Volume 80 — Georgia Reports

Mutual accounts. Statute of limitations. Before Judge Bower. Calhoun superior court. June term, 1887. On November 20, 1883, Cheatham filed a suit on an open account against Lark et al., executors of Hodnett.' This account included two parts, first, an account against Hodnett, made up of accounts for several-years, beginning with 1867 and terminating with 1882.

<p>1. Where an accusation was preferred in a county court, charging the defendant with an assault, and he waived indictment by the grand jury and demanded a jury trial in the county court, this amounted to an agreement to be tried under the provisions of the act regulating trials in the latter court, including the right of the judge of that court, if at any time during the progress of the trial he should be of the opinion that the evidence produced before him made the offence of a felony instead of a misdemeanor, to stop the trial at once and commit the defendant to jail, or require him to give bond for his appearance at the next term of the superior court. Therefore, where, pending the trial for an assault, the judgé of the county court became satisfied from the evidence that the of-fence was that of assault with intent to murder, and over the protest of the defendant withdrew the case from the consideration of the jury, and bound him over to the superior court to answer for-the latter offence, this furnished no ground for a plea of former jeopardy upon the trial of the defendant under indictment in the superior court.</p> <p>2. Where the defendant made such an agreement or waiver, the effect was'that the State also was bound not to prosecute him for the misdemeanor in any other court; and there was no error, upon his trial in the superior court under an indictment for assault with intent to murder, in charging that the jury could only convict him of that offence, or of shooting at another not in his own defence or under circumstances of justification; and that they could not convict him of a misdemeanor.</p>

<p>Levy and sale. Sheriffs. Actions. Before Judge Fort. Sumter superior court. April term, 1887.</p> <p>Reported in the decision.</p>

<p>Bes adjudicata. Sheriffs. Before Judge Bower. Calhoun superior court. June term, 1887.</p> <p>Reported in the decision.</p>

<p>Wills. Devises. Legacies. Rents. Emblements. Before Judge Bower. Decatur superior court. May term, 1887.</p> <p>Reported in the decision.</p>

<p>Mortgages. Title. Debtor and creditor. Notice. ' Record. Before Judge Bower. Dougherty superior court. April term, 1887.</p> <p>Reported in the decision.</p>

<p>Criminal law. Practice in superior court. Witness. Before Judge Bower. Dougherty Superior Court. April term, 1887.</p> <p>Reported in the decision.</p>

<p>Yerdict. Charge of court. New trial. Evidence. 'Witness. Before Judge Fort. Macon superior court. ."May term, 1887.</p> <p>Reported in the decision.</p>

<p>Homestead. Husband and wife. Tax. Before Judge Fort. Sumter superior court. April adjourned term, 1887.</p> <p>Reported in the decision.</p>

Administrators and executors.' Principal and surety. Parties. Auditors. Constitutional law. Practice in superior court. Before Judge Jenkins. Greene superior court. March adjourned term, 1887. Reported in the decision.

<p>Equity. Decrees. Amendment. Bonds. Principal and surety. Yerdict. Jurisdiction. Before Hon. W. R. Hammond, judge pro hao vice. Pulton superior court. September term, 1886.</p> <p>Reported in the decision.</p>

<p>1. In 1848, a testator died, leaving a will which contained the following items:</p> <p>“ After the death of my wife, Mary S., I give and bequeath all my estate, both real and personal, to the children of my stepson, Patrick B. Connelly, and those born and that may hereafter be bom to him in wedlock. . .</p> <p>“I direct that my executor shall, in parceling out that portion of my estate wnich shall be the share of his female children, . . hold the same in trust for the sole and separate use of such female child, and that in no event shall it be subject to the debts, liabilities or contracts of any husband to whom they shall be married, but that said female child shall have the use of said property during their natural lives, and at their death it is my wish that it be divided between her children and their representatives.”</p> <p>The trustee named in the will died. The husband of a granddaughter of the testator died in 1867. In 1869, upon the application of such granddaughter, a new trustee was appointed by the court'.</p> <p>Held, that the trustee was to hold the property only to protect it against the debts of the husband of the testator’s granddaughter, and upon the death of her husband no duty remained for the trustee to perform; nor was there anything to be done which required him to retain the legal estate. He was not trustee for the remaindermen. Therefore, upon the death of the husband of the testator’s granddaughter, the trust became executed, and the legal title vested in the wife during her life, with remainder to her children after her death; and the appointment of a trustee by the court was void.</p> <p>2. It his been decided by this court in three cases that, where a trust was created before the act of 1866, it was executed upon the passage of that act; and these decisions are not overruled.</p> <p>(a) It is not decided whether or not the trustee had any vested right as to his commissions and the legal estate in him which the legislature could not divest.</p>

<p>1. Although one may have gone into possession of land as a mere squatter, disclaiming title and not pretending to own it, hut wanting to buy it, if he did buy it in good faith, thinking he was getting a good title, and thereafter claimed the land as his own, his possession under his deed was adverse; and if such possession, coupled with that of a vendee under him, continued for more than seven years, a jury would he authorized to find that the vendee under him had a prescriptive title; and a verdict so finding was not contrary to law.</p> <p>2. This case differs from those of Gay vs. Mitchell, ex’r, 35 Ga. 139, and Stamper vs. Griffin, 20 Id. 312.</p>

<p>Practice in superior court. Waiver. Before Judge Hines. Jefferson superior court. May term, 1887.</p> <p>Reported in the decision.</p>

<p>Contracts. Evidence. Before Judge Tan Epps. City court of Atlanta. June term, 1887.</p> <p>Reported in the decision.</p>

<p>Statute of limitations. Contracts. Before Judge Fain. Catoosa superior court. February term, 1887.</p> <p>Reported in the decision.</p>

Equity. Taxes. Municipal corporations. Levy and sale. Waiver. Mortgages. Liens. Executions. Notice. Contractors. Debtor and creditor. Interest and usury. Attorneys’ fees. Before Judge Roney. Richmond superior court. April term, 1887. The premises, consisting of a cotton warehouse in (be city of Augusta, belonging to O. W. Clayton, were mortgaged by him to the National Bank of Athens, (White cashier,) in 1877, to secure a debt of $4,500; the mortgage was duly recorded.

<p>1. The chancellor did not abuse his discretion in granting the inj unetion.</p> <p>2. As the tax-collector, whether unreturned land be wild or improved, has power to issue execution against it for taxes, it would seem that a sale is not void because of a misdescription of the land as wild when in fact it was improved.</p>

<p>Specific performance. Bond for title. Contracts. Assignment. Subrogation. Yendor and purchaser. Before Judge Hines. Scriven superior court. May term 1887.</p> <p>Reported in the decision.</p>

<p>1. Where a purchaser bought a tract of land and also a right of way leading therefrom to a public road through other lands of the vendor, and paid therefor, and went into possession thereof, but when a deed was tendered to him by the vendor it described the land alone and contained nothing as to the right of way, and he thereupon refused to receive it, but the vendor stated that if the purchaser would accept this deed he would make another to the right of way, and it was accordingly accepted, upon his refusal to make such other deed, a bill would lie on behalf of the vendee for specific performance and to enjoin the vendor, who had obstructed the right of way, from interfering with its use. Such a bill was not demurrable.</p> <p>2. Where, at the time of the purchase, the vendee went into possession of the land and right of way, and so remained for seven years or more, whether or not a bill for specific performance was barred by the statute of limitations, a decree could be entered enjoining the vendor from interfering with the right of way.</p> <p>S. Although the closing of the right of way may have been a nuisance for which an action at law might have been maintained, yet it was a continuing nuisance, which would authorize a court of equity to interpose by injunction.</p>

<p>1. Where one who had possession of certain deeds and papers testified that they were lost or destroyed, and the clerk of the superior court testified that a portion of the records in his office in which deeds were recorded about the time of the sales in pursuance of which the deeds were made, were destroyed, and another witness testified that he had carefully examined the records of the ordinary’s office, and that the records of the time of an administrator’s sale involved in the controversy were destroyed and not in existence, this was a sufficient foundation for the introduction of parol testimony; and on the hearing of an application for injunction, the contents of such papers could be shown by affidavits.</p> <p>2. Where complainants filed a bill to enjoin the defendants from mining and carrying away ore from a certain lot of land, and on the hearing it appeared that the complainants had a title to the mineral interest in such land, and that in the title under which the defendants claimed there had been a reservation of the mineral interest by certain grantors, which had been sold under an execution against them, and had passed by regular chain of title to the complainants, and that a subsequent holder of the land had conveyed it to the father of one of the defendants (under whom such defendant claimed), reserving the mineral interest therein, and had afterwards attempted to convey such mineral interest to another, who made a conveyance of one-half thereof to another person, and the other defendant in the bill claimed the right to operate the mines under a verbal permission from the agent of such grantee, and under a lease from the other defendant; and where it was not denied that the defendants were insolvent, there was no error in granting an injunction.</p> <p>(a) This case differs from that of Nethery vs. Payne, 71 Ga. 378.</p>

<p>1. The city council of Fort Gaines sold, and conveyed to Adams a bridge, including in their deed the following covenant: “ And it is further agreed that said David O. Adams shall take and hold said bridge under and in accordance with an act of .the General Assembly of the State of Georgia, approved March 5th, 1856, being ‘ an act to incorporate the Fort Gaines Bridge Company and punish those who may wilfully impair the same.’ He is to carry out said act in every respect. He is to permit all persons, together with their conveyances, who have for sale and are bringing to Fort Gaines market country produce of any description or kind of the value of $5, to pass over the bridge with said produce, free from toll.” The act of 1S56, thus referred to, gave power to build the bridge and provided, among other things, that the Fort Gaines Bridge Company “ be allowed to charge and receive for the passing over said bridge the same rates of -tolls as are allowed by law for crossing at the Columbus bridge.” The charter of the Columbus Bridge Company, as amended in 1842, exempted from the payment of toll persons bringing across the bridge corn, cotton, fodder, rye, oats, wheat and potatoes:</p> <p>Held that, under this covenant, the purchaser was not entitled to charge any toll on persons carrying to the Fort Gaines market any of the seven enumerated kinds of country produce in any quantity, whether more or less than five dollars in value, or in returning therefrom; and as to persons so carrying country produce of any other kind or description to the value of five dollars or more, he was not entitled to charge any toll.</p> <p>2. This covenant was not ambiguous, and parol testimony was not admissible to explain its meaning.</p>

<p>Deeds. Title. Mortgages. Before Judge Marshall J. Clarke. * Fulton superior court. March term, 1887.</p> <p>Reported in the decision.</p>

<p>_ 1, Where a ground of'a motion for a new trial, which, excepted to the rejection from evidence of a certain deed, set out in specific terms the substance thereof, giving the names of the grantor and grantee, the county and district in which the land was located, the numbers of the lots of which it was stated the tracts conveyed were part, and the quantity of land conveyed, this was a sufficient description of the deed to authorize this court to pasB upon its admissibility, although it was not copied in full in the motion.</p> <p>2. While parol evidence is not admissible to add to, contradict or vary a writing, yet it is admissible to explain an ambiguity, either latent or patent; and where a deed conveyed “ parts ” of certain lots of land, comprising in all 172 acres, it was admissible in evidence, together with parol testimony, to show that the parts of lots mentioned in the deed were the same land as that involved in the controversy, and to which the claim was made.</p>

<p>Landlord and tenant. Liens. Judgments. Contracts. Before Judge Boynton. Rockdale superior court. February adjourned term, 1887.</p> <p>Reported in the decision.</p>

<p>Trusts and trustees. Landlord and tenant. Title. Practice in Supreme Court. Executions. Levy and sale. Before Judge Boynton. Rockdale superior court. February adjourned term, 1887.</p> <p>Reported in tbe decision.</p>

<p>On the trial of a claim case, evidence that the sheriff went to the land levied on, found certain persons in possession of it, and asked whether or not it was their land, to which they replied that it was not, that they had rented it from the defendant in fi. fa., and that it belonged to her, was not admissible to show title in such defendant.</p>

<p>Criminal law. Malicious mischief. Arson. Before Judge Richard H. Clark. Pulton superior court. March term, 1887.</p> <p>Reported in the decision.</p>

<p>Where the question is one of fact, the presumption is in favor of the finding of the jury thereon; and where, upon the finding of a jury in a justice’s court, a certiorari was taken to the superior court, alleging that the verdict was contrary to law, and the verdict was affirmed, this court will not set it aside, unless it is made to appear affirmatively that the verdict was contrary to law.</p>

<p>1. The gist of the offence of abandoning a child is the voluntary and wilful abandonment of it, leaving it dependent and destitute. The bad conduct of the .mother will not excuse the father for leaving his child dependent and destitute. While a father may be unable to live in peace with the mother of his children, and may be compelled by her evil conduct to separate himself from her, the law compels him to support the children begotten of her, although, on account of the tender years of a child, in order to support it, it will be necessary to support the adulterous mother,</p> <p>2. Where a husband voluntarily and wilfully separates from his wife in one county, and sends her and their child, by his agent, to another county, and his child thereby becomes dependent and destitute, he is indictable in the latter county for the abandonment of such child.</p> <p>3. While the law would not compel a husband to live with an adulterous wife, and he would be justifiable in separating himself from her, still he would be bound to support his child; and if he sent his wife and child into another county and failed to provide for the child, either by sending to its mother or to some one else clothing and provisions for its use, the abandonment became voluntary and wilful, although he may have sought to retain it at the time of the separation. The child being only ten months old at the time of the separation and dependent upon its mother for food and nourishment, it would have been improper to have taken it from, her at that time. He should have allowed it to go with her, and provided it with means of sustenance until it became of an age at which the law would have awarded it to him, if the mother were an improper custodian for it</p>

<p>Criminal law. Parent and child. Jurisdiction. Code. Before Judge Smith. Muscogee superior court. May term, 1887.</p> <p>Reported in the decision.</p>

<p>Construction. Damages. Torts. Charge of court. Water-courses. New trial. Before Judge Boynton. Monroe superior court. August term, 1886.</p> <p>Reported in the decision.</p>

<p>Where an. affidavit in forma pauperis for the entry of an apjoeal to the superior court from the judgment of the county court, was made, not by the party dissatisfied, but by a person acting as his agent, the appeal was properly dismissed on motion, at least where no warrant of attorney authorizing such person to enter the appeal appeared.</p>

<p>1. In an action upon account, the hill of particulars as well as the declaration representing an account arising between plaintiff and defendant, the declaration is not amendable by alleging that the plaintiff sues as transferee of a third person. An account arising between such third person and the defendant is a different cause of action from that declared upon.</p> <p>2. The written assignment of an account, the writing not being declared upon, is not admissible in evidence without due proof of its execution.</p>

Practice in superior court. Receivers. Equity. Insolvency. Before Judge Roney. Columbia superior court. March term, 1887. Held: took it), that the tenant under the receiver attorn to them, and that the balance of rents in the receiver’s hands, after paying expenses and certain costs, be paid to complainants.

<p>Criminal law. Principal and accessory. Verdict. Before Judge Van Epps. City court of Atlanta. March term, 1887.</p> <p>Reported in the decision.</p>

<p>A rule nisi to foreclose a mortgage on land must be served by the sheriff. Service thereof by an unofficial person is not legal.</p>

<p>In June, 1886, a husband could not recover for the homicide of his wife, although it was alleged that he was thereby deprived of her services and companionship, and damages were claimed on that ground. If the wife had lived for any length of time after the injury, the husband might have recovered for the loss of her services during that time, and for any expense which he might have incurred in her treatment.</p>

<p>Wills. Estates. Rule iu Shelley’s case. Construction. Words and phrases. Before Judge Hutchins. Gwinnett superior court. March term, 1887.</p> <p>Reported in the decision.</p>

<p>Guardian and ward. Sales. Parent and child. Before Judge Jenkins. Baldwin superior court. J uly term, 1887.</p> <p>Reported in the decision.</p>

<p>1. There was sufficient evidence to authorize the jury to infer negligence on the part of the defendant.</p> <p>2. When the owner or occupier of land, by invitation express or implied, induces or leads others to come upon his premises for a.ny lawful purpose, he is liable in damages, to such persons for injuries occasioned by the unsafe condition of the land or its approaches, and .under such an express or implied invitation, he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.</p> <p>3. The use of a dangerous substance in such a case, and one known so to be, is analogous to having a dangerous animal confined on the premises, and the burden would rest upon the proprietor to show that he exercised ordinary care to prevent such dangerous chem' ical from getting fromthe house into the mud in the private way, and becoming dissolved therein.</p> <p>4. Where an amendment was made to a declaration, and a motion for continuance was made on the ground of surprise, there was no error in overruling it, counsel for defendant not stating that he was less prepared for trial than he would have been had not such amendment been made, and how, and that such surprise was not claimed for the purpose of delay.</p> <p>5. If personal property were injured but not destroyed, loss of hire might be recovered as damages; but where the property was lost or destroyed by the negligent act of another, the measure of damages would be the full market value of the property at the time of the injury or loss, with interest thereon. It was, therefore, error to charge that whatever the horse which died from the injury would have made for hire from the time of the injury to that of his death, the owner would be entitled to recover.</p> <p>(a) It is ordered that the plaintiff write off from the verdict recovered by him $22.50, the value of the hire shown, and that the judgment thereupon be affirmed.</p>

<p>Actions. Torts. Contracts. Justice courts. Jurisdiction. Warranty. Before Judge Boynton. Coweta superior court. March adjourned term, 1887.</p> <p>Eeported in the decision.</p>

<p>Deeds. Written instruments. Wills.- Construction. Before Judge Lumpkin. Madison superior court. March term, 1887.</p> <p>Reported in the decision.</p>

<p>The exemption from taxation of institutions of public charity, provided for by the constitution, is of such institutions as property not as persons, — the physical things, not the ideal institutions. Therefore lands held in trust to appropriate the annual product to the erection of a poor-house and the support of its inmates forever, are not exempt. The poor-house, when erected, will be exempt, but not detached property from which its support is to be derived.</p>

<p>1. Whether an account stipulated to be filed and verified by affidavit, should embrace details or be merely a statement of results from a set of books.kept by double entry, depends on the use for which it was intended. If intended merely to serve as a basis for making payment out of bank, and as a guide to the bankers in making such payment, they not having to scrutinize the particulars, details are not necessary.</p> <p>2. An affidavit verifying an account, if positive and certain so far as the account goes, is not rendered the less so by the affiant’s belief expressed therein that still more is due him than the balance exhibited.</p> <p>3. If a creditor draw from bank his debtor’s money as a payment on his account, after complying with the conditions on which it was deposited to be so drawn, he is not liable to refund it in an action for money had and received, unless it be shown that he committed fraud or mistake in complying with the conditions, or that upon a just and true accounting between the parties he cannot, in equity and good conscience,- retain the money. And the burden of proof is on. the plaintiff.</p> <p>4. The brief of evidence is amendable at the hearing of the motion for new trial.</p>

<p>Criminal law. Witness. Practice in superior court. Charge of court. Malice. Murder. Before Judge Fort. Macon superior court. May term, 1887.</p> <p>Reported in the decision.</p>

<p>Where a person enters into two recognizances for his appearance, one to answer an indictment for false swearing by affidavit, the other to answer an indictment for forging an affidavit, both recognizances may be enforced by judgment of forfeiture, whether the indictments relate to one and the same affidavit or not. Appearance of the accused is preliminary to the question of his actual guilt or innocence of either charge.</p>

<p>The sureties on a defaulting tax-collector’s bond, after discharging the Ji. fa. issued against them and their insolvent principal, and thus satisfying the State for all taxes due to it from the tax-payers of the county for the given year, are subrogated for their reimbursement to the rights of the State to the uncollected taxes for that year, and where executions fbr unpaid State taxes have not been issued, may recover suqh taxes by bill in equity. There is no strictly legal remedy available to the sureties, and hence equity will intervene for their relief.</p>

Husband and wife. Parent and child. Parties. Debtor and creditor. Judgments. Mes adjudieata- Guardian and ward. Trusts and trustees. Prescription. Statute of limitations. Fraud. Before Judge Lumpkin. Washington superior court. March term, 1887.

Tear’s support. Debtor and creditor. Before Judge Richard H. Clark. Fulton superior court. September term, 1886. Mrs. Farris, widow of Summerfield Farris, late of Fulton county, applied for a year’s support for herself and children out of his estate. The administrator thereof answered that its debts were more than sufficient to exhaust its assets ; and that the applicant was not a citizen or resident of the 'State of Georgia.

New trial. .Evidence. Criminal law. Jury and jurors. Charge of court. Practice in superior court. Witness. Res gestae. Before Judge Simmons. Houston superior court. April term, 1887. Mattie Barrow was indicted for murder, and was found guilty of voluntary manslaughter. Her motion for a new trial contained, among others, the following grounds: (1) Because of newly-discovered evidence. (The effect of this was to contradict or impeach witnesses for the State.

<p>Railroads. Common carriers. Contracts. Evidence. Before Judge Harris. City court of Macon. March term, 1887.</p> <p>Reported in the decision.</p>

<p>If one was indebted to another, and made two promissory notes payable to the order of the creditor as evidence of such indebtedness, and the latter signed the notes -as security, intending to negotiate them, and upon being informed that they were not in proper form for negotiation, erased his signature and endorsed the notes, this was not a material alteration affecting the liability of the maker, . and did not render the notes void in the hands of the indorsee.</p>

<p>When it is shown that damage has been done to live-stock by the running of a railroad train, a presumption of negligence arises against the company; but this presumption is subject to be rebutted and overcome by evidence; and where this has been done by the uncontradicted testimony of the employes of the company, a verdict finding against it is contrary to law and evidence. The testimony of employes of a railroad company, in the absence of anything to discredit or contradict it, cannot be arbitrarily disregarded. (Rep.)</p>

Debtor and creditor. Insolvency. Fraud. Assignments. Sales. Receivers. Attachments. Before Judge Bower. Calhoun county. At chambers, December 22, 18.87. Price made his assignment for creditors on December 1st, 1887. On the next day, McCormick & Richardson, who with others had been made grantees in the assignment, petitioned for an attachment, attacking the assignment as fraudulent and refusing to become jjarties thereto.

<p>Injunction. Husband and wife. Debtor and creditor. Parties. Amendment. Before Judge Bower. Dougherty county. At chambers, November 9,1887.</p> <p>Reported in the decision.</p>

Principal and surety. Debtor and creditor. Administrators and executors. Before Judge Harris. City court of Macon. March term, 1886.

<p>Railroads. Negligence. Evidence. Charge of court. Before Judge Smith. Muscogee superior court. May Term, 1887.</p> <p>The plaintiff’s declaration alleged, in substance, as follows : He got aboard defendant’s regular passenger train at the town of Seale, Alabama, for transportation to Nuckol’s Crossing, a station on its line, and paid his fare. The company’s servants negligently failed and refused to stop at said crossing so that he could safely alight, but passed through at too great a speed, so that plaintiff, without fault on his part, in attempting to get off, was violently dashed against the ground and injured. The defendant has an office in Muscogee county. By amendment, he alleged, that when the train reached the crossing, and while going at a fast rate of speed, the conductor ordered him to jump off, which he did, having no other way to get off, and thereby sustained the injury.</p> <p>The defendant pleaded the general issue. Also that it was a foreign corporation of Alabama, with its track and road-bed in that State; that the injuries were received there, and not in Georgia; and that they would not have been received without fault and negligence of the plaintiff, which contributed directly to produce them.</p> <p>The evidence for the plaintiff tended to support his allegations. He testified that the train did not stop at his destination but went by at a rapid speed, and when about 250 yards beyond the stopping-place, and while in rapid motion, the conductor caught him by the arm and said, “Now, jump; I am in a hurry,” and that he obeyed, and was hurt.</p> <p>The only evidence for the defendant was that of the conductor, who testified as follows: Plaintiff informed him that he wished to get off at the crossing. The engine whistled, and the train was stopping; it passed the crossing about 100 yards. Plaintiff went out upon the last step of the car; witness saw he was about to jump off, but was afraid to speak to him because he might not understand; was about a car-length from him when he jumped; did not touch him, nor tell him to jump, or not to jump. The train was moving about four miles an hour; it came to a full stop in one or two car-lengths. It stopped there only when there were passengers to get on or off; that was not a regular station. Witness pulled the bell-rope to stop the train.</p> <p>The jury found for the defendant. The plaintiff moved for a new trial on the following grounds:</p> <p>(l)-(3) The verdict is contrary to law and evidence.</p> <p>(4) The court charged as follows : “ But it is replied, on part of the defendant, the carrier, that he voluntarily got off the train while it was in motion. Well, gentlemen, look to the evidence, and see whether he got off voluntarily — whether it was his own act; if it was his own act, although the conductor, the carrier, may have been in some fault in passing the station and in not stopping the train for him to get off, if he jumped off under circumstances that a prudent man who knows danger, a man of ordinary prudence, would not, why then the company would not be liable.”</p> <p>(5) The court charged thus: “This transaction took place in Alabama; it was an Alabama railroad, and there is no such thing as approximate contributory negligence allowed in that State to excuse parties for their own want of prudence, prudent conduct, on such occasions as this. Was it in consequence of. his voluntary act? If the conductor told him to get off, as I stated; if there was a command, and he got off in obedience to that, and was hurt, then the railroad is liable. If he got off without any command or any suggestion from the conductor at all, and got off voluntarily, jumped of his own accord, under circumstances that a prudent man would have seen more dangerous, if any, and that he ought not to have jumped off, the railroad company would not be liable. Contributory negligence, gentlemen of the jury, is when the party contributes to the accident, to the injury, that he himself receives. For instance, a passenger on board a train behaves himself imprudently, exposes himself voluntarily to danger, and it is of his own volition that he does it, and he is hurt in consequence of it. Now, under the laws of our State, the degree of contributory negligence might have been taken into question, and still the carrier have been liable. But under the laws of Alabama, if he was hurt where this occurrence took place, (and they were running under the laws of Alabama, and performing their duties as a railroad in the State of Alabama, and bound by those laws, and the liablity accrued then, if it accrued at all, gentlemen,) if he voluntarily jumped from that train, without any suggestion, or intimation, or fault of the carrier, or its agents who had charge or authority in the premises, and was hurt thereby, the carrier is not liable at all if the injury was in consequence of the jumping.”</p> <p>(6) The court charged thus: “It is alleged that this boy was a mere youth and that he did not have discretion to know what his conduct ought to have been; that he didn’t have judgment enough to conduct himself with that prudence that an older person would have done under the circumstances. Look to that, gentlemen of the jury, and ascertain whether he had discretion and judgment enough to know when he was exposing himself to danger. If he didn’t, why that is the reason of the rule that the gentleman has just stated. Look to all the facts and circumstances ; look to the fact that the train passed beyond the station, and give it just such weight, gentlemen of the jury, as you think it is entitled to, if you think that was the cause of the damage and he did not act voluntarily. If he acted voluntarily in jumping off the train, without any suggestion, or any intimation, from defendant or its agents, why, gentlemen, take it into consideration and give it what weight you think it is due. But I repeat again, if he jumped voluntarily from that train when it was in motion, and that was an act of imprudence on his part and was the approximate cause of the injury that he suffered, and he so jumped without the direction of the defendant or its authorized agent, then he would be entitled to recover nothing, under the facts of this case.”</p> <p>The motion was overruled and the plaintiff excepted.</p>

Criminal law. Forgery. New trial. Variance. Before Judge Hutchins. Oconee superior court. January term, 1887. The paper defendant was charged to have uttered was as follows: “$30.00 August 10th, 1886. ' Messrs.

Money rule. Executions. Set-off. Homestead. Evi dence. Pleadings. Before Judge Hines. Washington superior court. March term, 1887.

Executions. Levy and sale. Officers. Illegality. Presumptions. Before Judge Roney. McDuffie superior court. March term, 1887. Parish obtained judgment against Radford on Juñe 20th, 1885; and execution issued on August 20th, 1885, and was placed in the hands of Reeves, constable, on September 5th, 1885, with instruction to make the money on it.

<p>Insurance. Fraud. Liens. New trial. Before Judge Fain. Bartow superior court. July term, 1887.</p> <p>Fulton sued the insurance company on a policy covering three frame houses, his dwelling and two out-houses in the country, occupied as his residence. The defendant pleaded as follows: In plaintiff’s written application for the insurance, among the interrogatories touching the property were these: “ What is the title (answer particularly)? Is your property encumbered? By what and to what amount? ” To the first question plaintiff answered “Absolute”; to the second he answered, “No.” In fact, the University Bank of Athens then held plaintiff’s deed conveying the property in fee simple to secure a loan, which was then unpaid.» The representations in the answer were made by plaintiff to induce the acceptance of the risk, and the facts they stated untruly and materially affected the nature, extent and character of the risk. The policy was issued because of said representations, and their untruth was never discovered by defendant until after loss occured. Further, plaintiff covenanted in his application that, if any untrue answer had been given to the interrogatories, the policy should be void. Had the incumbrance been communicated to defendant and not denied in the application, it would not have issued the policy, and had it been subsequently discovered, it would have cancelled the policy; etc.</p> <p>The court charged as follows: “If the plaintiff’s interest in the property insured was not such as he represented it to be in his application in a material particular, the policy sued on cannot be sustained. Misrepresentation in an immaterial particular does not vitiate the policy.”</p> <p>After verdict for the plaintiff, a new trial was moved for and refused, and the defendant excepted.</p>

Master and servant. Damages. Negligence. Officers. Before Judge Willis. Muscogee superior court. November adjourned term, 1886. ’ . The plaintiff made the following allegations: He was employed by defendant, a cotton manufacturing company,’.. to attend to one of their machines, called a picker, in their, regular business.

Mortgages. Record. Liens. .Judgments. Before Judge Lumpkin. Wilkes superior court. May term, 1887. On January 21st, S. J. Willoughby gave to Irvin, Gallan & Co. a bill of sale to secure a loan pit was recorded June 16th. On March 6th, he gave James A. Benson, a mortgage on the same property. Benson delivered it to the clerk of the superior-court for. record on March 25 th, and that officer endorsed on it filed for record, March 25th, 1886.” It was actually recorded April 9th.

Principal and accessory. Master and servant. Criminal law. Evidence. Liquor. Witness. Before Judge Van Epps. City court of Atlanta. June term, 1887. Kinnebrew was tried on an accusation of unlawfully selling liquor. The evidence for the State showed as follows : Twice on one evening three persons went to defendant’s wine-room, and one of them called for “ nerve tonic.” They were furnished with rye whiskey by the defendant, and paid him for it.

<p>Evidence. Contracts. Arbitration and award. Charge of court. Estoppel. Before Judge Richard IT. Clark. Dekalb superior court. March term, 1887.</p> <p>The facts of this case may be sufficiently gathered from the head-notes, the opinion of the court, and the decision when this case was before the Supreme Court at a previous term, which may be found in 74 Ga. 755; together with the following statement;</p> <p>One of the defences insisted upon was, that the landlord, Yeal, should be charged with the value of certain goods which had belonged to the tenant, and which Yeal had agreed to take upon the indebtedness between them. The agreement as to these goods was signed by Yeal and Willingham, and contained the following provision:</p> <p>“ J. T. Willingham agrees to bill off said goods to the said A. J. Veal at an early day; if the said A. J. Veal and J. T. Willingham cannot agree on the wholesale and market value of said goods, to choose each one a merchant of Stone Mountain to assess the value of said goods, and if the said two merchants cannot agree, to call in the third merchant; said J. T. Willingham agrees to furnish a cost-mark and bills to assist in billing off the said goods.”</p> <p>The charge complained of in the sixth ground of the motion was, that whether the defendant was a tenant for a term of two years or a longer term, turned upon whether the goods stipulated in the contract to be purchased were chargeable in law to Yeal.</p> <p>The terms of the tenancy may be seen by an examination of the former decision above referred to.</p>

Evidence. Debtor and creditor. Fraud. Practice in superior court. Attorney and client. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1886.

<p>Criminal law. Jury and jurors. Former jeopardy. Pleadings. Practice in superior court. Evidence. Before Judge Adamson. City court of Carrollton. August term, 1887.</p> <p>Reported in the decision.</p>

<p>Equity. Corporations. Officers. Contracts. Before Judge Maddox. Floyd superior court. March term, 1887.</p> <p>Reported in the decision.</p>

Administrators and executors. Sales. Yendor and purchaser. Insolvency. Fraud. Evidence. Deeds. Debtor and creditor. Statute of limitations. Practice in Supreme Court. Before Judge Pain. Bartow superior.court. July 'term, 1887. Reported in the decision.

Injunction. Before Judge Maddox. Polk county. At chambers, January 30,1888.

Charge of court. Debtor and creditor. Fraud. Practice in superior court. Evidence. Before Judge Hutchins. Gwinnett superior court. March term, 1887.

<p>1. Though barely sufficient, the evidence did in fact and in law war- ' rant a verdict of guilty.</p> <p>2, The newly-discovered evidence does not justify the grant of a new' trial. There was lack of diligence in not having it at the trial, and moreover, it goes to no fact which is inconsistent with the case proved, or with the guilt of the accused.</p> <p>3. Witnesses with the best opportunity of knowing the facts are not to be believed in preference to other witnesses merely because of their superior opportunity, other conditions, suchas general credibility, etc., not being equal. With equality in other respects, their better opportunity entitles them to be preferred.</p>

<p>1. Where, on a certain Monday evening, a person was carried to jail under a charge of burglary, and there incarcerated, but no warrant was produced, and it did not appear who carried him there, but he showed signs of having been beaten, and died from the effects of the wound on Wednesday of the following week, and where, on the Friday after his incarceration, he stated that he was going to die, and that a clan of men had taken him and whipped him with a buggy trace, defendant being one of the crowd, there was no error in admitting these statements as dying declarations, although the witness who narrated them testified that he thought the deceased was in no particular danger when he made the statements, and although a certain doctor, who was sent for on Monday before he died, testified that he thought he would have recovered under proper treatment.</p> <p>2. If it was error to charge as to manslaughter and its different grades, it did not hurt the defendant, but was a benefit to him.</p> <p>3. Newly-discovered evidence of a person who was present in court at the trial assisting the defendant in selecting a jury, but who was not introduced as a witness, furnishes no ground for a new trial, nor does the newly-discovered evidence of a person who was present at the time of the commission of the offence, and who would testify that the defendant did not engage in it; as the defendant knew this as well before the trial as afterwards, and it did not appear that he made any effort to procure the attendance of the witness, or moved for a continuance on the ground of his absence.</p> <p>4. Where, in addition to a statement in a dying declaration that the offence was committed in the county where the trial took place, it was also stated that the deceased was taken at a certain named store and was whipped “ over there,” in certain woods, there was sufficient evidence as to the venue without relying upon the dying declarations to prove it.</p>

Municipal corporations. Streets and sidewalks. Street railroads. Laws. Constitutional law. Before Judge Richard II. Clark. Eulton superior court. March term, 1887. The following material portions of the bill and answer will aid to a correct .understanding of'the decision: Complainant’s railway was built during the summer and fall of 1881, under the supervision of the city engineer and street committee, and was macadamized according to a city ordinance.

<p>Continuance. Claims. Practice in superior court. Evidence. Verdict.. New trial. Before Judge Roney. Richmond superior court. October term, 1886.</p> <p>Reported in the decision.</p>

<p>Torts. Libel and slander. Partnership. Actions. Before Judge Van Epps. City court of Atlanta. December term, 1S86.</p> <p>Reported in the decision.</p>

<p>Judgments. Claims. Mortgages. Practice in Supreme Court. Practice in superior court. Before Judge Lump-kin. Washington superior court. March term, 1887.</p> <p>Reported in the decision.</p>

<p>Homestead. Husband and wife. Before Judge Willis. Harris superior court. April term, 1887.</p> <p>Reported in the decision.</p>

Damages. Negligence. Water-courses. Mill-dams. Trespass. Pleadings. Evidence. New trial. Before Judge Hutchins. Clarke superior court. April term, 1887. The plaintiff bought and went into possession of his land in 1870. Sandy creek flows into the Oconee river about one and a half miles from the land, at a point not quite two miles above the dam.

Evidence. Yerdict. New Trial. Before Judge Roney. Richmond superior court. April term, 1887. Burch brought an action of trespass against the railroad company, alleging that in defiance of his protest, it entered on his land, making him no tender of damages and refusing to recognize his right to any, and took possession of a strip thirty feet wide, and made its road-bed, severing his farm in two, and damaging him in certain specified ways.

<p>New trial. Evidence. Before Judge Adamson. City court of Carrollton. August term, 1886.</p> <p>Tumlin, as tranferee, sued Hewitt on ‘a promissory note for $180. The testimony for defendant tended to show that the note was made payable to G.'P. Camp or bearer, and was given for two promissory notes, each signed by E. M. Camp and payable to G. P. Camp or bearer, one for $189.83, upon which some payments had been entered, and the other for the same amount, upon which no payments had been entered. The two notes last mentioned recited that they were given for part purchase money of certain land mentioned therein. Hewitt was induced to purchase these two notes, and to give the note sued on, by Tumlin, who represented that the notes were good and collectible; that they were given for a valuable piece of land, and that the land was bound for their payment ; when in fact E. M. Camp was insolvent at the time of this representation, and neither he nor G. P. Camp had any title to the land, or even held it under bond for title. Tumlin knew of the worthlessness of the notes at the time he made the representation, and had also been informed that the Camps had no title to the land. Tumlin told Hewitt, before Hewitt purchased the notes, that he (Tumlin) had no interest in them, but was acting in the matter because the payee of the notes and the maker were brothers and had had a falling out, and that Tumlin thought if some one other than the payee had the notes, the feud be tween the brothers would subside. It seems that, at the time Tumlin made these statements, he had become surety for G. P. Camp, and had taken possession of the two notes mentioned for the purpose of trading them off for said G. P. G. P. Camp told Hewitt to turn over to Tumlin the note sued on, and another note for $55,'which also was part of the consideration given by Hewitt for the two notes above mentioned; this Hewitt did, and from that time Tumlin seems to have acted as owner of the two notes given by Hewitt. Hewitt did not know, until after he had given the notes, that the statements made by Tumlin were untrue.</p> <p>Tumlin, the plaintiff, testified that he might have told defendant that the E. M. Camp notes were land notes and the land mentioned in them bound for their payment, because he thought this was true at the time, and did not find out it was untrue until after the trade with Hewitt; that he thought E. M. Camp was solvent and good for his debts when the trade was made, though he knew said Camp owed a good deal of money; that he was security for G. P. Camp, and acted for G. P. Camp in trading the E. M. Camp notes to Hewitt, but had no interest in those notes; that he had never paid anything for the note sued on, but he had got it from G. P. Camp, not knowing there would be any trouble about it; that as soon as he learned that the Camps had no title to the land, he notified Hewitt of this fact, and Hewitt promised to pay the notes sued on, and said he was going to prosecute G. P. Camp and upon this statement he (Tumlin) traded for the note, agreeing to take it from G. P. Camp to go partly upon the debt for which Tumlin was G. P. Camp’s security, and the balance to go on another debt which G. P. Camp owed.</p> <p>Hewitt, the defendant, admitted that he had promised to pay the note sued on, but testified that this promise was made before he knew, the untruthfulness of the representations made him by Tumlin.</p> <p>There was other testimony which it does not seem material to report. The case was tried before the judge below without the intervention of a jury, and he gave judgment in favor of the plaintiff.</p> <p>The defendant moved for a new trial upon the grounds that the judgment was contrary to law, evidence, etc.; and because of certain newly-discoVered evidence. It is sufficient to say of this newly-discovered evidence, that it tended materially to strengthen the view presented by the testimony for the defendant upon the trial of the case, that Tumlin knew at the time of the representations made by him to Hewitt that they were untrue, etc.</p> <p>The motion for a new trial was overruled, and Hewitt excepted.</p>

New trial. Pleadings. Amendment. Charge of court. Evidence. Before Judge Adamson. City court of Carrollton. February term, 1887. The declaration alleged that West was indebted to Spur-lock in the sum of $150, besides interest from the 6th day of December, 1886, at the legal per cent., under the following circumstances: On the 10th day of November, 1878, petitioner and said West associated themselves together to run a saw-mill and gin business in the town of Carrollton.

Equity. Parent and cHild. New trial. Before Judge Fain. Whitfield superior court. April term, 1887. Dooly filed his bill against Mrs. Johnson, as executrix of her husband, J. A. W. Johnson, and against the sheriff of Murray county, making the following allegations, in substance: Complainant, individually and as guardian for children of one McOwen, owned certain lands in Murray county which had originally belonged to said McOwen.

<p>Where the land had formerly been owned by one Bruce, who made a deed to one Bonner to secure an indebtedness; and the ancestor of the plaintiffs negotiated with Bonner for the purchase of the land, paid an amount of money agreed on, and directed the deed to be made to the defendant, which was done, and the fee simple title was conveyed to her for her own proper use, benefit and be-hoof; and Bruce, the owner of the equity'of redemption, also made a deed to the defendant, and it does not appear who paid him therefor, no resulting trust arose in favor of the plaintiffs’ ancestor or in their favor against the defendant.</p>

Title. Auditors’ reports. Amendment. Practice in superior court. Before Judge Boynton. Harris superior court. April term, 1887. Myra T. Hickson filed her bill against James M. Mobley, Reuben B. Mobley, Rolin A. Russell, George H. Bryan, administrator of Thomas Hickson, deceased, and Wm.

Debtor and creditor. Injunction. Insolvency. Béfore Judge Brown. Cobb superior court. November term, 1887. The bill filed by plaintiff was a creditors’ bill, filed for the benefit of it and such other creditors of Fletcher & Co. as might be made parties complainant. The indebtedness which it alleged to be due it by Fletcher & Co. was upon open account.

<p>Where the head of a family as such' secured a homestead for his minor children named and described in the application, then married and had another child, his wife and his child by her became members of the same family of which he was head when the homestead was taken; and that family was not dissolved nor the homestead right terminated when the children for whose benefit the homestead was originally secured, attained majority and withdrew from the family. The homestead continued to exist by operation of la'w, with the wife and her child as beneficiaries*</p>

Homestead. Levy and sale. Statute of limitations. Before Judge Lumpkin. Taliaferro superior court. February term, 1887. Held: not subject — fee nor reversion.

<p>Homestead. Constitutional law. Before Judge Fain. Catoosa superior court. February, term, 1887.</p> <p>Reported in the decision.</p>

Bankruptcy. Homestead. Exemptions. Mortgages. Executions. Liens. Administrators and executors. Yendor and purchaser. Notice. Before Hon. C. D. Mc-Cutchen, judge pro hao vice. Gordon superior court; February term, 1887. Reported in the decision.

<p>New trial. Before Judge Fain. Murray superior court. February term, 1887.</p> <p>Reported in the decision.</p>

<p>New trial. Before Judge Fain. ' Bartow superior court, January term, 1887.</p> <p>Reported in the decision.</p>

<p>1. A bill for, injunction is sufficiently sanctioned under sections 4184 and 4186 of the code, when- any order thereon is granted by the chancellor which implies liis sanction, and an order for the defendants to show cause, etc., has that import.</p> <p>2. A suit by infants is not void. Code, §3263.</p> <p>3. The same court which holds by a receiver has power to restrain him from paying out the fund (Field vs. Jones, 11 Ga. 418,) and an order of restraint granted on a bill in which he is defendant, implies that leave is granted to bring suit against him for the purpose of procuring such order and rendering it effective.</p> <p>4. Equity can enjoin suitors in another case pending or determined in the same court. Holt vs. Bank of Augusta, 9 Ga. 552.</p> <p>5. Though the verification of the bill by the affidavit’of counsel, they not swearing positively, was not sufficient to warrant the grant of an injunction, the affidavits of others produced at the hearing supplied this lack of requisite certainty.</p> <p>6. That a person has a pending petition tobe made a party to a prior cause in equity, and another pending petition to set aside the de' cree rendered in said cause, will not hinder such person from filing his own bill to recover proceeds of the decree -from one of the prevailing parties, and in the meantime to enjoin the execution of the decree, so as to hold up such proceeds to abide the result of the latter bill.</p> <p>7; Want of equity in the billas toco-defendants against whom in- : junction is denied is no insuperable obstacle to granting an injunction against a defendant as to whom there is ground for separate and independent relief.</p> <p>8. In so far as the injunction was granted in the present case, it merely controls temporarily some of the fruits of the decree in the prior case, leaving that decree to stand.</p> <p>9. Where a guardian has loaned her ward’s funds with her own, taking a mortgage security for the whole as one sum, in her name individually, the ward, after the guardian has been dismissed for default or mismanagement, may reclaim his due share of the common fund in the hands of an agent or attorney of the guardian, or even of a creditor of the guardian who has acquired the same with notice of the ward’s title.</p> <p>10. The chancellor did not, by granting the injunction, transcend his power or abuse his discretion.</p> <p>Judgment affirmed.</p>

<p>1. A conveyance of realty and personalty from husband to wife, made in consideration of love and affection, and that she will pay certain preferred debts and maintain him during his life, is fraudulent as against creditors unprovided for, he retaining nothing with which to satisfy their demands, and the value of the property embraced in the conveyance being much more than the amount of the preferred debts.</p> <p>2. One of the creditors provided for, after being paid in full out of the proceeds of a private sale of a part of the realty, having given credit to the wife and taken from her mortgages on the residue of the realty to secure payment'of her debt, is, prima facie, chargeable with notice that her title might be fraudulent. The facts would suggest inquiry.</p> <p>3. The judgment is reversed in so far only as a sale of the real estate under the mortgage fi. fa. is concerned. Let the injunction he granted restraining such sale until a final decree is rendered on the hill.</p>

<p>1. There was no error in overruling the motion for new trial in this case. The evidence demanded the verdict.</p> <p>2. There was no error in admitting the testimony of Eubanks after the State and the defendant had closed their testimony. Eubanks’s testimony was in rebuttal of the defendant’s statement.</p> <p>3. The newly-discovered evidence would not probably change the verdict on a new trial.</p> <p>Judgment affirmed. (Head-notes by the court.)</p>

<p>1. There was no error in overruling the motion for new trial in this case.</p> <p>2. There was no error in admitting the confessions of Bailey to go to the jury, the court instructing the jury to determine for themselves whether the confessions were freely and voluntarily made or not.</p> <p>Judgment affirmed. (Head-notes by the court.)</p>

<p>There was no error in refusing the motion for new trial in this case. The verdict is sustained by the evidence; the judge below was satisfied with it, and this court will not interfere with his discretion.</p> <p>Judgment affirmed. (Head-note by the court.)</p>

<p>Practice in Supreme Court.</p>

Wills. Estates. Remainders. Words and phrases Before Judge Lumpkin. Pike superior court. April term, 1887. Wilkerson et dl. brought ejectment against Clark. The case was submitted to the presiding judge upon the following agreement as to facts : The will of Nathan Yincent (containing the item set out in the decision) was executed and admitted to probate in 1841. The land in dispute passed to Syrena Wilkerson under the will, and plaintiffs were her children.

Deeds. Titles. Estates. Tenants in common. Remainders. Before Judge Maddox. Flpyd county. At chambers, September 10,1887. This was a bill to restrain a contemplated sale of land, conveyed to the complainant’s mother by the deed mentioned in the decision; complainant claiming that she was a tenant in common with her mother, being an only child. The answer set up that the title was in complainant’s mother, and that complainant had no interest in the property.

<p>A will, made and probated in the year 1847, by which the testator devised to his daughter certain land, “to her and her children, free from the disposition of any future- husband,” (the daughter then having no children,) conveyed to her an absolute fee; and children bom to her after the testator’s death took no estate under the will by way of remainder or otherwise.</p>

<p>Where a declaration was filed in office February 26th, 1879, and on March 3d thereafter an entry was made upon it of acknowledgement of service and waiver of copy, process, etc., the acknowledgment being signed by Edward Cox for J. J. Morrison and Hattie Morrison, and on March 17th said J. P. and Hattie Morrison wrote a letter to the clerk of the superior court, in which they stated that “ Edward Cox is authorized to acknowledge service,” it was error to hold that, as the letter did not authorize Cox to waive process, the waiver made by him was without authority, and that as there was no process the judgment was void. It may fairly be inferred, from the letter written to the clerk, that Cox had some oral authority at the time he made the entry to make acknowledgment and waiver, and that J. P. and Hattie Morrison knew that Cox had acknowledged service and waived process, etc. Ross & Son vs. Jones, 52 Ga. 23, cited and distinguished.</p> <p>(a) The judgment in question was rendered March 26th, 1879, and the affidavit of illegality was not filed until December 30th, 1884.</p>

<p>1. It is not within the province of a court of equity to make contracts for parties, or, when parties make a contract between themselves, to rescind or set it aside, where there has been no fraud practiced, and no device or artifice resorted to by which one of the parties was taken advantage of.</p> <p>2. Under the facts of the case, the charge of the court was a fair one, and the plaintiff in error has no right to complain.</p>

<p>A bona fide purchaser, without notice, of a crop grown on rented' premises will be protected against the lien, general or special, of the landlord for rent.</p> <p>(a) The legislature has provided a remedy for the landlord, by making it a misdemeanor for a tenant to sell property on which there-is a lien for rent; the punishment prescribed being a fine of double the debt which the lien was given to secure, one-half of the fine-being given to the landlord, thus paying his debt.</p>

<p>An affidavit of illegality filed by John B. Lewis to an execution in favor of J. W. Armstrong, Sr., having been overruled, Lewis sued out a writ of error to the Supreme Court,. giving his son, John F. Lewis, as his surety on the supersedeas bond. On the hearing in the Supreme Court, the judgment of the court below was affirmed. Afterwards, John B. Lewis filed another affidavit of illegality, which was dismissed. Prior to this dismissal, John B- Lewis filed his bill for injunction, etc., against the administrator of J. W. Armstrong, Sr., et al. to restrain the enforcement of the execution, and obtained an injunction on condition that he would give a bond, with security, for the eventual condemnation money and damages which might accrue by reason of the grant of the injunction. This bond he gave, with Pleasant A. Ray as surety. The injunction was finally dissolved; John B. Lewis excepted to the judgment, dissolving it; and the Supreme Court affirmed the judgment of the court below. The administrator of the plaintiff in fl. fa then .sold all the real estate of the defendant in fl. fa., the sum realized not being sufficient, by a large amount, to pay what was due thereon. After this sale, the administrator filed his bill against the heirs of Ray (who had died), to recover the penalty named in the bond. This suit was compromised before the hearing by the payment by one of the heirs of Ray of a sum much less than the amount claimed to be due. The administrator then filed his bill against the heirs at law of John F. Lewis, the security on the supersedeas bond, he having died and his administrators having been discharged after distributing his estate; and prayed for a decree against tl\e heirs for the balance due on the fi. fa. So far as the ’ record shows, J. B. Lewis was amply solvent when he filed the bill for injunction and when Ray signed his bond; and the sign\ing of this second bond by Ray was without the knowledge or consent of John F. Lewis, the surety on the supersedeas bond:</p> <p>Held, 1. When Ray signed the injunction bond he was at least bound jointly with John F. Lewis, the other surety, for the amount of the execution, When, therefore, his heirs at law -were discharged, as stated, it was an injury to John F. If John F. had paid off the execution, he would have been entitled to all the liens or securities the creditor had; but the creditor having discharged Ray, Lewis could not have enforced tne creditor’s demand against Ray.</p> <p>2. The discharge of the heirs at law of Lewis, the first surety, was a discharge only to the extent that they were damaged by the release of the property owned by Ray at the time of his death. The evidence upon this point was conflicting, but was not, as it should have been, considered by the court. Upon the next trial, the court should ascertain how much of Ray’s property was subject and how much was released, and credit the amount released to the heirs of Lewis.</p>

<p>1. Before an objection to testimony can be considered, it must appear that the objection was made in the court below, and also what the ground of objection was.</p> <p>2 The charge of the court not being sent up in the record, nor excepted to save in one particular, it, will be presumed in all other particulars to have been legal and t& have fully covered the questions in the case.</p> <p>3. Questions of good faith and fraud are peculiarly within the province of the jury. They are made, by law, the sole judges of such questions; and after two or more concurrent verdicts in a case turning upon such questions, the evidence will be taken most strongly in favor of the prevailing party.</p> <p>4. If one purchase before a judgment against his vendor has been obtained, if the purchase be bona fide and for value, and the purchaser continue in open and notorious possession of the land for four years after judgment is obtained, during which time no attempt is made by the judgment creditor to enforce execution against the land, such purchaser will be protected, under §3583 of the code, although he took no deed at the time of the purchase, nor had obtained a deed up to the time of the levy of the execution.</p> <p>(«) The protection afforded by the section of the code cited does not depend upon the purchaser’s having a paper title, but upon the bonafidesoi the purchase, the payment of a valuable consideration, and possession for four years after judgment.</p> <p>5. It not appearing that the question of estoppel was made in the court below, it will not be considered here.</p>

<p>Fertilizers. Sales. Before Judge Willis. Talbot superior court. March term, 1887.</p> <p>Reported in the decision.</p>

<p>1. A sheriff’s return upon a fi. fa., repeated within each period of seven years, to the effect that he knows of no property on which to levy the fi. fa., prevents the judgment from becoming dormant. And this is so whether the return be true or false, and whether the counsel for plaintiff in fi. fa. knows of property subject to levy or not.</p> <p>2. One who. purchases property from a defendant in fi. fa. with knowledge of the judgment, cannot long after the death of the plaintiff, and in a claim case to which his administratrix is a party, use the defendant in fi. fa. as a witness to prove that there was no real debt on which the judgment was founded, but that the judgment was a collusive arrangement between the plaintiff and the defendant to cover the defendant’s property with a pretended lien. If under the circumstances the purchaser can attack the judgment at all, the defendant in fi. fa. is not a competent witness in his behalf for that purpose.</p>

<p>Deeds. Title. Interest and usury. Equitable mortgages. Liens. Practice in superior court. Before Judge Bower. Dougherty superior court. April term, 1887.</p> <p>Reported in the decision.</p>

<p>Evidence. Yerdict. New trial. Before Judge Roney. Richmond superior court. April adjourned term, 1887.</p> <p>Reported in the decision.</p>

Railroads. Fellow-servants. Negligence. Charge of court. Evidence. Before Judge Yan Epps. City court of Atlanta. December term, 1886. The following is added as supplemental to the report contained-in the decision: The plaintiff’s husband was one of a gang employed on defendant’s material train, to load and unload the cars.

Practice in superior court. Jury and jurors. Charge of court. Res adjudieata. Malicious suit. Probable cause. Before Judge Fort. Sumter superior court. April term, 1887.

<p>Res acljudicata. Damages. Charge of court. New trial. Before Judge Fort. Macon superior court. May term, 1887.</p> <p>Reported in the decision.</p>

Auditors. Practice in superior court. Before Judge Smith. Muscogee superior court. May term, 1887.

Continuance. Jury and jurors. Insanity. Pleadings. Charge of court. Trior. Voir dire. Practice. Newly-discovered evidence. Punishment. Criminal law. Before Judge Adams. Chatham superior court. June term, 1887. Reported in the decision.

<p>1. An indictment -winch, designated the defendant as “H. Wiggins” was not demurrable on the ground that no person cou’d be indicted by the initial of his Christian name instead of the name itself.</p> <p>2. A plea of misnomer should not only state what the true name of the accused is, but should further allege that he was not known and called by the name under which he was indicted.</p> <p>3. Where, after counsel for the defendant had closed his argument, a controversy arose between him and the attorney for the State as to whether or not the venue had been proved, there was no error on the part of the court in stating that it had been testified that the offence occured in Glynn county. The court could decide such a controversy, if he thought proper to do so and remembered the testimony. If he did not remember it, he could alio w the witness to return to the stand to testify as to whether or not he had sworn that the offence was committed in that county; or, in his discretion, the court might allow the witness to testify originally as to the venue.</p> <p>4. Where it appears that the witness had previously testified as to the venue, after his reintroduction to settle a controversy respecting his former testimony on that subject alone, there was no error in refusing to allow counsel for the defendant to reargue the entire case, the court stating that it had been fully argued already.</p> <p>5. The verdict was demanded by the evidence.</p>

<p>1,2. Though while the declaration is imperfect the case be in default, after the declaration is perfected by a material amendment the defendant may plead instanter to the matter of the amendment with" out paying costs. And the right to amend such plea after it is thus filed is governed by the general law applicable to the amendment of pleadings.</p> <p>3. Tax books showing the return of other lands for taxation by the party holding an absolute deed from the opposite party to the premises in dispute, such return not including these premises, are admissible in evidence, in a proper case, to throw light upon whether the deed was taken for permanent ownership or only as security for a debt.</p> <p>4. A written contract for the payment of money by a given day, may be varied by a subsequent parol contract changing the medium of payment, in whole or in part, and if payment be actually made and accepted accordingly, the written contract will be treated in equity as fully performed.</p> <p>5. To introduce in evidence part of a writing, such as a bill in equity, and withhold from the jury the balance of the instrument, it is at least necessary to point out definitely the part offered, that is, the pages, paragraphs, sentences or words. When this is not done, the whole or none should go to the jury.</p> <p>6. The correctness of the verdict as to matters of fact depending on the credibility of the prevailing party as a witness, and it not appearing that the element of estoppel in the adverse evidence, as a matter of law, was insisted upon or even presented to the court on the trial, or on the hearing of the motion for a new trial, the refusal of a new trial will not be disturbed.</p> <p>7. If section of the code, 3560, as to specifying the plea or pleas on which the finding for defendant was based, applied to this ease in the court below, the omission of plaintiff to suggest its application before the verdict was received, is an answer to his motion for a new trial on that ground. Whether the section does apply where the trial is had solely upon matter pleaded as equitable defence — queerel</p>

<p>Res acljudieata. Evidence. Justification. Mitigation. Before Judge Harden. City court of Savannah. July term, 1887.</p> <p>Reported in the decision.</p>

<p>Where an action of trover and bail was brought to recover personal property, and on the trial the j ury found an alternative verdict for a specified amount of money, to be discharged by the delivery of the property within twenty days, and a judgment in like terms was entered up, upon the failure of the defendant to deliver the property within the time prescribed, an execution which commanded the levying officer to make the amount of the verdict and judgment “ of the goods and chattels, lands and tenements, of the defendants (naming them), and especially of ” the property sued for, did not fail to follow the judgment so as to authorize it to be quashed, on motion of claimants of the property. While it might be the better practice in such cases to enter up judgment generally against the defendant and specially against the property sued for, yet if this be not done, the law prescribes the effect of the verdict and judgment in regard to the property, and the insertion in the execution of a direction to make the money specially of the property does not constitute a material variance from the judgment.</p>

<p>A widow applied for a year’s support out of the estate of her deceased husband, and commissioners were appointed to set it apart, but before they acted the widow died. The commissioners made their return, and no objection being filed, it was recorded. A motion was made to set aside the judgment allowing the year’s support, which was sustained, and after appeal to the superior court, was brought to the Supreme Court, where the judgment was affirmed with this direction: “that the administrator of the widow be allowed to make an application anew for her twelve months’ support, to the ordinary, and that the same be set apart to him as her administrator, under the same rules and regulations as would apply in case the widow were alive and the application had been made by her; and that when the same is set apart, he shall hold the same as her administrator, to be accounted for and distributed, under the law, to her heirs at law or creditors.” Before the remittitur from this court was entered, the widow’s administrator made a new application for a year’s support, which was granted over objections. On appeal, the application was dismissed as prematurely made.</p> <p>Reid, that this was error. The right and power of the administrator to make the application was not derived from the judgment of this court or any direction contained in it, but from the law itself. The new application was a distinct proceeding, and not a continuation of the former one; and the law touching it was the same before the entry of the remittitur as after it. (Rep.)</p>

<p>Counties. Damages. Bridges. Before Judge Boynton. Monroe superior court. February term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Whether the provision, of the act of 1873, requiring a traverse to the answer of a garnishee in a justice’s court to be filed within ten days after such answer is made, is still of force, since the adoption of the constitution of 1877 — query. (Bep.)</p> <p>2. Whether or not such a traverse must be filed within ten days from the filing of the answer, yet where, on November 21,1881, the answer of a garnishee was filed, which was traversed on the 19th of December, and the trial at the January term, 1882, of the justice’s court resulted in favor of the plaintiff, whereupon certain persons, who had interposed a claim to the property in the hands of the garnishee, carried the case to the superior court by certiorari, and in November, 1886, a new trial was granted, it was too late at the second trial in the justice’s court, which took place in February, 1887, to make a motion to dismiss the traverse on the ground that it was not filed within the time required by law. The conduct of the claimants in thus litigating under the traverse for years without objection, amounted to a waiver of the point that it was filed too late. (Bep.)</p>

<p>Certiorari. Second application. Practice in superior court. Before Judge Simmons. Bibb superior court. April adjourned term, 1887.</p> <p>Reported in the decision.</p>

<p>The charter of the city of Brunswick authorizes the municipal authorities to compel the citizens to work on the streets, but does not, in itself, make a refusal to do so a penal offence, and no ordinance making such a refusal penal has been shown. Therefore where a citizen was arrested by a policeman on the ground that he had failed to pay his street-tax, and after being detained in custody for a time was discharged upon the production of his tax receipt, the policeman who made the arrest was liable in damages therefor.</p> <p>(a) Courts will not take judicial cognizance of ordinances or laws of a municipal corporation. If relied on, they must be pleaded and proved as other facts.</p>

<p>Practice in superior court. Charge of court. Gaming. Stakeholders. Demand. New trial. Practice in Supreme Court. Before Judge Adams. Glynn superior court. May term, 1887.</p> <p>Reported in the decision.</p>

<p>Municipal corporations. Brunswick. Officers. Policemen. Gertiorari. Before Judge Atkinson. Glynn superior court. May term, 1887.</p> <p>Reported in the decision.</p>

<p>1, In 1851, there was no general law requiring the court of ordinary to to have and use a seal of office, and letters of administration then issued were not inadmissible because such a seal was not attached thereto.</p> <p>2. The signature of the clerk, without more, is sufficient as to the exemplification of the records of his office. This court is bound to take notice of who are the publie officers of this State, where the law requires such officers to be commissioned by the governor; and when any suggestion is made that the signature of such officer is not genuine, it is incumbent upon him who makes the suggestion to prove it, the presumption being that the signature is genuine.</p> <p>3. The presumption that public officers do their duty applied to the court of ordinary in issuing letters testamentary; and where the letters themselves declared that they were issued by the court of ordinary of the county of their issuance, and contained various recitals showing that they were properly issued, the presumption is that such recitals were true until the contrary appears, and the letters were admissible in evidence.</p> <p>i. Without the introduction in evidence of the letters testamentary, a nonsuit would have been proper, but their rejection was error.</p>

<p>Levy and sale. Trespass. Officers. Malice. Malicious abuse of process. Damages. Before Judge Atkinson. Appling superior court. March adjourned term, 1887.</p> <p>Reported in the decision.</p>

<p>1. The verdict was supported by the evidence.</p> <p>2. Where one witness testified positively that the offence was committed in the county where the trial was had, and another testified that he “ reckoned ” it was in another county, there was sufficient proof of the venue to sustain a verdict finding the defendant guilty.</p> <p>3. Although, in charging on the subject of impeachment of witnesses, the manner thereof, and the credit to be given to impeached witnesses, the judge charged that “ the false testimony, if any should be found, should be rejected, if you find from the evidence that it was sworn falsely, willingly and knowingly so,” yet, taken in connection with the entire charge, this was not calculated to mislead the jury or lead them to believe that false evidence might be considered unless it was wilfully and knowingly false.</p> <p>4. There was no material error in any of the other grounds of the motion for a new trial.</p>

<p>Tax. Stock and stockholders. Building and loan associations. Oonstitutional law. Before Judge Adams. Chatham superior court. June term, 1887.</p> <p>Reported in the decision.</p>

<p>1. The plaintiff was a track-hand, wholly disconnected with the running of the engine which injured him. Ho had the right to prove the negligence of the company and rest his case upon it, even if he were connected with the engine, without going into the question of his own negligence; to which the company could reply by showing either that it was not negligent or that the plaintiff was.</p> <p>2. The verdict is sustained by evidence.</p>

<p>Railroads. Contracts. Misrepresentation. Before Judge Harden. City court of Savannah. May term, 1887.</p> <p>Reported in the decision.</p>

<p>1. The evidence fully sustained a verdict in favor of the plaintiff.</p> <p>2. Testimony of one of the men employed in the work to the effect that he told the superior servant in charge, before the plaintiff was injured, that he had better put a man at the place where the plaintiff got the wheels, to check them, and that if witness were injured he would “lay him out,” tended to show negligence on the part of the company, and was admissible.</p>

Railroads. Negligence. Freight-trains. Passengers. Charge of court. Evidence. Before Judge Harden. City court of Savannah. July term, 1887.

<p>1. The special plea setting up accord and satisfaction, covenant not to sue and estoppel in consequence of the payment of an agreed sum of money, was not supported by a preponderance of the evidence.</p> <p>2. The special plea stricken by the court on demurrer was defective in not alleging what services were paid for, or how much was paid, or to whom the plaintiff stated, or with whom he agreed, that “ he did not intend to sue,” and in not disclosing the nature of the defence aimed at, whether accord and satisfaction, covenant not' to suo or estoppel. As the plea stood, the matter contained in it was no bar to the action.</p> <p>3. Objection to the competency of a witness, if known, must be taken before the witness is examined. A convict of the crime of perjury is not now disqualified from being a witness. The disqualification laid down in section 4466 of the code, was removed by the evidence act, codified in section 3S54.</p> <p>4. Where there is no plea that a promise by the wrong-doer was made and accepted in satisfaction of the tort, any charge of the court as to rescission for non-performance of the promise is irrelevant, the tort being the subject-matter of the action. A mere accord, though partly performed or executed, does not extinguish the original right; the part execution may be pleaded as satisfaction pro tanto. A promise of future performance will amount to satisfaction if expressly accepted as such, but generally not otherwise. For such a promise to be available in bar, it must be pleaded, and its acceptance averred.</p> <p>5. Evidence sufficient to justify the verdict.</p>

<p>1. Daring a dark and rainy night, for a person with two packages in his hands or arms to attempt, by choice, to pass over a trestle which he knows to be dangerous, other ways of travel being open to him, is, on his part, “voluntary exposure to unnecessary dan-. ger, hazard or perilous adventure,” notwithstanding this was his usual way of travel, his usual route to his home, and he had ioeen going that way for ten years, and many others went the same way.</p> <p>2. An irrelevant charge by a justice of the peace is not obligatory upon the jury, and when the plaintiff in error has caused it to be given and pronounced obligatory, a reversal here, of a judgment granting a new trial Í3 not to be expected, though the verdict is apparently correct. Let the prevailing party take the consequences of a new trial which, whatever may bo the substantial merits of the case, is justified by an illegal charge prompted by his own counsel.</p>

<p>1. Charles W. Foster, a colored person under twenty-one years of age, who was not upon the official jury list of the county, but who was actually serving upon the regular panel under the name of Charles Foster, should have been challenged for cause propter defectum before he was accepted and sworn: The discovery after-wards that he was not another Charles Foster, a white man, who was a competent juror and whose name was on the official list, but who was not sworn of the panel, will not work a new trial. Due diligence would have led to the discovery in due time.</p> <p>2. The charge of the court that the policeman might use all the force that was necessary to effectuate the arrest and overcome resistance, sufficiently covered the facts in evidence tending to show that the object of the beating was to prevent escape, or to arrest and keep under arrest, or in self-defence. And the remark of the judge (in responding to a request to charge further on the first of these topics), that he did not consider the request applicable to the case, was not such error as to require a new trial.</p> <p>3. An officer of the law cannot justify an assault and battery upon his prisoner, on the ground that the beating was provoked by the use of opprobrious words or abusive language. Section 4694 of the code applies between private persons, not between public officers and those in their custody.</p> <p>4. Insolence from a colored prisoner to a white policeman is no excuse for beating' the prisoner with a club. Policemen shall do right, not less towards one color than another, in so far as it depends upon this court to administer the rules of law to their conduct.</p>

<p>Charge of court. Evidence. Yerdict. New trial. Before Judge Simmons. Bibb superior court. April term, 1887.</p> <p>Reported in the decision.</p>

<p>Amendment. Gifts. Equity. Specific performance. Presumptions. Before Judge Smith. Chattahoochee superior court. March term, 18S7.</p> <p>Reported in the decision.</p>

<p>Bonds. Principal and surety. Principal and agent. Before Judge Lumpkin. Pike superior court. April term, 18S7.</p> <p>Reported in .the decision.</p>

<p>1. A plaintiff below who has excepted to the denial of his motion for a new trial based on proper grounds, may at the hearing in the Supreme Court assign error on exceptions taken pendente lite to the overruling of his demurrer to the defendant’s plea, though no mention is made of this interlocutory matter in his final bill of exceptions.</p> <p>2. The note sued on is not, prima facie, affected by a written promise not to plead failure of consideration, when the note matures in November, no year being specified, and the promise describes a note of the same date and amount maturing in October of a given year, the promise not being mentioned in the declaration or summons, though a copy of it followed a copy of the note annexed to the summons, and it not appearing that the originals of both in. struments were on the same piece of paper, and the promise not reciting any consideration for the making thereof.</p> <p>•3. Verdict warranted by the evidence.</p>

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

<p>Evidence. Verdict. Charge of court. Before Judge Harden. City court of Savannah. July term, 18S7.</p> <p>Reported in the decision.</p>

<p>Charge of the court. Contracts. Apportionment. Before Judge Harden. City court of Savannah. July term, 1887.</p> <p>Reported in the decision.</p>

<p>Garnishment. Wages. Clerks. Before Judge Harden. City court of Savannah. July term, 1887.</p> <p>Reported in the decision.</p>

<p>1. An auctioneer’s memorandum as follows: “ Sale in front of store, June 18,1886, D. B. Dillon (Mohr Bros.), A. Mohr. 100 acres of land, fronting Waters B., at 15%, $1,575,” being ambiguous on its face, may be explained by parol evidence; and in this case, evidence showing that the land was bounded in a certain way and fronted on Waters road, that the D. B. Dillon referred to was the owner of the land which was sold for him by the auctioneer, and that the A. Mohr named was the purchaser, was properly admitted.</p> <p>(a) At common law and in many of the States of the Bnion, such evidence would not have been admissible; hut under our code it was undoubtedly proper.</p> <p>2. The rule as to the admissibility of parol evidence to explain a patent ambiguity in a deed to land applies with equal force to an auctioneer’s memorandum of the sale of land.</p> <p>3. Where a testator devised land to a legatee, and the land was turned over to the legatee by the executors, it became the property of the legatee. If other legatees had any complaint to make of the manner in which the estate was administered, that would be a matter between them and the executor. Hence, that legatees under such a will sued the executors, claiming that certain expenses should not be put on that part of the estate willed to them, to which suit the legatee first named was not a party, would not cloud the title of the said legatee to the lands turned over to him.</p>

<p>Evidence. Verdict. Before Judge Harden. City court of Savannah. May term, 1887.</p> <p>Reported in the decision.</p>

Action. Contracts. Pleadings. Before Judge Adams. Chatham superior court. July term, 1887. The plaintiffs sued the guano company for $6,621.89 besides interest from January 21st, 1882, on the following contract: Savannah, Ga., August 9th, 1881. “Messrs G. W. Garmany & Son — Dear Sirs: In consideration of your entering So.

<p>Local legislation. Constitutional law. Before Judge Atkinson. Effingham superior court. May term, 1887.</p> <p>Spier et al., commissioners of roads and revenues of Effingham county, recovered a judgment against Morgan, and he moved to set it aside because there were no commissioners of roads and revenues for said county the act organizing said board being unconstitutional, null and void. This motion was sustained, and the commissioners excepted.</p>

<p>1. Where, upon the trial of a possessory warrant case, the magistrate determines that the property has been violently or fraudulently taken or enticed away or was lost in the peaceable and lawful possession of the plaintiff, and renders a judgment in favor of the plaintiff, he shall then require such plaintiff to enter in a bond with good and sufficient security for the forthcoming of said property to answer any judgment, execution or decree that may be recovered against him by the defendant in an action at law or in equity; and upon his failure to give the bond required by the statute, the magistrate may deliver the property to the defendant upon his entering into like bond; but where, upon the trial of the case, the magistrate renders a judgment in favor of the defendant, and the possession of the property is therefore not changed, no bond is required to be given by the defendant.</p> <p>(a) The statement to the contrary of this ruling in the head-note to the case of Rosenberry vs. Rosenberry, 31 Ga. 122, was an obiter dictum</p> <p>2. Generally, where the evidence in a magistrate’s court is conflicting, and a certiorari is sued out to the judgment rendered, if it be sustained, the case should be remanded for a rehearing, and a final judgment should not be rendered by the judge of the superior court; but in cases of possessory warrant, the statute confers upon the judge the power, upon the hearing of the certiorari, to remand the case or give final judgment and direction therein as he may-see fit; and where, in his discretion, he renders a final judgment, this court will not interfere therewith, unless the evidence be strongly and decidedly against such judgment, or unless he violates the law therein.</p> <p>(a) The ruling in the case of Clayton vs. Ganey, 63 Ga. 341, seems to have been made under the general law governing certioraris, and without considering §4040 of the code.</p>

<p>1. Where, on the trial of the issue formed by a counter-affidavit interposed to a distress warrant, one question was whether the rent was due or not, and tlie rent contract provided that the rent to be paid should be one-half of the crops raised on the rented farm, but specified no time when the payment should be made, it was material to determine whether or not a reasonable time had elapsed after the maturity of the crops for the tenants to have gathered them before the distress warrant was sued out, which was on October 31st, while some of the crops were in the field; and on this point it was competent for the tenants to show, that by reason of the unusually unhealthy condition of the rented place, and the sickness of the tenant who was in control of the farm, and members of his family and of laborers on the farm, so much time was lost by them as to interfere materially with making and gathering the crops.</p> <p>2. The amount of the crops raised being in question, such evidence was also admissible as throwing light thereon. If any loss in the amount made and gathered on the place occurred by reason of the fact that the crops were not gathered in time, the tenants might show that such loss did not occur by reason of any fault or neglect on their part, but by reason of providential interference.</p> <p>3. There was no material error in the rulings complained of in the other grounds of the motion for a new trial.</p>

Charge of court. Practice. Prescription. New trial. Before Judge Kibbee. Laurens superior court. January term, 1887. Graham, administrator, sued for fifteen acres of land and recovered. There was evidence for him to the effect that his intestate received a deed to a tract of land containing 297 acres in 1852, was in possession of the land covered by that deed for many years and cultivated four or five acres.

<p>Charge of court. New trial. Before Judge Kibbee. Dodge superior court. February term, 1887.</p> <p>Reported in the decision.</p>

Judgments. Assignment. Title. Garnishment. Liens. Promissory notes. Interest and usury. Exemptions. Misnomer. Jurisdiction. Before Judge Adams. Chat-ham superior court. June term, 1887.

Witness. Evidence. New trial. Practice. Before Judge Adams. Chatham superior court. June term, 1887. Harrigan sued the railroad company for damages for the loss of three fingers cut off by a circular saw. He was a carpenter, employed with others by the company about its shops, repairing and building cars, etc. He claimed that the saw was defective and unsafe, and that he did not know this until after he was injured, and could not have discovered it.

Demurrer. Practice. Contracts. Jurisdiction. Evidence. Yerdict. Decree. Exceptions pendente lite. Before Judge Adams. Wayne superior court. March adjourned term, 1S87.

<p>Grant of administration. Nomination. Creditor. Heir. Before Judge Marshall J. Clarke. Fulton superior court, September term, 1887»</p> <p>Reported in the decision.</p>

<p>Dispossessory warrant. Jurisdiction. Practice in super rior court. Counter-affidavit. Before Judge Marshall J. Clarke. Pulton superior court. October term, 1887.</p> <p>Reported in the decision.</p>

<p>Debtor and creditor. Husband and wife. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1887.</p> <p>Reported in the decision.</p>

<p>Debtor and creditor. Partnership. Misapplication of assets. Before Judge Yan Epps. City court of Atlanta. June term 1887.</p> <p>Reported in the decision.</p>

<p>1. When a traverse has been filed to the answer of a garnishee and has been sustained by the jury, and judgment is about to be entered against him on the verdict, then, and not until then, has he a right to inquire into the validity of the judgment in favor of the plaintiff against defendant.</p> <p>(a) The practice in some circuits of the State, where non-residents are sued to try the issue on the traverse of the garnishee before judgment is entered against the defendant, has been approved. But the judgment'against the garnishee remains passive until verdict and judgment against the prinpipal are rendered. If no judgment is rendered against the garnishee, the case goes out for want of jurisdiction.</p> <p>2. A third person not a party to the record cannot go into a court and move to set aside a judgment which is not against him.</p> <p>S. It follows that the court below erred in entertaining and considering the motion of the garnishee to set aside the judgment against the defendant, and in passing the order setting it aside. For the same reasons, he was right in not granting the motion of the gar- ' nishee to dismiss the attachment on account of the alleged defect in (he declaration.</p>

<p>Evidence. New trial. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1888.</p> <p>Reported in the decision.</p>

Eailroads. Damages. Negligence. Before JudgMarshall J. Clarke. Fulton superior court.. . October term, 1887.

<p>Practice. Charge of court. Personal injuries. Before Judge Van Epps. City court of Atlanta. December term, 1887.</p> <p>Reported in the decision.</p>

<p>The engagement of counsel in other courts does not dispens.e with their attendance in this court. Those who are interested in its proceedings must give their attendance when their cases are called in their order. A case may be reinstated for providential cause, hut other grounds are not recognized. (Rep.)</p>

<p>Dispossessory warrant. Counter-affidavit. Bonds. Before Judge Marshall J. Clarke. Fulton superior court. 'October term, 1887.</p> <p>Reported in the decision.</p>

<p>1. A ground of a motion for new trial, that “ the charge of the court, as a whole, is not a full and fair presentation of the law of the case,” is not sufficiently specific. The charge in this case does appear to be full and fair.</p> <p>2. The court fairly and correctly stated the contention of the plaintiff and the issues involved. It is not expressing an opinion as to what has been proved to state what the positions of the plaintiff are as to defences made, nor is a charge objectionable as argumentative which states them clearly and fully.</p> <p>3. It is not error to state to the jury that a mortgage was foreclosed by plaintiff below upon certain personal property of the defendants, the affidavit filed by the defendants stating that there was a mortgage foreclosed, and the contents of the mortgage and affidavit of foreclosure having been proved on the trial.</p> <p>4. An exception that “the verdict is contrary to the charge of the . court, in this,” etc., is equivalent to the exception that it is contrary to law.</p> <p>5. Under the pleading and facts of the case, the following charge was not erroneous: “If you should believe from the evidence that the contract between the parties was as the defendants say, and that the consideration in part of the written promise of the defendants sued upon was the good will and influence of the business in which the plaintiff was engaged, and an agreement on the plaintiff’s part to remain with his stock at defendants’'stable until April 1st, 1886, and to use his influence to induce stock dealers to patronize said stables, and he did not comply with the contract, but on the contrary withdrew his own patronage from the defendants, and exerted his influence to dissuade others from extending their patronage to defendants, and any injury came to.defendants, it would be your duty, as to this issue, to allow the defendants such damages as they show by evidence that they have sustained.” The latter part of the charge is sufficiently disjunctive as to the breaches of contract, and the charge as to allowing such damage as was shown by the evidence to have been sustained, meant, such damages as were sustained by a non-performance on part of plaintiff of the conditions of the contract.</p> <p>6., A request to charge that, “if there was a sale of good will and trade, plaintiff would be responsible for breach of contract for the sale of good will, even though it should appear from evidence that the property, irrespective of good will, was worth the full amount of purchase money, or even more,” was properly refused. It was too general, not stating how or for what damages plaintiff would ' be responsible. Besides the request is'covered by the general charge given.</p> <p>7. Where it is sought to foreclose a mortgage for purchase money on certain personalty, and defendants set up that the consideration of their purchase was not only the property, but good will, trade and friendly influence of the seller and mortgagee, and that he has violated his contract as to these, the case is not one in which a charge on the subject of nominal damages is necessary or proper. If plaintiff violated the contract and defend, ants were injured, they could set off whatever actual damages they sustained, but no other damages.</p> <p>—-—-—-></p> <p>8, That certain evidence was not admissible “ at that stage of the case ” is not a good ground for new trial, it not being stated at. what stage it was admitted, or what was the error in admitting it, and it appearing that it was admissible evidence at some stage of the case.</p> <p>9, 10. Assignments of error as to the admission of testimony should be specific. It is not sufficient to simply say that the testimony was irrelevant.</p> <p>11. Testimony as to the private understanding or individual opinion of one of the parties to a written contract, as to what he thought he was getting by the contract, was properly excluded.</p> <p>12. As to whether counsel for defendants were entitled to open and close the argument in such a case as this, is a serious question, under some rulings of this court, but the denial of such right in this case does not call for the grant of a new trial.</p> <p>13. 'Where a copy of the lost mortgage was admitted in evidence, it does not seem that it was necessary that the mortgage should be established as part of the pleadings (both the mortgage and the affidavit of foreclosure having been lost). While it would have been better to have had the affidavit so established, if it were lost, yet when evidence for plaintiff was admitted, no objection seems to have been made on the ground that these papers had not been established.</p> <p>14. The verdict was in accordance with law and evidence.</p> <p>15. It is contrary to law to send to this court the stenographic report of the oral testimony, with questions and answers of witnesses in full, instead of “ the brief of the testimony,” which the law rjquires. This case might properly be dismissed for violation of this rule of law. Attention has frequently been called to this bad practice, but the appeals made to the courts below on this subject have been to a great extent disregarded. An effort will be made to protect this count against such methods of preparing the record,</p>

Administrators and executors. Parties. Practice. Conduct of counsel. Before Judge Richard H. Clark. Douglas superior courc, July adjourned term, 1887. On a suit brought against A. G. Weddington, Sr., as executor of E. M. Stewart, deceased, a verdict was obtained for the plaintiff.

<p>Where an administrator has obtained leave to sell lands, of his intestate and has advertised for sale a certain lot of land, and a claim thereto has been filed, on the trial of the claim the burden of proof is upon him.</p> <p>(a) Where the land was wild land and neither party was in possession, the administrator should have established his right to sell, not only by showing leave to sell from the ordinary, but by showing facts indicating title thereto.</p>

<p>Injunction. Before Judge Marshall J. Clarke. Ful-' ton superior court. March term, 1888.</p> <p>Report unnecessary.</p>

<p>Private ways. Jurisdiction. Justice courts. Ordinary. Before Judge Fain. Dade superior court. September, term, 1887.</p> <p>Reported in the decision.</p>

Pleadings. Practice in Supreme Court. New trial Damages. Charge of court. Yerdict. Before Judge Maddox. Paulding superior court. August term, 1887.

<p>Yerdict. Evidence. Before Judge Wellborn. Hall superior court. August term, 1887.</p> <p>J. A. Findley sued out his distress warrant against J. G. Tramtaell, and it was levied on certain furniture, etc., which was claimed by Trammell’s wife, part of it as having been purchased with her own money, and the balance as having been set apart as an exemption of personalty to her husband.</p> <p>On the trial, the claimant admitted possession in the. defendant and assumed the burden. The exemption papers were introduced; and as the jury found in favor of the claimant as to the property claimed as exempt, and she is plaintiff in error here, no further allusion to that branch of the case need be made.</p> <p>As to the balance of the property, the defendant swore that he purchased it for the claimant with money which belonged to her; and she swore that her money purchased the property, and that it was money which arose from profits made by her and her son in keeping the Hudson House and Arlington Hotel. The son swore that they made no money running, the hotels, and he gave the money to his mother, telling her that it was from profits from the hotel because his father was old, feeble and depressed, and witness did not want to let him know that money had not been made; and that he had paid off some balances on some of the bills for the property in question since the distress warrant was levied, but did not remember to whom they were charged.</p> <p>The plaintiff showed that the hotels were rented by the defendant and run in his name; that the goods in question were put into the house, for the rent of which the warrant was issued, when they were new; that they were marked to defendant,. and he told the agent of plaintiff in the presence of claimant that he had bought and paid for them, which claimant did not then deny; and that the agent afterwards asked defendant for the rent in the presence of claimant, and defendant said he had used all his money in repairing cottages and furnishing the house, and also showed the agent the furniture and told him from whom it was bought, and the claimant made no claim to any part of it then.</p> <p>The jury found this property subject, and the property claimed as exempt not subject. The claimant moved for a new trial on the grounds that the verdict was contrary to law and evidence, and to the charge of the court.</p> <p>The motion was overruled, and the claimant excepted.</p>

<p>1. A constable having levied upon property which was claimed by a third person, and having returned the claim papers to the proper court, and gone out of office before the claim was tried, upon being ruled by the plaintiff more than three years afterwards, the claim papers being then lost, testified in support of his answer to the rule, the same being traversed, that he knew the bond was signed, and that the bonds were all right. His evidence, supported as it is by the general presumption of law to the effect that public officers do their duty, is not overcome by the testimony of the plaintiff’s attorney that the claim was dismissed owing to some defect in the bond, and that his best recollection is that the bond was not signed. In this state of the evidence, a verdict against the officer’s answer was not authorized.</p> <p>•2. An officer accepting a claim interposed to property under levy, and releasing the property, is not relieved from liability 'to the plaintiff by taking a forthcoming bond only; he must also take a damage bond. But the weight of the evidence is, that both bonds were taken in the present case.</p>

<p>Counties. Advertising fees. Before Judge Atkinson, Appling superior court. March term, 1887.</p> <p>Reported in the decision,</p>

<p>A will provided as follows: “ And at the death of my said son, leaving lawful children, then all the property herein given said Terry, as trustee, to go to such children, share and share alike. But should he die not leaving such children, then the same at his death to go, share and share alike, to my nephews and nieces, the children of my deceased brother, John L. Wynn, and of my deceased brother-in-law, John Wilkinson.” Two of testator’s nieces, children of John Wilkinson, died in testator’s lifetime and before the will was made, leaving issue, and certain other nieces and nephews, covered by the description in the will, survived the testator:</p> <p>Held, that the devise was to a class, and the nieces who died before testator and before the execution of the will are not included therein; hence plaintiffs, who are children of the two nieces mentioned, can take nothing under this devise.</p> <p>(o) There is no question of lapsed legacy in this case, and hence §2462 of the code and Cheney, ex’r, vs. Selman, guardian, 71 Ga. 384, do not apply.</p>

<p>Motion to set aside judgment. Bona fide purchaser. Laches. Attorneys at law. Practice. Before Judge Adams. Appling superior court. March adjourned term,, 1887.</p> <p>Reported in the decision.</p>

<p>Witness. Evidence. Before Judge Bower. Dougherty superior court. October term, 1887.</p> <p>Reported in the decision.</p>

<p>Where, on the trial of a claim interposed to the levy of an execution on a boat, it appeared that a half-interest in the boat belonged to the claimant and the other half to the defendant in execution, and the jury found that a half-interest was subject to the levy, the costs of the case should have been apportioned equally between the claimant and the plaintiff in execution.</p> <p>(a) In such a case as this, equality is equity. Both parties were at fault, the plaintiff in levying on too much of the boat, and the claimant in claiming too much of it. If the claimant had claimed merely an undivided half-interest, the costs would have fallen entirely upon the plaintiff in execution,</p>

<p>Wills. Estates. Before Judge Harris. Troup superior court. November term, 1887.</p> <p>Reported in the decision.</p>

<p>1. A guardian or administrator cannot sell property of the estate, in in his hands as such, to carry out a private arrangement made beforehand.</p> <p>(a) Especially is this true where land has been conveyed to a mother and her children “born and to be born”; where the mother is forty-three years of age; where a private arrangement is made by the mother and father of the children to sell the entire title, and . the father, for the purpose of carrying out this arrangement, procures the guardianship of the children, obtains leave to sell their interest in the land, and actually sells it, at guardian’s sale, to the mother; and where, by the execution of the arrangement, the mother is to receive from the party to whom the sale of the whole was to be made, more than twice as much as the children absolutely, and the use of the children’s portion during her life.</p> <p>2. Under the contract made by the party desiring to purchase the whole title, it had a right to a deed from the mother to her interest, and also to a deed from the children to their interest, and a tender on the part of the mother of a deed, purporting to convey the entire title. Such deed being executed by her alone, though made after her attempted purchase at the guardian’s sale, was not a fulfillment of the contract.</p>

Charge of the court. Contracts. Conduct of cause. Before Judge Richard EL Clark. Dekalb superior court. August term, 1887.

Statute of frauds. Contracts. Onus probandi. Before Judge Richard EL Clark. Dekalb superior court. August term, 1887. In December, 1883, suit was brought by Geise & Company against J. Sext on an open account for $178.11, for lumber furnished at different dates from September 27 to October 9,1883.

Abandonment of children. Before Judge Hines. Emanuel superior court. November term, 1887. R. J. Bull was tried in the county court of Emanuel county for abandoning his child, was convicted, and carried the case to the superior court by certiorari, which on the hearing, was dismissed.

<p>Alimony. Attachment. Practice in superior court. - Constitutional law. Before Judge Kibbee. Pulaski supe■rior court. November term, 1887.</p> <p>’Reported in the decision.</p>

<p>1. There is no cause of action set out In plaintiff’s declaration as to either of the parties defendant, and the demurrers of both were properly sustained. As to one of the defendants, a corporation, the declaration shows that it did not lease the land to plaintiffs, for work on which plaintiffs seek to set up a special laborer’s lien, and also that it stopped plaintiff's, as trespassers, from working on the land. As to the other defendant, the declaration shows' that he had no interest in the land, but was a mere agent for others. It does not allege that his promise to procure a lease for plaintiff from the owners of the property was more than a mere voluntary promise; nor is any fraud alleged to have been committed by him by which the plaintiffs were induced to go upon the land and do the work in question.</p> <p>2. Persons employed as laborers may have a general lien on all the property of their employers, but the law does not give them a special lien on any particular property of their employers.</p>

Attachments. Contracts. Judgments. Replevy bond. Parties.' Fraud. Remedies.' Before Judge Hutchins. Gwinnett superior court. September term, 1887. An execution issuing from a judgment in favor of Herring & Turner, for the use of S. C. McCandless, against A. H. Word and M. L. Word, as principals, and G. P. Craig and Robert Craig, securities, on a replevy bond, was levied on property of one of the securities.

Criminal law. Indictment. Limitations. Liquor. Evidence. Before Judge Wellborn. Habersham superior 'court. September term, 1887.

<p>When an intestate dies in this State, and administration is granted here upon his effects, his minor child is entitled to an allowance of a year’s support therefrom, although such intestate and his wife, the mother of the child, had been totally divorced, and the child, at the time of making the application for the support, resided with her mother in another State, the custody of such child having been awarded to the mother in the decree for divorce; it appearing that no provision as to alimony was made for the wife or child, that there was no discharge of the father’s obligation to support the child, and no subsequent marriage by the father, and that the child is his only heir at law. (Rep.)</p>

Jury and jurors. Yerdict.' Mistake. Practice in superior court. Before Judge Wellborn. White superior court. October term, 1887. After argument of counsel in this case, the jury were charged and sent to their room to consider their verdict.

<p>Where the municipal authorities of Montezuma, under the charter of that town, had' exclusive control of the matter of licensing the sale of liquors, of fixing the rate of such license and the terms upon w'hich it should be issued, etc., and where such authorities, by ordinance, fixed-the amount of the license-at $500 per annum, and prescribed' that it should be paid before the license should be issued., but entered into an agreement privately with one Byrd that he need not pay the full amount of the license in advance, and at different times from December, 1885, to September, 1886, he made payments upon the license amounting in all to $840; and where, in July, 1886, Byrd made to Siesel a bill of sale to all" his goods, including liquors, etc., Siesel had the right to recover in an action of trover against Wicker, the town marshal, who had levied upon the goods an execution issued in September, 1886, for the balance of the license fee, and had sold them in October, 1886, Siesel having made demand on Wicker for the goods while they were still in Wicker’s hands.</p> <p>(a) Whether the fee for retailing liquors was a tax or license, it was required to be paid in advance, and when Siesel saw Byrd retailing liquors under the ordinance, he had a right to presume that the license fee had been paid. The town council would not have the right to violate their own ordinance, and then take advantage of their own wrong by subjecting the goods of an innocent purchaser to a debt which Byrd owed them. -When they issued the license on credit, they occupied no better position than an ordinary creditor.</p> <p>(6) It is even doubtful if their claim rose to the dignity of a debt, the remedy provided by the charter being that they might revoke or declare the license void when the terms of the ordinance were not complied with.</p>

Pleadings. Railroads. Negligence. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1887. S. L. Richardson sued the Georgia Pacific Railway Company, alleging that it had damaged him $5,000 by reason of the following facts: On June 6,1884, late in the evening, petitioner was on the track of defendant at the Nickajack trestle, in Georgia.

<p>Equity. Jurisdiction. Parties. Before Judge Fort. Pulaski superior court. November term, 1887.</p> <p>Reported in the decision.</p>

Justices’ courts. Certiorari. Appeal. Remedies. Before Judge Lumpkin. Warren superior court. October adjourned term, 1887. This case was begun in a justice’s court by suit on an account for $16.51 in favor of A. H. Darden against Wynne and Atchispn, administrators of Atchison.

<p>Where G. sued R., alleging that he had turned over to R. his interest in certain goods, formerly owned by G. & R. as a Arm, and that R., in consideration of this, agreed to pay the debts of the firm Of Gr. & R., which he had failed to do; but did not allege that R. promised to pay them at any particular time; or that a reasonable time had elapsed to have allowed him to do so, the declaration was properly dismissed on demurrer.</p>

Homestead. Exemptions. Waiver. Words and phrases. Before Judge Hutchins. Gwinnett superior court. September term, 1887. A justice’s court fi. fa. was levied on a red milch cow as the property of Wilson, and the animal was claimed by his wife for herself and minor children.

<p>A. mere statement entered on the bill of exceptions, and signed by counsel for plaintiff in error, to the effect that said counsel had “this day served” a copy of the bill of exceptions, etc., without affidavit as to such service, is not sufficient, and the case brought up by such bill must be dismissed, there being no appearance for the defendant in error.</p>

<p>Actions. Statute of limitations. New trial. Before Judge Smith. Chattahoochee superior court. September term, 1887.</p> <p>Reported in the decision.</p>

<p>1. A deed which appeared, from its date, to be over thirty years old, having upon it an affidavit for probate of one-of the subscribing witnesses, made shortly after the deed purported to be executed, which came from the proper custody and which appeared on its face to be genuine, was properly admitted in evidence.</p> <p>(a) While it is true that possession of the land under the deed was not proved, it was admitted by both parties that the lot of land in controversy was a wild lot and was not occupied by any one until shortly before this suit was brought.</p> <p>2. If it be necessary to prove the age ot a deed by aliunde evidence,, the affidavit of the witness made a few months after the deed purported to be executed and attested by a justice of peace, whose official signature, needs no proof, was sufficient aliunde evi-' dence to show its age to warrant its admission in evidence, especially as the deed appeared on its face to be free from suspicion,- and as it came from the proper custody.</p> <p>3. When a deed is offered in evidence as an ancient document, it is the right of the court and jury to inspect the whole paper, especially all the entries upon it which purport to be over thirty years old. It was noterror, therefore, to-permit the jury to consider, and, counsel to comment upon, a certificate of registration upon the deed appearing to have been made more, than thirty years before the trial, although the certificate appeared to have been made by the clerk of the superior court of a county other than that in which the land lay.</p> <p>.4. Where the grantee of a lot of land sold it and made a deed thereto before the grant to him from the State issued, and after the grant issued sold the land to another person, making a deed to the latter, the first deed takes precedence of the second.</p> <p>5. Because a deed is thirty years old, and for that reason admissible in evidence, it does not follow that-the jury may not look to the face, of the deed and the entries thereon and determine that it was a forgery, without resorting to aliunde evidence.</p>

<p>1. When; this court has solemnly ruled that a suitor was deficient in diligence for the protection of his own interest, and therefore not entitled ,to relief, thp question is res adjudieata, and it is'not admissible to evaje the decision by amending his pleadings in the .superior .court and alleging the exercise of full diligence, and that in due course of correct business it was neither usual nor practicable to be more diligent than he wag.</p> <p>2. To repeat by amendment a charge .of fraud already adjudicated upon in tjie ¡sfirne case, ig idle and unprofitable.</p>

<p>Where a promissory note for the purchase money of laud, was transferred by the payee lo a third party, without an indorsement or guaranty of payment by such payee, the purchase money was paid. The payee of the note no longer, as vendor of the land, had any claim of priority for the purchase money, and the transferee of the note did not acquire by such transfer the priority giyenthe vendor for purchase money by sectioh 3583 of the code. When, therefore, the transferee sued the note to judgment in attachment, having previously sued out attachment for purchase money against the land, he got only an ordinary judgment, although the judgment itself declared it to be a first lien on the land.</p>

Charge of court. Railroads-. Damages. Negligence. Master and servant. Before- Judge Harris. City court of Macon-. December term, 1887. James Sims sued- the railroad company for personal injuries sustained by him on December 1,1885^ by the negligent running of its' train on which plaintiff was employed to work. The defendant pleaded the general issue.

<p>Constitutional law. Race discrimination. School fund. Parties. Injunction. Before Judge Gustin. Putnam county. At chambers,' May 3,1888.</p> <p>Reported in the decision.</p>

<p>Criminal law. Charge of court. Reasonable fears. Before Judge Adams. Chatham superior court. December term, 1887.</p> <p>Reported in the decision.</p>

Garnishment. Laborers. Certiorari. Before Judge Maddox. Eloyd superior court. September adjourned term, 1887. Emmons, McKee & Company sued Dempsey in a justice’s court, and on March 16, 1886, obtained judgment.

New trial. Before Judge -Kibbee. Pulaski superior court. May term, 1887. Ragan & Co. brought suit against R. O. Holton and his Wife, Martha Holton, on two promissory notes, both dated February 11, one due September 15, and the other October 1, 1886. No plea was filed by Holton. His wife pleaded that she signed only as security for her husband at his special request, and that the notes were given for a debt of her husband and not her own.

Verdict. New trial. Before Judge Hines. Emanuel superior court. November term, 1887.

<p>New trial. Before Judge Smith. Talbot superior court. September term, 1887.</p> <p>Reported in the decision.</p>

<p>1. The verdict is sustained by evidence and law.</p> <p>2. A ground of motion for new trial, alleging as. error thp,t the eo^t ruled out a Statement of the defendant or defendants, but not reciting what the statement was, when it was made, or who testified to it, is too vague and uncertain to be considered.</p>

<p>The grounds of an affidavit of illegality must he verified positively. An oath qualified by the words, ‘‘to the best of his knowledge and belief,” is not sufficient, though the oath be made by an executor to an affidavit of illegality filed to an execution against his testator ; nor does the fact that, in his affidavit to the truth of the grounds, the executor states that it is based upon the testimony of reliable witnesses, suffice to relax the rule.</p>

Evidence. Bond for title. Deeds. Estoppel. Prescription. Before Judge Richard H. Olark. Douglas' superior court. July adjourned term, 1887. On June 30, 3885, W. P. Strickland brought complaint for land against the Georgia Pacific Railway Company, the land being described in the action as land occupied by the railroad track and right of way of said company in the town of Houglasville, and part of lot of land number 1G in the 1st'district and 5th section of Douglas county.

Stock-law. Militia districts. Fence. Before .Judge Adamson. City court of Carrollton. . February term, 1888.

Criminal law. Venue. Jury. Challenge. Evidence. Practice. Charge of court. Verdict. Before Judge Port. Schley superior court. July special term, .1887. This case has been before the Supreme Court twice. It is reported for the first time- in 76 Ga. 288, and for the second in 78 Ga. 592. It is unnecessary to report the evidence introduced on the third trial in the superior court, as it is not substantially different from that introduced on the two former trials.

<p>Statutory construction. Municipal corporations. Encroachments. Streets. Railroads. Before Judge Richard H., Clark. Bibb county. At chambers, April 5, 1883.</p> <p>Reported in the decision.</p>

<p>[n a summary proceeding before a justice of tbe peace, under §3445 of the code, tbe plaintiff could not recover damages from a railroad for killing bis bogs, and in. tbe same action, in addition to damages of $30 for the killing, recover extra damages to the amount of $30 on account of the failure of tbe employes of the railroad to report tbe killing of the bogs, as provided by §§3038, 3041 of tbe code; and on appeal by tbe railroad company to the superior court, tbe case was properly dismissed on the ground that the justice of tbe peace bad exceeded his jurisdiction in awarding $60 damages.</p> <p>(a) This is a special summary proceeding, and the jurisdiction of tbe justice is limited in amount to $30. Tbe penalty for failure to report is a separate and independent matter from tbe damage done by killing the animals. Therefore, where stock is killed, and the damage does not exceed $30, tbe owner may give notice and have bis damages assessed under the provisions of the code above cited; and where the overseer or track-mender fails to report tbe killing as required by law, tbe owner may proceed in tbe same manner, but in a separate proceeding and upon a different notice; and be cannot consolidate tbe two, as was done in this case.</p>

<p>1. Where the party over whose lands a private way was sought was present at the hearing before the ordinary, and made no objection to the appointment of commissioners, he is estopped from setting up that he was not served with notice of time and place of hearing, and from complaining of the appointment of commissioners.</p> <p>(a) All that the statute (code, §723,) requires is, that the ordinary shal be satisfied that applicant is entitled to the road; if objections were properly filed, perhaps it would be necessary for him to hear evidence; but if none are filed, and the person over whose lands the way is.sought be present, not objecting, he may take it for granted that the applicant is entitled.</p> <p>2. While it is true that the applicant must pay the damages, which the owner may have legally assessed before she opens the road, such payment is not a prerequisite to the appointment of commissioners and laying out the road.</p>

<p>1. Where the work assigned to plaintiff was not extraordinarily hazardous and dangerous, and where, before his father hired him to the railroad company, both plaintiff and his father had been engaged in precisely similar work, the father having been for some time in the employment of the company, and the son frequently assisting him in such work, such company, when it hired the plaintiff, though he were a minor, had a right to suppose that his father had given him all instruction necessary to doing the work in safety, and that plaintiff knew all about the danger attendant thereon. Therefore such company owed plaintiff no duty as to warning him of such danger, no danger being apparent, or as to telling him how to do the work safely.</p> <p>2. If there be any evidence whatever to sustain the action, it must go to the jury, the court having no discretion in the matter of granting a nonsuit; but on motion for new trial, the court may exercise its discretion, and in many cases a new trial should be granted where a motion to nonsuit would be properly overruled.</p>

Indictment. Criminal law. Practice in Supreme Court. Before Judge Kibbee. . .Montgomery superior court. October term, 1887. Thomas J. Kitchens was indicted for the offence of mayhem.

<p>A widow claimed dower in certain land left by her husband, and arbitrators, to whom the matter of her claim was left, awarded her a certain sum in lieu of dower. Sometime afterward, the widow applied to the judge of the superior court for an order to the administrator of her husband to sell the land; and an order was granted directing the sale in accordance with the law regulating administrator’s sales. The application by the widow was ex parte, and no one was served. The land was sold and purchased by Elam, who did not pay the purchase money, and an order was obtained directing him to comply with the terms of the sale within a certain time. In the meantime, he and another appeared and had themselves made parties to the proceedings by the widow, and sought to participate in the fund arising from the sale, but they failed to allege or show wherein they were interested.</p> <p>Held, that there was no error in granting an application made by the widow to set aside the order of sale and the order directing Elam to comply with his bid, so that she might dismisá her proceeding, although all these proceedings were irregular. It does not appear that anybody was interfered with or hurt. The property belongs to the estate of the husband, and the duty of the administrator is to sell it to pay debts or for distribution. If the parties to the present cause have any interest,' they may then litigate and have their rights determined.</p>

<p>Promissory notes. Contracts. Novation. Before Judge Boynton. Spalding superior court. August adjourned term, 1887.</p> <p>Reported in the decision.</p>