judge of the superior court should be appointed in the usual way; or, if this course were not proper, that, as the legislature would soon convene, the delivery of the decision should be withheld until a legislative expression might be had as to the appointment of a judge of the superior court in such a case, or that the case should be continued. The motion was denied and the decision delivered. (Rep.)</p>

<p>Removal of Causes. United States Courts. Before Judge Roney. Richmond Superior Court. October Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. Where a national bank of the State of New York desired to begin proceedings against a person residing in Fulton county, Georgia, and for that purpose gave a bond to pay all damages which the defendant might sustain and all costs'that might be incurred by him in consequence of suing out an attachment, in the event the plaintiff should fail to recover in the case (the surety on the bond being a resident of Fulton county), and thereupon obtained an attachment returnable to the city court of Atlanta, in accordance with the statute, that court had jurisdiction of a suit subsequently brought against the principal and surety on the bond to recover damages arising from the suing out of such attachment.</p> <p>(a) Section 5136, par. 4, of the Revised Statutes of the United States, is not repealed or modified by the’amendment to section 5198, nor is there conflict between the two sections, but each may have full operation without interfering with the other, except so far as suits to recover on account of charges of excessive interest are concerned.</p> <p>(b) The act of congress of July 13, 1882 (Acts 1st session 46th Congress, p. 163), covers the case and confers jurisdiction.</p> <p>2. Where a national hank, located in a foreign State, desired to obtain, process of attachment in Georgia, and as a condition precedent to the issuing of the writ, gave bond as required by the law of this State, and thereupon the writ issued in its favor, §3354 of the code, which provides that, in a suit on the attachment bond, if the principal be a non-resident, it shall be sufficient to serve a copy of the petition and process on the security, and the action may thereupon proceed against both principal and security, became a part of the bond as fully as if expressly incorporated therein, and in a subsequent suit on such bond, service on the security was sufficient. The proceeding under §3354 of the code is by due process of law; nor does that section conflict with the 14th amendment to the constitution of the United States.</p>

<p>Where two men purchased a tract of land, using their individual funds in so doing, and having agreed, at and before the time of purchase, upon a division of it between them, and where one of them took a deed from the vendor to himself, as guardian for his children, for an undivided half interest in the land, and the other took a deed from the vendor to himself, as trustee for his wife, to an undivided half interest therein, and where they subsequently executed deeds to each other dividing the land as they had agreed to do prior to the purchase, and one of them placed improvements on the part assigned to him under this division, either of them was estopped from denying the partition or from attacking it by petition for partition. Had the money with which the purchase was made belonged to the wife or children, it might be that they could complain of the agreed division, but the father of the children could not himself, by petition for partition, undo what he had already done,</p>

<p>1. Where an owner of land sold a portion thereof, and subsequently-sold a right of way to a railroad company passing through both his own land and that which he had previousty sold, in an action for money had and received, brought by a person holding by conveyances under the original vendee against such vendor, she would be entitled to recover, not merely the value of the land so illegally sold by the vendor as a right of way, but the amount received by him for that portion of the land belonging to her which he thus sold; and if, in the sale to the railroad company, all parts of the land conveyed by him were treated as equally valuable, and the purchase money was paid as a gross sum, then the plaintiff would be entitled to recover a proportion of the purchase money, corresponding to the proportion in which she held the land sold as to quantity.</p> <p>2. Damages for bringing the case to this court are denied.</p> <p>3. An action for money had and received was brought by Eliza E. . Groover against S. D. Niles, and a recovery had by the plaintiff. The defendant moved for a new trial. Accompanying the motion is an agreed brief of the evidence appropriate to the case. In heading the motion for a new trial, the case is stated as “Sallie E. Groover vs. S. D. Niles,” and it is stated that a verdict and judgment were rendered for the plaintiff, and that the defendant moved for a new trial:</p> <p>Held, that the writ of error will not be dismissed because of the error in stating the name of the plaintiff. (Rep.)</p>

<p>1. A chattel mortgage executed by a resident of Alabama upon property in that State, and duly recorded there, conveyed title; and where the property was casually brought into the State of Georgia and levied on by an attachment, the mortgagees could interpose a claim thereto. A distinction exists, under the laws of Alabama, between a chattel mortgage and a mere lien.</p> <p>2. Where such property was casually brought into the State of Georgia, and before the expiration of the six months in which a foreign mortgage is required to he recorded here, an attachment was levied thereon, the Alabama mortgagees could interpose a claim thereto and recover the property, although they had not recorded the mortgage in this State.</p>

<p>1. Where suit was brought on two unconditional promissory notes, one of which had matured, by its terms, before the commencement of the action, and the other had not, the presiding judge was authorized, without the intervention of a jury, to render judgment in favor of the plaintiff on the note which was due, but not on that which had not matured; and although the declaration alleged that the notes were given for the purchase money of a tract of land sold by the plaintiff to the defendant, that the former gave to the latter a bond for titles which was in the defendant’s possession, and in which it was stipulated that, upon the failure of the defendant to pay the first note when due, the other also should be considered due and collectible, and that the defendant failed to pay the first note at maturity, whereby the second also had fallen due; and although no issuable plea was filed; a judgment by the court without a jury, for the amount of both the notes, was illegal.</p> <p>2. The defects alleged to exist in such judgment appear on the face of the record and pleadings, and a motion in arrest of judgment was the proper remedy to correct these defects.</p> <p>3. Generally a judgment is entire and indivisible, and being in this case for the full amount of both notes, it could not be arrested-or set aside in part, and held valid in part, on motion of the defendant; but as to the note not due, it might be corrected by a motion on the part of the plaintiff to amend so as to let it stand for the amount of the matured note. In the absence of such a motion, the judgment should have been set aside.</p> <p>Bleckley, C. J., concurring.</p>

<p>An unconditional contract, on which the court may render a judgment without a jury, is one which does not contain a condition. It must be such a contract as that the court, by looking at the paper its''If, may determine that judgment should be rendered for the plaintiff in the case. Where suit was brought on three promissory notes, one of which appeared on its face to be due, and the others appeared not to be due, and where the declaration alleged that they were all due by virtue of the covenants in a certain bond for titles set oat and annexed thereto, to the effect that if the first note was not paid at maturity, the others also should become due; construing the bonds and notes together as one entire contract in writing, it was not an unconditional contract on which the court could render a judgment for the full amount of the notes without a jury.</p> <p>(a) So far as concerns the last two notes, the judgment might have bee:., and may yet be, amended by the plaintiffs, if they think proper to do so, leaving the judgment to stand as to the first note; but if the plaintiffs insist on their entire judgment, the whole must be arrested and set aside. If the judgment is arrested and set aside, the question of the non-payment of the first note and the consequent maturing of the others may be submitted to the jury, and a verdict and judgment thereon had.</p>

<p>Wills. Estates. Before Judge Adams. Chatham Superior Court. December Term, 1886</p> <p>Reported in the decision.</p>

<p>Removal of Causes. United States Courts. Before Judge Mershon. Glynn Superior Court. May Term, 1886.</p> <p>Reported in the decision.</p>

<p>Yerdict. Claim. Fraud. Principal and Agent. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. A municipal corporation can make a cash contract for current supplies, such as lamps and gasolene for lighting the streets, through its appropriate officers or committees, as effectually as by formal order or resolution entered on its minutes.</p> <p>Such a contract, if not authorized or confirmed in the mode commonly practiced, may become obligatory by implied ratification, as, by taking the fruits of the contract and enjoying them for a considerable time without notice of objection.</p> <p>3. The facts of this ease, taken most strongly in favor of the prevailing party, as they must be after verdict, do not show any purpose or intention to create a debt. The debt resulted from a breach of the contract, not from the making of it. Against paying a debt so originating,' there is no constitutional impediment.</p> <p>4. That the book of minutes of the corporation was excluded as evidence will not warrant a new trial, the facts which the book was offered to prove having been established by other testimony.</p> <p>5. That on polling the jury, some of them, after answering that the verdict was their verdict, added that they hesitated to agree to it, and had given their assent reluctantly and with doubt, will not vitiate the finding.’</p>

<p>Partnership. Witness. Evidence. Before Judge John T. Clarke. Olay Superior Court. September Adjourned Term, 1886.</p> <p>The Eatherly Hardware Company, a partnership, brought complaint on an open account against D. C. Adams, surviving partner of C. L. Laney & Company, a firm composed, as alleged, of C. L. Laney (deceased) and D. C. Adams. The defendant pleaded the. general issue, and that he was not the surviving partner of Laney & Co. On the trial, the evidence for the plaintiffs was, in brief, as follows: The goods sued for were shipped, and an invoice, dated September 17,1885, and stating C. L. Laney & Co. as the purchasers, was forwarded and entered on the invoice-book kept by Laney and checked off. The correspondence leading to the shipment consisted of several letters, dated in July and August, 1885, those written by plaintiffs being directed to C. L. Laney and he signing the order directed to them. One of the plaintiffs testified that he addressed Laney individually because he was the active man of the firm, did the buying and, as witness understood, had general supervision; that it was a common occurrence for plaintiffs to write such letters and for the various individual members of their firm to receive such letters written to them about business of the firm; and that he did not know before the goods were shipped that the firm of Laney & Co. was dissolved. Another of the plaintiffs testified that Adams told him that Laney was the buyer and Adams did not stay in the store much; and that witness knew that Laney was in the store and could and would probably answer promptly.</p> <p>The evidence for the defendant was, in brief, as follows: The firm of Laney & Co. was dissolved on or about July 2, 1885, Adams selling his interest to Laney; and then Laney carried on the business in his own name, Adams having no connection with it. Everybody knew this, and Laney was generally regarded as the sole owner of the business. Adams had a notice of the dissolution put in the local newspapers, though no copies were sent to the home of plaintiffs. Adams knew nothing of the bill of goods sued for, but identified the invoice as that found in the invoice-book of Laney. Such invoices are kept by merchants to mark the goods and for reference. He presumed that it was the custom of merchants to check off such invoices; some keep invoice, books and others books of bills payable. He was not a member of the firm of Laney & Co. when these goods were bought and knew nothing of them; he never authorized any one to order such goods in his name or that of the firm. He admitted that he had paid plaintiffs a small bill which was presented, because he thought Laney & Co. responsible for it. He saw a bolt sold, and told Laney to get him one like it, which was done, but he knew not where from. He . denied having the conversation with one of plaintiffs’ firm testified to by the latter. Laney afterwards failed, and is now dead. Laney & Co. had dealings with plaintiffs prior to dissolution.</p> <p>A letter from Laney to plaintiffs, dated September 15, 1885, was introduced. It stated that the invoice of September 7 was to “C. L. Laney & Co.” ; that there was no such firm then extisting, and the bill should be changed to “C. L. Laney”; and requested plaintiffs to make the correction.</p> <p>The jury found for the plaintiffs. The defendant moved for a new trial on several grounds, the substance of those material being as follows:</p> <p>(1) Because the verdict was contrary to law and evidence.</p> <p>(2) Because the court permitted two of plaintiffs to testify in relation to correspondence with Laney and want of knowledge of dissolution of the firm. The objections were that Laney was dead, and the witnesses therefore incompetent ; and that the plaintiffs could not contradict their written letters by parol testimony. The court held that the defendant having introduced part of the answers of plaintiffs to interrogatories in order to prove the execution of the letters, it was admissible to explain the admission.</p> <p>(3) Because the court excluded two letters written by plaintiffs to Peterson & Co., dated October 29 and 30, 1885. These letters stated, in substance, that Laney’s account was enclosed, and requested Peterson & Co. to see after it; that they had shipped Laney, a few days before, certain axes, which, if received, Peterson & Co. would have shipped back if they could get possession of them; and that they get the attorney to whom they entrusted the claim of plaintiffs to act for their best interest.</p> <p>(4) Because of newly discovered evidence to show that, in response to Laney’s letter of September 15, above mentioned, plaintiffs sent him a dispatch, acknowledging receipt of the letter, and stating that they would charge the goods to him instead of to Laney & Co.</p>

Criminal Law. Witness. Perjury. Duress. Practice in Superior Court. Before Judge Branham. Walker Superior Court. August Term, 1886. James McCoy was indicted for.the murder of William D, Kellett, charged to have been committed on December 6, 1885. On the trial, the principal witness for the State was Calvin Young.

Husband and Wife. Debtor and Creditor. Practice in Superior. Court. Before Judge Richard H. Clark. Dekalb Superior Court. September Term, 1886. A fi. fa. in'favor of McNaught & Scrutchin against Langford & Anderson was levied on certain real estate in the town of Decatur as the property of Anderson, and a claim was interposed by Mrs. Anderson, the wife of defendant.

Attachment. Affidavit. Laws. Words and Phrases. Construction. Pleadings. Before Judge Bower. Decatur Superior Court. November Adjourned Term, 1886, Smith Brothers & Company and H. Myers & Brothers petitioned for attachments, under §8297 of the code.

Attachment. Laws. Claims. Res Adjudicata. Practice in Superior Court. Partnership. Attorney and Client. Before Judge Hansell. Brooks Superior Court. May Term, 1886. A number of attachments were issued against Nathan Gazan and were levied on certain property, the first levy being on December 4, 1883. Simon Gazan interposed claims, and on the trial two were selected as types of all, and by agreement the questions at issue were tried under them.

<p>1. The cause of action alleged being the homicide of plaintiff’s husband by means of the defendant’s negligence, the allegations in the declaration touching the specific acts of negligence and the manner of causing death, may be varied or added to by amendment during the progress of the trial, so as to adapt the pleadings to the evidence in all its aspects. In this case there was enough in the declaration to amend by; the amendment did not introduce a new cause of action, and it was not offered too late.</p> <p>2. A witness may date a fact which he knows by relating it to the time when he heard of another fact; and in so doing may state not only thathe heard something, but what that something was, in order to let the jury see what reason he had to observe and remember. But the hearsay, though he repeats it on oath, is no evidence either of the occurrence or the date of the fact which it purports to affirm.</p> <p>3. It is the duty of the court both to protect a witness under cross-examination from being unfairly dealt with, and to allow a search-mg and skillful test of Ills intelligence, memory, accuracy and veracity. As a general rule, it is better that cross-examination should be too free than too much restricted.</p> <p>4. That at a former trial a different theory of defence was relied on is not relevant as matter of evidence, and the exclusion of testimony to that effect is not error.</p> <p>5. The statute does not require that a train started at or upon a public crossing should be checked and kept checked while passing over that crossing.</p> <p>6. Whether, in a given case, due diligence requires that a train should leave on schedule time, or whether persons upon it, not as passengers, should alight from it before the time of departure fixed by schedule, or whether, when a train is starting or about to start, a person passing in front of the engine should see to it that the train is not moving or about to move, are all questions of fact for the jury, and not for decision by the court in its general charge.</p> <p>7. Where a verdict was rendered in favor of the defendant, a motion for a new trial made by the plaintiff during the term of the trial and overruled, to which judgment the plaintiff excepted, the defendant could file a cross-bill of exceptions complaining of the allowance.of an amendment at the trial, although more than sixty days from that time. (Rep.)</p>

Evidence. Before Judge Hansell. Brooks Superior Court. May Term, 1886. Jordan brought trover against Shiver to recover a horse. On the trial, it appeared that the plaintiff had swapped horses with the defendant, giving the horse sued for for a mare, and that he claimed to have been defrauded in the trade by misrepresentations as to the quality of the mare. The jury found for the plaintiff $125.00, or the horse and $40.00 damages.

<p>Levy and Sale. Description. Injunction. Before Judge Harris. Carroll County. At Chambers, April 7, 1887.</p> <p>Henry Boggess filed his bill against N. M. Lowrey and J. M. Hewitt, sheriff, alleging, in brief, as follows: Complainant is in the quiet and legally acquired possession of fifty acres of land in lot 250 in the 5th district of Carroll county, bounded on the north by G. W. Austin, on east by lands belonging to estate of W. B. Gilley, south by J. C. Benson, and west by right of way of Savannah, Griffin and N. Ala. R. R. He holds it under a bond for title from Lowrey. The sheriff levied an execution in favor of Lowrey against complainant on certain' land described as follows: Fifty acres, more or less, of the northwest and southwest fifty acres of lot of land number 151 in the 10th district of said county, bounded on the north by G. W. Austin, east by lands belonging to the estate of W. B. Gilley, south by J. C. Benson’s, west by right of way of Sav., G. & N. Ala. R. R. The advertisement followed the levy and a sale took place thereunder, Lowrey being the purchaser, and the sheriff made him a deed to the land, describing it as in the levy. The land did not bring its full value at the sale, but would have brought more if it had been fully and properly advertised and identified. The object of the bill was to set aside the sale and to enjoin the sheriff from putting Lowrey into possession.</p> <p>The defendants answered, in brief, as follows: The complainant purchased the land from one Croft and took a deed which described it substantially as in the levy. Wishing to borrow money to pay the balance due for the land, complainant procured it from Lowrey, made him a deed and took a bond for titles from him. Failing to pay, Lowrey obtained judgment, caused a levy to be made on the land, and at the sale became the purchaser, and the error in describing the lot and district ran through all the papers. This resulted from mistake; all the parties thought the land was properly described. The description by metes and bounds alone identifies the land. No one was ignorant of what land was being sold ; it was publicly stated at the sale that it was the Boggess place near Carrollton. Complainant or his counsel was present and knew that the tract in dispute was being sold. By way of cross-bill, it was prayed that the mistake in the description be corrected.</p> <p>On the hearing, it was admitted by complainant’s counsel that complainant knew of the mistake in the description of the land in his deed to Lowrey at and before the time of the sheriff’s sale, and that he was aware of the sale and made no objection to it.</p> <p>The injunction was refused, and the complainant excepted.</p>

<p>Constitutional Law. Tax. Religious Corporations. Streets and Sidewalks. Before Judge Atkinson. Glynn County. At Chambers, April 16,1887.</p> <p>Reported in the decision.</p>

<p>Garnishment. Bailments. Title. Principal and Agent. Before Judge Boynton. Pike Superior Court. October Term, 1886.</p> <p>Reported in the decision.</p>

Husband and Wife. Title. Trusts and Trustees. Betterments. Levy and Sale. Injunction. Before Judge Jenkins. Putnam County. At Chambers, March 5, 1887. In addition to the report contained in the decision, it is necessary to add only that the bill alleges that Mrs. Pearson was, at the date when the deed was made to her husband, as her trustee, of sound mind and laboring under no disabilities, and that the trust created for her was executed and the title at once passed to her.

<p>1. Under the act of March 19, 1869, entitled an act to authorize improvements to be made on the reserve at the Indian Spring, to protect the same from trespass, and for other purposes therein mentioned, the agent of the State was not compelled to go beyond the boundaries of the reserve to open and keep in repair the roads and paths between the boundaries and the public highway for the accommodation of those visiting the spring, nor was he compelled to erect bridges outside of the reserve to facilitate access to the spring. He had the privilege of doing this, but it was optional with him to exercise that privilege or not. It was, therefore, error to refuse to charge this principle and to charge to the contrary.</p> <p>2. The motion for continuance in this case is defective in failing to show that it was not made for delay only, and that defendants expected, at the next term of the court, to have the benefit of the services of counsel who was absent from sickness.</p>

<p>Verdict. Practice in Superior Court. Exceptions pendente lite. Practice in Supreme Court. Continuance. Before Judge Boynton. Rockdale Superior Court. August Term, 1886.</p> <p>Reported in the decision.</p>

Practice in Superior Court. Arbitration and Award. Practice in Supreme Court. Before Judge Roney. Burke Superior Court. October Adjourned Term, 1886.

Mortgages. Corporations. Principal and Agent. Witness. Notice. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886. A fi. fa. in favor of the Campbell Printing-Press and Manufacturing Company against M. E. Thornton was levied on a printing press, and Conley interposed a claim.

<p>Debtor and Creditor. Fraud. Deeds. Mortgages. Liens. Charge of Court. Before Judge Fain. Dade Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

Contracts. Receipts. Written Instruments. Principal and Agent. Fraud. Pledges. Bailments. Before Judge Harden. City Court of Savannah. November Term, 1886. The facts in these two cases were similar, and they were argued and determined together; and a statement of one will suffice to show the controlling points made in both. The Merchants’ National Bank brought suit against the Planters’ Rice-Mill Co. The declaration contained two counts.

<p>1. Where the superintendent of a rice-mill company, wishing individually to borrow money from a firm, represented to them that he had certain rice on deposit in the mill of the company, and thereupon the firm agreed to advance a certain sum of money to him, provided he would issue a special receipt to them, by which the company acknowledged that it had in store a certain amount of rice belonging to the firm, and also an acknowledgment on the receipt, signed by the superintendent, that the firm held such receipt, the lending firm were put on notice to inquire as to the truth of the representations; and if in fact neither the borrower nor the lender had any rice in the mill, the company would not be liable to the lenders for the money advanced on such special receipt.</p> <p>2. For the reasons stated in the cases of the Planters’ Rice-Mill Co. vs. The Merchants’ National Bank of Savannah, and the same vs. The Southern Bank of the State of Georgia (decided to-day), it is held that a recovery could be had against the company for money advanced to a third party upon a similar receipt and acknowledgment signed by the superintendent of the company, although such third party had no rice in the mill at the time.</p> <p>(a) The judgment is reversed, with directions that so much thereof as embraces the amount of money advanced to the superintendent individually, be set aside, and that the balance, for money advanced to the third party, be allowed to stand-</p>

<p>Contracts. Executions. Dower. Before Judge Fain. Chattooga County. At Chambers, August 27, 1886.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Criminal Law. Charge of Court. Practice in Superior Court. Attorney and Client. Before Judge Port. Schley Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>Where an action was brought for the recovery of land, and an attack was made on the deed under which the defendant held, on the ground that it was made to secure a debt and was void from usury, and also that from long indulgence in the use of opium and whiskey, the will power of the grantor (the plaintiff in the case) had become impaired, and that in aid of the transaction, the defendant carried whiskey to the house of the plaintiff, and the latter indulged in it, and was not at himself when the settlement between the parties was made; and where the defendant filed an equitable plea, insisting that if the issues thus raised were found against him, the plaintiff should account to him for the money he had advanced, with interest thereon, he offering to credit the plaintiff with what he had received in money and rents; and where, on the trial, there was evidence as to the value of the rents, it was admissible for the defendant to show what he had actually received for rent during the time the land was in his exclusive control, and that he used every exertion to get all that the land was worth.</p> <p>(a) A mortgagee in possession under an ordinary mortgage, although liable to account for the rents, is not obliged to account according to the actual value of the land, nor is he bound by any proof that the land is worth so much, unless it can be proved that he made so much out of it, or might have done so but for his own wilful dpfault, as if without cause he turned out a sufficient tenant who held it at so much rent, or refused to accept a tenant who would have given so much for it. A more liberal rule prevails where the mortgagee has gone into possession under the impression that the equity of redemption has been barred.</p> <p>(b) Whether, in such a case, if the mortgagee went into possession with the consent of the other party, under the impression that he was the actual owner of the land, he could be held accountable for rent at all. Quiere.</p> <p>(c) Perhaps it would have been better for the plaintiff to have resorted to equity in the first instance, but having sought equity, if the deed should be found to be usurious, or to have been obtained by artifices or fraudulent practices, it should be rescinded, and in that event there should be a settlement of mutual accounts between the parties upon equitable principles. This is the extent of the decision as to the question of equitable mortgage.</p> <p>Bleckley, C. J., concurred specially.</p>

<p>Railroads. Damages. Negligence. Before Judge Estes. Hall Superior Court. August Term, 1886.</p> <p>Reported in the decision.</p>

<p>When one gets his due ignorantly, if he is not hurt by his ignorance, it is the same as if he acted with knowledge. Thus, where a negotiable promissory note was transferred before maturity as collateral security, and was afterwards paid off in property, not to the holder, but to the payee, who collected without authority, and who, after converting the property into money, transmitted the proceeds to the holder as his own money, and the holder applied the same to the secured debt only, not applying it also to the collateral, and not knowing that he was dealing with a fund derived from the collateral; this was a discharge, of the collateral debt notwithstanding such ignorance on the part of the holder.</p>

<p>Jurisdiction. Minors. Domicile. Guardian and Ward. Partition. Before Judge Bower. Brooks Superior Court. November Term, 1886.</p> <p>Reported in the decision.</p>

Receivers. Bailments. Equity. Banks. Before Judge' Boynton. Fulton Superior Court. March Term, 1886.

Sales. Contracts. Vendor and Purchaser. Specific Performance. Evidence. Fraud. Before Judge Hutch-ins. Jackson Superior Court. August Term, 1886. A. B. Smith brought complaint against J. A. Seegar on a promissory note for a balance of $204.07.

Railroads. Damages. Negligence. Presumptions. Verdict. New Trial. Before Judge Lawson. Baldwin Superior Court. July Adjourned Term, 1886. Phillips brought suit against the Georgia Railroad to recover damages for the killing of a horse by the running of its train. On the trial, the evidence for the plaintiff was, in brief, as follows: Several farms were enclosed under one fence, and at certain seasons the proprietors would turn their stock out to graze.

<p>1. Under the facts of this case, the receipt in full given by the administrator de bonis non with the will annexed, to the administratrix of the deceased executor, was open to explanation, and was not conclusive upon the legatees in a suit by them against the administratrix to compel an accounting for an alleged devastavit by the executor.</p> <p>3. As the accountability of the executor was the same, whether his fortune improved or not whilst he was in the trust, evidence to show that it did improve was irrelevant and inadmissible.</p> <p>3. A witness is not incompetent because he is the husband of a legatee who is one of the plaintiffs, and because he takes a specific legacy under the will, he being no party to the action and his legacy not being in question.</p> <p>4. The testator having devised to his wife for her sole use and benefit during her natural life certain lands, with remainder to his minor son in fee, disposed of a certain horse in the same way, and then added: “I give, bequeath and devise to my wife in final ex-tinguishment of her right of dower in my real estate, free for her own use and benefit, $1,000 cash and so much household and kitchen furniture as she may need for her immediate housekeeping, two good mules or their equivalent, one cow and calf, and one year’s support. At the death of my wife, all the property given in extinguishment of her dower is to be sold, as hereinafter directed, and the proceeds to be divided among my living heirs, to-wit, (naming his children) share and share alike” :</p> <p>Held, that this bequest of one thousand dollars cash was absolute in the wife, she having accepted the provision offered her in lieu of dower, and that the testator’s children took no interest by the will in the money, but a remainder in the property only.</p>

<p>Contracts. Fertilizers. Evidence. Before Judge Harris. City Court of Macon. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>Debtor and Creditor. Title. Interest and Usury. Actions. Administrators and Executors. Contracts. Evidence. Before Judge Willis. Taylor Superior Court. February Term, 1886.</p> <p>Reported in the decision.</p>

<p>A party is not guilty of an actionable nuisance unless the injurious consequences complained of are the natural and proximate results of his own acts or failure of duty. If such consequences were caused by the acts of others, so operating as to produce the injury, he would not be liable. Therefore where an action was brought against a railroad company for the continuance of a nuisance by suffering polluted water to flow upon the plaintiff’s premises, thus accumulating thereon garbage, filth and decaying matter, which created noxious scents, producing sickness, thereby impairing the value of his property, and on the trial it appeared that there was a natural and gradual slope of the land towards the defendant’s right of way, the lowest point of depression being a cypress pond on the land of the plaintiff, and that the increased flow of the water on the land of the plaintiff since the building of the road arose from the digging of certain ditches and the building of certain embankments by others than the defendant, and not on its land and over which it had no control, it would not be liable to the plaintiff because such water flowed across its land upon that of the plaintiff. Nor did the fact that the defendant opened a culvert, whereby the water was carried from one side of its right of way to the other, render it liable, unless by so doing the volume of water which would run into the plaintiff’s pond would be thereby increased. It appearing that such was not the fact, but that, by reason of the nature of the ground, the water would have found its way into the pond if the culvert had not been built, a nonsuit was properly awarded.</p> <p>(a) This case is distinguished from those of Smith vs. City of Atlanta, 75 Ga. 110, and Central Railroad vs. English, 73 Id. 366, in each of which the defendants created the nuisance.</p>

<p>1. Whether the understanding of a shipper of live-stock that they were to be shipped through in the same car on which they were loaded at the starting point was admissible or not, under the circumstances of this case, it was entirely immaterial, and neither could nor ought to have had any influence on the finding of the jury; and the same thing is true as to the sayings of a livery-stable keeper at Chattanooga, as to the change of stock from one car to another, the stock being in good condition when it reached a point beyond that where the change was claimed to have been made, at which point the new contract of shipment was taken.</p> <p>2. Where the owner of the stock testified that he did not find the stock at the point where he expected them on his arrival; that he searched for them at one or two other points, and finally found them at a place where they had arrived, in a damaged condition from being bruised, thrown down, etc., it was admissible for him to testify that he at first refused to accept them from the company, and told the railroad agent that he did not want to take them; and that the latter told him to take them and do the best he could with them, and that the railroad company would make it all right. Such statements were a part of the res gestee, appertaining to the transportation of the stock.</p> <p>(a) It is not decided that the company was bound by the representations of this agent that it would make the damage good upon compliance by the plaintiff with the conditions mentioned.</p> <p>3. By §3033 of the code, in cases of injury to persons or property, the presumption in all cases is against the railroad company that the injury was the result of their negligence, and to relieve themselves of this presumption, it is incumbent upon them to show that they were in the exercise of all ordinary and reasonable care and diligence; and this presumption is applicable as well to an action founded upon their general liability as to one founded on such a live-stock contract as that under which it was contended the horses involved in this case were shipped. Where the company showed, from the appearance of the car only, that the train on which the horses were brought to the place where the owner found them, had not been derailed, and showed how the injury might have happened, but not how it actually happened, and none of the em« ployés in charge of the train were introduced as witnesses on the trial, to account for the injury, a verdict finding against the company was sustained by the evidence.</p>

Administrators and Executors. Judgments. Injunction. Before Judge Adams. Chatham County. At Chambers, November 27, 1886.

Removal of Causes. United States Courts. Amendment. Parties. Before Judge Adams. Chatham Superior Court. December Term, 1886. At the return term of the bill filed in this case, the complainants filed their petition to remove the cause to the Circuit Court of the United States, alleging that they were citizens of New Jersey, and that all of the defendants were citizens of Georgia.

<p>Criminal Law. Continuance. Before Judge Cobb. City Court of Clarke County. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>. Justice Courts. Jurisdiction. Actions. Contracts. Before Judge Hutchins. Banks Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Liquor. Principal and Agent. Constitutional Law. Corporations. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

Criminal Law. Municipal Corporations. Liquor. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886. The plaintiffs in error in these cases were tried before the recorder of the city of Atlanta upon the same charge as that set out in Menken’s case just preceding.

<p>Municipal Corporations. Powers. County Matters. Liquor. Physicians. Prohibition. Before Judge Boynton. Monroe County. At Chambers, January 27, 1887.</p> <p>Reported in the decision.</p>

<p>Wills. Demurrer. New Trial. Evidence. Title. Written Instruments. Before Judge Estes. Hall Superior Court. August Term, 1886.</p> <p>To the report contained in the decision,it is necessary to add that the following were among the grounds of the motion for a new trial:</p> <p>(1) Because the court erred in overruling defendant’s demurrer to the bill.</p> <p>(2) Because the court admitted testimony as to the sayings of the testator concerning what he had given to the complainants by his will. — The objection was, that this was proving by parol the contents of a written instrument, and that it was irrelevant. It was admitted for the sole purpose of enabling the jury to determine whether or not it was the intention of the testator to give complainants the western part of the property in dispute. Geo. J. Rogers testified that his father, the testator, after making the will and about eight or ten days before his death, said that he had willed to Geo. J’s children the south half of lot number 65 and half of that part of lot 80 lying on the west side of Flat creek, and also that part of lot 79 included in the “ Home place,” on the west side of the old run of Flat creek.</p> <p>(3) Because the court admitted testimony as to whether the testator ever owned land lot 81, and as to the land contained in lot 79. — This was objected to on the ground of irrelevancy.</p> <p>(4) Because the court admitted a written paper alleged to be the will of Jacob Rogers. — The objection' was that the paper was not a certified copy of any will which had been probated and admitted to record.</p>

Railroads. Damages. Negligence. Charge of .Court. Before Judge Richard H. Clark. Clayton Superior-Court. September Term, 1886. Smith brought his action against the Central Railroad to recover damages for a personal injury.

<p>Partnership. Title. Vendor and Purchaser. Actions. Before Judge Richard H. Clark. Fulton Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>Under §4067. of the code, upon the hearing of a certiorari, wherever the case can he determined as a matter of law, the court must make a final disposition of it. Where it involves both law and facts, when there is no dispute as to the facts, the superior court may make a final disposition of the case, or may remand it to the court below for another trial. Where the facts are conflicting, the court canDot make a final decision in the case, but if he sustains the certiorari, he must order a rehearing in the court below.</p>

<p>Where an action was brought in a justice’s court to recover personal property of more than $50 in value, in which bail was required, but the statutory requirement as to making out and serving the bail process was not complied with, and on motion upon the hearing, the action was dismissed on that ground :</p> <p>Held, that certiorari, and not appeal, to the superior court, was the proper method of reviewing this judgment.</p>

<p>Where a suit was brought in a justice’s court on a note given for guano, upon the face of which the defendant admitted that each of the sacks containing the guano was tagged and branded; and where, in defence to the action, he pleaded, and introduced testimony to show, that the sacks were not tagged and branded ; and where the justice rendered a judgment against him, the case could not be carried directly to the superior court by certiorari, but there should first have been an appeal to a jury in the justice’s court.</p>

<p>Where a declaration in an action for damages alleged that the defendants had held an unsatisfied claim against the plaintiff which he had given them mortgages to secure; that they had foreclosed their mortgages and caused the. mortgaged property to be levied on; that they refused to grant further indulgence and thereby injured his business; and that the property had been sold; this was not a sufficient allegation, either of want of probable cause for the proceeding on the part of the defendants, or that the suit on which the action was founded had terminated in favor of the plaintiff in the present case; and for the want of these allegations, the declaration was demurrable.</p> <p>(а) Malice may be inferred from the total want of probable cause; but a total wantof probable cause cannot be inferred from the existence of the most express malice.</p> <p>(б) . Where a mortgage contained no stipulation for the granting of indulgence, and there was no allegation that it was left out in consequence of oversight, accident, mistake or fraud, or that there was any contemporaneous writing setting forth any agreement for indulgence, an allegation that the mortgage violated an agreement for indulgence entered into when the mortgage was executed, and in consideration of which it was executed, was not sufficient to maintain the action.</p>

<p>Whenever property is injured by the running of the locomotives, cars or other machinery of a railroad company, a presumption of negligence arises against the company, but this presumption may be rebutted by showing that, at the time the injury occurred, its agents were exercising all ordinary and reasonable care and diligence. Where there was no conflict in the evidence, and it showed that a railroad train killed a mule; that the night was a clear, starlit night, but at the place where the casualty occurred the track was enveloped by a smoke or fog, so that the engineer and fireman, who were on the lookout, were unable, inconsequence thereof, to discover the mule on the track until they were within fifty or sixty yards of it, when it was impossible to have stopped the train so as to avoid killing the mule; and that the whistle was blown-: the presumption was rebutted, and a verdict finding damages againt the company on account of the killing of the mule, was contrary to the evidence and without evidence to support it.</p>

<p>Insurance. Corporations. Injunction and Receiver. Bonds. Practice in the Supreme Court. Before Judge Simmons. Bibb Superior Court. October Term, 1886.</p> <p>On the 16th day of June, 1886, plaintiffs in error, for themselves and all others having an interest as policyholders or as creditors of the Cotton States Life Insurance Company, and who might become complainants, presented their bill to the chancellor, praying for an injunction, the appointment of a receiver, and for general relief. They state that they are policy-holders of that company; that in consideration of the payment of the premiums required in their respective policies, the company agreed and contracted to pay to the beneficiaries named therein the full amount of said policies, less the indebtedness of the insured to the company, within sixty days after proof of the death of the insured, or at a date therein mentioned, should the insured be then in life; that the company, by its agents, procured insurance by representing that no deduction from the amount of its policies would be made, except'the balance of the then current year’s premium, if any should be due, and all notes or credits for premiums thereon, and no interest on said notes or credits for premiums would be so deducted; that by the payment of only a part of a premium (about one-half) insurance would be greatly cheapened, because no interest on credits for premiums would be charged; that the company has repudiated its contracts so made, and now claims the right to charge interest on all credits for premiums; that if such claim be allowed and interest be charged on each annual credit for premiums, the insured would become largely indebted to the company above the amount of his policy, before the time fixed for its payment and before his death, calculated according to the' ordinary tables of life expectancy; that all such policies would become burdens instead of benefactions; that the có-deféndants, who aré controlling and managiiig the' affairs of the company, have colluded and confederated to discredit the company, to depreciate the value of its policies, to buy all of them at a price greatly less than théit real value, and then to divide ámóng themselves the assets of the company; that their scheme is fraudulent, ahd in pursuance thereof they háve asserted and made known to policy-holders the unjust and illegal claim to intérest on all credits for premiums, have withdrawn their agents and have discontinued the business of insurance ; that for more than a year they have failed and refused to make the reports to the governor and comptroller-general of the State, which are required of all insurance companies by the laws of this State; that in the reports previously made, their statements were deceptive, did not indicate the true condition of the company, and were so arranged as to deceive and mislead; and that in furtherance of their fraudulent scheme to so discredit the company as to enable them to buy its liabilities at nominal prices and then divide its assets among themselves, the president of the company and his confederates are seeking to withdraw certain bonds deposited with the comptroller-general for the security of policy-holders, as a condition precedent, under its charter, to the right of the company to begin the business of life insurance, and to substitute therefor other securities of less and of fluctuating value. Complainants charge, on information and belief, that the company is insolvent, and say that if its president and his confederates be allowed to continue in the management of its affairs, its assets will be disposed of and placed beyond the reach of creditors long before many of its outstanding policies have matured. Discovery was waived, except as to matters especially inquired about, to-wit:</p> <p>1. What policies of insurance were issued in 1885 and 1886?</p> <p>2. How long has the president of the company been in office, how much stock did he subscribe for and how much cash has he paid on account of his subscription</p> <p>3. How many policies of the company have been bought within the past three years by either of the defendants ? How much in premiums had been paid on each policy so bought, and what was paid therefor?</p> <p>4. What policies are outstanding? What is the amount and value of each ?</p> <p>5. Who are stockholders in the company ? Who were subscribers to its stock, and how much has each subscriber paid on his subscription ?</p> <p>6. Are any of the officers or stockholders of the company indebted to it ? If so, how much and for what ? How much money has each stockholder and officer received from the company within the last three years, and for what ?</p> <p>7. What are the assets of the company ? In what do they consist ? Where located, and in whose possession are they ?</p> <p>On this bill, the chancellor granted an order requiring defendants to show cause why the prayers of complainants should not be granted.</p> <p>On the 17th of June, 1886, complainants amended their bill and alleged that the company, by failing to make reports to the governor and the comptroller-general in the year, 1885 and 1886, as required by section 2843 of the code of Georgia, forfeited its rights to' transact any business of insurance; that notwithstanding its forfeiture of all right to transact any business of insurance, and without the license required by law for that purpose, defendants are receiving and disbursing the assets of the company, collecting premiums and buying policies; that be-cause of said forfeiture, the company not having authority to carry on any other business, its assets become and are trust funds for the benefit of creditors and policy-holders; and for the custody and distribution of said assets a receiver should be appointed; that defendants are persistent in their efforts to withdraw certain of the bonds deposited with the comptroller-general for the security of policy-holders; and that should they succeed, said bonds would be converted by the defendants to their own use, and the security of policy-holders would be thereby greatly impaired.</p> <p>Pursuant to a prayer in the amended bill, the chancellor, on the 23d of June, 1886, granted an order restraining defendants, until the hearing, from collecting certain premiums and from disposing of any of the assets of the company.</p> <p>On June 26, 1886, defendants were served with a notice to produce certain books, which it is unnecessary to enumerate here.</p> <p>The answer of defendants states that the premiums charged for the policies of said company were based on a table of rates, which is substantially the same as those used by leading life insurance companies of the United States; that the entire premium charged was an amount of money equivalent, according to the mortality tables commonly used, to the risk to be carried; that the loan of a part of the premium was for the convenience of the policyholder, and all such loans bore Interest at the rate of interest prescribed by the laws of Georgia; and that only one year’s interest on one year’s loan is collected at the commencement of each year, and the balance of interest is collected! at maturity of policy. Defendants deny the charge of an intention on their part to render the policies of said company valueless, and deny all charges of collusion and confederation. They deny that they have done anything to discredit the company, and say that, on the contrary, they have represented it to be entirely solvent. In answer to the charge that the company had discontinued business, and had failed to make reports to the governor and comptroller-general as required by law, the defendants say that, at a stockholders’ meeting, held April 7, 1885, a resolution was passed to discontinue business, and a committee was appointed! to wind up its affairs by securing re-insurance on all of its policies, but said committee had been unable to do so upon satisfactory terms; that on the 16th of October, 1885, the directors of the company, by a resolution, authorized said committee to purchase or re-insure the policies of the company, and under this authority, 199 policies had been bought, but no director, officer or agent of the company had been interested in the purchase of any policy. Defendants say that the semi-annual report to the governor for July, 1885, was not made for want of blanks usually furnished by the comptroller-general; that said blanks were received on the 3rd or 4th of September; that the secretary, with the assistance of the vice-president and a director, prepared the report, which was by the secretary mailed, addressed to the comptroller-genei’al, but the same was never received; and that the report for January, 1886, was prepared and tendered, but was refused on the ground that no report was made for July, 1885. With reference to the charge in complainant’s bill that defendants had attempted to withdraw certain bonds from deposit with the comptroller-general, the defendants say that among the securities so deposited are $27,500 State of Georgia 7 per cent, bonds, due July, 1886; and that the comptroller-general was requested to collect these bonds and invest the amount in 6 per cent, debenture certificates of the Central Railroad, but this he declined to. do, and said bonds remain in his custody.</p> <p>Defendants say the company is solvent; that its assets amount to $331,734.08, and that $156,177 invested at six and a half per cent, or $182,798 invested at four and a half per cent, would pay all the liabilities of the company as they mature. They enumerate three items of assets^ which they say are more than sufficient to discharge their liabilities. These items are as follows:</p> <p>Estimated value of securities deposited with the comptroller-general,.......$110,000.00</p> <p>Accumulated loans,......... 88,487.00</p> <p>Interest on same,..... 40,010.92</p> <p>Aggregate,........... $238,497.92</p> <p>They say that the officers and directors of the company are incapable of such frauds as the conversion of its assets to their own use, and that their character for financial integrity and honesty ,is a sufficient refutation of such charge; they say it is their intention to retire all outstanding policies by purchase or re-insurance, and that when this is done, they will ask for the return of the bonds deposited with the comptroller-general, and for authority to wind up the business of the company and to pay to stockholders balance of capital then on hand. They deny that they contracted with any policy-holder not to charge interest on loans or credits for premiums, and say that the business of insurance so conducted would result in a total loss of the capital stock of the company; that no insurance company ever made such contract; and that other companies require annual payment of all interest on loans, but this company required the annual payment only of one year’s interest on one loan, and collected the balance of interest on all the loans at the maturity of the policy. The company denies all intention and effort to depreciate the value of its policies to enable it to buy them at nominal prices; it denies that its reports to the governor and comptroller-general have been deceptive, or that its affairs have been managed except by its officers and directors in the manner authorized by its charter, and denies every charge of collusion.</p> <p>It says that W. B. Johnston has given his services to the company without compensation; that he has never received any money from the company except the loan of $5,000, in March 1, 1877, for which he gave his note, payable on call and secured by bonds of the Central R. R. and Banking Company, and this loan was paid within a short time; that said Johnston has given to said company its office rent since April 7, 1885; and that since July 11, 1885, the secretary has been its only salaried officer. It says that when the deficiency of $57,100 in the cash of its former secretary, Mr. Obear, and his two notes of $6,000 were discovered, its stockholders determined to wind up its business; that it will not lose more than $30,000 by the default of Mr. Obear; and that it is able to stand such a loss.</p> <p>In response to interrogatories, it says :</p> <p>1. That no policies have been issued in 1886.</p> <p>2. That twelve policies were issued in 1885.</p> <p>3. That W. B. Johnston is and'has been its president since its organization in 1869; that he holds 150 shares of its stock; that he subscribed for 250 shares, and has paid on account of his subscription $7,500.00 ; that he has sold 100 shares; and that he has never bought any other stock of the company.</p> <p>4. That since the fall of 1885, it has bought 199 policies, as appears from list of said policies attached to answer and marked exhibit B. For further answer to this interrogatory, complainants are referred to the books of the company, and it is stated that the president and secretary of the company will direct the attention of complainants to the books containing the information desired.</p> <p>5. That outstanding risks amount to $551,100.00. Of this, 92 policies cover $267,100.00, upon which premiums are being paid, and 580 policies cover $284,000.00, which are termed “paid-up policies,” and upon which no premiums are being paid. A list of all outstanding policies is attached. For further answer to this interrogatory, complainants are referred to the books of the company.</p> <p>6. That a list of stockholders is attached.</p> <p>7. That no officer or stockholder is indebted to the ‘ company, except for unpaid subscription, which has not been called for, and for $28,853.00 of a 13 per cent, call not yet met; that during the years 1884, 1885 and 1886, W. B. Johnston received no- money- from the company; that on January 1,1884, there stood to his credit $2,905.43, and on July 1, 1884, he was charged with $75.73 for premium on his policy; and that nothing has been paid to any stockholder during th'e years 1884, 1885 and 1886.</p> <p>8. That the assets of the company are as follows :</p> <p>Western Railroad Company of Alabama bonds, $45,000 00</p> <p>State of South Carolina bonds, 6 per cent. . 31,500 00</p> <p>State of Georgia bonds, 7 per cent..... 27,500 00</p> <p>Mechanics’ Building and Loan Association stock, 1,900 00</p> <p>Real estate in Alabama,........ 6,500 00</p> <p>Real estate in Georgia,........ 10,000 00</p> <p>Real estate in South Carolina,...... 1,000 00</p> <p>Real estate in Bartow county,...... 4,500 00</p> <p>Deficiency of Geo. S. Obear,...... 63,100 00</p> <p>Premium loans,........... 88,487 00</p> <p>Interest on loans,..........40,010 12</p> <p>Balance due on call of 13 per cent, of stock subscriptions,.......... 28,853 00</p> <p>Cash on hand,........... 1,595 25</p> <p>Total, ............. $349,945 37</p> <p>The expenses of the company are now only about $1,700 per annum. In response to the amended bill, the answer says it is true it has received no license to do business in 1886, but says such license should have been issued, because the failure to make the semi-annual report of 1885 was not the fault of its officers, but because of the failure of the comptroller-general to furnish them with the necessary blanks, as before stated, and the report required for January, 1886, was tendered but refused; that the failure to file said reports did not forfeit the right of the company to do business, .as charged in the bill; and that since it has been without license, it has issued no policies, but has collected premiums, paid losses, and with intention to wind up its business had bought policies. The denial of any intention to fraudulently dispose of the assets of the company, and of persistent effort to withdraw the securities deposited with the comptroller-general, is repeated; and the answer concludes with a declaration by W. B. Johnston, the president of said company, that for the honor of the State of Georgia, and of the city of Macon, and for the preservation of his own good name and character and that of his associates, said company shall not fail to meet all of its obligations; that he and his associates could not afford the disaster of such a failure; and that said company is now solvent, and that they intend to keep it so if not deprived of its management.</p> <p>At the hearing, complainants amended their bill as follows: That the charter of said.company was granted by the legislature of Georgia, October 7,1868; that by said’ charter it was provided, as conditions precedent to the right of said company to organize and begin business under said charter, that its capital stock should be $500,000; that $200,000 in cash should be actually paid in, and that $200-000 in good and solvent bonds or stocks, to be approved by the comptroller-general, should.be deposited with him as security for policy-holders; that by an amendment to said charter, approved February 10, 1869, the amount of cash required to be paid in and the amount of securities required to be deposited with the comptroller-general was each reduced to $ 100,000, on condition that the bona fide subscriptions to its capital-stock should amount to $500,000; that by the terms of its amended charter, it was essential that said company should have and maintain bona fide a capital stock of $500,000; that it never did have bona fide a capital stock of $500,000; that if upon its organization' the subscriptions to its capital stock appeared to aggregate $500,000, a part thereof was not bona fide and was obtained merely to effect an organization; that after organization, subscribers were released from their subscriptions and the capital stock of the company reduced below the minimum amount, to-wit, $500,000, required by its charter, and.therefore, that the businéss of said company from its inception has been illegal; that since its organization, notwithstanding the said requirement of its charter and in disregard thereof, it has continued to reduce its capital stock until it now has only $289,900, but little more than 50 per cent. of what is required by its charter; and that such reduction of its capital stock was not only illegal, but operated as a fraud on policy-holders, who insured and paid premiums on the faith of such capital stock.</p> <p>Complainants specifically allege that on December 11, 1871, T. G. Rust, who had subscribed for twenty shares of the stock of said company, was released from all liability, his stock cancelled, and in consideration thereof was given a paid-up policy for $5,000.00, whereby in a single transaction the liabilities of said company were increased and its capital stock reduced; that on January 20, 1872, John King, who had subscribed for fourteen shares and was liable to the full extent of the par value thereof, to-wit, $1,400.00, was allowed to surrender his stock and was released from all liability on his subscription therefor; that J. L. Mustin was released about the same time from liability on his subscription for fifty shares of said stock; that many other subscribers were likewise released, among them, S. D. Head fifty shares, David Flanders one hundred shares, and Peter Solomon fifty shares; that notwithstanding the reduction of its capital stock far below the minimum amount required by its charter, the company, through its officers and agents, and by written and printed statements, circulars and advertisements, represented at all times, up to 1884 or 1885, that it had a capital stock of $500,000 as a guarantee for the security of its policy-holders ; that such representations were made to induce confidence, and that they were false and intended to deceive and mislead, and did mislead and induce policy-holders to insure in said company, and as to them was fraudulent.</p> <p>Complainants further charge that the officers of the company, who controlled and managed its affairs, borrowed its moneys and used the same for their personal benefit, contrary to their duty as trustees ; that large deficits had occurred for money so used and the rights of policy-holders have been greatly endangered thereby. The charge of insolvency is repeated, and complainants say that if the nature of the assets of said company, as shown in its answer, be considered, the fact will become apparent that it has no bonafide surplus ; and that in its effort to show solvency, a schedule of its assets is made in its an swer, and that in that schedule appear the following large items : Accumulated loans, $88,487.00 ; interest on same, $40,010.92. Complainants say that both of these items are disputed by many policy-holders, who deny their liability either for the loans or interest thereon, and in no event should these items be considered as assets to show solvency as set out in the answer, because by the answer the claims of policy-holders are reduced to what defendants say is their present valuation, which in many cases would be less than the amount claimed as loans and interest. In the said schedule of assets is included certain real estate in the city of Atlanta estimated at $10,000. Complainants say said land is not in the possession of said company, but is held adversely to it by parties who claim title to it, and that litigation in respect thereto is now pending. In said schedule is an item called “deficiency in cash of Geo. S. Obear, for which company holds col-laterals, $63,100.” It is admitted that these collaterals are not worth more than $30,000. The desperate effort of defendants to show the solvency of said company is made apparent by inserting in its schedule of assets this item at $63,100. Complainants charge that this deficiency occurred, in part at least, with the knowledge and consent of the president of said company, and that he and his associates, by the slightest diligence, might have known as to all of it, and that they are at least guilty of gross neglect. Complainants further say that the item of $28,855, unpaid balance of an assessment of 13 per cent, of its stock, should not be considered as an asset to show solvency of the company, because it cannot be collected by law,' other subscribers having been illegally released from liability on their subscriptions; that the charge made in the original bill, that defendants had confederated for the purpose of depreciating and buying the policies of said company at nominal prices, is confirmed by the answer, which shows that over $200,000 of its policies have been bought at about 10 per cent, of the same; and that said scheme has not been abandoned, but in order that they may fully execute the same, they have, since the filing of this bill, by letters and circulars addressed to individual stockholders, misrepresented the object and purpose of complainants, and have sought thereby to prevent policyholders from being made parties complainant and to induce them to become parties defendant to said bill.</p> <p>Defendants answered the amended bill. They say that the original subscriptions to the capital stock of said company amounted to $534,700; that Y. G. Rust owned 20 shares, on which he had paid $33 per share; that he was unable to pay his premiums, and that on the 11th of December, 1871, the company took his stock for his premiums, allowing him therefor $22.13 per share. The John King Bank, of Columbus, became indebted to the company on account of collections made for it, and failed; John King, the proprietor of said bank, owned 14 shares of the company’s stock, upon which he had paid $33 per share, and on the 20th of January, 1872, the company took this stock at $33 per share on account of said indebtedness of said bank. James M. Bivins, an agent of the company? became indebted to the company on account of collections, and was insolvent. John L. Mustin owned 50 shares of the company’s stock on which he had paid $33 per share, and the company took this stock, on account of Bivins’ indebtedness, at $33 per share January 20th, 1872. M. L. Napier became indebted to the company for money loaned to him on 30 shares of the company’s stock as collateral security; he became insolvent and the company took his stock at $13.33 per share, he having paid on said stock $33 per share. J. W. Burke became indebted to the company as general agent for money advanced to him, and for collections made by his sub-agents, and on account of this indebtedness, said Burke on March 4, 1875, transferred to the company 74 shares of its stock at $7 per share; the balance of his indebtedness to the company was paid by April, 1883, by crediting him with commissions to which he was entitled. W. J. Magill, superintendent of agencies of the company, became indebted to it and was insolvent, and on account of this indebtedness, the company accepted a transfer of 18 shares of its stock, December 31, 1877, at $14.83 per share. On this stock $37 per share had been paid in. On December 27, 1880, the company accepted the transfer of 30 shares of stock from J. G. Bailey at $37 per share, the amount paid in thereon, in settlement of a note for $1,110 for borrowed money, Bailey being insolvent. On December 30, 1882, 25 shares were transferred to the company at $37 per share by Johnston in settlement of indebtedness to the company for borrowed money, Johnston being insolvent. On February 28, 1885, D. Flanders transferred to the company 300 shares, at $8.42 per share, on which $37 per share had been paid in, in settlement of a note for $1,700.94 principal, and $800.18 interest, Flanders being insolvent. On January 5, 1882, 50 shares of stock were transferred to the company by J. M. Green, at $11.62 per share, on which $37 per share had been paid in, in settlement of indebtedness to company of $581.18 for borrowed money, Green being insolvent.</p> <p>Defendants further say that they were advised by Col. L. N. Whittle, counsel of the company, that the company had authority to buy its stock, and that it has in good faith bought its stock whenever it was offered below its intrinsic value; that the stock so bought is .held as assets and can be sold as other assets of the company; that from January 30, 1873, to January 16, 1886, the company had bought 1,159 shares, paying therefor from $20 to $4 per share; and that these purchases were made for the benefit of such stockholders as might stand by the company. They say that 20 per cent, of its stock was called in on the organization of the company, and ten per cent, on December 28, 1869; that three dividends aggregating 7 per cent, were declared ánd credited on the stock, and that 13 per cent, was called for February 19, 1886, which, when paid, will make 50 per cent, to credit of subscriptions. They reaffirm that the company is solvent, and make another schedule of its assets aggregating a cash valuation, not including interest on loans, $295,013.01. They say that the officers of the company, whose good name and financial standing are involved, are managing the affairs of the company wisely and economically, and if not interfered with will pay every policy at maturity aiid save something for stockholders who stand by the company; and that they recognize their fiduciary capacity and will faithfully discharge the trust.</p> <p>At the hearing, about fifty other policy-holders were made parties complainant, and about eighty appeared by counsel representing the company and were made parties defendant to protest against the waste which they believed would result should the relief prayed for by complainants be granted. Seven other policy-holders appeared by R. K. Hines, Esq., and were made parties defendant. They say that the company is dead beyond resurrection, and ask that an expert in life insurance be appointed to ascertain and report the present value of each outstanding policy, and that this be done without delay. They object to the appointment of a receiver on-account of expense, and say they are willing to trust the officers of the company.</p> <p>It is unnecessary to set out the evidence.</p> <p>After argument had, the court made and rendered the following decision :</p> <p>Z. D. Harrison et al. vs. The Cotton States Life Insurance Co. et al.</p> <p>The above stated ease came on. to be heard before me, after various orders of postponement shown by the record, on the 2nd day of October inst. upon the bill and the amendments thereto, the answer and the amendments thereto, and the affidavits and other proof submitted by both sides. The decision on the application for injunction and the appointment of a receiver has been held up for consideration until the present time.</p> <p>Intermediate between the hearing of the application and the decision hereby made, defendant, The Cotton States Life Insurance Company, voluntarily tendered its bond, with good security, conditioned to pay to the complainants and such others as may be made parties to said bill, the amount which may be adjudged to be due them under their respective policies after the assets of the company shall first have been exhausted for the payment thereof, which bond has been filed in the office of the clerk of this court, and which is by this reference made a part of the record.</p> <p>I hold and decide in reference to the following principal questions made in the case:</p> <p>First. That there has been no misconduct on the part of the corporation, such as requires that the management of the corporate affairs should be withdrawn from their control.</p> <p>Second. That the failure of the company to procure license from the State does not of itself warrant the appointment of a receiver to take charge of its affairs. Such failure does not prevent the company from taking care of its assets and from receiving the premiums due on the policies already issued. Its effect is to prevent the company from issuing new policies or taking new business in this State, and does not work a forfeiture of the corporate franchise.</p> <p>Third. I hold and decide that the defendant, “The Cotton States Life Insurance Company,” is, under the evidence, a solvent corporation, and that the facts, especially in view of the tender of the bond already referred to, do not warrant the appointment of a receiver upon the ground of insolvency.</p> <p>Fourth. I hold and decide that the company commenced business with a. sufficient amount of bona fide subscribers, and a sufficient amount paid in in accordance with its charter and amendment thereto.</p> <p>Fifth. I hold and decide that the defendant, under its charter, had a right to purchase its policies.</p> <p>Sixth. I am in some doubt as to whether the words in the charter, “and other obligations,” following the words, “have power to purchase its policies and scrip,” would authorize the defendant to purchase its stock or not; — whether it does or not, under the facts in this case, I do not think that a receiver should be appointed, because the company has decided to go into liquidation, and the resolution appointing Messrs. Johnston, Baxter and Burke to wind up the business does not give them the authority to purchase stock, and they have sworn in their answer that they do not intend to purchase any more of the stock. If they should do so, the bond alluded to above, in connection with the assets, is sufficient to protect every policyholder.</p> <p>.It is therefore ordered and adjudged that the prayers of the complainants’ bill be denied, and the application therein for an injunction and the appointment of a receiver be and the 'same is hereby refused, and all temporary restraining orders heretofore granted are hereby revoked. It is further adjudged that, whereas various interlocutory orders and injunctions have been granted against The Cotton States Life Insurance Company, restraining it from collecting the premiums due by certain of the policy-holders,' the complain" ants in whose behalf said restraining orders were obtained shall have tewnty days from the date hereof within which to make payment to said company of the amount of said premiums.</p> <p>Let this order and judgment he entered on the minutes of Bibb superior court by the clerk thereof. October 20, 3886.</p> <p>T. J. Simmons, J. S. 0.</p> <p>To this the complainants excepted.</p>

<p>1. It is doubtful whether the evidence in this case warranted any recovery on the ground of a malicious arrest, and if any such arrest was made, it seems that the person making it acted beyond the scope of his instructions and the business he was employed to transact; nor does it clearly appear how his conduct was ratified by the defendant or its agents. If the defendant was liable at all, the finding was so excessive as to betray bias in favor of the plaintiff or prejudice against the defendant, or to show that the jury misapprehended the law applicable to the case.</p> <p>2. Where a plaintiff brought suit for a malicious arrest, and the defendant neither assailed his character nor gave notice of any intention to do so, it was error to allow him to state that he' had never been accused of crime and to sustain his reputation by such testimony.</p> <p>3. Letters written between the attorney and the agent of a corporation, which was his client, containing confidential communications between the two, should not have been forced to be produced for use in evidence against the client.</p> <p>4. Where the plaintiff was desired as a witness to appear before the grand jury in respect to an alleged arson, and he claimed to have been maliciously arrested at the instance of an insurance company which had insured the house burned, it was not admissible to introduce in evidence a record showing that the owner of the house had brought suit against the company and had recovered against it. Such evidence was irrelevant.</p> <p>5. Where the arrest complained of was alleged to have been made by a detective acting for the company, it was admissible for the attorney for the company, who acted in its behalf, to testify as to the circumstances of the employment of the detective, and .that the company had refused to authorize the institution of any criminal proceedings against the owner of the house which was burned. Such evidence was admissible to show good faith on the part of the company, and that they did not know of or authorize the proceedings, as well as to rebut the statement of another witness as to expressions of the attorney on this subject. At all events, it was admissible to mitigate the damages by showing want of malice.</p> <p>6. A letter from an attorney to the agents of his clients containing confidential communications and asking for instructions in reference to the case, was inadmissible against such client.</p> <p>7. The court should have charged, on request, that the act of a servant in the line of his duty alone binds a principal; and that directions of an attorney to stop a witness about to leave a city do not justify an arrest, and such, action, if had, was not in the line of duty of such servant or attorney so as to bind his client.</p> <p>8. The advice of counsel will not operate to discharge his client from. liability for damages, but it might make them merely nominal or might mitigate them.</p>

<p>Fraud. Warranty. Contracts. Pleadings. Before Judge Boynton. Pike Superior Court. October Term, 1886.</p> <p>Reported in the decision.</p>

<p>Bill for direction and to marshal assets, filed by administrators 'who were themselves creditors) against other creditors of the estate. Auditor’s report settling priority of creditors excepted to by the administrators. Exceptions as to one of the creditors tried, and . verdict in favor of the report. Decree rendered as to all the creditors and the whole fund. Motion by the administrators for a new trial, and the motion overruled. Writ of error sued out by the administrators; some of the creditors served with the bill of ex' ceptions and some not:</p> <p>Held, that all whose claims were allowed were interested in upholding the decree, and were therefore necessary parties in the Supreme Court; and because some of these were not served, writ of error dismissed.</p>

<p>1. The yearly value of land being in question, the crop which it . would produce, if free from the alleged nuisance, is a relevant fact when coupled with the cost of production. Yearly value is not measured alone by value for rent, but may be measured as well by value for cultivation.</p> <p>2. That an attempt was made to raise a crop on the damaged land, and that the crop was drowned out by the nuisance, is admissible as tending to.show that the yearly value of the land was affected by the nuisance, the declaration alleging that water was caused to back over and stand upon the land.</p> <p>3. That the plaintiff contributes to his damage by making it more than it would otherwise be, will not prevent a recovery for so much as it is without such increase by his own act.</p> <p>4. Where there is no evidence of any grant of the right of way or the assessment of compensation therefor, it is not error to decline to charge the jury touching these matters.</p>

<p>Railroads. Damages. Negligence. Master and Servant. Words and Phrases. Practice in Superior Court. Witness. Interrogatories. Before Judge Lumpkin. Richmond Superior Court. October Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. In an action for libel, the court having permitted the defendant to show that he had previously had a difficulty with the plaintiff, there was no error in refusing to allow him to show the circumstances of the difficulty. Such testimony was immaterial, and would show neither a justification of the libel nor a circumstance to mitigate the damages.</p> <p>2. Where a jury of twelve men of the original panel was out, and the court had twelve more summoned as tales jurors and empanelled, and the parties struck a jury from the panel thus made without objection, this furnished no ground for a motion for a new trial.</p> <p>3. If a party knows of objections to a juror on account of a difficulty with his family, or prejudice against one of his counsel, and fails to strike him from the panel, but accepts him as one of the jury before whom the case is tried, the objection to the juror furnishes no ground for a motion for a new trial after verdict.</p> <p>4. In an action for libel, a verdict for the plaintiff will not be set aside on the ground that it is excessive, unless it appear from the facts that the jury were influenced by bias or prejudice, or some other improper motive or influence, the jájv. furnishing no criterion of damages in such cases, except the enlightened conscience of impartial jurors.</p> <p>(a) The case having been fairly tried, and there being no error in the charge of the court, the verdict should have been allowed to stand, and the grant of a new trial was error.</p>

<p>A suit was brought by C. & P. as plaintiff’s attorneys, and they represented him until 1872, when they appear to have been absent from the court, and S. represented the case, and judgment was obtained. The names of C. & P. and S. were entered on the docket of the superior court, but only those of C. & P. appeared on the fi. fa. as representing the plaintiff. It was not shown how the judgment was signed. Shortly after the judgment was obtained and execution issued, it was turned over by C. & P. to another attorney, who kept it in life by causing entries to be made upon it until 1885, when he negotiated a sale of the fi. fa. and. in pursuance thereof and of an agreement of the heirs of the deceased plaintiff, the administrator assigned the execution. The attorney who negotiated the transfer did not know of any claim of S. for fees, or that any other attorney than C. & P. was connected with the execution, and in the progress of the negotiations, he stated to the proposed transferee that the fi. fa. was not encumbered with any attorneys’ liens. In the hands of the transferee the fi. fa. was levied, and brought a fund into court less than sufficient to satisfy it. S. claims a lien upon the fund:</p> <p>Held that, under the facts of the case, all parties having or claiming any interest in the execution, by lien or - otherwise, were bound by the representations made to the transferee, and were estopped from interfering with his rights or taking from him any part of the sum raised by the sale.</p>

<p>Under the act of October 17, 1870, (acts 1870, p. 14,) the ordinary and the other commissione:s of Douglas county, after purchasing land and selling off lots for the erection of a court-house and jail, on June 2, 1875, entered into a contract for the erection of a courthouse and furnishing materials therefor, agreeing to pay $5,800 for the materials and work, $1,000 of which was to be paid when the walls were completed, and the balance when the building was finished, and the builders were to receive twelve per cent, on all delayed payments. After the work was completed, on July 8, 1876, the ordinary ordered the treasurer of the board of commissioners to pay to the contractors the amount due them, with twelve per cent, interest from December 25, 1875. Various amounts were paid on the orders so issued, and some of them were transferred by assignment. Upon application by the holders for a settlement, and under the recommendation of the grand jury, a tax was levied and collected and went into the hands of the treasurer for the purpose of paying this and other debts. On May 15, 1886, the ordinary endorsed on each of the orders the amount found to be due, audited and allowed, and directed the treasurer to pay them out of the fund in his hands raised by taxation. The treasurer refused to make payment, and a mandamus nisi was issued against him:</p> <p>Held that, unless the treasurer, who was the executive officer of the ordinary, could show that the order on him was fraudulent, or that a mistake existed as to the amount found to be due, he could not go behind the judgment of the ordinary, acting as county commissioner, directing the payment of the sum, and set up want of authority in the commissioners to agree to pay twelve per cent, on delayed payments, or that the debts were barred when audited. In the absence of any evidence of fraud or mistake as to the amount found due, the mandamus was properly made absolute.</p>

<p>1. Where suit was brought on a note which contained a statement that it was given “for value received for a patent-right to the Shellnut Water-Engine for Crawford county, No. 302,167, patented July 15th, 1884 ” and pleas of failure of consideration, and want of consideration because there was no assignment of the patent-right made by the defendant to the payee, were filed, it was no sufficient defence to the action to show that the defendant bought this patent-right for Crawford county; that at the time he bought it, no assignment was madeJo him; that the payee was only an agent for the Shellnut Water-Engine Company; and that he could not make an assignment of this patent-right. There was no evidence that the defendant was to have a transfer or assignment of the patent-right at the time he gave the note, nor was it shown that he ever tendered the money due on the note to the payee and demanded the assignment; and in the absence of such testimony, the presumption from the note would he that he was entitled to an assignment of the right when he paid the note.</p> <p>2. Tender of the money to the payee, a demand for the assignment and failure to obtain it would have been a good defence to a suit on the note after its maturity; and even after judgment, such facts would authorize a court of equity to enjoin its collection.</p>

<p>1. Where an execution against a married woman was levied on certain property as belonging to her, she could interpose a claim thereto as being a homestead granted to her husband, of which she was a beneficiary; and a judgment in her favor, based on a verdict finding the property not subject under such a claim, will not be arrested on the ground that the defendant in execution was also the claimant.</p> <p>2. Where a homestead was set apart to a husband, and on application to the chancellor, an order was passed allowing the sale of both the homestead and the fee in the property for reinvestment, it being alleged that there were no creditors; and where a portion of the property was sold for a certain price, and in consideration thereof, the vendee conveyed another tract of land, making the deed to the wife, this was a defective execution of the power granted by the order; but upon execution of the deed to the wife, a trust resulted to the husband, he being in possession with his wife, and the property so conveyed to her was not subject to sale under a judgment subsequently obtained against her individually. Therefore where, to the levy under an execution founded on such a judgment, the wife interposed a claim to .the property as a homestead, on the trial of the case the record of the homestead and the application and order for sale were admissible in evidence, as also was testimony as to the sale of a portion of the property and the making of the conveyance to the wife in consideration of the purchase price therefor.</p>

<p>1. Where, after the birth of a bastard, his mother married and had other children by her husband, upon the death of the bastard leaving real estate, the title passed to his mother by inheritance, and thereupon the marital rights of her husband attached; and when she died, the title was cast upon him by operation of law, and upon his death before reducing the property to. possession, the title passed to his children as his heirs at law. These children might have brought.suit in their own name, there being no administration and no debts, but if they preferred, they could have an administrator appointed for the estate of the bastard, and he could sue for and recover the property for the purpose of sale and division among them; nor, in a suit by such administrator, could the tenant in possession object to the administration as void.</p> <p>2. The defendants had no title by prescription in this case.</p> <p>(a) The verdict was demanded by the evidence, and the grant of a new trial was error.</p>

<p>Municipal Corporations. License. Pawnbrokers. Practice in Superior Court. Certiorari. Before Judge Richard H. Clark. Pulton Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>Actions. Parties. Amendment. Nonsuit. Before Judge Van Epps. City Court of Atlanta. December Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. Where an action was brought against a city to recover for personal injuries resulting from an excavation in a street adjacent to a building, and negligently and carelessly left open by the owner thereof; and where" the city notified the person to whom the building belonged, and who left the excavation open, of the pend-ency of the suit, after a recovery against it, the city could maintain an action against him to reimburse itself. In such a suit, the former judgment would be conclusive between the city and him as to the right of the party injured to recover, and as to the amount which might be recovered against him. He could defend such a suit only by showing that he was under no obligation to keep that portion of the street in safe condition, and that it was not through his default that the injury happened; ’or, if it appeared that there was fault, both on his part and on that of the city, no recovery could be had against him at the instance of the latter.</p> <p>2. Where the judgment against the city in favor of the original plaintiff had been paid off, the husband of such original plaintiff was not an incompetent juror on the trial of the case brought by the city to reimburse itself.</p> <p>3. The verdict is not only sustained, but required, by the evidence.</p>

<p>1. A man having died while in a state of separation from his wife, and while under the care and nursing of his father and mother, and his effects (of small value), together with his only child about eight years of age, having, as a consequence of his death, passed ' into .the custody of his father, such custody was rightful both as to the property and the child; and afterwards when the child had passed into the custody of its own mother, the child did not have ' a right of action against its grandfather -for the property, and an action of trover against him brought by the mother- as next friend of the child, even if brought after demand and refusal, was not maintainable.</p> <p>2. The proper mode of obtaining control of the property and apply, ing it to the use and benefit of the child, is by having it set apart under §2571 of the code.</p>

<p>Railroads. Common Carriers. Liens. Waiver. Before Judge Simmons. Bibb Superior Court. April Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. A deed of bargain and sale, absolute in its terms, and purporting to convey the fee in consideration of ninety dollars in hand paid, passes title; and an entry endorsed upon it and signed by the grantee to the effect that the deed is to be returned to the grantor cancelled, .on condition that the grantor shall pay to the grantee ninety dollars by a specified time, with interest, does not convert the instrument into a mere mortgage.</p> <p>2. Possession remaining with the grantor and never surrendered, is held under the grantee, and is not adverse to his title; and neither prescription nor the statute of limitations is available as a defence to an action of ejectment founded on the deed.</p> <p>3. If the conveyance was really made as security for a debt, the appropriate equitable relief could be administered, with proper pleadings for that purpose.</p>

<p>1. Where a declaration was filed in office, but no process was attached thereto, no service effected, and no waiver made, the proceeding was void, and was properly dismissed at the trial term for that reason. Such a want of process and service was not amendable.</p> <p>2. Where a declaration, claiming damages for an injury sustained by reason of a hole left open in a street of a city, was filed in the clerk’s office before the bar of the statute of limitations attached, but no process was issued or service perfected, and no waiver thereof was made, and the proceeding was dismissed at the trial term for that reason) this did not constitute the pendency of suit so as to prevent the bar of the statute from arising and giye the plaintiff the right to bring a second action within six months from the dismissal of the first. Where the declaration in the second action showed on its face that the period of limitation had expired before it was brought, it was demurrable.</p> <p>(a) This case is not controlled by that of Wynn vs. Booker, 22 Ga. 359. The facts of that case were different, and it arose before the adoption of the code.</p>

<p>1. Where personal property is sold on the false and fraudulent representation of the purchaser that he owns certain real and personal estate unincumbered, and that there are no judgments or other liens against him, and he. thus obtains possession of the property and credit for the price, giving no security except a mortgage upon the property itself, when in fact there are judgment liens against him and he is insolvent, the vendor, on discovering the fraud, may rescind the contract and reclaim the property. And this may be done even after the mortgage has been foreclosed and the property sold under the -mortgage fi. fa., the existence of the judgments being until then unknown, and the mortgagee being himself the purchaser at the mortgage sale.</p> <p>2. Even if at law the mortgage lien be superior to the lien of the judgments, the money produced by the sale under the mortgage not being in court, but in the hands of the mortgagee, where it ought to remain, equity has jurisdiction to hold off both the officer and the judgment creditors.</p>

<p>Contribution. Levy and Sale. Partnership. Verdict. Before Judge Brown. Cobb Superior Court. March Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

<p>Where a defendant was convicted of receiving stolen goods, knowing them to be stolen, brought his case to this court, where the judgment was affirmed, subsequently discovered new testimony which was merely cumulative of that which had been delivered on the trial, and at the second term of the superior court after the trial, made a motion for a new trial on the ground of the newly discovered evidence, and because the verdict was contrary to law and the evidence, alleging, as a ground for making the extraordinary motion, that counsel who represented him at the former trial had abandoned his, case because of his inability to pay fees, this being done without notice to him of the counsel’s intention so to do prior to the end of the term, and that therefore he was forced to submit to the sentence imposed upon him, or bring the case to this court directly by bill of exceptions, and that he took the latter alternative, assigning error in certain charges of the court: this furnished no ground for an extraordinary motion for a new trial, and the motion was properly dismissed.</p>

Nuisance. Railroads. Res Adjudicata. Damages. Streets. Before Judge Willis. Muscogee County. At Chambers, April 2, 1887. The former decision in this case was made at the last term, and will be found reported on page 271, ante.