Volume 79 — Georgia Reports

Charge of Court. Words and Phrases. Evidence. Attorney and Client. Before judge Simmons. Houston Superior Court. October Term, 1886.

<p>1. A general objection to the admission of certain books in evidence, without specifying any ground therefor, is insufficient to furnish a ground for a motion for a new trial.</p> <p>(a) In this case, no ground of objection to the evidence offered appears to this court.</p> <p>2. Where, in a suit between certain wards and their guardian, the defendant offered in evidence an award, and it appeared therein ■that the defendant acted both individually and as guardian for his wards in making the submission, and that they were not represented by a guardian ad litem or next friend, if the wards had an interest in the subject-matter of the arbitration, the attitude of the guardian towards them was inconsistent, and the award was not admissible in evidence against them.</p> <p>(a) Where an arbitration and award was had to settle the title to certain mill property and to permit its sale, in a subsequent suit, brought by certain wards against their guardian, claiming that a gift of a portion of the income of the property had been made to them, and seeking to recover such part of the income as went into the hands of their guardian, the award was not admissible in evidence against them.</p> <p>3. If it were error to permit counsel, in his argument to the jury, to read and comment upon certain portions of the decisions rendered by this court when the case was formerly before it, the failure to . . object thereto or to invoke any ruling of the court to check or control it, would operate as a waiver of any exception to this mode of argument.</p> <p>4. The charges of the court set out in the eleventh, twelfth, thir- . teenth, fourteenth and fifteenth grounds of the motion for a new trial were in strict accord with the decision of this court when the case was formerly before it, and the finding of the jury under each of them was sustained by the evidence.</p> <p>5. - Where a bill did not set up title to certain mill property, but claimed a portion of the dividends arising.therefrom, which the defendant received as the guardian of the complainants, there was ■ no error in refusing to charge that, if the jury believed from the evidence that the. defendant gave the, property to his children and grandchildren, and that they were entitled, to the dividends therefrom by reason of the fact that the title to said property vested .■ in them under said gift, then said dividends were a part of the in- ... crease and not the corpus of his wards’ estate,- and it was not •. necessary for defendant to get an order of the court to allow him i to expend the. same for the support and education of his wards, -(a). This charge was also properly refused because the guardian had no right to appropriate the whole of the income to the maintenance and education of his wards, especially as he had made no returns to the ordinary showing the amount of such expenditures and the receipts therefor, and had not received the ordinary’s sanction to this disposition either before or after it was made, no account of the expenditures being kept, and the amount claimed as a credit on that account being a mere guess.</p> <p>(&) Where it appeared that the owner of certain mill property had placed it in the hands of two of his sons for the purpose of managing it, receiving the income and proceeds thereof and paying them over to the donor’s children and grandchildren; that such agents or trustees kept accounts of their transactions, and the money was disbursed by them to all of his children who were in life and to the children of such of his sons as were dead, except to the complainants, who were -the children of a deceased son, and that the amount coming to them was paid into his hands as their guardian, this was sufficient to show a complete gift; and there was no error in charging that, if the defendant placed his two sons in charge of the mill property as the agents of his children and grandchildren, intending and directing that they should share equally in the income and dividends produced, the complainants would be entitled tc recover their share of such dividends, if any, which may have been delivered to the defendant for them.</p> <p>j (c) A donatio inter vioos as distinguished from a donatio mortis causa, I does not require actual delivery, and it is sufficient to complete a 1 gift inter vivos that the conduct of the parties'should show that V the ownership of the chattels has been changed.</p> <p>6. When this case was before this court at a former term, on the same evidence as now appears in the record in respect to the discharge of the guardian as to one of his wards,, it was held that matters short of actual fraud existed, which were sufficient to set aside the discharge, and there was no error, on another trial, in charging that such complainant claims that the discharge was procured by fraud oa the part of the defendant, and is therefore an invalid judgment and no bar to her right of recovery in this case; and the fraud relied on to set aside said discharge is legal and not moral fraud ; • and that legal fraud does not impeach the honesty of the defendant, and may be pi oved by acts consistent with an intention on his part to do right.</p> <p>7. - Where a witness was examined on behalf of the complainants and cross-examined by defendant’s counsel on the trial, there was no error in refusing to grant a new trial on the ground that it had since been discovered that such witness would testify to sayings of the respondent repudiating the gifts in issue on the trial, made after he had parted with possession of the property; especially where no diligence was shown in procuring this testimony, its admissibility was doubtful, and at best it was merely cumulative.</p>

Title. Pawns. Factors. Vendor and Purchaser. Liens. Trover. Before Judge Roney. Richmond Superior Court. October Term, 1886. The National Exchange Bank of Augusta brought trover against the Graniteville Manufacturing Company to recover twenty-six bales of cotton. -The case was submitted to the presiding judge without a jury.

Wills. Estates. Construction. Before Judge Lawson. Greene Superior Court. September Term, 1886. Mrs. Matilda A. West and ber husband bled their bill against Augustus H. Randle, alleging, in brief, as follows: In 1845, Richard Asbury died, leaving a will (the material portions’of which are set out in the decision).

Evidence. Criminal Law. Charge of Court. Before Judge Marshall J, Clarke. Fulton Superior Court. September Term, 1886. O. C. Weeks was indicted for the murder of Nash. The evidence on behalf of the State showed, in brief, as follows: On May 1,1886, Weeks, Nash, Moore and Masters started from Atlanta to their homes in Dekalb county, riding together in wagons. When near the dividing line between the counties of Fulton and Dekalb, the wagon in which Nash was stopped.

Railroads. Damages. Negligence. Burden of Proof. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886. Addie Howard brought suit against the Richmond and Danville Railroad Company to recover damages for the homicide of her husband. On the trial, the evidence was voluminous and conflicting, and only the most salient parts of it need be stated.

Levy and Sale. Sheriffs. Executions.. Evidence. Principal and Surety. Title. Before Judge Carswell. Burke Superior Court. November Term, 1886. To the report contained in the decision the following is added: The claimant’s title rested on a sheriff’s sale made under a fi.fa. in favor of Rozier, trustee for Byrd and wife, against Morrison and Rozier, security.

<p>Actions. Corporations. Bonds. Criminal Law. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. In this case, the dying declarations introduced in evidence were shown to have been made while the person slain was in articulo mortis, and after he .had been advised’ by his physician that he must die. They related to the cause of his death and were admissible, though they might have been omitted without affecting the . result.</p> <p>2. It was admissible to show that,- in such dying declarations, the deceased said that the defendant had cut him, and that he had done nothing to cause it. This was not a conclusion, but a fact.</p> <p>3. There was no error in charging the jury as follows: “Were the circumstances surrounding Darby at that time such, or not? Look and see what they were; where they were standing when they first met; what they were doing. Did they draw their knives, and did they attempt to use their knives? Did they keep their knives open and walk down the street, or did one shut up his knife and the other keep his open? At the time of the cutting, were the circumstances which surrounded Darby sufficient to excite the fears of a reasonable man ?”</p> <p>4. Under the facts of this case, there was no error in charging as follows: “At the time of the cutting, were the circumstances which surrounded Darby at the time sufficient to excite the fears ; of a reasonable man ? Were they sufficient to make him believe, and did he believe, that this man was going to cut him, and did it appear that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary ?”</p> <p>5. When construed with the entire charge, there was no error in charging as follows: “The law does not require the State to make out a case to a mathematical certainty, because it is rarely ever done by human testimony. The law requires the State to furnish such evidence as would satisfy the minds of the jury; but if the State proves it so that they are morally satisfied in their minds, that is sufficient. If you are morally satisfied in ypur minds, from . the evidence in the case, that Darby is guilty of the crime charged in the indictment, then it would be your duty to so find”; the court having charged the jury that, “in civil cases, moral certainty may be produced by a preponderance of the evidence, but in criminal cases, much stronger conviction is necessary; and the evidence should be so strong as to exclude from the minds of the jury every reasonable doubt as to the guilt of the accused.”</p> <p>6. There was no error in charging as follows: “If you believe that Darby killed Rittenberry without intending to kill him, but that it was done in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human-being, then the offence would be murder.” This charge might have been omitted, as the casé was not one of involuntary manslaughter but of murder, under the evidence produced by the State; but the charge did no harm.</p> <p>7. Nor was there error in charging as follows: “If you believe from the evidence that Darby cut Rittenberry on account of threats, and that it naturally tended to cause death, that would be an unlawful act on the part of Darby; and if death ensued, it would be . murder, whether Darby intendéd to kill Rittenberry or not.”</p> <p>8. The entire charge was fair, impartial and applicable to the case. The pourt having charged that the jury could believe the defend- . ant’s statement or not, as they thought proper; that they could give it full credit, and might believe it to the exclusion of all the ■ testimony in the case, if they thought proper, it was not the duty of the court to give in charge any theory of the case which arose, not from the evidence, but from the defendant’s statement.</p> <p>9. Where one ground of a motion for anew trial was, that one of the . counsel for the accused was unwell at the time of the trial and neglected to put in some evidence in the case, and that on account of his ill-health and irritability he would not allow associate counsel .to control the case, and that in a few days after the trial he died, but the court certified that counsel’s mind was perfectly clear and he was at himself, this furnishes no ground for reversing the refusal of a new trial; especially where the omitted testimony could not have changed the result.</p> <p>10. The verdict is right under the law and evidence.</p>

<p>A bond altered in a material part, and declared upon as altered, is admissible in evidence without explaining the alteration, unless there is a sworn plea of non est factum, or some plea denying on oath that the alteration was made with the consent or by authority of the makers of the instrument.</p>

<p>Dower. Husband and Wife. Before Judge Adams. Appling Superior Court. October Adjourned Term, 18S6.</p> <p>Reported in the decision.</p>

<p>An endorsement of a promissory note past due for a valuable consideration is a new contract, and the statute of limitations begins to run in favor of the endorser only from the date of the endorsement.</p> <p>(a) The right of an endorser to limit his liability by express stipulation in his endorsement, or to notify the endorsee to sue the principal within three months, does not apply to this case, and neither right was sought to be exercised.</p>

<p>Evidence. Fraud. Burden of Proof. Before Judge Lawson. Baldwin Superior Court. July Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. An express waiver of homestead in mortgaged premises, contained in the mortgage deed, is a renunciation of the homestead right, whether the right could be asserted at the time of executing the deed or not. Hence, such a waiver by a single man will bar his claim of homestead when he afterwards marries.</p> <p>2. That mortgaged property is subject to be administered in bankruptcy, will not entitle the mortgagor to resist the administration of it by foreclosure and sale under proceedings in the appropriate court of the State.</p>

<p>1. Where several persons were indicted jointly, and upon the trial of one of them, another was examined as a witness for him, it was admissible for the attorney for the State to lay the foundation for impeaching such witness by inquiring as to the making of statements contradictory to his testimony, such evidence being intro- . duced and used solely for the purpose of impeaching the witness.</p> <p>2. Evidence showing a difficulty between the defendant and another person shortly before that between the defendant and the deceased, was inadmissible, in the absence of proof tending to show any understanding or combination between the deceased and his party and such other person.</p> <p>3. It is for the court to determine whether the foundation for the admission of statements as dying declarations has been laid; and where it did not appear that the declarant was conscious that he was in the article of death at the time the declarations were made, but only that he said that he was shot and might get over it or might not; that he did not think he could ever get over it; that he .might live, but it was a doubtful case: this was not a sufficient foundation to admit his statements in evidence as dying declarations.</p> <p>(a) Declarations made to a witness, and shown to have been made while the deceased was conscious that he was in articulo mortis, were admitted in evidence; but this- testimony threw no light on the question of his consciousness of his condition at the time when he made declarations to other persons not then present.</p> <p>4. There was nothing in the evidence in this case to authorize a charge on the subject of voluntary manslaughter, even if the court had been requested so to charge; nor was there anything involving principles announced in §§4344, 4345 of the code, relating to other instances which stand upon the same footing of reason and justice as those enumerated, which will justify a homicide.</p> <p>5. The verdict was sustained by the evidence.</p>

<p>Insurance. Bad Faith. Words and Phrases. Yerdict. New Trial. Before Judge Harden. City Court of Savannah. July Term, 1886.</p> <p>Reported in the decision.</p>

<p>Municipal Corporations. Tax. Before Judge Roney. Richmond County. At Chambers, February 26, 1887.</p> <p>Reported in the decision.</p>

<p>Municipal Corporations. Tax. Laws. Assessments. Before Judge Roney. Richmond County. At Chambers, March 5,1887.</p> <p>Reported in the decision.</p>

<p>1. The written contract between the parties is ambiguous in respect to the part the plaintiff stipulated to take in the matter of purchasing machinery, the ambiguity being lodged in these expressions: “Details of machinery for builders of same and purchase machinery placed in plans with driving. Advice and information as to purchase, products for manufacture and any assistance of the kind useful. Mutual understanding in matters of discretion and correspondence to required extent. All advantages of every kind in prices and discounts to inure to the mfg. company.” It is uncertain whether, by this phraseology the plaintiff took upon himself the duty of negotiating for the purchase of machinery as the active and responsible commercial agent of the company, or whether he stipulated only to furnish detailed plans and specifications and assist by giving information and advice, and to do so without sharing in any saving, from prices or discounts, to which his services, information or advice might contribute.</p> <p>2. Parol evidence is admissible to explain a patent ambiguity, but where the words or phrases are not technical, a witness cannot, as an expert or otherwise, give his opinion of the meaning of the instrument.</p> <p>3. A party to a contract cannot, by proving what he said or wrote to ¡s third person after the contract was entered into, show either what it means or what he understood it to mean. Such evidence is not admissible.</p> <p>4. The party who wrote the contract and was the author of the ambiguity has the burden of exp’aining it when he seeks to take the benefit of a construction favorable to himself; and if he does not clear up the meaning beyond doubt, the doubt must be given against him.</p> <p>5. Where a written contract has an apparent meaning at variance with its real meaning, it may bind the author of ttie ambiguity contrary to its real meaning, if this meaning was so obscurely expressed that the other party was likely to be misled and was misled, and if the circumstances entitled him to timely notice of his mistake, and notice was not given.</p>

<p>Money Rule. Practice in Supreme Court. Mortgages. Judgments. Debtor and Creditor. Corporations. ' Before Judge Ingram. City Court of Columbus. October Term, 1886.</p> <p>Reported in the decision.</p>

<p>Where a homestead was sold for - reinvestment, under an order of the chancellor for that purpose, hut the liens of creditors were not transferred to the property purchased, the purchaser of the homestead took it, as to lien creditors thereon against the original debtor, with the same exemption therefrom, and for the same length of time, as was allowed to said original debtor before such sale. Therefore, after the sale, a judgment creditor could not levy-on and bring to sale the property, subject to the homestead charge or incumbrance, the object being to sell the reversionary interest in the hands of the purchaser before the termination of the homestead estate.</p> <p>(a) This case differs from those of Skinner vs. Moye, 09 Ga. 476, and City Bank of Macon vs. Smisson, 73 Ga. 423.</p>

<p>The act o£ 1878 (code, §2025,) touching the sale of homesteads, applies to all homesteads, as well those set apart before as after i(s passage, and in holding off creditors until the homestead term expires, it carries out the true intent of the constitution. That the debt was created prior to the passage of the act, gives the creditor no vested right to subject a so-called reversion in the homestead property, either before or after a sale made in pursuance of the act.</p>

<p>County Matters. Roads and Bridges. Torts. Principal and Agent. Yerdict. Before Judge Lumpkin. Wilkes Superior Court. November Term, 1886.</p> <p>Reported in the decision.</p>

<p>The contract declared upon being an undertaking to carry from Eufaula, Alabama, and deliver at Albany, Georgia, and that proved being a special agreement to carry from Louisville, Kentucky, via Atlanta, to Quitman, Georgia, the evidence does not support the declaration. The two contracts are different causes of action, and in a suit upon the one there can be no recovery on the other.</p>

<p>1. When a paymentis made by a debtor tó a creditor holding several demands against him, the debtor has the right to direct to which claim it shall be appropriated. If he fails to do so, the creditor has the light to appropriate it as his election. If neither exercises this privilege, the law will direct the application in such manner as is reasonable and equitable, both as to parties and third persons. As a general rule, the oldest lien and the oldest item in an account will be first paid, the presumption of law being that such would be the fair intention of the parties.</p> <p>2. Where a creditor held a mortgage on certain land and on the turpentine to be gathered from trees boxed thereon, and one of the mortgaged lots was sold with the understanding ánd agreement that the proceeds of the sale should be applied to the mortgage debt, it was proper that the amount of such proceeds received by the creditor should be so applied. But where the parties went on dealing together and had various transactions, and money was sometimes advanced and supplies furnished to make and harvest ■ the turpentine, an implication might arise from that, that it was the intention of the parties to' apply the turpentine delivered in payment of those items at the time when the advances were made and the supplies furnished; and where the debtor did not direct how the payments should be appropriated at the time they were made and there was evidence tending to show that he had knowledge of the manner in which they were appropriated and made no objection thereto, there was no error in finding that an appropriation of the turpentine, first, to the payment of the unsecured account, and the balance thereof as a credit on the mortgage, was a proper appropriation, and in finding the balance due on the mortgage against the debtor.</p> <p>(a) This case compared with those of Pritchard vs. Comer & Co., 71 Ga. 18; Hatcher & Baldwin vs. Comer & Co., 78 Id. 418, 422; and Johnson vs. Johnson, 30 Id. 857.</p> <p>3. The general charge covered all the issues in.the case fairly and fully, and there was sufficient evidence to sustain the finding.</p>

<p>1. A sale on credit by an agent in possession of the goods, and authorized to sell for cash only, is not a conversion — certainly not unless it appear that the purchaser had notice of the limitation in the agent’s instructions.</p> <p>2. The proper remedy against such agent is not trover, but an action on the case for violation of instructions, or breach of contract.</p> <p>3. Unless an actual conversion by a bailee be shown, an action of trover against him will not lie without a previous demand for the goods, and failure to redeliver.</p> <p>4. Where the parties to an action of trover brought by bailor against bailee, went to trial on a statement as to what evidence the plaintiff would introduce and on which he based his right to recover, which statement was that the goods (of the alleged value of $1,-156.43) were delivert d by plaintiff to defendant to be sold for cash, and plaintiff and defendant were to divide the profits, and the goods not sold were to be redelivered to plaintiff, and that plaintiff proposed to prove only that defendant sold a part of the goods and sold them for credit and paid plaintiff for a portion of them, and there can be no identification of the goods sold or not sold, but plaintiff can only show that goods were turned over to defendant :</p> <p>Held, that this statement conceded that plaintiff could prove the facts recited therein, and them only, and was a virtual admission that no demand for the goods cr any of them prior to the institution of the suit could be established; and the object of the statement being, that the court might determine the law arising upon the recited facts as though they alone were in evidence before the jury, there was no error in ordering a nonsuit.</p>

<p>Promissory Notes. Endorsement. Consideration. Before J udge Van Epps. City Court of Atlanta. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>Deeds. Forgery. Evidence. Burden of Proof. Before Judge Branham. Paulding Superior Court. July 'Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

<p>Administrators and Executors. Estates. Wills. Evidence. Claims. Before Judge Estes. Habersham Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>Homestead and Exemptions. Parties. Administrators and Executors. Levy and Sale. Debtor and Creditor. Partnership. Before Judge Simmons. Houston Superior Court. October Term, 1886.</p> <p>Reported in the decision.</p>

<p>Constitutional Law. Municipal Corporations. Elections. Before Judge Fort. Sumter County. At Chambers, March 12, 1887.</p> <p>Reported in the decision.</p>

<p>1. When an adjourned term of the superior court is about to convene, and no grand jury has been drawn for the same, and a grand jury is necessary, the judge may in vacation draw such grand jury, and cause the persons drawn to be summoned.</p> <p>2. The necessity for such drawing may arise from the final discharge of the grand jury serving at the regular term, and from the failure of the judge to draw another before adjourning over.</p> <p>S. In order to legalize the drawing of a grand jury in vacation, it is not essential that petit jurors should also be drawn at the same time.</p> <p>4. The drawing, to be legal, is not obliged to take place ten days before the opening of the adjourned term.</p> <p>5. The court, where the record is silent, or where it suggests as fact something contrary to the fact, may correct the record by an order nunc pro tunc.</p>

<p>1. Where a bank was appointed a State depository, and gave bond as such, the law created a lien on the property of the principal and sureties from the time of the execution of such bond, and everybody was bound to take notice thereof.</p> <p>2. Where, on a default made by the depository, execution was issued against it and the sureties on its bond, which was levied on certain land belonging to one of the sureties at the time of the execution of the bond and sold thereafter by him, and where the property was sold under the execution, and the fund arising from the sale was brought before the court, whereupon the vendees of the land, who had purchased from the surety, filed a bill, claiming that they had bought without knowledge of the lien, and had in good faith expended a certain sum of money in making permanent improvements on the'land, the complainants could not recover, where it appeared that the amount realized from the sale under the execution was less than the value of the land alone, exclusive of the amount expended thereon by the complainants, thus showing that such expenditures did not increase the value of the land.</p>

<p>Bastards. Justices and Justice Courts. Jurisdiction. Indictment. Criminal Law. Perjury. Before Judge Fort. Schley Superior Court. March Term, 1886.</p> <p>Reported in the decision.</p>

<p>Equity. Partition. Demurrer. Practice in Supreme Court. Before Judge Carswell.» Jefferson Superior-Court. December Adjourned Term, 1886.</p> <p>Reported in tbe decision.</p>

<p>Administrators and Executors. Receivers. Actions. Nonsuit. Before Judge Bower. Dougherty Superior ' Court. October Term, 1886.</p> <p>Reported in the decision.</p>

<p>Principal and Surety. Debtor and Creditor. Bonds. Tax. Year’s Support. Before Judge Boynton. Newton Superior Court. September Term, 188G.</p> <p>Reported in the decision.</p>

<p>The property protected against waiver of exemption, and as to which no waiver can be effectual, is wearing apparel, household and kitchen furniture, and provisions. Cotton belongs to none of these classes, and though produced by labor performed under sustenance afforded by exempt provisions, it does not take the place of the provisions consumed in its production, and is not exempt. .</p>

<p>A mortgage on realty, personalty and the crop of the year, being executed to secure advances up to a limited amount, the parties after-wards (foreseeing that the advances needed would be in excess of that amount) agreed that the part of the crop first turned over should be applied on the excess:</p> <p>Held, that entries on the general account to the credit of the mortgagor, of the proceeds of the crop, went first to the reduction of such excess, and there being more than the amount of the mortgage still due on the account, after deducting all credits, the mortgage stood as a lien on the realty embraced therein for the full amount specified as the limit of the security. Where parties have applied payments by their joint consent, there is no question of application by the law.</p>

<p>l.Where a statute provides for restricting the sale of liquors to quantities not less than one gallon, first, in any city, town or village within the county, by popular vote of the city, town or village; secondly, in the county, by popular vote of the whole county ; thirdly, in any militia district of the county, by popular vote of the district, the restriction, when adopted by the county as a whole, operates throughout its entire territory, including all the cities, towns and villages, as well as all the militia districts within its limits.</p> <p>2. Such a statute, having a general repealing clause, abrogates, so far as the two acts are inconsistent, a prior statute empowering the corporate authorities of a particular town to grant licenses to retail liquors within the corporate limits of the town; and a license to retail granted by such corporate authorities after the restriction over the whole county has taken effect, is void.</p>

<p>1. There can he no recovery in ejectment where the sole lessor of the plaintiff was dead when the suit was brought.</p> <p>2. Prior to the code, it was not absolutely settled whether an administrator could recover in ejectment against an heir at law without first obtaining an order for sale from the court of ordinary. TJnder the code, it is the better practice, if it is not indispensable, to obtain such order.</p>

<p>Where, on the hearing of an ap plication for an inj unction and receivér, the affidavits were contradictory as to the substantial allegations in the bill, and the chancellor did not abuse his discretion in refusing the injunction and receiver, this court will not interfere with his judgment to that effect.</p>

New Trial. Evidence. Verdict. Before Judge Brown. Cherokee Superior Court. August Term, 1886. Dr. J. F. Hammond brought complaint against T. M. White, administrator of Mrs. Mary M. Allen, deceased, on an open account containing numerous items, some for visits and treatment, some for medicine, and a number for visits and medicine, aggregating $85; also on an account for visits, treatment and medicines for Mrs. Allen’s minor daughter, bringing the total to $103.

<p>New Trial.' Before Judge Branham. Chattooga Superior Court. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>.There was sufficient evidence in this case to sustain the verdict, and there was no error in refusing to grant a new trial.</p>

<p>]. If at a fair sale under execution, the purchaser ouys, pays the the money and takes title, under an agreement with the defendant in execution that the latter may redeem, and there is no change of possession, and afterwards another judgment for another debt is rendered against the defendant, and whilst that judgment is outstanding the contract of redemption is executed in part, and by reason of such part execution, the purchaser, at the instance of the defendant, conveys a portion of the property to a third person by absolute deed, and there is still no change of possession, ' and none occurs up to the death of the defendant, a period of five years after the date of this deed, and of fourteen years after the sheriff’s sale, that portion of the property embraced in such deed is prima facie subject to levy and sale under the junior judgment, as the property of the defendant.</p> <p>2. A person who knows or believes that property is subject to an outstanding^, fa. is not estopped from purchasing the ft. fa. and subjecting the land to its payment by reason of having previously to his purchase given his consent that the land be conveyed to the present claimant, it being doubtful whether the claimant was to take the deed as a volunteer or as a purchaser for value. Generally the purchaser of a ft. fa. has all the rights of the plaintiff from whom he purchased, and a claimant who seeks to cut down those rights by estoppel in pais, must prove clearly the matter of estoppel.</p> <p>Judgment affirmed.</p>

<p>1. The law controlling this case was decided in the case of Windsor et al. vs. Bell, executor, 61 Ga. 671, there being nothing in the pleadings or evidence on the second trial to change the legal rights of the parties.</p> <p>2. The only issue left to be tried after that decision was the amount found by the auditor to be due the plaintiff.</p> <p>3. This issue was to be determined on the trial of the exceptions filed to the auditor’s report, and that trial was upon the 2nd, 4th and 6th exceptions.</p> <p>4. The court did not err in sustaining the demurrer to all the exceptions except those named, nor in his charge to the juryupon the issues made by said exceptions, nor in denying the motion for a new trial, which will be understood from the report of the case.</p> <p>5. The charge of the court to the jury, that the issues-of fact and law found by the auditor “ are correct unless they are shown to be incorrect; otherwise the presum ption remains, ’ ’ includes the intrinsic evidence upon which the report was made, as well as the new evidence on the trial, in the absence of a special request to charge and request refused.</p> <p>Judgment affirmed. (Head-notes by the court.)</p>

<p>1. A writ of error having been continued by the plaintiff for providential cause at the first term, and argued at the second before two justices, the third being disqualified to preside on account of relationship to one of the parties, and judgment having been withheld, and one of the justices who presided having died during the term before any judgment was rendered:</p> <p>Held, on motion to dismiss the writ of error made at the third term, that the cause was still pending for the rendition of judgment, and that the surviving justice who heard it argued, and the successor of the deceased justice, constituted a court competent to decide it, either with the aid of .fresh argument or upon the briefs of counsel already presented- Incumbents of the bench pass away, but the court never dies.</p> <p>2. A further ground of the motion to dismiss being that the brief of evidence was not in the bill of exceptions, nor referred to therein, nor duly, authenticated as a part of the record:</p> <p>Held, that the motion came too late, as the cause was now pending for decision only, but that in finally deciding it, the court would discriminate between what was and what was not in the record as made up and authenticated when the decision was reserved.</p> <p>3. For a brief of evidence to come to the Supreme Court as a part of the record, it has to be attended with evidence, either in the transcript or in the bill of exceptions, that it was filed and approved according to law.</p> <p>4. The privilege of amending the bill of exceptions from the record in the case, provided for by section 4272(b) of the code, contemplates the record as contained in the transcript sent up and duly certified by the clerk. The bill of exceptions is not amendable by matter certified apart from the transcript and not sent up till after the term has expired at which the argument was heard. A gbod transcript will aid a defective bill, but where both are deficient, neither can aid the other. This caséis distinguishable from Kelly vs. McGehee, 67 Ga. 364, and Ruffin vs. Paris, 75 Ga. 653.</p> <p>5. There being no evidence here duly authenticated by which to test the accuracy of the judgment overruling'the motion for a new trial, the judgment is affirmed.</p>

<p>Interest and Usury. Contracts. Principal and Agent. New Trial. Practice in Supreme Court. Before Judge Wellborn. Hall Superior Court. August Term, 1887.</p> <p>On January 20, 1886, the American Freehold Land Mortgage Company, of London, Limited, alleging itself to be a corporation under the Jaws of Great Britian, brought suit in the superior court of Hall county against George B. Merck on a promissory note. This note was dated November 16,1883, was made by the defendant to J. If. 0. Sherwood or order, payable at the office of the Corbin Banking Company, New York city, for $400, with interest from date at eight per cent, payable annually, for whdch' five interest notes were stated to be attached to the main note. The consideration stated was value received; homestead was waived; and the note concluded as follows:</p> <p>“Should any of said interest not he paid when due, it shall hear interest at the rate of 8 per cent, per annum from maturity, as stipulated in said interest notes; and upon failure to pay any of said interest within thirty days after due, said principal sum may, at the option of the holder of this note, he declared due without notice and may thereupon he collected at once, time being of the essence of this contract; and in case this note is collected by suit, I agree to pay all cost of collection, including ten per cent, of the principal and interest as attorneys’ fees.”</p> <p>This was endorsed by Sherwood “without recourse.”</p> <p>Attached to the main note when made were five notes of lilre form, all dated November 16, 1883, and due on December 1, 1884,1885,1886,1887 and 1888, respectively. Each of them stated that, for value received, the maker promised to pay to Sherwood or order the amount stated, at the office of the Corbin Banldng Company, New York city, “being interest to that date” (the date of maturity) “on my note given to said payee.” Each of them, except the first, added, “with interest from maturity at eight percent. per annum.” In the note due December 1, 1884, this clause (according to copy annexed to the declaration) reads, “with interest from date at the rate of 8 per cent, per annum.” The amount of this note is $33.24, that of the others being for $32 each; all except the last named were endorsed by Sherwood “without recourse.” In copy no indorsement of the last appears.</p> <p>The declaration alleged that, at the time when Merck executed and delivered the note to Sherwood, he also executed and delivered to him a deed to certain described land to secure a loan of $400, evidenced by the said note, and a bond to reconvey was given in conformity to sections T969 and 1970 of the code; that on the same day, the note was transferred to the plaintiff and a deed made to it by Sherwood, and plaintiff is now the l>ona fide holder for value of the note and deed; that the interest note due December 1, 1884, was paid, cancelled and delivered to Merck, but the one due December 1, 1885, was not paid, and has remained due for more than thirty days; that Merck has failed and refused to pay it, and has thus violated his contract and failed to act in good faith, whereby the principal sum has become due; and plaintiff sues for the principal, with the interest due and to become due thereon, and also for the amount of the interest notes with interest thereon, and ten per cent, of such principal and interest as attorneys’ fees. A general judgment on the notes and a special judgment against the land were prayed for. Service was acknowledged on July 20, 1886.</p> <p>On February 23, 1887, the defendant filed the following pleas: The general issue; nul tiel corporation; that plaintiff was not the Iona fide holder of the note and deed; usury, in that the main note with the interest notes attached (one of which latter notes bore interest from its date) were given to Sherwood for $400, and that sometime thereafter, the defendant received $310, the balance being reserved by Sherwood and his agents for interest, commissions, etc.; that the $90 so reserved and the ten per cent. attorneys’ fees and the interest from date of the first interest note, were illegal, being charged in excess of the lawful rate of interest-and to evade the usury laws; that the title conveyed was void because tainted with usury; and that there was a failure of consideration as to the $90 with accumulated interest thereon, and the ten per cent, attorneys’ fees, they being without consideration and added in the notes to evade the laws against usury.</p> <p>On motion, the plea of nul tiel corporation was stricken.</p> <p>On the trial, the plaintiff put in evidence the note sued on, with the last four interest notes attached, the deed from Merck to Sherwood, and that made by Sherwood to it on the same day, which stated that the conveyance was made subject to the bond for title of Merck, and closed.</p> <p>The defendant testified, in brief, as follows : He understood that R. P. Lattner, of Gainesville, was negotiating loans on land in Hall county, and went to see him for the purpose of obtaining money. Lattner said he could get it for defendant if the latter would give a mortgage on his land. He required defendant to sign an application for it, which is set out hereafter, and which was read over to him. About a week or so later, Lattner gave him a check for $310 and took the note and deed involved in this suit. At the same time,- the defendant signed a receipt to the Corbin Banking Company for $400, which also is copied below.' Is not positive whether he received $310 or $320. Made no complaint to Lattner that he did not receive all the money he was to get under the agreement. Supposes. Lattner carried out his contract to the letter. Never saw Sherwood.' Gave the deed to Lattner.</p> <p>It was admitted that the presumption was that the coupon note not attached to the main note had been paid.</p> <p>C. L. Holleman testified, in brief, as follows: Is engaged in negotiating loans. Works under no one, but obtains' loans' from any one he can. He and his brother were in business together in Gainesville. He came in about two. years after the loan involved in suit was made, and knew-nothing concerning it when it was made. Directly after' he began business in Gainesville, he and his brother were correspondents of Nelson & Barker, of Atlanta. The papers made out by them would be sent to Nelson & Barker and by them forwarded to some other place to get the money. Witness never was agent for the Corbin Banking Company for the purpose of loaning money or negotiating loans in this State. After the time of the loan to Merck, witness was a correspondent for that company. He asked to have business relations with them, so that they would recognize his applications. He would send applications for loans to them, and agreed to pay them ten per cent, for obtaining the loan, which was two-thirds of the charge made by him. He acted as the agent of the borrower and paid the company out of what the borrower paid him. He could not get money from local sources, and secured the assistance of the company for the purpose of calling the attention of lenders to these applications. An abstract of the title of the proposed borrower to the land offered as security had to be made out with applications for loans, the property had to be inspected, the records to be examined by witness, and missing links in the chain of title found; he paid his own expenses and charged the borrower for these services, and frequently they were worth more than the commissions. He was the head of his own business and charged what he pleased. The Corbin Banking Company furnished him with blank contracts, etc. to be signed. He did not negotiate loans according to their directions and instructions, but they would refuse applications not coming up to what they considered a proper standard, and witness knew what that standard was. Many of the applications forwarded failed to obtain the money. He paid the company for their services and received pay for his own. He was the principal in obtaining the money for the borrower. They could cease to do business with him, but could not discharge him ; there was no contract between them, but a business arrangement to the effect that, having confidence in him, they would attempt to negotiate loans upon such applications as he forwarded and such as they saw fit to negotiate. It was a business courtesy, to recognize witness as to applications, but there was no agreement that they would recognize no one else; and if another should prove himself more worthy of confidence than witness, he could obtain money on an application. They do not appoint agents. Witness knows nothing of Sherwood and never acted as his agent directly or indirectly. Witness negotiated about fifty loans in Hall and neighboring counties through the Corbin Banking' Company. Some of them were made by several different companies. Many private individuals at the north make such loans.</p> <p>The plaintiff, in rebuttal,introduced L. B. Nelson, of Nelson & Barker, and W. G. Wheeler, of the Corbin Banking Company, who testified, in brief, .as follows : Nelson <Sr Barker were not agents for the Corbin Banking Company, oí for Sherwood or the plaintiff, but acted for themselves and as agents of borrowers in securing loans They had no connection with Sherwood or the plaintiff or other lenders, except to induce parties to make the loans. They made an arrangement with the Corbin Banking Company to negotiate such loans as they should forward applications for from Georgia, as the company “ saw fit.” Nelson & Barker bore their own risks and paid their own expenses. They had to do certain things, make certain examinations and furnish abstracts of title — requirements made by all loan brokers in Chicago, Boston and New York. That firm were not able to go directly to the men who had large amounts of capital to loan, being unknown to them, and therefore they paid the Corbin Banking Company ten per cent, for their assistance in getting the money, and the company agreed to negotiate such loans as they sent applications for; but the company were not responsible if they could not get the money, or the security did not come up to the requirements. Nelson & Barker paid to have property inspected, whether loans were negotiated or refused. They sent applications to a number of others besides this company, and were under no obligations to it, nor it to them, except the moral obligation for it to negotiate such loans as it could. Hundreds of applications failed; some did not satisfy the necessary requirements, and on others they could not find the money. Sometimes for weeks Nelson & Barker could not get money at all. Nelson testified that he had been familiar with the banking company for twenty years, and had never known them to make a loan on real estate. Eor the purpose of assisting borrowers in obtaining loans, the company required an application setting forth the amount of the loan desired, the nature and character of the land offered as security, the crops grown on it, and other information necessary to enable them and those to whom they wished to apply for the money to ascertain the character of the security, and to enable the lender to determine whether or not he would make the loan. After receiving an application for a loan which seemed to the company to be a desirable one, they would look for some one who would probably lend the money, and if such a lender were found, they would cause a note and deed or mortgage to be prepared and executed, and an abstract of title to be made, if this had not already been done; and upon their receipt, they would be delivered to the lender and the money received from him and forwarded to the borrower or his agent, after deducting such amount as had been agreed to be paid for the services rendered. In 1882, Nelson & Barker appointed Lattner their correspondent in Hall county and the neighboring section of country to send applications for loans and to make out the necessary papers and forward them to that firm. They furnished him with a form of agreement and application. He was required to follow their directions as to applications, etc., but was not their agent or that of the lender, but was the agent of the borrower. The applications were submitted to the lenders themselves for acceptance or rejection.</p> <p>Merck desired a loan, and on November 9, 1883, delivered to Lattner a written application without any address, describing the security offered and giving other information in answer to questions. At its close was the following clause:</p> <p>“I understand that if this application is negotiated by B. P. Lattner, it will be upon the representations herein contained, which are true in all respects, and are made by me to be used byB. P. Lattner as my agent in procuring for me the loan.”</p> <p>This was signed by Merck. On the same day, he signed an agreement, which was addressed to Nelson & Barker, and contained the following provisions:</p> <p>“I hereby constitute you my agents, and request and authorize you as such to negotiate for me a loan of four hundred dollars on five years’ time, with interest at eight per cent, per annum, payable annually at such place as you may name.” (Then follows an agreement to secure the loan by note and deed.) “I further agree to pay you for negotiating said loan a commission of eighty dollars, to be paid at the time of the closing of the loan, and if I decline to accept the loan for any reason, I agree to pay said commission at once.” (After this follows an authority to pay off any liens on the property and to insure the house on it.) “If you succeed in negotiating this loan, I hereby authorize you to send the money draft or check (less the commission) to my agent, B. P. Lattner, of Gainesville, Georgia, and to make draft or check payable to his order.”</p> <p>These papers were sent by Lattner to Nelson & Barker, who forwarded the application to the Corbin Banking Company. They submitted it to Sherwood (who was a dealer in stocks, real estate and mortgage securities, residing in Queens county, New York, and having a place of business in New York city, and who was accepting applications for loans in the interest of the plaintiff), and induced him to accept it. The banking company then prepared a note and deed conforming to the requirements of the plaintiff and sent them to Nelson & Barker to be executed. Upon their return in proper form, with an abstract of title,-they were delivered to the plaintiff, and the' banking company received from it $400, which they forwarded to Nelson & Barker for Merck, first deducting the amount agreed to be paid to them for their services in pro, curing the loan. Nelson & Barker sent to Lattner a check on the Corbin Banking Company, and he in turn gave to Merck a check on a bank in Gainesville for $320. $80, or twenty per cent, of the loan, was charged and deducted before payment to Merck. Of this,-the Corbin Banking Company received ten per cent., Nelson & Barker six peícent. and Lattner four per cent.</p> <p>On November 27, 1883, Merck gave the following receipt :</p> <p>“ Received from the Corbin Banking Company four hundred dollars, proceeds of loan negotiated by them for me with J. K. O. Sherwood, less commissions as agreed.”</p> <p>Nelson testified that he did not know who would be the lender until the papers were sent to him. (meaning, probably, the notes and deed for Merck to execute, which wpre prepared in New York and sent to Georgia for execution).</p> <p>Wheeler testified that none of the money received by the Corbin Banking Company for negotiating the loan was paid to the plaintiff or to Sherwood, the plaintiff’s agent; that neither of them was interested directly or indirectly in the Corbin Banking Company; that this company did not act as agent for either of them in this transaction ; that $400 of the plaintiff’s money was actually paid over to the banking company for Merck under this application ; and that when the application was received, he did not know from whom the loan would be procured. This witness explained fully the system of business pursued by his company in negotiating for and obtaining loans, and the mode and means by which this particular loan was procured.</p> <p>The jury found for the plaintiff $400 principal, $19.36 interest, $43.13 attorneys’ fees and costs. The defendant moved for a new trial on the following grounds, in substance :</p> <p>(l)-(3) Because the verdict was contrary to law, evi.dence and the weight of evidence, and without evidence to support it.</p> <p>(4) Because the court erred in the following charge to the jury: “ Usury is the taking and receiving, or contracting to take and receive, more than the maximum per cent, allowed by law for the use of money”; and in refusing to give in charge §2051 of the code, defining usury directly or indirectly charged or reserved.</p> <p>(5) Because the court refused to charge code, §§2057. (a), (b), (c), (d) and (f), forbidding more than eight per cent, interest to be charged or taken for the loan of money directly, or by way of commission, discount or any contrivance or device providing for forfeiture of excess, and declaring void titles made to secure usurious contracts.</p> <p>(6) Because the court charged as follows: “ If the evidence in this case shows to your satisfaction that the defendant, Mr. Merck, employed Messrs. Nelson & Barker and Mr. Lattner, as his agents, to negotiate a loan for four hundred dollars for him, and agreed to pay eighty dollars or any other sum for their services in making such negotiation, and did, upon their obtaining the loan for him, actually pay them out of the loan the amount he agreed to pay, the transaction would not be usurious, unless the defendant has gone further and shown by satisfactory evidence that Mr. Sherwood or the [plaintiff] received,a portion of the commission.”</p> <p>(7) Because the court erred in the following charge: “ If it has been proven that a considerable number of loan? have been negotiated in this country through Messrs. Nelson & Barker and the Corbin Banking Company, of New York, the fact that a number of similar loans have been negotiated by these people has nothing to do with this case, nor do such facts authorize the jury to infer that this particular transaction is usurious.”</p> <p>(8) Because the court charged as follows : “ Something has been said in this case about the amount of money paid over to the defendant by Lattner; that the defendant did not receive but three hundred and ten dollars. If the plaintiff paid the full sum of four hundred dollars to the agent of the defendant for him, and such agent failed to pay over the full sum to him, the plaintiff could not be affected thereby ; the defendant in such case would have a right of action against his agent for such deficiency.”:— The error assigned was, that this charge “ left out the question as to whether Or not the same agent was also the agent of plaintiff; and the further question as to whether or hot plaintiff had notice that said sum was to be reserved.”</p> <p>(9) Becausethe court charged as follows: “You have no right to disbelieve the testimony of any witness who has testified, unless the facts testified to by him have been disproved by other evidence, or he has been impeached in some of the methods provided by law. Witnesses can be impeached in only three ways: first, by disproving the facts testified to by them; second, by proving contradictory statements made, by the witness on a material matter to the issue on trial; third, by proof of general bad character.” — The error assigned was, that the court did not further charge the jury that they had the right to take into consideration all they knew of their own knowledge of the witnesses, the manner of testifying, the relation they bore to the parties, and every other fact and circumstance connected with the case, in order to arrive at the truth.</p> <p>(10) Because the court charged as follows: “The defendant, in addition to insisting that this contract is usurious, insists that the plaintiff is not entitled to recover attorneys’ fees. On this subject, I charge you, while ! think it is very foolish for a man to agree to pay his adversary’s lawyers’ fees suing him, still, when he contracts to do that, when he enters into a contract to pay attorneys’ fees if he should be sued upon that contract, he is bound to abide by it; it is valid and binding on the party.”</p> <p>(11) Because the court refused to charge as follows: “If the note sued on calls for ten per cent, attorneys’ fees, then the same is non-negotiable, and the plaintiff would be affected with usury if, in fact, usury had been reserved or taken. And plaintiff could not claim to be an innocent purchaser without notice.”</p> <p>(12) Because the court-refused to charge that the jury had the right to look to the time and place' of the execution of the note sued on and the deed made to secure it, and all the circumstances connected therewith; and if they believed that Nelson & Barker and Lattner were the agents of the plaintiff in getting up and procuring the loans, or if the plaintiff or its agent, Sherwood, had notice of the commissions charged, then they would be affected with the usury in the transaction.</p> <p>(13) Because the court charged as follows: “ The defendant insists in this case that Lattner was the agent of the plaintiff, and the plaintiff insists' that Lattner was Merck’s agent. You have heard all the testimony, and you must determine from the testimony how that is. It is said that, in all cases in which the frauds and injuries of servants have been held to affect their employers, it appears that the employer afforded the means of committing the injury. » Defendant insists upon that proposition for the reason, he says, that Lattner was the plaintiff’s agent j that he employed him to go and loan Merck the money. I charge you, when a person who negotiates a loan acts only as the agent of the borrower who has employed him and contracted with him to pay a stipulated price to secure a loan, the rule is different, and the lender, if he loans the money in good faith at a legal rate of interest, is not affected by the vice of usury. I think that in such case, as between the borrower and his agent, there is a substantive, independent contract, entirely different from any unlawful contract for money; and to connect such contract with that loan would be to connect distinct and independent transactions with each other, and thereby make two contracts, each one of which may be fair and legal in itself, into one prohibited by law.”</p> <p>The presiding judge certified the grounds, stating, however, that no written request was made by defendant’s counsel to charge on any part of the case.</p> <p>The motion was overruled, and the defendant excepted.</p>

<p>1. Where a train loaded, with wood was transported over one railroad to a city, and at the instance of the shipper, permission was obtained from the superintendent of the road for the train to proceed over the track of two other roads to a third, and over it to the point of destination, the train being manned by employés of the first road, and a person, by direction of the superintendent of that road, accompanied the train for the purpose of seeing that it was unloaded promptly and returned to the road to which it belonged, and where an arrangement was made with the superintendent of the third road for the train to proceed over its track, and he directed an employé to go upon the engine and act as pilot and inform the engineer of the curves and “ tight places ” in the track, the only duty or obligation owed by the third railroad company to the employes of llro first company upon such train was to have a reasonably safe track over which the cars were to be transported.</p> <p>(а) This case differs from that of the Macon & Augusta Railroad Company vs. Mayes, 49 Ga. 355. There it was ruled that the company was liable to third persons and to the public for injuries resulting from a collision caused by allowing a train of another to come upon its franchise, and did not refer to an employé of the company thus using its road.</p> <p>(б) The person sent with the train to see to the unloading and return of the cars was not an employé of the last road over which the train ran; and therefore the charges of the court as to whether he was free from fault and negligence as an employé thereof, and whether it was in fault, were not applicable to the case.</p> <p>2. Such person was an employé of the first company, and the only obligation the last company was under as to him was to furnish him a safe track on which the train might be safely run. If it failed to do this, and he was killed solely by reason of the defect in its track, his widow would be entitled to recover therefor.</p> <p>3. If the injury was occasioned solely by a defect in the trucks of the car belonging to the first company, she would not be entitled to recover from the last.</p> <p>4. If the injury was caused both by a defect in the track and bya defect in the trucks, she would be entitled to recover an amount in the proportion the defect in the track as compared to that in the trucks contributed to the injury.</p> <p>5. The last company, as to the safety of its track, was liable to him as a passenger; and if the injury was caused solely by a defect in the track, and he was not negligent or could not have avoided the injury by the exercise of ordinary care and diligence, his widow (he having been killed) would be entitled to recover the amount of damages she has sustained. If he was negligent, but could not, by the exercise of ordinary care, have avoided the injury caused by the defendant’s negligence, then the damages should be diminished as in cases of contributory negligence.</p> <p>6. There was no error in striking from the plaintiff’s declaration certain words therein in reference to the deprivation of the plaintiff of the society, company and companionship of her husband, causing her great mental pain and suffering and leaving their infant child, twelve years old, fatherless, such allegations being irrelevant to the case. Nor was there error in ruling out the testimony of the plaintiff tending to sustain the allegations so stricken.</p> <p>7. Although the defendant had crossed a set of interrogatories sued out by the plaintiff, which had been executed and returned, yet where such defendant desired to propound additional cross-interrogatories to the witness to lay the foundation for impeaching him, it had the right to do so, and did not thereby make him its witness.</p> <p>8. The question as to whether one of the commissioners taking the interrogatories was an attorney for the defendant, was submitted to the court, and he having determined from the evidence before him that the commissioner was not such attorney, and the evidence sustaining his finding, this court will not interfere therewith.</p> <p>9. There was no error in admitting the answers to questions propounded to a witness as to the personal expenses of the deceased. The rale as heretofore existing in this State did not limit persónal expenses of the deceased, to be deducted from the recovery, simply to his food and clothing; but his personal habits, his station in life, his means and manner of living, might be proved for the consideration of the jury, and they be allowed to deduct what they might consider from the testimony to be his reasonable personal expenses, taking all these things into consideration.</p> <p>10. There was no error in refusing to give in charge the requests of the plaintiff set out in the cross-bill of exceptions.</p> <p>11. The question of what is ordinary care and what is negligence is one exclusively for the jury, and the court should not take this question from their consideration. This was done in the charges i given and excepted to in the cross-bill of exceptions.</p>

<p>1. Where the county surveyors of two adjoining counties, upon bet ing directed to determine the line between such counties, failed to agree thereon, and called in the county surveyor of a third county as umpire, and he made a survey of the line and returned it with the requisite plats in the two counties, and record thereof was duly made in one of them, whereupon the other county filed a proceeding in the county where the record was made, seeking to set aside such survey and plats and to vacate the record thereof, and to have the act fixing the boundary line construed and another survey ordered in conformity with a rightful construction thereof; and where a demurrer was filed to such proceeding, on the ground that the question involved was political or legislative in its character and not within the jurisdiction of the court, which demurrer was overruled, and no exception was taken to that ruling, the question of jurisdiction is not before this court and cannot be considered by it.</p> <p>2. The act of 1828 cut off from Habersham and added to Babun county so much of the former county as lay north and east of a line described in the act as follows: Beginning near the upper end of the falls on Tallulah river at the corner of fraction number one hundred and eighty-three in the thirteenth district of said county of Habersham, thence the river (ridge) a northwest direction dividing the waters of said river Tallulah and the waters of Panther creek, Deep creek, Seque creek, until said dividing ridge intersects or strikes what is called Blair’s line, thence on said Blair’s line until the same strikes Wild Cat creek, the line dividing Babun from Habersham county :</p> <p>Held, that the act fixed a line, one terminus of which was at the corner of fraction number 183 and the other at Blair’s line, and the line contemplated was not an air-line but a ridge-line, that is, a line having a ridge as a natural boundary from the starting point to Blair’s line. If there be such a ridge-line, and the general bearing of it is in a northwest direction, that is the boundary contemplated by the act, and if the corner of the fraction' is upon such ridge, though not on the crest or top of it, there could be no leaving the ridge in fixing the line; nor does it matter if .the ridge had more than one branch or prong, if there be a prong at the corner of the fraction. The court should have charged in accordance with this view, and a verdict finding in favor of an air-line not conforming to this construction, was contrary to law and the evidence.</p> <p>(а) The use of the word “river” instead of “ridge” in the enrolled act is a manifest clerical error.</p> <p>(б) Inasmuch as the act of October 20,1887, prescribed another and better mode for determining disputed county lines, and as there cannot now be another survey under the previous law on the same subject, it is directed that the survey and the plats of the umpire be vacated and set aside, and that the record thereof be vacated and declared of no legal force and effect; the counties being remitted to their rights under the act of 1887.</p>

<p>1. To prove a conviction in another court, an incomplete transcript is not sufficient. Exemplification of docket entry, plea of guilty and judgment thereon, is not admissible in. evidence to discredit a witness as a convict, without either a transcript of the accusation or indictment, or if lost, some evidence of the contents thereof.</p> <p>2. What strangers to the suit declare and recite pending the cause, though, couched in instruments executed with the solemnity of deeds, and recorded as deeds, is no evidence either of the facts recited or of the intention of one of the litigating parties not to defraud the other.</p> <p>3. Where a complainant desires the bill to be construed as presenting three aspects for relief, such as actual fraud, constructive fraud and mistake, the bill should suggest all three, and not one only. The court is not bound to charge the jury on a wider case than that made by the bill, though the evidence might warrant it were the bill amended.</p>

<p>1'. From the manner in which the record in this case was made up, and the exceedingly bad handwriting of the person who copied the brief of evidence, this court cannot ascertain whether or not the jury found contrary to the evidence; and as the judgment is reversed on other grounds, no opinion is expressed thereon.</p> <p>2, Where a bill was filed by the children of an intestate, claiming that his administrator was guilty of a devastavit, in that he received a large number of accounts which were solvent and could have been collected, but failed to collect many of them, it was admissible for the defendant to introduce in evidence the tax returns of the intestate for the two years preceding his death, showing that he returned for taxation in each of those years only $500. Such returns were admissible as admissions on the part of the intestate that the accounts were not solvent, and as showing the estimate which he placed upon their solvency.</p> <p>3. Where the administrator of the intestate died, and the bill was filed against his administrator, alleging that the latter took into possession all of the property which the former administrator had received from the estate of the intestate, it was not admissible for the defendant to introduce in evidence ex parte affidavits of vari, ous persons in proof of accounts of the deponents against the intestate (two of such accounts having upon them receipts dated pending the last administration), and which were found by the present administrator in a trunk of the former administrator witl} papers connected with the estate of the intestate. It does not appear when these affidavits were made. They were ex parte and mere hearsay. The debtor being dead, the deponents would have been incompetent as witnesses to prove the accounts in a suit thereon. They were not introduced as witnesses as they should have been, so as to be cross-examined; and there being no evidence to show that the original administrator acted upon these affidavits, they were not admissible on the question of diligence on. his part.</p> <p>4. Where a year’s support has been allowed by the ordinary and the complainants already have judgment for the amount allowed, if it has not been paid, they liavo a right to have an execution issued ■ and levied against the administrator; and there was no error in refusing to allow an amendment to a bill alleging a devastavit in failing to collect accounts of the intestate, so as to add a claim for the recovery of the balance of the year’s suppoit.</p> <p>6. The inventory of notes and other dioses in action is not of itself evidence of assets in hand so as to charge an administrator with' a devastavit in failing to collect them, but he will be liable for a devastavit if he fails to collect such as áre collectible with due care and proper diligence; and the burden is on Ihe party setting up such claim to show that lie failed to use such due care and diligence in making such collection.</p> <p>6. Where discovery is not waived in the bill, and the court charges that the answer of the defendant, so far as responsive to the alle- . gations of the bill is evidence in his favor, and would require the testimony of two witnesses, or of one witness and corroborating circumstances, to overcome it, and lays down the rule as to what is a responsive answer, this is sufficient; and it is not his duty to take the bill and answer and designate in detail what is responsive in the latter. If counsel desire to invoke the ruling of the court as to the responsive character of any particular part of the answer, they may do so, and the court will decide the point made and instruct the jury accordingly.</p> <p>7. The eleventh ground of the motion for a new trial is disposed of by the fifth head-note above.</p> <p>8. All open accounts made in the conduct of a business, unless otherwise agreed expressly or by implication, become due and payable at the end of the year for which they are made, and the statute of limitations does not begin to run until they are due. If four years had elapsed from the time such accounts became due to the death of the intestate, they would have been barred by the statute of limitations ; but it was error to charge that all open accounts would , be barred which had been created more than four years before the death of the intestate, and Ihe estate would not be liable except for collections actually made.</p>

<p>Partnership. Charge of Court. Yerdict. Before Judge Harris. City Court of Macon. September Term, 1886.</p> <p>Reported in the decision.</p>

<p>1. While the evidence in this case was conflicting, there was sufficient to sustain the verdict.</p> <p>H. Where, on a suit on a guardian’s bond, it appeared that some of the vouchers of the guardian were for goods, most of which were furnished for the mother of the ward and some for the ward, and the guardian failed to distinguish between those furnished for the mother and those for the ward, the jury were authorized to disregard the whole account.</p> <p>3. Where, to a suit on a guardian’s bond, a plea of settlement with other pleas was filed, and upon a reference of the case to an auditor, he opened the settlement and found an amount in favor of the ward, to which finding the plaintiff filed exceptions, but the defendant filed none, the exceptions were the only matter tried by the jury; and a verdict thereon in favor of the plaintiff was not contrary to evidence on the ground that the evidence sustained the plea of settlement.</p> <p>4. Where the jury, after finding upon exceptions to an auditor’s report seriatim, went further and found an aggregate sum for the plaintiff, and it appears from the certificate of the presiding judge that he disregarded this latter finding and treated it as surplusage, there was no error in so doing; and a reversal will not be granted on the ground that such additional finding was not true or lawful.</p> <p>5. Where the record does not show what written exceptions to interrogatories were taken, a ground of a motion for a new trial based on the overruling thereof cannot be considered.</p> <p>6. Where a guardian was discharged for failing to make a return, and subsequently made a return unaccompanied by any vouchers and which did not appear to have been approved, although it was recorded, there was no error in rejecting it from evidence in a suit on the guardian’s bond.</p>

<p>1. A deed of bargain and sale made by an executor as an individual, he having no interest in the premises otherwise than as executor or trustee, will serve to execute a general power of private sale conferred on him by the will over the specific property conveyed, though the deed make no reference to the power, the will, the office of executor or that of trustee.</p> <p>2. When the defendant in ejectment claims under a purchase consummated and evidenced by a deed, though the deed be lost, the effect of the parol parchase is not in question, and instructions thereon to the jury are not applicable to the case. Would a parol sale, not made as executor or trustee, but as an individual, come within the power ?</p> <p>3. The general presumption of the law that every man does his duty is open to misapplication and abuse by a jury, and should not be given in charge as the basis of a particular presumption that a deed made by an executor, who was also trustee for minors, was made by him as executor or trustee, the fact being, as indicated by all the evidence, that if the deed in question was made at all, it was simply the deed of the maker as an individual.</p> <p>4. Written admissions of. the ancestor tending to prove that he had sold and conveyed the premises, are admissible against the heir, in favor of one claiming as purchaser from the ancestor, the alleged conveyance being lost.</p> <p>5. In an action of ejectment between two living parties, neither of them representing or being able to bind the estate of any person deceased, both of them are competent witnesses for some purposes, though both claim the premises in whole or in part under a deceased person, one as heir and the other as vendee. The vendee may testify to any act or fact with which his vendor had no connection.</p>

<p>Practice in Superior Court. Demurrer. Injunction. Debtor and Creditor. Principal and Surety. Parties. Levy and Sale. Before Judge Lumpkin. Henry Superior Court. April Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Upon a promissory note, made in February, 1874, and due in November thereafter, a credit entered and signed by the maker, as follows: “1882, April 27, by balance account rendered for 1876, credited under date of November 12,1876, $48.01, H, TV Vines,” is an acknowledgment of the debt as existing at the date of the entry, to-wit, April 27, 1882, and operates as a new promise from that time, and prevents the bar of the statute of limitations from attaching for a period of six years thereafter.</p> <p>2. Inasmuch as a new promise revives or extends the original liability, creating no new liability (code, §2936), the rate of conventional interest borne by the note is a part of the liability revived or extended; and such rate continues in force as fully after the making of the new promise as it was. at the creation of the debt. Nor does it make any difference that, by a change in the law of usury, made in the interval between the execution of the note and the date of the new promise, such conventional rate was largely in excess of any conventional rate allowed by the new laW.</p>

<p>Where, on á second application for injunction on the same bill, after a refusal of injunction on the first application has been acquiesced in until too late for a writ of error, the only new fact incorporated by amendment in the bill is one which was known to the complainant when the bill was first brought, and the chancellor denies the injunction, his discretion will not be controlled unless flagrantly abused.</p>

New Trial. ¥Titness. Evidence. Depositions. Interrogatories. Railroads. Bes Qestm. Damages. Presumptions. Before Judge Roney. Richmond Superior Court. April Term, 1887. The evidence for the plaintiff tended to show that she was a passenger on a car of the defendant, going to her home. On reaching a turn-table on the track, she rang the bell, and shortly afterwards the car stopped.

<p>Actions. Pleadings. Damages. Before Judge Van Epps. City; Court of Atlanta. December Term, 1886.</p> <p>Reported in the decision.</p>

Actions. Pleadings. Charge of Court. Payment. Contracts. Judgments. Minors. Presumptions. Before Judge Van Epps. City Court of Atlanta. June Term, 1887. The following is added in connection with the report contained in the decision.

<p>Criminal Law. Former Acquittal. Municipal Corporations. Dalton. Constitutional Law. Before Judge Fain. Whitfield Superior Court. April Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. The eighth section of the act of September 18,1885, known as the general local option law, provides “ that nothing in this act shall be so construed as to prevent the manufacture, sale and use of domestic wines or cider, or the sale of wines for sacramental purposes ; provided such wines or cider shall not be sold in bar-rooms by retail”:</p> <p>Meld, that the word “ bar-room,” as used in this section of the act, meant a place for the sale of intoxicating liquors (i. e. wines) by retail for consumption at the place of sale.</p> <p>2. A sale of wines by retail means the sale in quantities less than one quart. It is such a sale which is prohibited, and not the drinking of the wine in the bar-room; and therefore where one sells domestic wine in quantities not less than a quart and suffers others to drink it upon the premises, this does not constitute retailing or make the seller guilty of a violation of this act.</p> <p>(a) The act of 1884 (acts 1884-5, p. 42) merely provides that one who sells in quantities less than a gallon and not less than a quart shall obtain a license in the same way as persons who sell in quantities less than one quart, but it does not make him a retailer.</p>

<p>Charge of Court. Evidence. New Trial. Damages. Practice in Supreme Court. Practice in Superior Court. Before Judge Boynton. Pike Superior Court. April Adjourned Term, 1887.</p> <p>Reported in the decision.</p>

<p>Indictment. Demurrer. Verdict. Motion in arrest of Judgment. Before Judge Simmons. Bibb Superior Court. October Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

<p>In consideration of a promise by B. to A. to pay the latter seven per cent, interest and also a debt due him by others, B’s promise thus amounting to an agreement to pay usury, A. agreed to lend B. money with which to purchase certain goods about to be sold at public outcry for cash by a receiver, if sold below a certain price.On the faith of this promise-by A., B. bid off the goods at less than the price mentioned. A. refused to lend the money. B. consequently could not comply with his bid, and the goods were immediately resold by the receiver to another for less than B’s bid, and he holds B. responsible for the difference and has sued B. for the same, the goods being actually worth more than B’s bid:</p> <p>Held, that A’s breach of the contract herein stated gives B no right of action for damages against A. (Head-note by the court.)</p>

<p>Homestead. Exemptions. Evidence. Nonsuit. Before Judge Lumpkin. Washington Superior Court. March Term, 1887.</p> <p>Both applications embraced the same land and personalty, including three mules and fourteen hogs, the first filed in 1883, the second in 1885, immediately after final judgment denying the first, which failed because the applicant was a married woman, not the head of a family, and could not, as such head, have a homestead in her own property (see 74 Gra. 823); the second alleged that she was an infirm person and had the care and support of a dependent female, her minor daughter, etc.; it was approved by the ordinary August 4th, 1386; Pending the first ap.plication, the mules and hogs were legally sold by the sheriff under a against the applicant, the mules for $3.00 and the hogs for $10.00, the hogs and one of the mules being worth $200; the sale was-made, subject to a mortgage (which has since been paid by the mortgagor), and with notice of the then pending application for homestead; Rawhngs was the purchaser and took possession of the property. This action is for the hogs and one of the mules; it was'brought August'17th, 1886. The court granted a nonsuit; -</p>

<p>1. Where cotton, factors advanced a specified sum to a customer, for which they were to receive interest at the rate of eight per cent, per annum, and as a part of the contract the customer was to ship to them 300 bales of cotton by a given day, paying charges thereon at certain rates, including one and a half per cent, commissions, and on failure to ship the cotton or any part thereof, to pay one dollar and fifty cents per bale for each bale deficient, it was properly left to the jury to decide on all the facts whether or not these stipulations were a cover for usury, or whether they were an honest contract for a commission business in connection with the use of moneyo</p> <p>2* The charge of the court, taken as a whole, was a fair submissiCpa of the question.</p>

Actions. Contracts. Torts. Damages. Railroads. Negligence. Before Judge Maddox. Haralson Superior Court. July Term, 1887. The material allegations of the plaintiff’s declaration were as follows : On May IS, 1885, he contracted with defendant, through its agent, Howell, at Tallapoosa, Georgia, to be carried and returned from that town to New Orleans, Louisiana, paying the agent $15 and receiving a round-trip ticket.

<p>Criminal Law. Liquor. License. Before Judge Willts. Talbot Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Administrators and Executors. Trusts and Trustees. Receivers. Injunction. Title. Wills. Contracts. Before Judge Lumpkin. Oglethorpe County. At Chambers, April 2,1887.</p> <p>Reported in the decision.</p>

<p>Where a bill in equity was filed and an interlocutory injunction prayed, and upon the refusal thereof a bill of exceptions was filed, bringing such refusal alone before the court for review, this did not transfer tne whole case from the superior to this court so as to prevent the complainant from dismissing this bill while the writ of error was pending here; and it being made to appear to this court, by á transcript of the record from the court below, that the com- ■ plainant has so dismissed his bill, the writ of error is dismissed.</p>

<p>Drafts. Negotiable. Instruments. Indorsement. Yendor and Purchaser. Before Judge Simmons. Houston Superior Court. October Term, 1886</p> <p>Reported in the decision.</p>

<p>Deeds. Title. Consideration. Before Judge Simmons. Crawford Superior Court. March Term., 1887.</p> <p>Reported in the decision.</p>

<p>1. A court of equity is always open, and the powers of chancery over trust estates may be exercised in vacation, upon proper proceedings, whenever necessary to protect the interest of a cestui que trust.</p> <p>2. The superior court may, in termor at chambers, by attachment for contempt, enforce an order rightly granted in vacation, directing a trustee to pay certain money for the support of a beneficiary.</p> <p>3. When, at the instance of a next friend of a cestui que trust, a rule nisi is granted, requiring a trustee to show cause why he has not obeyed an order of the court to pay over money for the support of • the cestui que trust, and the answer shows the money has not been paid as ordered, hut the trustee therein sets up that the cestui que trust is largely indebted to him, and that by an agreement between the cestui que trust and himself, the order of the court has been dispensed with, and where it appears that the cestui que trust is laboring under some mental infirmity, it is not error to make the rule absolute and enforce it by imprisonment. (Head-notes by the court.)</p>

<p>1. On. the trial of a suit against warehousemen, to recover the value of certain cotton which had been burned, and which plaintiff alleged they had agreed to keep insured for his benefit, but had failed to do so, proof, in their behalf, that it was their custom to insure cotton only to the extent of the advances they had-made thereon and for their own benefit, unless instructed by the customer to insure for full value, was primarily inadmissible; but after testimony had been allowed, without objection, in favor of plaintiff, tending to show it.was their custom to insure cotton on which they had made advances to its full value, such proof was properly admitted.</p> <p>2. A report of the testimony alleged to have been given by a witness on a former trial, certified to bo a true report of what the witness then swore, by the court stenographer, who took down and transcribed notes thereof, without further proof of its genuineness and correctness, is not competent evidence. (Head-notes by the court.)</p>

<p>Injunction. Mortgages. Executions. Judgments. Fraud. Before Judge Simmons. Bibb Superior Court. April Term, 1887.</p> <p>Reported in the decision.</p>

<p>Landlord and Tenant. Liens. Distress Warrant. Demand. Costs. Before Judge Maddox. Eloyd Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. An executor made to J. J. G., as testamentary guardian of his children, a deed to an undivided half interest in lots of land 360 and 354, in Early county. He also made to himself as testamentary guardian of H. H. G., a similar deed to an undivided half-interest in these lots. H. H. G. conveyed an undivided half interest in lot 359 to J. J. G., as testamentary guardian, and received from the latter an undivided half interest in lot 360. H. H. G. afterwards mortgaged lot 360, and under the mortgage fi. fa. the defendant purchased it at sheriff’s sale. He also claimed lot 359 under other conveyances:</p> <p>Held, that on a suit in ejectment, the children of J. J. G. could not recover the whole of lot 359, and also an undivided half-interest in lot 360, and a verdict therefor was not sustainable.</p> <p>2. A father may appoint a testamentary guardian for his own children, but not for the children of anybody else. Under the appointment of one as testamentary guardian of children of a person other than the testator in this case, the appointee became a trustee for such children and held the property devised as such, and not as guardian.</p> <p>3. Where a guardian sold land and received and misapplied the purchase money thereof, and the purchasers knew of his misapplication of the fund, and assisted in it by paying it to his individual creditors, they obtained no title to the land, and the statute of limitations could not avail them.</p> <p>4. The judgment of the court below refusing a new trial is reversed, with directions that the plaintiffs be required to write off from the judgment the undivided half-interest in lot 360 and the mesne profits recovered.</p>

<p>1. It is a misapplication of the laws of this State on the subject of processioning, to use them for ascertaining boundaries between town lots and an adjacent tract, these laws being intended for operation upon the boundaries dividing rural lands only. After town lots have been laid off, sold and used as such, the question of boundary on the side of adjacent rural lands becomes one between the town lots and the adjacent rural tract, and ceases to be one directly between that tract and the original tract from which the town lots Avere laid off.</p> <p>2. Any actual possession under a claim of right, Avhich has continued for more than seven years, is, by §2889 of the code, to be respected by processioners, whether it originated in permission or not. The question with which processioners deal is not one of prescription, but of boundary.</p>

Evidence. New Trial. Boundaries. Purchase Money. Fraud. Vendor and Purchaser. Before Judge Richard H. Clark. DeKalb Superior Court. March Term, 18S7.

Interest and Usury. Promissory Notes. Before Judge Hutchins. Gwinnett Superior Court. March Term, 1887. The borrower gave his notes to the lender for a loan procured at a usurious rate of interest, and paid the whole, partly in cash and partly by causing a third person to give his note, with personal security to the lender. The borrower's notes were surrendered and destroyed.

<p>Ejectment. Title. Tenants in Common. Before Judge' Willis. Harris Superior Court. April Term, 1887.</p> <p>Reported in the decision.</p>

<p>Tlie official duty of inspecting fertilizers, provided for by the laws oi this State, cannot be performed beyond the limits of the State. The commissioner of agriculture has no power to authorize extraterritorial inspection, or to dispense with inter-territorial inspection. Without the latter, any sale of commercial fertilizers made within the Stale is unlawful, and a contract for the price will not be enforced.</p>

Actions. Administrators ana Executors. Partnership. Jurisdiction, ■ Evidence. Before Judge Lumpkin. Taliaferro Superior Court. February Term, 1887 Prior action of complaint against surviving copartner and administrator of deceased partner, in superior court of T. county, on open account against partnership, the surviving partner residing in that county, and the administrator appointed there, but residing in M. county.

Sales. Record. Distress Warrant. Title. Contracts. Before W. I. Pike, Esq., judge pro hao vice. Hall Superior Court. August Adjourned Term, 1887. A conditional sale of personalty was made by vendors (now claimants) to the vendee (the tenant) on April 19, 18SC, evidenced by writing. The writing was recorded in Hall county, on April 21st, 1886, but neither of the parties resided in that county; both of them resided in Pulton county.

<p>Wills. Estates. Remainders. Before Judge Hutchins. Oconee Superior Court. January Term, 1887.</p> <p>The bill in this case was filed by five complainants, children of a brother and sisters of the testator, against Mc-Ree, executor' of the estate, to recover their distributive shares of the proceeds of the property in the hands of the executor, claiming that, under the will (the material portion of which is set out in the decision), they were each entitled to one-sixth, the remaining sixth belonging to a daughter of a brother of testator, not a party complainant. She and the complainants were the only children of testator’s brothers and sisters, who survived Sarah A. McRee, the life tenant, but there were children of his other brothers and sisters, who were in life at his death, and did not survive the life tenant. A number of these and the executor filed answers in the nature of cross-bills, setting forth their claims to share in the distribution of the estate, and alleging (hat the remainder interests under the will were vested; the executor praying for construction and direction.</p> <p>The case was submitted, to the chancellor,without a jury. No held that the will created a vested remainder, and that the children of testator's brothers and sisters who were in life at the time of his death, and not of those only who survived the life tenant, took per capita after the termination of the life estate? and decreed accordingly. The complainants excepted.</p>

<p>Landlord and Tenant. Promissory Notes. Liens. Crops. Assignment. Subrogation. Before Judge John T. Clarke. Terrell Superior Court. May Term, 1887.</p> <p>Reported in the decision.</p>

Equity. Receivers. Costs. Decrees. Practice in Supreme Court. Before Judge John T. Clarke. Terrell Superior Court. May Term, 1887.

Practice in Superior Court.. Criminal Law. Witness. Before Judge Eve. City Court of Richmond County. March Term, 1887. For the purpose of impeaching tne prosecutrix and another witness for the State, witnesses for the defendant testified to statements of the latter in conflict with his testimony on this trial, and that the character of the former in the community was bad, and from it they would not believe her on oath.

<p>Loan and Building Associations. Pleadings. Interest and Usury. Corporations. Charters. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887.</p> <p>The plaintiff, a corporation, sued Yan Pelt for $1,481.95, alleging as follows: On August 24, 1883, being a member of the association, in consideration of an advance made by .it to him on fifteen shares of its stock owned by him, he executed his bond for $3,000, conditioned that he should .pay to the association, so long as it should exist, or as might be required by its laws, $15 per month as the instalment due on his stock, and $15 monthly as interest on the advance ; and also assigned to the association the fifteen shares of the stock as collateral security. At the same time, and as part of the same contract, to secure the payment of the bond, he conveyed to the association certain described real estate, the deed reciting that it was its purpose to convey the absolute title to the property and ,to give the association the power to sell the same, according to §1970 of the code, on failure of defendant to pay the instalments and interest for three successive months, thereby securing the repayment of the advance or such sum as the association would be entitled to recover on the bond, together with all expenses, costs, attorneys’ fees and commissions, etc. The bond, deed and a bill of particulars, showing the amount claimed tobe due, are attached to the . declaration. Defendant has refused to make the payments required for more than three successive months, and the plaintiff prays judgment.</p> <p>The defendant pleaded that he borrowed from the association only $1,470 and not $3,000; that, from September 15,1883, to March 15, 1885, he paid $285 as interest on the loan, five per cent, of which payment was usury, and which payment he pleads as a set-off; that besides this sum, he paid $649.25 for instalments and fines due on the shares of stock, which also is pleaded as a set-off; that the issuing of the stock to him, and the requirement of the payment of the instalments, and fines, and the interest of fifteen dollars per month on the loan, were a device to reserve and take the amounts paid as usurious interest, and all the money paid plaintiff, as above set forth, is usury on the loan; and that the deed and transfer of stock are void and should be cancelled. lie also pleaded that the charter of the association was void, (1) because it does not specify the object of the corporation ; (2) because it does not show the amount of capital to be employed by it and actually paid in, it not being for the purpose of promoting the Christian religion, charity or education.</p> <p>The charter of the'association was granted in accordance with its petition, which prayed that certain named individuals be incorporated under the name of “ The Home Building and Loan Association,” to do business in Atlanta, Fulton county, for twenty years,-with privilege of renewal, with the power of having a common seal, etc.; of contracting ; of taking, holding and alienating real and personal property; of suing and being sued; of making a constitution and by-laws; and such other powers as might be necessary for the successful management of its business. Its capital stock was stated to be 5,000 shares of $200 each, payable in monthly instalments of $1 per share, so long as the association should continue.</p> <p>The evidence showed, in brief, as follows: The consti • tution of the association required each member to pay, for each share of stock held by him, one dollar per month until the value of the whole stock be sufficient to divide to each share $200. For failure to meet payments when due, a fine of five cents per share was charged against the member so failing. All members were considered borrowers to the extent of their stock. At each regular meeting (held monthly), the available funds of the association were put up at certain rates of premium (in this instance 38 per cent), and the member bidding the highest price in addition to that rate was entitled to take an advance from such funds of $200 for each share of stock held by him. From this was deducted the premium plus the amount bid, and the balance paid to tho bidder, who secured the association by bond and mortgage or deed, at the same time assigning his stock as- collateral security. He also paid, in addition to his dues for shares of stock, one dollar per month for each share for which he took the advance, which was at the rate of six percent, per annum on the whole amount, including the premium. The defendant held fifteen shares of stock. ' He bid, in addition to the 38 per cent., a price sufficient to make the premium deducted 50¿ per cent., leaving $1,492 50 as-.the actual amount borrowed by him. He gave the required security, and for a time paid the interest and dues on his stock, but at length failed, for three months, to make any payment, whereupon, under a rule of the association, suit was brought for the amount claimed to be due.</p> <p>The jury found for the plaintiff $535.35 principal, $156.26 interest, and $50.00 attorney’s fees. The plaintiff moved for a new trial on the grounds that the verdict was contrary to law and evidence; because the court refused to strike the pleas of defendant; and because, there being neither evidence nor plea that the transaction was not a genuine building and loan contract, it was error for the court to charge as follows: “ Under the laws of this State, one person cannot ask of another, for a loan of money by a written contract, a higher rate of interest than eight per cent, per annum. The law provides that any contract, contrivance or device to defeat this rule shall be of no avail.”</p> <p>A new trial was granted, and the defendant excepted.</p>

Contracts. Actions. Quantum Meruit. Indebitatus Assumpsit. Before Judge John T. Clarke. Quitman Superior Court. March Term, 1887.

Criminal Law.. Murder. Continuance. Dying Declarations! Practice in Supreme Court. Charge of Court. Before Judge' John T. Clarke. Terrell Superior Court. May Term, 1887. The bill of exceptions in this case contains the following statement in reference to the motion for a continuance: - “Messrs. Griggs and Hoyl were assigned to the defence on Monday about 3 p. m., and the trial began Wednesday at 9 a. m. The bill was brought in Tuesday morning.

Equity. Attachment for Contempt. Decrees. ■ Executions.. Constitutional Law. Before Judge Smith. Muscogee Superior Court. May Term, 1887. Hattie E. Tillman, a legatee under the will of Jacob A. Clements, deceased, with her husband and trusteé, William L. Tillman, filed their bill for account and settlement against John W. Clements, executor, and Sarah B. Clements, executrix, of said will.

<p>1. Where the evidence was conflicting, the credibility of witnesses was for the jury; and the court below being satisfied with the verdict, this court will not interfere.</p> <p>2. Where an action of trover was brought against an executrix, and the declaration alleged that she was in possession of the property and had converted it to her own use, the plaintiff was a competent witness to testify as to any matter that occurred after the death of the testator between her and the executrix. All that was stated as to any act of the testator in this case, was drawn out on cross-examination.</p> <p>3. The verdict was not contrary to the charge of the court.</p> <p>4. Trover having been brought to recover a cow, and the plaintiff having testified that its value was fifty dollars and that it was worth sixty cents a day for hire, a verdict for seventy'five dollars, which was not greater than the amount fixed by the plaintiff’s testimony, was not objectionable as being in excess of the highest proved value, although other witnesses fixed the value at a less amount.</p>

<p>1. A railroad company is liable in damages for the wrongful homicide of its customer, committed by its depot agent in his office, whilst the customer was lawfully there for the transaction of business with such agent appertaining to his agency. This results from the code, §3033, which renders all railroad companies liable for damages done by any person in their employment and service, unless their agents have exercised all ordinary care and diligence.</p> <p>2. Whilst, as a general rule, any mental disease or infirmity which would excuse the agent from criminal responsibility, would also excuse the company from civil responsibility, this would not be available if the company employed the agent and assigned him to duty with knowledge of his insane condition, or of his being subject to sudden fits of insanity.</p> <p>3. No matter where the contract of employment by the company with the agent was made, the homicide being committed at the place where the agent was assigned to duty, and where he was serving the company at the time of the wrongful act, the cause of action originated at that place, and the superior court of that county has jurisdiction.</p>

<p>Railroads. Damages. Negligence. Charge of Court. Before Judge Van Epps. City Court of Atlanta. December Term, 1SS6.</p> <p>Reported in the decision.</p>

<p>Evidence. Contracts. Fraud. Equity. Mistake. Negligence. Before Judge Fain. Bartow Superior Court. January Term, 1887.</p> <p>Reported in the decision.</p>

<p>Auditors. Practice in Supreme Court. Before Judge Fain. Dade Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Liquor. License. Yerdict. Before Judge Richard H. Clark. Dekalb Superior Court. August Term, 1887.</p> <p>Reported in the decision.</p>

<p>Gifts. Improvements. Specific Performance. Equity. Title. Decrees. Ejectment. Before Judge Richard H. Clark. Douglas Superior Court. January Adjourned Term, 1887.</p> <p>Reported in the decision.</p>

<p>Executions. Levy and Sale. Title. Interest and Usury. Guardian and Ward. Practice in Supreme Court. Before Judge Bower. Dougherty Superior Court. October Term, 1886.</p> <p>Reported in the decision.</p>

<p>Jurisdiction. Bill of Exceptions. Practice in Supreme Court. Costs. Before Judge Maddox. Eloyd Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Negligence. Master and Servant. Before Judge Marshall J. Olarke. Pulton Superior Court. March Term; 1887.</p> <p>Reported in the decision.</p>

<p>Lunatics. Service. Guardian and Ward. Process. Before Judge Richard H. Clark. Dekalb Superior Court. March Term, 1887. *</p> <p>Reported in the decision.</p>

<p>Railroads. Negligence. Nonsuit. Master and Servant. Evidence. Costs. Abatement. Before Judge John T. Clarke. Bibb Superior Court. October Term, 1886.</p> <p>Reported in the decision.</p>

Liquor. Evidence. Indictment. Accusation.' Witness. Before Judge Yan Epps. City Court of Atlanta. June Term, 1887. Giles Moore was arraigned and tried on an accusation charging that he “ did sell and barter to one Charley Harper, and other persons to deponent unknown, for a valuable consideration,” liquors, in Fulton county, where such sale was prohibited by the general local option law at the time.

Evidence. Liquor. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887. The evidence set out in the petition for certiorari was, in brief, as follows: A city detective saw one Brown, a soldier, take a bottle from one of defendants and give what he supposed to be money to the defendant. He asked Brown- if he did not get a bottle from the store. Brown replied yes, and handed the bottle to the detective, who tasted of its contents.

Criminal Law. Evidence. New Trial. Before Judge Richard II. Clark. Fulton County. At Chambers, August 13, 1887. The evidence set forth in the petition for certiorari was, in brief, as follows: Defendants’ place of business had a barber-shop in front separated by a partition from the rear portion of the room, which contained a long counter with a refrigerator on its end and cigar-boxes piled on 1 op.

<p>Gertiorari. Amendment. Continuance. Practice in Superior Court. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Evidence. Verdict. Charge of.Court. Res gestse. Confessions. Before Judge Richard H. Clark. Fulton Superior Court. March Term, 1S87.</p> <p>Reported in the decision.</p>

<p>Deeds. Estates. Construction. Title. Yerdict. Before Judge Wellborn. Hall Superior , Court. August Term, 1887.</p> <p>Reported in the decision.</p>

<p>Judgments. Executions. Statute of Limitations. Before Judge Bower. Dougherty Superior Court. April Term, 1887.</p> <p>Reported in the decision.</p>

<p>Wills. Estates. Construction. Before Judge Well-born. Hall Superior Court. August Term, 1887.</p> <p>Reported in the decision.</p>

<p>Landlord and Tenant. Liens. Levy and Sale. Judgments. Before Judge Jenkins. Putnam Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

Partnership. Landlord and Tenant. Charge of Court. Evidence. Before Judge Richard H. Clark. Fulton Superior Court. March Term, 1887. The facts of this case, besides those stated in the decision, will be found in the second, third and fourth head-notes.

<p>Where two firms, as creditors of different debtors, each held a mortgage given by the debtors respectively upon the same personal property, and one of the firms foreclosed their mortgage against their debtor, and caused the property to be sold thereunder, and thereupon the other firm, who had also foreclosed their mortgage against their debtor, sought to claim the fund arising from the sale, there was no error in refusing to allow them to intervene for that purpose. The foreclosure of the mortgage against one debtor constituted no lien upon the fund arising from the sale of the property as that of the other debtor ; and if the property did not belong to the debtor as whose it was sold, but to the other debtor, the sale could not affect the lien of the mortgage against the latter.</p>

<p>Practice in Superior Court. Appeal. Service. Continuance. Waiver. Pleadings. Justices’Courts. Judgments. Before Judge Fain. Gordon Superior Court. February Term, 1887.</p> <p>Reported in the decision.</p>

<p>There was no error in. refusing to dismiss this case, or to continue it, on motion of the defendants, on the ground that they had filed exceptions to the execution and return of the commission sued out ■ by them to obtain discovery at law from the plaintiff, because certain letters were referred to as attached or enclosed, which were not so attached or enclosed in the commission. The bill of exceptions alleged that the exceptions to the execution and return of the commission were filed on September 23,18S5, which was before the cause of action matured or the suit was brought. The letters were probably immaterial, the answers being very full and apparently frank in disclosing the whole transaction. It does not appear that any notice of the exceptions was given to the opposite party. It is stated in the exceptions that the commission, interrogatories and answers are thereto attached, but no commission appears. No entry of filing appears upon the interrogatories, nor does it appear that notice of the filing was ever given to the adverse party, as required by the statute relating to discovery at law. Nor were the interrogatories addressed to the plaintiff; nor were the names of any persons inserted in them; nor does it appear that the names of any witnesses were set out in the commission, if there was one.</p> <p>(a) Where discovery at law was sought against a plaintiff corporation, it was not sufficient to exhibit interrogatories to “--, president, and--, cashier, of the plaintiff, whose names are to the defendants unknown, and who are material witnesses for the defendants.” It would be easy, in the exercise of ordinary diligence, to discover the names of the president and cashier of a bank located in Pennsylvania, though the action was proceeding in Georgia.</p> <p>(6) The statute m respect to discovery does not seem adapted to obtaining a discovery from a corporation; it is only from some plaintiff who can testify, and who, if residing in the county, could be subpoenaed as a witness.</p> <p>(c) It does not appear that the plaintiff ever had anything to do with the execution of these interrogatories, or waived any of the points of objection mentioned above, or that it assumed the burden of having the interrogatories executed. If the defendants examined either of these officers of the bank, without complying with the statute in reference to giving notice that they had filed their interrogatories, etc., the burden would be on them to have such interrogatories correctly executed; and when they took exception to the sufficiency of the execution, they should have given notice of it to the opposite party. (Kep.)</p>

<p>1. Where a plaintiff brought ten actions upon promissory notes against the same defendants in the same court, and but one defence existed as to each of them, which was the same in all the cases, it was in the discretion of the court to order a consolidation of the actions at the instance of either party, over the objection of the other; but where the plaintiff moved to have such cases consolidated, the court should have required it to pay the costs which had accrued in all the cases except one. It is directed that, if the plaintiff elect to abide by the consolidation, a judgment be entered against it for the costs accrued previously thereto in all the cases except one; but if the plaintiff should elect to withdraw from the consolidation, it is at liberty to do so.</p> <p>2. Where several suits were brought by an endorsee upon promissory notes, which were consolidated into one case, there was no error in refusing to allow one of the defendants, while on the stand as a witness, to answer a question as to whether an agent of the payee, since the maturity of the notes, had not been in this State exercising acts of ownership and control over such notes, counsel for defendants declining to state that they expected to connect the plaintiff with the testimony in some way, that is, that they expected to show possession of the notes in the payee since their maturity.</p> <p>3. Where negotiable promissory notes, payable some time after their date, were indorsed and suit was brought upon them by the indorsee, a presumption would arise that the plaintiff became the owner of the notes before due, and that such plaintiff would not be affected by any defence the defendants might have had to the notes in the hands of the payee.</p> <p>4. Where promissory notes contained a provision that “ the endorsers hereon contract as makers hereof . . and agree, as to the holder hereof, to be held liable as original makers of this note,” and some of them had upon them a guaranty in these words: “For value received, I hereby guarantee the payment of the within notes,” etc., signed by the defendants, this made the defendants liable to the holder as makers, and did not alter the negotiable character of the notes so as to preserve for the defendants all the defences they would have had if sued by the payee.</p> <p>5. The notes sued on in this case containing a provision for ten per cent attorneys’ fees, and the defendants having filed a plea that, by the laws of Pennsylvania, of which State the endorser and endorsee are residents, such a note is non-negotiable and not commercial paper, and whoever might take it would take with notice ef any infirmities it might have, and it would be open to any defence that might have been made to it if the action had been brought in the name of the original payee; which plea was stricken on demurrer; and the question not having been fully argued in this court; it is directed that the court below re-instate the plea and that this be left an open question, to be determined hereafter.</p> <p>8. The transcript of the record in this court showing no endorsement or guaranty from the defendants, or any endorsement by the payee to the plaintiff, upon the copies of the note made by J. S. Lavender for $337.50 and that by James M. Dawson for $378.75, and the aggregate of these amounts being included in the judgment rendered, and it being likely that the clerk of the court below omitted to copy the endorsements as they appeared on the original papers, it is not ordered that this sum be written off, but the case will go back to be tried again.</p>

<p>1. Where several suits were brought upon promissory notes by the same plaintiff against the same defendants, and the defences made were common to all of the suits, they could be consolidated on the motion of the plaintiff over the objection of the defendants, subject to the payment of the accrued costs by the plaintiff in all the cases except one.</p> <p>2. If notes were sued on by one who took .them as collateral security, and the defendant had a valid defence against the original payee, the holder could recover no more than the amount of the debt which the collateral secured. Therefore it was error to strike pleas which alleged that the plaintiffs took the notes sued on as collateral security for an indebtedness of the payee, all of which had been paid off except a stated amount, the defendants having filed other pleas setting up a good defence as against the original payee.</p> <p>3. It appears from the record that one of the notes sued on and included in the judgment in this case (that of W. E. Boler, payable to the order of the Taylor Manufacturing Company, for $325 and interest) was never endorsed or assigned by the payee to the plaintiff ; nor does any right of the plaintiff to recover thereon appear. It was therefore error to direct the jury to find for the plaintiff the full amount of the note sued on.</p>

<p>Executions. Taxes. Criminal Law. Officers. Before Judge Lumpkin. Wilkes Superior Court. May Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. On appeal trials in justices’ courts, the presiding magistrate has no power to order a nonsuit because he deems the evidence insufficient to warrant a finding for the plaintiff.</p> <p>2. Demand of payment, if made at all, unless made before, is made after the debt becomes due. Demand made when due is made after becoming due.</p> <p>S. The admission of evidence wholly immaterial will not vitiate.</p> <p>4. In ruling upon a motion, the magistrate may give his reason for denying it, though the jury may overhear his remark.</p>

<p>1„ All the subtantial defendants in error must be served with the bill of exceptions; and if one of them be a member of a law firm, which firm are the attorneys of record, an acknowledgment of service and a waiver of further service signed by him, not as’ an attorney, but as an individual, will nor avail as evidence o£ service upon his co-defendants.</p> <p>2. When a bill of exceptions is duly presented, the judge, according to strict law, can do only one o£ two things, either return it with his objections, or sign the certificate. Should he do neither, the remedy is mandamus to compel signing. To sign a certificate so written or altered as to be substantially different from that which the statute prescribes, is equivalent to not signing at all, and must be so treated.</p> <p>3. Courts administer law according to law, and not otherwise.</p>

<p>Where suit was brought on a joint promissory note signed by two persons, and one of them pleaded that he was only a surety and had been discharged by reason of the fact that time had been granted to the other defendant, who was the principal, upon a consideration ; and where the contesting defendant testified that he signed the note as surety and as principal, and that it was given for fertilizers bought by the other defendant, but he did not testify that he had no interest in the consideration; and where it appeared in evidence that the note was received by another person who delivered it to the payees, and they afterwards placed it in his hands for collection (the suit being brought in his name for their use); that this person called on the other defendant for payment, to which the latter replied that he had nothing to pay with, but intended to plant a crop of watermelons for the next year, and that he would pay the note from the proceeds thereof, and would allow the person holding the note to sell the melons and would pay him a commission therefor, which was agreed to; and where there was testimony that this arrangement was made known to one of the payees, who said it was all right, but there was no intimation that when it was made known to the contesting defendant he objected to it; and where the holder of the note said he had an interest, but did not tell what it was, there was no abuse of discretion in granting a first new trial, after a verdict in favor of the defendant. Such vague and uncertain evidence will not warrant the reversal of a judgment resting in the discretion of the court. (Rep.)</p>

<p>Criminal Law. Larceny. Verdict. Before Judge Harris. City Court of Macon. January Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Under the act of October 9, 1885, where the return of appraisers appointed to set apart a year’s support for a widow and her children was filed, and citation was issued by the ordinary, objections could be filed by a creditor at or before the term of court to which the citation was returnable, and at which the subject-matter thereof was tobe considered, and it was not necessary for them to be filed before the expiration of four weeks from the first publica^ tion. (Rep.)</p> <p>2. Where objections to the allowance of a year’s support were filed, and by consent the case was transferred to the superior court by appeal, and there the objections were dismissed on motion, as appears from the record, and the objecting creditors excepted, but recited in their bill of exception's that the motion was io dismiss the appeal; that it was granted; and that the error excepted to was this dismissal of the appeal; upon the call of the case in this court, a motion being made to dismiss the writ of error on this ground, and a counter-motion being thereupon made by the plaintiffs in error to amend the bill of exceptions so as to make it conform to the record, the latter motion will be granted, and the former overruled. (Rep.)</p>

<p>1. The only mode, under the constitution, by which the superior court can correct errors in inferior courts is by the writ of certiorari, and an act of the legislature providing that for the correction of errors in a city court a bill of exceptions might be taken to the superior court, and that from the ruling of the latter court thereon a bill of exceptions might be taken to th e Supreme Court, is unconstitutional.</p> <p>2. The legislature, having passed a general law on the subject of carrying cases from inferior courts to the superior court by writ of certiorari, had no power, u nder the constitution, to pass a special and different law for the county of Bartow.</p>

Evidence. Assault and Battery. Adultery. Witness. Allegata and Probata. Pleadings. Justification. Dam* ages. Interest. Before Judge Van Epps. City Court of Atlanta. December Term, 1886.

Attorney and Client. Mortgages. Actions. Verdict. Evidence. Covenants. Practice in Superior Court. Practice in Supreme Court. Before Judge Harris. City Court of Macon. March Term, 1887.

<p>1. There is no error in the charges excepted to, nor in the refusal to charge the request of counsel for the defendant.</p> <p>2. An indictment charged that the defendant, being entrusted by one Allen with ninety-five cents in money, consisting of silver and nickels, of the value of ninety-five cents, and the property of Allen, for the purpose of making change and returning said money to said Allen, did, after having been entrusted with said money for the purpose aforesaid, wrongfully and fraudulently convert forty-five cents of said money to his own use:</p> <p>Held that, while the indictment was loosely drawn, its meaning is, that the defendant was entrusted with the money to make change, but failed to do so, and instead thereof converted a portion of the money entrusted to him, without even attempting to execute the trust; and such a trust included, by implication, an undertaking to return the same money if not used in making change. Therefore, where the proof showed that it was part of the original money which was converted by the defendant, and not a part of the change which he was to get, there was no fatal variance between the' allegata and probata.</p>

Practice in Superior Court. Evidence. Charge of Court. Master and Servant. Torts. Principal and Agent. Contractors. Ratification. Damages. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887.

Attachment. Fraud. Debtor and Creditor. Bonds. Before Judge Fort. Sumter Superior Court. April Adjourned Term, 1887. This decision embraces three cases, numbered on the Supreme Court dockets, 7, 8 and 10 of the Southwestern circuit. Attachments in favor of the defendants in error were levied on a stock of goods as the property of Dickson & Yigal, and Clay interposed a claim.

Attachments. Bonds. Before Judge Fort. Sumter Superior Court. April Adjourned Term, 1887. An attachment in favor of Enneking Brothers vs. Dickson & Yigal was levied on a stock of goods, to which Clay interposed a claim. On the trial, he demurred to the sufficiency of the affidavit to obtain attachment, and moved to dismiss the levy.

<p>Attachments. Bonds. Before Judge Fort. Sumter Superior Court. April Adjourned Term, 1887.</p> <p>See report of preceding case.</p>

Administrators and Executors. Equity. Before J udge Marshall J. Clarke. Eulton Superior Court. March Term, 1887. The bill in this case alleged, in brief, as follows: On June 7, 1871, William Solomon executed his will.

■Yerdict. New Trial. Witness. Practice in Superior Court. Evidence. Before Judge Yan Epps. City Court of Atlanta. June Term, 1887. A policeman, standing on the sidewalk opposite defendant’s wine-room, saw one Brown in there pass something to defendant, and receive from the latter a flask, and then leave the place with a companion. They were followed into an alley by this policeman and two others, and Brown showed the flask to that officer, on request.

<p>1. "Where suit was brought against a railroad company, alleging that certain hams were delivered to the defendant at Opelika to be carried thence to Columbus and there delivered to the plaintiff, and. that, for want of due care and diligence by the defendant and its servants, the hams, while in its custody, became unsound and damaged, and that upon the' refusal of /the plaintiff to receipt for them as in good order, the defendant refused to deliver them and appropriated them to its own use, there being no allusion in the declaration to any bill of lading or to any receipt of the goods from a connecting line of railway; and where the evidence of the plaintiff himself was that, in all probability, the hams were damaged before they were delivered at Opelika, and the character of the damage itself negatived any theory that it occurred within the time during which the hams were in the defendant’s possession, it was error to give in charge §2084 of the code, touching the liability to the consignee of the last of a connecting line of railroads. Where the strict legal rights, of a defendant are insisted upon, the plaintiff cannot sue for one cause of action and recover for another. (Rep.)</p> <p>(a) The ruling in the case of the.Georgia Railroad vs. Gann & Reaves, 68 Ga. 350, does not conflict with the doctrine here enunciated. (Rep.)</p> <p>2. The fact that the original bill of lading with the endorsement thereon, was in the possession of the defendant, was no reason for going into secondary evidence as to the endorsement, without laying any foundation whatever therefor. (Rep.) •</p>

<p>Garnishment. Justice Courts. Constables. Bonds. Before Judge Boynton. Rockdale Superior Court. February Adjourned Term, 1887.</p> <p>Reported in the decision.</p>

<p>Homestead. Fraud. Laws. Constitutional Law. Before Judge Roney. Richmond Superior Court. April Term, 1887.</p> <p>Reported in the decision.</p>

<p>Adminstrators and Executors. Practice in Superior Court. New Trial. Before Judge Boynton. Rockdale Superior Court. February Adjourned Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Where a party, though knowing at the trial that the answers of an adverse witness to interrogatories were written out by the witness, made no application to continue, so as to have opportunity to ascertain whether the writing was done at the request and in the presence of the commissioners, hut discovered after verdict, and after a motion for a new trial had been denied, that they were written apart from the commissioners, and before they knew anything whatever of the commission or the interrogatoties, this defect in the mode of executing the commission is not such a fraud upon the losing party as will entitle him to a new trial in equity, there being no suggestion in the bill, and no reason to conclude, that the testimony of the witness would have been otherwise than what it was, or of any less weight, had the answers been written at the request and in the presence of the commissioners.</p> <p>2. That, at the time of trial, certain letters relevant to the issue were misplaced, and after diligent search could not he discovered, would lay the foundation for proving their contents. On discovery of the letters after verdict, etc., their contents not having been put in evidence, a bill for. new trial is not maintainable because the letters were misplaced; more especially, if their contents would merely serve to corroborate one side in a conflict of parol evidence, and not, of themselves, be décisive of the controversy.</p>

<p>Title. Injunction. Before Judge Maddox. Polk Superior Court. August Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. On a suit brought by adminstrators for money loaned, the question being whether it was in fact loaned, and it appearing that the defendant came to a river bank and called to the intestate, who lived on the opposite side; that the latter took a boat and went across the river, where the two held some conversation; that the intestate returned to his house, had his wife to count him out $500 and with it immediately recrossed the river, where he was seen to hand something to the defendant, it was admissible to show that when he obtained the money from his wife, he stated that he was going to lend it to the 'defendant, and that, at once upon his return to the house, he told his wife and daughter that the defendant had obtained $500, and added, “ Get the book and I will charge it.” These statements were part of the res gestee.</p> <p>2. Evidence that it was the universal custom of the intestate to lend money in this way, without taking any note for it, was inadmissible-; but evidence that the intestate had previously dealt with the defendant in the same way, was competent.</p> <p>S. Under the plea of the general issue, there was sufficient evidence to warrant the finding that the loan was made. Had there been a plea of payment, the jury might have found for the defendant upon it, under the facts of this case.</p>

<p>Equity. Verdict. Evidence. New Trial. Before Judge Richard H. Glare. Dekalb County. At Chambers, May 21, 1887.</p> <p>Reported in the decision.</p>

<p>Yerdict. Evidence. Sales. Title. Trover. Before Judge Hutchins. Gwinnett Superior Court. September Adjourned Term, 1886.</p> <p>Eepoi'ted in the decision.</p>

<p>1. In an action for malicious prosecution, there can be no recovery without a concurrence of the want of probable cause with malice. Section 2983 of the code, which provides that “want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused,” settles an instance in which the court and jury shall recognize the absence of probable cause, but is not exhaustive of all cases of such absence. There was, therefore, no error in charging, in substance, that probable cause means nothing more than reasonable grounds, and is that apparent state of facts which seems to exist after reasonable and proper inquiry; and in submitting to the jury to determine whether or not the defendant acted on probable cause and without malice, and to find out what his diligence was as to the matter. This, when taken in connection with the whole charge, was not error. (Rep.)</p> <p>(a) It was error, after charging the jury to take into consideration the w'hole case and see whether the defendant acted with ordinary care, and as a man of ordinary prudence would act under the same circumstances, to add, “ or as you would act under the circumstances,” thus making the jury the standard of propriety. (Rep.)</p> <p>2. The doctrine sustained by the opinion of two members of the court of exchequer in the case of Stevens vs. The Railway Company and Lander, 10 Exch. 352, to the effect that any motive- other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive, and that a prosecution, not for the purpose of punishing the defendant, but to make an example to others, is ample evidence of malice, is not recognized as applicable to the present case. The motive of a prosecutor, who avows that he does not want to hurt the accused, but simply wants to make him an example to deter others, if he believes the accused to be guilty, and has good and probable grounds upon which to base his opinion, is not a malicious one. (Rep.)</p> <p>3. Under §4600 of the code, the gist of the offence for which punishment is therein prescribed, is the fraudulent sale or disposition of mortgaged personal property. If such a sale or disposition be made, and loss is thereby sustained by the holder of the mortgage, whether by the loss of the security or the value thereof, or by being put to more expense in collecting the debt, or in prosecuting the remedies of the mortgagee, the offence is complete. The loss mentioned in the statute does not necessarily refer to a loss of the debt, or any part of it, nor will the solvency of the debtor outside of the mortgaged property, of itself, prevent such a sale or disposition from being a violation of the law. (Rep.)</p> <p>4. While it is true that, when a mortgage is foreclosed and the fi. fa. placed in the hands of the levying officer, it is his duty to find and levy upon the property, and a failure of the mortgagor either to produce or point it out to the officer will not be an offence, yet it may be,a very strong circumstance to indicate fraud, if the mortgagor will not assist the officer to find the property. (Rep.)</p> <p>5. In a suit for malicious arrest and malicious prosecution, it was not error to charge that “ in cases of this character,” there is no exact measure of damages, except the enlightened conscience of impartial jurors, and that the worldly circumstances of the parties and all the attendant facts should be weighed, as provided in §3067 of the code; but where a part of the case was subject to this rule, and as to another part there was a measure of damages, by reason of proof of expenses, loss of time, and the like, the court should have discriminated between the two parts of the case and should not have left the entire measure of damages to the unlimited discretion of the jury. (Rep.)</p> <p>(a) The expression, “ in cases of this character,” used in the charge, was different from that in the case of JRansone vs. Christian, 49 Ga. 491, where the expression wras, “in this case.” (Rep.)</p> <p>6. In actions for malicious prosecution, where the very essence of the injury is that it proceeded from malice, evidence of the pecuniary circumstances of the defendant is admissible. (Rep.)</p> <p>(a) This case differs from that of the Ga. R. R. vs. Homer, 73 Ga. 251. (Rep.)</p> <p>7. Some authorities hold (and §3067 of the code may possibly hear that construction) that, where the pecuniary circumstances of the defendant are admissible in evidence to be considered in graduating damages, those of the plaintiff also are admissible for the like purpose. In this case, evidence of the pecuniary circumstances of the plaintiff were admissible on another ground, namely, to throw light upon his dealings with the mortgaged property and the motive that actuated the same. (Rep.)</p> <p>8. Where objection was made to a question asked of the wife of the plaintiff as to whether her husband, on being arrested, was disturbed or troubled, but no objection was’made to the evidence elicited, and upon looking at the brief of evidence, the answer appears to be legal, the exception to the question is of no consequence. (Rep.)</p>

<p>Attorney and Client. Married Women. Decrees. Parties. Statute of Limitations. Husband and Wife. Principal and Agent. Before Judge Boynton. Monroe Superior Court. February Term, 1887.</p> <p>Reported in the decision.</p>

<p>Rewards. Actions. Quantum Meruit. Pleadings. Before Judge Ingram. City Court of Columbus. July Term, 1887.</p> <p>Reported in the decision.</p>

<p>The evidence on the substantial issues in this case being conflicting, and the verdict not being demanded by it, there was no abuse of discretion in granting a new trial.</p>

<p>Nonsuit. Practice in Supreme Court. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>'Where, on the trial of a person charged with violating a municipal ordinance which prohibited the keeping of spirituous and malt liquors for illegal sale, the witnesses testified that they did not know whether or not there, were any spirituous or malt liquors at the defendant’s place of business, or whether or not they drank any spirituous or malt liquors there; that they drank a kind of beer called “ New Era Beer” ; that it would not intoxicate; and that they could drink any quantity of it without being made drunk; and where there was no evidence that anybody did drink any spirituous or malt liquors there, the testimony was not sufficient to warrant a conviction. These facts appearing from the petition for a certiorari, the writ should have been granted, so that the recorder could have made return of all the facts, and the propriety of the conviction could then have been determined.</p>

<p>Insurance. Contracts. Evidence. Before Judge Smith. Muscogee Superior Court. May Term, 1887.</p> <p>Reported in the decision.</p>

<p>Ejectment. Fraud. Duress. Title. Verdict. Before Judge Wellborn. Hall Superior Court. February Term, 1887.</p> <p>Reported in the decision.</p>

<p>Wills. Administrators and Executors. Witness. Judgments. Costs. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Where a bill was filed against an administrator and the sureties on his bond, alleging that the complainants held judgments against the intestate; that the administrator had received realty and personalty, and had sold the latter; and that he had never made any appraisement or return of the property, and praying discovery as to the personalty, and that the administrator be required to account for all' the property which had come into his hands, and to answer certain interrogatories, and for a decree against him and his sureties, and for general relief; and where the administrator stated in his answer that his intestate died in possession of certain lands; that he (the administrator) applied to the ordinary for leave to sell the land and sold it under the order passed which granted leave to sell the lands belonging to the estate of the decedent, —this was a solemn admission injudicio, and estopped the administrator, as to complainants, from setting up on the trial of the case that the land did not belong to the estate of his intestate, but belonged to other persons as the legal representatives of the intestate, under the terms of a deed under which the intestate held.</p> <p>2. Under §4208 of. the code, it is not necessary that an order should be applied for or granted to take a bill pro confesso; but where discovery is not waived, and no answer is filed by some of the defendants, and no excuse is rendered therefor, the court may proceed to decree as to them, upon proper affidavit filed by the complainant or his solicitor in his absence.</p> <p>3. There was no error in entering a decree against a surety on the bond of the administrator because he had not been personally served with a copy of the bill, and had not answered it, it appearing that he was present in court when counsel agreed for the court to pass upon the case without the intervention of a jury, and made no objection thereto.</p> <p>4. There was no error in entering a decree against the other sureties. They not having answered, and the proper affidavits having been filed by the solicitor for the complainants, there were no facts upon which a jury could pass.</p> <p>(a) It is not intended to decide that, if proper objections had been filed at the trial, a decree could have been entered against the sureties on the administrator’s bond, without the complainants having first obtained a judgment against the administrator, or having made him a party to the judgment against his intestate by scire facias, but no such point was made.'</p> <p>5. The complainants’ judgment and executions against the decedent aggregate up to the date of the decree $496.38, principal, interest and costs. The decree was entered for $637.09. A new trial is therefore ordered, unless the complainants will write off the difference between these sums ($140.71); if this is done before the judgment of this courtis made the judgment of the superior court, then a new trial is refused.</p>

<p>Where, in March, 1882, suit was brought in a justice’s court against an administrator on an open account for less than $50, made by the intestate in July, 1875, to which the defendant filed a plea of the statute of limitations, in the absence of any proof on the part of the plaintiff to show the time during which the estate was unrepresented, or that the bar of the statute of limitations had not attached, it was a question of law and not of fact whether the action was barred. From a judgment in favor of the plaintiff a certiorari would lie; and on the call of the case, it was error to dismiss the certiorari on the ground that the case involved a question of fact, and that appeal and not certiorari was the proper remedy.</p>

<p>1. The code, in §§3508, 3510, contemplates a peremptory requirement by the court to produce the books or papers specified in the notice, or some of them, before there can be a failure or refusal “ to comply with such order,” so as to entitle the adverse party, if plaintiff, to a judgment as by default, or if defendant, to a judgment as in case of nonsuit.</p> <p>2. Where the notice to produce books and papers is too extensive in range, and as to a part of it too vague in description, the court, after holding the notice good in part and bad in part, may decline to require an immediate answer, and continue the cause to give time to answer so much of the notice as has been adjudged sufficient. The notice given in this case was too extensive, and as' to some of the papers too vague and indefinite.</p> <p>3. On the facts of this case, it was not error to treat the response made to the notice on the final trial as sufficient.</p> <p>4. Where the agent of a corporation through whom all the corporate transactions were had with the alleged debtor, is dead, the debtor, when sued by the corporation, is not a competent witness to prove in his own behalf what transpired between himself and the deceased agent.</p>

<p>1. Admissions by the prisoner which only tend to prove his participation in the crime charged, are not direct but circumstantial evidence ; and in charging the jury upon them, the court should not characterize them as a confession, since doing so would imply that the prisoner had acknowledged his guilt.</p> <p>2. In charging the jury, it is error to assume that the prisoner has made a confession, and then go on to instruct as if the confession were already established.</p> <p>3. The indictment not denominating the prisoner a principal in the second degree, nor an accessory, but simply charging him as though he were one of the principals in the first degree, the instructions given by the judge, relatively to the distinction as to whether the prisoner could be convicted as principal at all, or other than as accessory before the fact, with regard to presence, etc., were correct. The judge did not speak of the prisoner as absent but as present, and told the jury what would constitute presence. (Rep.)</p>

<p>Interest and Usury. Debtor and Creditor. Deeds. Mortgages. Equity. Before Judge Wellborn. Hall Superior Court. February Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Where it appeared that the defendant killed the deceased with a pistol, firing three shots at him, but it did not appear which of the shots caused the death, there was no error in refusing to admit evidence that, subsequently to the firing of the first shot, a person who was present in company with the deceased at the time of the difficulty and during its progress struck the defendant with a stick, or that another person who was likewise so present fired a pistol at the defendant; this evidence being offered solely for the purpose of showing a conspiracy between the deceased and these persons to take the life of the defendant, or to commit a felony upon him, and no other evidence having previously been introduced to show the existence of such a conspiracy. These acts alone may have been lawful for the purpose of preventing a murder, and did not, of themselves, establish a conspiracy. Had an offer been made to prove these facts as part of the res gestee, they would doubtless have been admitted.</p> <p>2. Although there may have been bad feeling between the defendant and the deceased, and mutual threats may have been made by each against the other, yet where it appeared that, at the time of the killing, the deceased was standing on the opposite side of the room sixteen by eighteen feet in size, with twenty-five or thirty people therein, having his hands in his pockets, and with his gun sitting on the floor and leaning against his side; that he was making no movement, gesture or threats against the defendant; and that the latter, without any provocation at the time, deliberately drew his pistol and shot deceased, a verdict of guilty of murder was demanded by the evidence.</p> <p>3. There was no error in refusing to charge that, “if the deceased and others conspired or had an understanding that a quarrel should be raised for the purpose of either killing or injuring the defendant, and they were on the eve of so doing, and the defendant had reasonable fears for so believing or fearing, he.had a right to kill the deceased.” It is only where one manifestly intends or endeavors, by violence or surprise, to commit a felony on the person, property or habitation of another, that the latter will be justified in killing him in self-defence ;'and this does not justify the killing of another by one who believes or has grounds to fear that he will be injured, without regard to the extent of the injury. Nor was there any evidence of a conspiracy which would have authorized this charge.</p> <p>4. Where the presiding judge, in his general charge, substantially gave a charge requested, the failure to give the request itself will not cause a new trial.</p>

<p>Gertiorari. Practice in Superior Court. Promissory Notes. Statute of Limitations. Statute of Frauds. Before Judge Simmons. Bibb Superior Court. April Adjourned Term, 1887.</p> <p>Reported in the decision.</p>

<p>Mortgages. 'Liens. Money Rule. Executions. Before Judge Boynton. Newton Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Where a senior mortgage was not recorded and a junior mortgage on the same property was properly recorded, the latter took precedence of the former; and if the senior mortgage was foreclosed, and the mortgagees became the purchasers at the sale thereunder, they obtained only the equity of redemption under the junior recorded mortgage, and the holder of such junior mortgage could thereafter foreclose it and subject the property to levy and sale thereunder. Nor was he compelled to look to the proceeds of the sale under the senior mortgage fi. fa.</p>

<p>There was no error in granting a new -trial in this case.</p> <p>(a) Even if there were fraud in a sale by executors at which the wife of one of them became a purchaser, yet purchasers under her, who took without notice of any fraud, would obtain a good title as against a child and legatee of the testatrix.</p>

<p>1. Where, in 1886, an act was passed, authorizing the municipal authorities of the town of G-reenesboro to hold an election on a day specified, to determine the question of issuing bonds for the purpose of constructing and furnishing a school-house for the white people and also for the colored people, and to purchase suitable real estate for such house or houses, and prescribing that, if two-thirds of the qualified voters should vote in favor of issuing bonds, the mayor and aldermen should issue them and provide for the payment of the principal and interest accruing thereon by local taxation, and also fixing the amount and character of such bonds, it was necessary, in order to incur a debt and issue bonds therefor, to comply strictly with the general law upon the subject of notice of elections and what that notice must contain, as provided in code, §508(i). In default thereof, the issuing and selling of such bonds, and the collection of a special tax to provide for the payment thereof, will be enjoined.</p> <p>2. The general law requiring the publication of such a notice for thirty days, if the publication was made only twice, on January 21 and February 4, and the election was held on February 5, this was not a compliance with the requirements of the law.</p> <p>3. Such a notice should have specified what amount of bonds were to be issued, for what purpose, what interest they should bear, how much principal and interest should be paid annually, and when they should be fully paid off. . A notice which failed to comply with these requirements was not sufficient.</p> <p>(a) The fact that the local act itself was published before the day of the election, and that it prescribed the amount of the bonds, the interest thereon, and when they were to be paid off, was not a sufficient compliance with the statute; nor was the fact that, out of 189 voters, only 17 voted against the measure, a sufficient answer to the illegality of the notice.</p> <p>4. Such a local act provided for an election to incur an indebtedness and issue bonds therefor, and fell within par. 1, sec. 7, art. 7 of the constitution, (code, §5191,) and not within par. 1, sec. 4, art. 8 of the constitution, (code, §5207,) which allows municipal corporations, upon the recommendation of the corporate authorities, to establish and maintain public schools by local taxation.</p> <p>(a) Is it not necessary fora local law passed by the legislature, upon the recommendation of the municipal corporation, to establish and maintain public schools by local taxation, to be voted on as accepted by two-thirds of the qualified voters, before the law itself takes effect — qussre?</p>

<p>Where a bill was filed, alleging that the plaintiff delivered to the Central Line of Steamers certain cotton for transportation, and that it was burned through the carelessness and negligence of the agents of such steamboat company; and where the bill was confused and contained contradictory statements, at one place alleging that a railroad company, a steamboat company and two individuals were the owners of the boat or line of steamers, at another that they were unknown, and discovery was prayed as to them as well as with respect to the profits made and who received them, and how they were invested, and it was also prayed that, when the true owners were discovered, they might be made parties and that a decree might be had against them for a sufficient amount of the profits to pay the loss; and where the bill was amended by striking the names of the individual defendants, the only ones who gave jurisdiction in the county where the suit was brought, there was no error in dismissing the bill on demurrer.</p> <p>(a) From what can be gathered from the confused statements in the bill, the plaintiff’s case would seem to have some merit in it, if properly brought. It is therefore directed that the judgment be so modified as to read “ without prejudice to the complainant, if he should see proper to bring another suit either at law or in equity.”</p>

<p>1. Where the jurisdiction of a city court was limited to $2,000, and two cases were brought therein by the same plaintiffs against the same defendant, one for $1,800 and the other for $700, there was no error in refusing, on motion, to consolidate them, and thereby oust the jurisdiction of the court.</p> <p>2. When an act has been passed by both branches of the legislature and approved by the governor, its publication is complete. In the absence of the enrolled act, the court may look to the act as published by the public printer; but where the enrolled act is presented to the court, or the court has knowledge of it and has inspected it, and it is different from the printed act, the former should control.</p> <p>3. Where two attachments were levied on the same property, and an order was taken to sell it as perishable property expensive to keep, this did not operate as a consolidation of the cases.</p> <p>4. Vthere, after the levy of attachments, a third party purchased the ilaims from the plaintiffs, and the declarations in attachment were amended by alleging that the plaintiffs sued for the use of such party, this did not operate as a dissolution of the attachments.</p>

<p>Tax. County Matters. Words and Phrases. Injunction. Before Judge Boynton. Hancock Superior Court. April Term, 1887.</p> <p>Reported in the decision.</p>

<p>Oontracts. Title. Nonsuit. Before Judge Eve. City Court of Richmond County. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Wills. Estates. Equity. Before Judge Maddox. Eloyd. County. At Chambers. September 10, 1887.</p> <p>Reported in the decision.</p>

<p>Criminal Law. Confessions. Evidence. Practice in Superior Court. Practice in Supreme Court. Before Judge Smith. Muscogee Superior Court. May Term, 1887.</p> <p>Reported in the decision.</p>

<p>Yerdicfc. Damages. Mill-Dams. Water-Courses. Before Judge Willis. Talbot Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Though a horse be sensible, very gentle, and accustomed to stand unhitched at his owner’s door in a busy, noisy street, yet if he be fancy, stylish, restless and very high-strung, the jury may infer negligence from leaving him loose elsewhere in the same or another street, unattended except by the owner watching him from a distance of five or six feet.</p> <p>2. When ahorse attached to a buggy is, by the owner’s negligence, loose in the street and moving at will, persons who see the horse thus going at large are at no fault for trying to stop or capture him, andif by their rush, throwing up of hands or other demonstrations, they frighten him and cause him to run away, invade the sidewalk and injure a person passing lawfully thereon, the owner will be responsible in damages for the injury.</p> <p>3. No ground of objection to certain evidence beiDg stated either in the motion for a new trial or in the bill of exceptions, the admissibility of the evidence is not for adjudication by this court.</p>

<p>Promissory Notes. Indorsement. Evidence. Principal and Agent. Notice. Privity. Before Judge Yan Epps. City Court of Atlanta. June Term, 1887.</p> <p>Reported in the decision.</p>

<p>Where, on a loan of money, it was agreed that a certain amount should be added for interest up to a specified time, which amount was in excess of legal interest, and it was accordingly added to the amount loaned, and for the aggregate sum notes were given, payable at a time specified and providing that they should bear interest at the rate of 8 per cent, per annum after maturity, under a plea of usury to a suit on the notes, the holder would he entitled to the principal, with legal interest thereon, from the date of the notes, and he did not forfeit all interest prior to their maturity by reason of the consolidation of the usury with the principal into one sum.</p> <p>(a) The case in 66 Ill. 532, was based on a statute which provided for a forfeiture of the interest and excess of interest where usury was charged, and allowed only the principal to he recovered.</p>

<p>1. Breach of contract gives a right of action, whether special damages be alleged or not, and therefore extruding from the declaration all averments of special damages, will not warrant the court in dismissing the action.</p> <p>2. Where there is a contract at a specific sum for the rent of premises for one year, from and after a future day, in an action thereon by the tenant against the landlord for not admitting him into possession, the measure of damages is the excess in the value of the term over the amount agreed to be paid as rent. If no excess, nominal damages only are recoverable. Anticipated profits from a business intended to be carried on by the tenant upon the premises, are not recoverable.</p>

<p>1. While the declaration in this case is crudely drawn, there would seem to be enough to authorize a judgment to be entered upon it. At least there was enough to amend by; andan amendment in the form prescribed by the code for suits on promissory notes, cured whatever defects there might have been in the original declaration.</p> <p>(a). While there is no order of the court in the record, yet where it appears that it was filed by the clerk on the day the judgment bore date and before such judgment was taken, this is sufficient, especially as the judge acted thereon by awarding a judgment, and the executor, who was the defendant in the suit and who is still in life, does not appear to make any objection to the declaration or judgment.</p> <p>2. A waiver entered on the back of a declaration in these words, “ I acknowledge due and legal service and waive copy, process, etc.,” signed by the defendant, was sufficient to waive process; and a judgment entered thereon was not void because no process was attached to the declaration or the amendment.</p> <p>3. The declaration and the amendment being sufficient to authorize a judgment, and there being a legal waiver of process, a judgment, though entered against the executor instead of de bonis testatoris, was sufficient to prevent the statute of limitations from running against the debt of the testator; and an amendment of the judgment so as to make it read de bonis testatoris instead of de bonis propriis, made it a valid judgment against the estate.</p> <p>4. Judgments obtained against an administrator or executor after the death of the intestate or testator, rank no higher than the demands on which they are founded. Therefore, where two judgments were obtained against an executor upon promissory notes given by him in his lifetime, one would not take precedence of the other by reason of being first obtained, but they would share pro rata in the distribution of a fund raised from the sale under execution of lands belonging to the estate of the testator.</p>

<p>1. Although a guardian of a minor may have colluded with the surety on her bond and purchased from him, with the funds of the minor, under an order obtained for that purposes, a tract of land of little value and containing a less number of acres than the amount mentioned in the deed, yet where her successor in office submitted the matters between them to arbitration, claiming an amount of money and electing to abide by the contract made by the former guardian, and where the arbitrators awarded against him upon the matters submitted to them, he was bound thereby and could not, as guardian, file a bill bringing the same matter into controversy, he not alleging in the bill that he was ignorant of the fraud at the time he agreed to the submission to arbitration.</p> <p>2. Where an application is made by a guardian to the judge of the superior court for leave to invest money of his ward in land, it is not necessary to have a guardian ad litem appointed for the minor ward.</p> <p>(a) Where the order allowing such investment was attacked, not only on the ground that no guardian ad litem had been appointed, but also on the ground that it was illegal, being the result of fraudulent collusion between the former guardian and the surety on her bond; that she only intended thereby to secure a home for herself and her family ; and that the vendor transferred to her an almost worthless piece of land at a very exorbitant price, knowing when the order was granted that the price was unreasonable, unjust, illegal and inequitable, there was no error in overruling a demurrer to that portion of the bill.</p>

<p>Judgments. Executions. Homestead. Levy and Sale. Equity. Fraud. lies Acljudieata. Before Judge Lump-kin. Washington Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Pleadings. Won est faetum. Justice Courts. Lost Papers. Judgments. lies Adjudícala. Promissory Notes. Before Judge Boynton. Spalding Superior Court. February Adjourned Term, 1887.</p> <p>Reported in the decision.</p>

<p>Service. Process. Practice in Superior Court. Laches. . Before Judge Fain. Bartow Superior Court. July Adjourned Term, 1886.</p> <p>Reported in the decision.</p>

<p>A warrant was issued by a magistrate on the affidavit of a constable, and was placed in the hands of the latter to execute. He claimed to have deputized a third person to execute it. This third person went to the house of the defendant, and without informing him that he had a warrant for his arrest, or that he had been deputized by the constable, undertook to arrest the defendant; the latter resisted, broke loose and ran around the house followed by the other person, and finally ran into the back door of his house; and upon the other person’s attempting to enter with a pistol in his hand, the defendant shot him with a single-barrelled shot-gun loaded with squirrel shot.</p> <p>Held that, in the absence of notice to the defendant that the person pursuing him was an officer or had a warrant for his arrest, a verdict finding him guilty of assault with intent to murder was contrary to law and the evidence, and a new trial should have been granted on motion.</p> <p>(a) It was improper for the magistrate to place the warrant in the hands of the prosecutor to execute, although the latter was a constable of the district; and it is doubtful whether the constable had the right to deputize or summon another person to assist him in the execution of the warrant.</p>

<p>The verdict in this case was contrary to law, and a new trial should have been granted on motion.</p> <p>(a) This case differs from that of Chappell vs. Boyd, 61 Ga. 666.</p>

<p>1. The evidence is sufficient to sustain the verdict, and*the court below being satisfied with it, this court will not interfere.</p> <p>2. Since the act of 1875, (acts 1875, p. 106,) a recommendation to mercy in capital oases of murder is equivalent to a recommendation to imprisonment for life, and a verdict recommending the defendant to mercy is not illegal.</p> <p>(a) This provision of the act of 1875 is still of force, though' omitted from the code of 1882 and the addenda thereto; nor was it repealed by the act of 1878, which allows a recommendation by the jury in capital cases, whether the evidence is merely circumstantial or not.</p> <p>(b) As the law now stands, this case is not controlled by those in 35 Ga. 5; 48 Id. 119, and 49 Id. 451.</p> <p>3. In order to aid the solicitor-general, the court allowed the stenographer to propound the questions to the jurors when put upon their voire dire, the solicitor-general accepting or rejecting them as they were put upon the State. When one of the jurors had qualified himself as such, the stenographer inadvertently, and without waiting for the solicitor-general, put the juror upon the prisoner, and he was immediately accepted by the latter. At or about the same time, the solicitor-general rejected the juror, and announced that it was not the duty of the stenographer to accept the juror for the State, but simply to propound the statutory questions. The court thereupon held that the juror had not been accepted by the State, and allowed the solicitor-general to challenge him:</p> <p>Held, that this was not error.</p> <p>4. Where one ground of a motion for a new trial was, because one of the jurors rendering the verdict and acting as foreman of the panel had, previously to the trial, formed and expressed the opinion that the defendant was guilty of murder and should be hung, the affidavit of a witness, to the effect that the juror stated before the trial that he thought the defendant ought to be hung, will not outweigh the sworn answer of the juror on his voire dire, that he was impartial and had no bias or prejudice against the defendant, especially so, where this ground of the motion for new trial was added after the death of the juror, and the presiding judge stated that he was well acquainted with the juror, who was a man of high character, and in the opinion of the judge, would not have served on the jury if he had been biased or prejudiced against the prisoner.</p> <p>(a) To disqualify one from being a juror in a criminal case, he must have formed and expressed an opinion, either from having seen the crime committed or from having heard the testimony under oath. A man may form and express an opinion from rumor or from newspaper reports, and yet be a qualified and competent juror, if the opinion has not become fixed and determined.</p>

<p>New Trial. Evidence. Before Judge Adamson. City Court of Carrollton. May Term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Where suit was brought against a cotton factory company by one of its employes, to recover for an injury occasioned to the eye of the plaintiff by a shuttle, and it was alleged that the guard of the shuttle was defective, being an unsafe character of guard, and where the testimony was conflicting as to the safety of the guard, some witnesses testifying that no guard was about as safe as a guard, and others testifying that a guard of the character used was as good as one of a different character, there was no error in charging the jury as follows: “If you believe from the evidence that two kinds of shuttle-guards were in general use on looms, and that ordinarily skillful people using the two kinds were divided in opinion and in their experience with them as to which was the safer, and you further believe that, in the use of ordinary and reasonable care and diligence, the defendant could have selected either of the guards for its looms, then the defendant would not be liable for damages caused by the use of such guards on its looms.”</p> <p>2. Where the declaration alleged that the plaintiff was without fault, and she did not claim damages for contributory negligence in the court below or in this court, but claimed full damages, and did not insist before this court that she was entitled to damages if she contributed to the injury, there was no error in the charge that a servant, to recover of a master on account of negligence, must herself be w' thout fault, and if the plaintiff in this case was herself negligent in any degree, contributing to the occasioning of the injury, she could not recover, even though the defendant may have been negligent.</p> <p>3. There was no error in charging that, “if the plaintiff could, by the exercise of ordinary care and diligence on her part, have avoided the injury, she cannot recover, notwithstanding the defendant’s negligence, if any.”</p> <p>4. The verdict in this case was right; the charge of the court was right; and there was no error in overruling the motion for a new trial.</p>

<p>1. Aft.er a judgment of conviction for felony has been affirmed by the Supreme Court on writ of error brought by the convict, the legality of Ms conviction cannot be drawn in question by a writ of habeas corpus sued out by him, or by another person in his behalf, save for want of jurisdiction appearing on the face of the record as brought from the court below to the Supreme Court. Such affirmance implies that he was tried by a court of competent jurisdiction legally constituted, and nothing to the contrary can be shown otherwise than by inspection of the record,</p> <p>2. Any judge of tlie superior court of the State is competent to preside on the trial of any case, civil or crimina1, in the superior court of any county.</p>

<p>Deeds. Construction. Title. Interest and Usury. Equity. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1887.</p> <p>Reported in the decision.</p>

<p>Under the code, whenever a new road is to be established or an old one to be altered, the county commissioners must appoint three road commissioners to report whether they find it of public utility; and if so, they must mark out the road, and make their report under oath. Where, upon a petition to alter an old road, under §604 of the code, the commissioners appointed recommended a discontinuance of a portion of the old road, provided the property owners on the east side thereof should open a street through their property so as to give access to another street, but there was no report as to the utility of the road, or showing that they had marked it out in accordance with law, and thereupon the county commissioners adjudged that a portion of the old road should be discontinued, provided one of the petitioners would give forty feet off his land in line with a certain street so as to extend it to another, such judgment was not legal. It neither marked out the new road; or new part of the road, nor required this to be done. Nor did it absolutely alter the road, but made this conditional upon the action of a property owner. A certiorari to such a judgment should not have been dismissed.</p> <p>(a) While it is perhaps true that the county commissioners are not bound to follow the recommendation of the road commissioners, but may, in their judgment, adopt a different scheme or plan from that reported, if they should do so, they should, in their judgment or order, provide that the new road, or new part of the road, should be marked out, so that it might go upon the records of the county, and should show by their order where the new road should run.</p>

<p>Criminal Law. Indictment. Before Judge Adamson. City Court of Carrollton. August Term, 1887.</p> <p>Reported in the decision.</p>

<p>This case is controlled by the ruling in the case of the National Bank of Augusta vs. Cunningham, 75 Ga. 366, in which it was held that, where a broker is privy to a wagering contract, and brings the parties together for the very purpose of entering into the illegal agreement, he is particeps criminis, and cannot recover for services or losses incurred by himself in forwarding the transaction. Speculations in cotton-futures are such illegal contracts; and where a note and mortgage were given partly for the losses incurred therein, a verdict finding in favor of the mortgagee for the full amount thereof was contrary to law and the evidence.</p>

<p>1. Where a man resided for many years with his family upon certain land, the title to which was in his wife and daughters, and he returned it and paid taxes on it in his own name, and where, during four years, he so returned the property along with certain personal property, but failed to pay the taxes, and executions issued therefor, together with his poll-tax, and to a levy thereof upon the land, the wife and daughters interposed a claim, it was not incumbent upon the State or county to have investigated the legal title to the property or to show, on the trial of the claim case, the proportion of taxes due on the premises and what was due on the personal property and poll; but it was the duty of the claimants to have made this appear to the court, and to have paid or offered to pay their proper proportion of the taxes, before they could ask a finding that the property was not subject. In the absence of this, such a finding was error.</p> <p>2. This ruling works no hardship upon the claimants, 'inasmuch as the property is subject to its proper proportion of taxes; while, if it were held that the executions were invalid and the property had never been returned for taxation, it might be double-taxed.</p>

<p>Where a plaintiff in an action of trover sues out bail process, and upon the failure of the defendant to give bond, the plaintiff does so and tabes possession of the property, if upon the trial he either dismisses his case or refuses to prosecute it, the defendant is entitled to a verdict or judgment for the property seized under the bail process, or its value, and the declaration and affidavit made by the plaintiff to obtain bail process is competent evidence in ascertaining such value.</p>

<p>1. Where, upon a trial for murder, the evidence showed that the accused and the deceased had been at enmity with each other for some time previous to the fatal rencounter; that assaults and threats of killing had been made by each against the other, and each bore malice against the other; that on the night of the-homicide the deceased was on his way homeward; that he stopped by the roadside and sat down and was talking with a woman, when the accused came up with a stick or fence-rail in his hand and commenced a conversation with him about the woman, and finally dared him to come on, to which the deceased said, “I am coming” ; that no one witnessed the termination of the tragpdy, but blows were heard and a cry of murder after each blow in a voice recognized as that of the deceased; that the accused ran away and was gone about three years before he was arrested and brought to trial; and that where the deceased was found lying there was a rail or part of a rail with blood upon it; and where the accused himself admitted in his statement to the jury that he did the killing under certain circumstances stated by him, there was sufficient evidence to support a finding of guilty, and there was no error in refusing to grant a new trial.</p>

<p>Municipal Corporations. Americus. ■ Ruisance. Damages. Equity. Before Judge Richard H. Clark. Sumter County. At Chambers, August 17, 1887.</p> <p>Reported in the decision.</p>

<p>1, 2, 3. It is not to be presumed that commissioners examine the wrong witness, though failing to return expressly that the one examined is the one named in the commission. The return need not have a.preamble or caption to the answers. Though the place of execution must appear, it is sufficient to give the county and State, and if these can be ascertained from the return with due certainty, by reasonable construction, it will suffice.</p> <p>4. The payee of an accepted bill, who has paid value to the drawer before maturity, is not concerned with the consideration as between drawer and acceptor. He holds the bill unaffected by equities in favor of the acceptor against the drawer.</p> <p>5. No evidence that payee held title as agent of the drawers; no presumption raised by the testimony received; and the testimony rejected was inadmissible. The drawer can neither talk nor act away the payee’s title, after the bill has become a subsisting debt between the payee and the acceptor.</p> <p>6. A bank being the payee and owner of an accepted bill, is under no duty to the acceptor to apply funds, which the drawer has with it on general deposit, to payment of the bill.</p> <p>7. Dealings in indiana with a corporation alleged in the record to have been chartered by that Slate, are governed by its laws, and when attacked here for usury or the like, the provisions of such laws applicab'e to the transaction must be made to appear, or the attack will be ineffectual. .</p>