Volume 81 — Georgia Reports

<p>1. The declaration in the code that possession, to be the foundation of prescription, must not originate in fraud, means such fraud as is actual, moral fraud, as distinguished from legal fraud. Hunt et al. vs. Dunn et al., 74 Ga. 120, doubted and distinguished.</p> <p>(а) Where the evidence shows that defendant purchased the land in question from the agent of two executors; that the power of attorney, under which the agent sold, recited that they were the executors of a testator, some of whose heirs at law are the plaintiffs, and further recited that such executors, under his will, had the right to sell this land, and contained no intimation that there was another executor, or that the property in question was not mentioned in the will; and the evidence further shows that defendant paid a large sum of money for the land, went into immediate possession of it and held it from that time up to the commencement of this litigation, claiming it in good faith; if the title he thus acquired was not a good legal title, it was a mistake of law on his part and on the part of the parties from whom he purchased, no actual fraud being shown on the part of either.</p> <p>(б) Even if defendant had looked at the will and found that three executors were appointed in it, and that this land was not mentioned in it, it could hardly be held that he was guilty of a fraud if he had concluded, that two of the executors had the right to carry out the provisions of the will and to sell this land.</p> <p>2. The record further shows that the land was sold to defendant in June, 1866; that most of the parties plaintiff had notice of the sale at that time, and some of the heirs shared in its proceeds; and that the action was not begun until seventeen years after the purchase was made and fifteen years after all had notice. It seems that it would be a fraud, under the facts, to deprive defendant of the land.</p> <p>(a) "While the court below might have left the matter of good faith to the jury, yet as they would have been obliged to find in favor of defendant, the case will not be sent back for another trial.</p>

<p>Practice. Parties. Burden of proof. Order of argument. Charge of court. Evidence. Before Judge John T. Clarke. Terrell superior court. November term, 1887.</p> <p>Reported in the decision.</p>

Debtor and creditor. Deeds. Redemption. Lapse of time. Before Judge John T. Clarice. Terrell superior court. November term, 1887. In November, 1886, Martha C. Crawford and W. II. Crawford brought their action of ejectment against W. R. Pritchard and James II. Pritchard for certain lands in Terrell county, laying a several demise from each of' the lessors to John Doe. The defendants pleaded not guilty.

<p>1. Where a fund was raised from the sale of property of a defendant in execution under certain fi. fas., and the plaintiff in other fi. fas. placed them in the hands of the sheriff to claim the money, and a portion of it was credited on the fi. fas., to-wit, the costs due the magistrate in whose court the last named fi. fas. were obtained, and $26 for which plaintiff in fi. fa. receipted on one of them, it was error to hold that such fi. fas. were dormant, seven years not having elapsed from the date of such credit and receipt.</p> <p>(a) It has always been held that §2914 of the code should receive an equitable construction; and it has also been held that any public act of the plaintiff going to show that the execution was still in life, would be sufficient to prevent its becoming dormant.</p> <p>2. Placing an equitable construction upon the section mentioned, the ■receipt -for his costs entered upon the fi. fas. by the magistrate, is • sufficient to prevent their dormancy.</p>

<p>Ejectment. Title. Evidence. Charge of court. Before Judge Hines. Scriven superior court. November term, 1887.</p> <p>On April 17,1885, "William and Mary W. Cox brought complaint for land againt Eliza Johnson; and James Young (who is the real party defendant) was regularly made a party to the action. As amended, it set forth that Eliza Johnson was in possession of certain land, describing it; that petitioners were tenants in common and claimed title; and that Eliza Johnson had received the profits of it since March 1, 1875.</p> <p>On the trial, the testimony for plaintiffs tended to show that they were the only children of William Cox; that one was born June 26, 1859, and the other August 5, 1861; that they, with Hannah Cox, their mother, were the heirs at law of William Cox; and that Mrs. Cox consented to the bringing of this suit. Her husband bought the land in 1868 or 1864, and was in possession until his death in October, 1864. She remained in possession, controlling the place for the estate, until it was sold to Young. She authorized Harden &Levy, by power of attorney, to sell, receiving $450 as proceeds of the sale, which she considered as a sale of her interest. The children lived with her and shared in the benefits of this money. The land was not sold to get money to ' support the children. Before sale she received fifteen to eighteen dollars a month as rent for it. She accepted a deed from Mrs. Ferrell to the place because she wanted some paper title. A Mr. Laurence settled on the place thirty or forty years before the trial. Lellibridge succeeded him in possession, and was succeeded by William Cox.</p> <p>The defendant introduced the following testimony: At the time James Young bought the land, he paid for it what it was worth.' He bought in good faith the entire interest, and had never heard that there was any trouble with the title; would not have bought a part interest; thought Mrs. Cox owned the land, and never heard of any other claimant; had never known Mr. Cox or any of the family; had paid taxes and been in possession ever since his purchase. The deed to him was prepared by Levy, and all the papers in that attorney’s hands were turned over hy him or his firm to the party who negotiated the trade for Young. This party had no notice of any deed from Lellibridge to Cox or of any ■cloud on the title. It was admitted that Mrs. Ferrell was the sole heir at law and legatee of Lellibridge. The defendants then put in evidence a deed from Scarborough to Laurence, a deed from Laurence to Lellibridge, a deed from Mrs. Ferrell to Mrs. Cox, a power of attorney from Mrs. Cox to Harden & Levy, and a deed from her, by her attorney in fact, Levy, surviving partner of Harden & Levy, to Young. The first of these it is not necessary to mention further. The deed from Laurence to Lellibridge was made April 13, 1863. That of Mrs. Ferrell to Mrs. Cox bore, date April 17, 1873, and recited that the maker was the daughter and residuary legatee of Lellibridge; that she had reason to believe, and did believe, that her father had, during his life-time, sold the land to Mrs. Cox or her husband, and as the title-deeds had been lost or destroyed and never recorded, she made this deed (a quit-claim) to Mrs. Cox. The power of attorney from Mrs. Cox to Harden & Levy authorized the sale of the property in dispute; and the warranty deed to Young, dated March 1, 1875, covered the entire property.</p> <p>The plaintiffs, in rebuttal, showed by Mrs. Cox that, as administratrix of the estate of her husband, she returned this property to the appraisers of the estate as the property of the estate. They also introduced temporary letters of administration to Mrs. Cox, dated October 31, 1864, and permanent letters to her, dated July 8, 1864.</p> <p>The jury found for the plaintiffs two undivided thirds of the premises in dispute. The defendants moved for a new trial on the following grounds, with others :</p> <p>The verdict was contrary to law and evidence.</p> <p>Because the court erred in charging the jury as follows : Another way by which a person can hold and acquire title is by inheritance.</p> <p>Because the court charged : If you find from the evidence that plaintiffs are the children of William Cox, deceased, and he died seized and possessed^of this tract of land, the law presumes that he had the legal title to it, and his title descended to and vested directly in his heirs at law.</p> <p>Because the court charged: If the defendant claimed through Mrs. Cox, then he is bound by all of her acts and admissions affecting the title acquired by her before she sold to him.</p> <p>Because the court charged: Defendant is bound by the recitals in the deed from Mrs. Ferrell to Mrs. Cox, he being privy in estate, and if the deed recited in that deed was made to Mrs. Cox before the year 1866, then that deed vested the title in William Cox, and Mrs. Cox had no interest in the property whatever except as heir at law.</p> <p>Because the court charged: If the deed recited in the Ferrell deed was made to William Cox, then Mrs. Cox had no interest in the property except as heir at law.</p> <p>Because the court charged: If the plaintiffs were minors, they had seven years after they became of age to commence their action.</p> <p>Because the court refused to charge as follows: In connection with the foregoing, I give you this principle in charge: that while ordinarily a prescription cannot run against an infant, still, if the plaintiffs in this case claimed through their father, William Cox, it would be necessary to show that William Cox had title, that his title was recorded, or that notice of his title was brought home to defendant, James Young, or notice of the title of the plaintiffs was brought home to the defendant, to prevent the possession of James Young, under his deed, from ripening into a prescriptive title.</p> <p>Because the court erred in not explaining to the jury the meaning of the term “seized and possessed.”</p> <p>Because the court erred in permitting Mrs. Cox to testify, over objection,thatshehadpointedout to the appraisers of the estate of her husband the land in dispute as part of her husband’s estate.; — the objection being that it was an attempt to prove title to land by parol; that it was not the best evidence, in fact; and that it must first be shown that there was an appraisement of her husband’s estate.</p> <p>The motion was overruled, and defendants excepted.</p>

Husband and wife. Trusts. Collateral security. Notice. Before Judge Gustin. Houston superior court, October term, 1887. In 1862, the grandfather of Mrs..

<p>Arbitration and award. Estoppel. Before Judge Boynton. Pike superior court. October term, 1887.</p> <p>Reported in tbe decision.</p>

<p>1. The levy of a tax execution for $3.60 on one hundred acres of land, worth $1,200, is such a fraud on the law as to render the sale void at the option of the land-owner, and a deed made in pursuance of such levy and sale is void on its face, if it show the fact of such excessive levy.</p> <p>2. Tlie levy in this case was also void for want of sufficient description of the premises levied on. It described the land as “One hundred acres of land, as the property of William E. Lassiter, bounded as follows: north by Dr. Wallace, and west by the Central railroad” ; there being" two branches of the Central railroad in the county, and no boundaries east and west being given.</p> <p>(a) It is not sufficient that the purchaser knew the boundaries of the land. It should be so described that the world may know them, in order that all may knowingly bid and the land may bring the highest market price.</p> <p>3. The verdict was warranted by the evidence.</p>

Voluntary deed. Debtor and creditor. Dormant judgment. Liens. Before Judge Lumpkin. Wilkes superior court. November term, 1887. This case was submitted to the court without a jury, on the following agreed statement of facts : On December 8, 1877, John T. Palmer conveyed to Mary Seals, as trustee for her children, the tract of land levied on. The deed was recorded February 7, 1878. At the time of its execution, Palmer owed Benson and others.

<p>Justice courts. Jurisdiction. Damages. Counties. Amendment. Before Judge Maddox. Gordon superior-court. ' August term, 1887.</p> <p>Reported in the decision.</p>

Master and servant. Eellow-servants. Negligence. Before Judge Eain. Dade superior court. September term, 1887. Sarah S. Keith sued the Walker Iron and Coal Co. for damages for the homicide of her husband. On the trial the following case was made by the- evidence for plaintiff (apart from the question of the extent of plaintiff’s loss): Colyar was general manager of the company, and was at the company’s mines during only part of each day.

<p>Landlord and tenant. Crops. Evidence. Liens. Title. Promissory notes. Contracts. New trial. Before Judge Boynton. Newton superior court. September term, 1887.</p> <p>Reported in tbe decision.</p>

Evidence. Railroads. Contracts. Damages. Before Judge Gustin. Houston superior -court. October term, 1887.

<p>Equity. Injunction. Receiver. Remedies. Debtor and creditor. Fraud. Before Judge Jenkins. Morgan county. At cliambers, March 28, 1888.</p> <p>Reported in the decision.</p>

Mortgages. Verdict. Charge of court. Before Judge Wellborn. Lumpkin superior court.

Appeal. Dismissal. Renewal of suit. Before Judge Hines. Jefferson superior court. November adjourned term, 1887. McTier sued Eagan in an action for damages for a breach of contract.

<p>Municipal corporations. Actions. Verdict. Witness. Insanity. Charge of court. Diligence. Evidence. New trial. Before Judge Wellborn. Hall superior court. August term, 1887.</p> <p>Reported in the decision.</p>

<p>Defence. Practice. Pleadings. Measure of damages. Before Judge Harris. City court of Macon. September term, 1887.</p> <p>Reported in the decision.</p>

<p>Contracts. Promissory notes. Rescission. Before Judge Harris. City court of Macon. December term, 1887.</p> <p>Reported in the decision.</p>

Tax. Title. Before Judge Hines. Scriven superior court. November term, 1887. Alexander Kemp died testate, leaving eight children. He bequeathed to his son, R. W. Kemp, the use and control of the land in dispute during his life, and provided that after his death it should go to his children and to the issue of such of his children as might then be dead. On arriving at majority, fifteen years after 'his father’s death, R. W. Kemp took possession of the land.

<p>1. A horse swap is complete when the terms of exchange have been finally settled, and each party has relinquished possession of one of the animals and acquired possession of the other. For one of the parties afterwards, without consent of the other, to resume possession of his former property is simply a tort, and does not reinvest him with title.</p> <p>2. A sale and delivery to a third person after such wrongful resumption of possession will confer no title on the purchaser.</p> <p>3. In an- action by the owner against the purchaser, conversations and declarations which were a part of the res gestx of the swap and its incidents, or of the subsequent tort, are admissible in evidence, to show how the plaintiff acquired title and possession, and how he lost possession without parting with title.</p>

<p>Deeds. Evidence. Before Judge Kibbee. Montgomery superior court. April term, 1887.</p> <p>Reported in tbe decision.</p>

Contracts. Damages. Evidence. Partnership. Waiver. Witness. Practice. Interest. Before Judge Roney. Burke superior court. November term, 1887. The declaration contained a count on a written contract, a count for the price and value of machinery sold, a count for the price and value of work done and materials furnished, and a count for money due on an account stated.

Wills. Construction. . Approximation. Minors. Before Judge Fain. Bartow superior court. January-term, 1887. A. F. Woolley and F. II. Harris, as executors of Sarah M. Roper, filed their bill, alleging, in brief, as follows: By her last will, Mrs. Roper nominated her husband, J. C. Roper, as her executor, and. also, on certain contingencies therein named, nominated complainants and Mary C. Roper as executors and executrix.

<p>A devise made in 1854, by a mother to a trustee for her son, and if the son should die without a child or children, the trustee to sell and make an equal distribution of the proceeds of sale, and place the same in the hands of another trustee for the other children of testatrix, created in the son a fee, determinable upon his dying without a child or children, and the other children were intended to take by executory devise and not by contingent remainder, and no remainder was created by implication in the child or children of the sort. It follows that neither of these classes can interfere during the lifetime of the son to prevent him from committing waste upon the devised premises.</p>

<p>1. Where a creditor has an honest mortgage on personalty, and has foreclosed the same at law, he has no occasion, either as a substitute for, or in aid of his foreclosure proceeding, to file a hill in a court of equity in order to realize the fruits of his foreclosure as against fraudulent mortgages of prior date on the same property, which are also foreclosed, and under which the property has been seized and is about to be sold. The remedy of the honest creditor is ample, full and adequate at law, as he may attack by affidavit under §3979 of the code, or, if necessary, may obtain, under the act of October 16th, 1885, an injunction, the appointment of a receiver, etc. from a court of law. And especially, under the act of October 24th, 1887, is he limited in his mode of obtaining equitable relief to a petition addressed to the superior court.</p> <p>2. A creditor whose debt, is not in judgment, and who lias no lien by contract upon certain goods not fraudulently purchased from himself, or if so purchased, which he does not seek to reclaim by a rescission of the contract, cannot pursue such goods by hill in equity, in the hands of a third person who, in fraud of the creditor, has purchased or pretended to purchase them from the debtor. His remedy is by attachment under §3297 of the code. And even did he need equitable relief, the act of 18S7, above cited, would confine him to petition addressed to the superior court as the mode of obtaining it.</p>

Railroads. Damages. Negligence. Master and servant. Before Judge Van Epps. City court of Atlanta.

<p>Criminal law. Jury and jurors. Charge of court. Evidence. Verdict. Punishment. Witness. Before Judge Van Epps. City court of Atlanta. September term, 1887.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Motion in arrest of judgment. Indictment. Accusation. Evidence. Res gestee. Presumptions. New trial. Criminal law. Before Judge Van Epps. City court of Atlanta. September term, 1887.</p> <p>In this case and in the preceding one, tlie evidence of "Washington Cobb, on which the convictions mainly rested, was the same. lie testified that, about December 22, 1886, he saw, through a window', Dr. Gardner- and Mary Hunt in her room at his house upon a heel together, her clothes up and her person exposed, and he lying on top of her wdtli his pantaloons down; and that they were having sexual intercourse. Numerous witnesses were introduced by both sides to impeach and sustain Cobb; and Mary Hunt as a wntness, and the defendant in his statement, both denied the occurrence of the transaction related. Carter testified that Mary Hunt lived at his home four years previously, when he carried her-to Dr. Gardner for medical treatment, and. often afterwards went to inquire as to her condition;. that Dr. Gardner said she was very sick and must not he moved ; that in about a month, becoming impatient,,, witness went to the rear of Gardner’s house and saw the-girl romping and playing in the back yard, and on demanding her release by Gardner, it was refused, Gardner stating that she was pregnant, and threatening to give Carter trouble if he did not pay a sum of money. Carter denied a statement made by her in her testimony, that he once forcibly had sexual intercourse with her.</p> <p>In his statement the defendant claimed to have long since lost the power of having sexual intercourse. There was no evidence as to this point. After verdict of guilty, he moved for a new trial on the following among other grounds :</p> <p>(6), .(7) The court erred in admitting in evidence, ■over objection, the letters written by defendant in reference to his charge against Dr. Smith of improper intercourse with Mary Hunt. The facts as to these grounds are stated in the decision.</p> <p>(8) The court erred in allowing the evidence of Carter; the same being irrelevant and tending to put the character of the defendant’ in issue.</p> <p>(15) The court erred in charging thus: “If you believe from the evidence, taken in connection with the defendant’s statement, that the defendant at the time mentioned in the evidence was physically incapable of committing the act of sexual intercourse with a female, you ought to acquit him. The burden, however, of establishing this defence rests on the defendant. The law presumes sanity both as to mental and bodily functions ; and one who alleges the destruction or loss of any physical organ or organic function, must establish it by evidence satisfactory to the jury.” — Assigned as error in failing to give the benefit of reasonable doubt to the defendant, although he may not have affirmatively established his incapacity to have sexual intercourse.</p> <p>(18) The court erred in admitting the testimony of Dr. Smith in connection with the letters sent by defendant ; these letters and this testimony being irrelevant and tending to prejudice the defendant’s cause in the eyes of the jury.</p> <p>The motion was overruled, and defendant excepted.</p> <p>The above statement will be taken in connection with •the facts set forth in the decision.</p>

Practice. Charge of court. Service. Construction. Argument. Before Judge Van Epps. City court of Atlanta. December term, 1887.

Conversion. Fraud. Debtor and creditor. JBona fieles. Title. New trial. Practice in Supreme Court. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1887. Marcellus E. Thornton brought trover against John L. Conley for certain printing material, etc. of the Atlanta Post-Appeal newspaper, of which the plaintiff had been proprietor.

Fertilizers. Contracts.' Waiver. Estoppel. Before Judge Atkinson. Appling county. At Chambers, August 81, 1887. DeLeon & Brother sued W. C. Fail’doth in a justice’s court on a promissory note, which contained, among other stipulations, the following: “The consideration o£ this note is commercial manure sold me by said Albert DeLeon & Brother, or their agent.

<p>Practice in superior court. Executions. Evidence. Praud. Nullities. Before Judge Gustin. Bibb superior court. November term, 1887.</p> <p>Reported iu the decision.</p>

Criminal law. Evidence. Verdict. Practice in superior court. Practice in Supremo Court. Before Judge Harden. City court of Savannah. November term, 1887. Frank McKinno was indicted for engaging in an act of cruelty to a domestic animal, in that he did “cruelly drive and cruelly treat” two bay mares of the value of $300.00 each.

Evidence. New trial. Before Judge Roney. Glascock superior court. August term, 1887. , On January 21, 1885, John Thompson and Rebecca Thompson and their children brought complaint for land against Walter Towner. The land was described as part of the land originally covered by the back-water of the Towner mill-pond, containing six acres, more or less, on the east side of Joes creek.

Pleadings. Amendment. Evidence. Corporations. Directors. Ratification. Before Judge Hansell. Lowndes superior court. November term, 1887. To the statements contained in the head-notes and in the opinion it is only necessary to add the following: S. L. Varnedoe sued the Florida Midland and Georgia Railroad Company for $8,488.98, on an account for 19,911 railroad cross-ties cut and delivered.

<p>That, after a landlord has become security for his tenant upon a promissory note for supplies, the payee of the tenant loaned the tenant other money and took a mortgage on the cotton crop of the tenant to secure the additional advance, will not relieve the surety, nor would the fact that the payee, on account of this second indebtedness, took cotton upon which the surety had a landlord’s lien for rent.</p> <p>(а) If the surety was injured by such payee’s removal of the cotton upon which the surety had a special lien as landlord and a general lien for rent, whether such cotton had been mortgaged to the payee or not, the surety could have recovered from such payee the value of the rent or the amount in which he had been damaged.</p> <p>(б) There is no allegation of the insolvency of the payee, so as to give the plea of the surety in this case any equitable operation whatever.</p>

New trial. Before Judge Lumpkin. Wilkes county. At chambers, January 31, 1888.

<p>'.When one applies to an executor or administrator for information as • to the title to land advertised for sale by such executor or administrator, or as to its qualhy or quantity, it is the same as if applica-. tion were made to one who had no interest in the land. An executor or administrator cannot warrant the title; and this being so, . his statements fix no liability upon the estate he represents nor , upon himself. A purchaser at such a sale takes subject to the rule • . caveat emptor.</p>

<p>Criminal law. Confession. Corroboration. Before Judge Hutchins. Gwinnett superior court. September term, 1887.</p> <p>Report unnecessary.</p>

<p>Certiorari. Before Judge Hutchins. Gwinnett superior court. September term, 1887.</p> <p>In an affidavit for possessory warrant sued out by J. D. Ambrose, the property was described as “a certain bee-gum, with bees in it, of the value of $2, the same that was at Mrs. Dyar’s for several weeks.” At the trial in a justice’s court, the property was awarded to plaintiff. The defendant sued out a certiorari, assigning error in that the justice erred in not dismissing the warrant because the bee-gum was not properly described ; also in letting plaintiff’s witnesses testify as to sayings of one party in the absence of the other, and then refusing to let defendant’s witnesses testify to the same facts; also in not allowing J. D. Ambrose to be called back to the stand to explain his testimony; also in entering judgment contrary to evidence, etc.</p> <p>By the answer of the magistrate, it appeared that on the trial, the plaintiff showed that his brother Thomas had bought three bee-gums at an administrator’s sale at theDyar place; that he sold one to McMillan and carried one home and sold the third to plaintiff; that plaintiff went, next morning, to settle for the articles his brother had bought and found there his bee-gum which he had bought from his brother; that he took possession of it, and left it there in the possession of one Hill, his agent, to keep for him; that he told Hill it was his and Hill promised to keep it for him; • and when he went back for it about eight weeks afterwards, he found that McMillan had carried it off.</p> <p>The defendant showed that he had bought both gums from plaintiff’s brother on the day the latter bought them; that he bought the two gums from Thomas Ambrose which were not carried off by Thomas on the day the latter bought them; that he covered up one of the gums and carried off the other; and that, on being informed by Hill that he wanted the gum which had been left with him moved, he went back and carried it home in the day time.</p> <p>Both plaintiff’ and defendant were shown to be of good character. One of plaintiffs witnesses swore that when McMillan came back to the Dyar place the day after the ■sale, he told witness that ho would give Ambrose fifteen cents for the gum; but this was denied by defendant. Defendant also showed that he and Thomas Ambrose went to the parties in charge of the sale and tried to get the entry of a bid for two of the gums changed from Ambrose to the defendant; but this was refused, they being told that they must arrange it between themselves.</p> <p>The magistrates further answered that the description in the affidavit was full enough to notify the sheriff to seize the property and arrest the defendant and that it was sufficient. They denied that they gave one side more advantage than the other as to the testimony; and stated that they did rule out hearsay evidence as to what McMillan said about the trade when Ambrose was absent, and would have done the same as to Ambrose.</p> <p>The certiorari was dismissed, and the defendant excepted.</p>

Justice courts. Jurisdiction. Forthcoming bond. Evidence. Practice.' Before Judge Richard . II. Clark. Dekalb superior court. August term, 1887. On October 7th, 1884, a fi.fa. from a justice’s court, in favor of “ Grafflin, treasurer,” against W. T, Bowden and A. C. Bowden, was levied by J. II. Taylor, L. C., upon certain corn, fodder and cotton, the levy not stating to whom the property belonged.

Presumptions. Attorneys’ fees. Before Judge Richard H. Clark. Dekalb superior court. August term, 1887. The facts of this case and the questions of law involved are so similar to those in the case just preceding between the same parties, that the report of that ease is referred to as the report of this.

<p>1. The verdict being against the wife’s title in a contest with her husband’s creditors, the record discloses no reason for not accepting it as true. Juries, as a general rule, need no encouragement to vindicate the wife’s rights in such controversies, where her title is bona fide.</p> <p>2. The omission to charge the jury without special request on such plain matters as that mere possession by the husband of the wife’s property will not subject it to his debts, and that conflicting testi- ■ mony ought to be reconciled if practicable, will not work a new trial.</p>

<p>Charge of court. Railroads. Damages. Negligence. Before Judge G-ustin. Houston superior court. October adjourned term, 1887.</p> <p>Reported in the decision.</p>

Torts. Contracts. Set-off. Before Judge Eain. Catoosa superior court. August term, 1887. W. W. Combs sued Wallace Green in a justice’s court on two notes, one given for a store account and one for a cow. On the trial, there was conflicting evidence as to the amount of the payments which had been made on the notes.

Tax. Chaiities. Constitutional law. Before Judge Gustin. Bibb superior court. May term, 1888.

<p>Negotiable instruments. Common carriers, Bailments. Promissory notes. Bill of lading. Before Judge Van Epps. City court of Atlanta. December term, 1887i</p> <p>Eeported in tbe decision.</p>

Bonds. Amendment. Practice in superior court. 'Before Judge Fort. Macon superior court. Novem-. ber term, 1887. De Vaughn foreclosed a mortgage upon certain personal property of Lytle, for $311.72 principal, $4.15 interest, and $31.58 attorneys’ fees, with costs, and interest on the principal from December 16th, 1886. Fi. fa. issuing upon the foreclosure was levied on the property December 18th, 1886. Lytle filed an affidavit of illegality upon various grounds.

Practice in superior court. Trusts and trustees. Confederate money. Interest. Taxes. Before Judge Smith. '• Cbattaboocbee superior court. September term, 1887. . Martha A. Harp filed her bill against John C. E. McCook, alleging as follows : She is the daughter of Sarah Whittle, who died May 10, 1882, and the granddaughter of Elizabeth King, who died testate in 1860.

Libel. Privileged communications. Public policy. Pleadings. Jurisdiction. Perjury. Before Judge Boynton. Pike superior court. April term, 1888. J. W. Sullivan brought his action for libel against Cyrus R. Wilson, for publishing the bill in equity set out in the decision, by presenting the same to a notary public before whom it was sworn to, and to the chancellor.

Levy and sale. Tax. Executions. Title. Tender. Prescription. New trial. Practice in Supreme Court. Before Judge Hutchins. Clarke superior court. November term, 1887. On January 5, 1885, Kile, as trustee of. Mrs. Martha W. Clower, brought complaint for land against Thomas Eleming. The declaration afterwards was amended, and the case proceeded in the 'name of Mrs. Clower. The defendant pléaded not gnilty and a prescription of seven years under written color of title.

Levy and sale. Partnership.' Evidence. Heeds. Sheriffs. Dower. Estates. Reversion. Verdict. New trial. Before Judge Atkinson, Appling superior court. March adjourned term, 1887. Lafayette Johnson brought complaint against Jasper Parler and others to recover lot of land number 610 in the second district of Appling county, with mésne profits. Defendants pleaded the general issue.

Administrators and executors. Negligence. Yerdict. Practice in Supreme Court. Before Judge Hines. Jefferson superior- court. November term, 1887. Tarver, administrator of Torrance, cited the heirs of the estate before the ordinary for a settlement. An appeal to the superior court was taken by consent, and there was a verdict in favor of the heirs against the administrator for $355.60 with interest and $1,000 without interest.

Misnomer. Arbitration and award. Ambiguities. Evidence. Warranty. Partnership. Before Judge Harris. City court of Macon. June term, 1887.

<p>Railroads. Damages. Negligence. Passengers. Charge of court. Before Judge Eain. Gordon superior court. August term, 1887.</p> <p>Reported in tbe decision.</p>

<p>An ordinary mortgage made to secure a debt infected with usury is not void. Such an instrument passes no title, and is no attempt to pass title, and hence is not within §2057(f) of the code.</p>

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

<p>Tax. Executions. Transfer. Principal and surety. Liens. Subrogation. Before Judge Boynton. Newton superior court. September term, 1887.</p> <p>Reported in the decision.</p>

Telegraph companies. Non-delivery. Damages. Profits. Demurrer. Before Judge Jenkins. Bibb superior court. November term, 1887.

<p>1. There is no equity in complainant’s bill.</p> <p>2. A judgment rendered on the fourth day of July is not void. Although that day is a legal holiday, and some things, such as noting and protesting of notes, etc., may not be done upon it, there is no statute prohibiting the transaction of business by the courts on that day.</p>

<p>1. When a court of competent jurisdiction has determined that a claim against an estate is barred, and such judgment has not been •reversed or set aside, the administrator cannot do anything thereafter which will revive such claim as a debt against the estate, or .render his sureties liable because of his failure to pay the debt. If ihe do acknowledge such claims and pay them, he and his sureties :are nevertheless liable to the proper distributees for the money of ■the estate so applied.</p> <p>2. Claims which the administrator held in his hands, as attorney at law, at the time he took out letters, which have never been paid, and as to which there is no liability on him to pay, the creditors to whom such claims belonged being barred by the statute of limitations of any right against him either as attorney or administrator, are not such claims as he or his sureties are entitled to credit for in a suit upon his bond by the ordinary for the use of the distributees of the estate.</p>

Pleadings. Amendment. New cause of action. Prescription. Before Judge Hines. Emanuel superior court. November term, 1887. This was an action of ejectment, brought on the demise of Hénry P. Jones, Jr., for 1,152 acres of land in Emanuel county, against Johnson, Kimball & Company, tenants. At the trial term, 1887, the names of Henry P. Jones and J. Hurt Jones were inserted in the declaration in lieu of Henry P. Jones, Sr. The defendants pleaded not guilty.

<p>Statute of Frauds. Ambiguities. Evidence. Before Judge Harris. City court of Macon. March term, 1887.</p> <p>Reported in the decision.</p>

<p>Russell, while a clerk for Lamar, Rankin & Lamar, was the proprietor of a certain prescription. A member of the firm requested him to continue the manufacture of this preparation for the purpose of sale by the firm, and agreed to pay him a reasonable royalty on all sales of it made by them. Russell brought this suit to recover from the firm such royalty on a considerable quantity so sold. His testimony was taken by commission, and he was asked in certain interrogatories propounded by defendants, to reply what were the component parts and the proportions of the same used in the preparation ; in other words, to disclose the whole secret of it. He did testify as to what it would cost, and what the bottles in which it was put up would cost, showed by other witnesses what would be a reasonable royalty, and recovered that much.</p> <p>Held, that it was not error to exclude Russell’s answer to the interrogatory, on the ground that ho did not fully answer the same, as defendants ought to have made the inquiry, if they desired the information, before they agreed to pay the royalty.</p> <p>Held further, that the verdict was a proper one.</p>

<p>Where, during the progress of the argument to the jury in a criminal trial, the judge stated to defendant’s counsel that he desired to step out for a little while, and asked if there were any objection, and none being made, did go out of the court-room and remained out two or three minutes, allowing the argument to go on in his absence, a new trial does not necessarily result from such action. The judge acted improperly in not suspending the trial during his absence, but no objection was made, no motion made to haye a mistrial declared in consequence of his action, and it is not pretended that any harm resulted to defendant because of it.</p>

New trial. Before Judge Hutchins. Gwinnett superior court. September term, 1887. Fannie M. Robinson sued R. M. Wheeler in an action of trespass. The defendant pleaded not guilty, and that he was acting in the discharge of his duty as sheriff in executing a writ of the superior court when he did the acts for which he was sued.

<p>There was error, under the facts of the case, in the award of the fund in the hands of the sheriff.</p>

<p>"Wills. Jurisdiction. Partition. Decrees. Before Judge Adams. Chatham superior court. December term, 1887.</p> <p>The bill in question in this case was filed by S. A. Mayer and his wife, Mary A. C. Mayer, and by S. A. Mayer as next friend of Julia C. PI. Mayer, alleged in the bill to be the only child of himself and his said wife, and as next friend of the only child of L. L. Hover, defendant in the bill. The bill alleged, among other things, that the only other child of S. A. and Mary A. C. Mayer, to wit, Margaret Mayer, had died about months before the filing of the bill and after the death of John F. W. Hover, the life tenant. No subpoena to any specific term of the superior court was prayed in the bill. Service of the bill was acknowledged and copy and subpoena waived on January 11, 1863. Upon the answer of L. L. Hover, executor, to this bill, appears no entry of filing, but the caption to this answer states the case as of January term, 1864, and at said term the decree in question was rendered.</p> <p>The plaintiff in the present case was a son of S. A. Mayer and Mary A. C. Mayer, and was born May 30, 1865. Among other evidence, said plaintiff introduced the family bible of his father and mother, showing an entry of the birth of Margaret Mayer May 5, 1862, and of her death July 1, 1863.</p> <p>• Among other evidezzce, the defendazit introduced the statement of the solicitor who represezzted the complaizrazits in the bill above mentioned, to the effect that he had no knowledge touching the filing or non-filing of the bill and answer, and could only say that, from his method then of conducting business, from the case being an amicable one and frozn his having obtained acknowledgment of service a year before the decree, he had zio doubt tbat tlie bill was filed at tlae May term, 1863, of Chatham superior court.</p> <p>The other material facts are stated in the opinion.</p>

<p>The transferee of an execution, in a contest between it and other executions against the same defendant, is only__entitled to enforce it for the amount due on it and for which it is transferred to him. The defendant in execution has no authority in law to transfer it, nor can an agreement between him and the party to whom transfer has been made by the plaintiff therein, that such transferee may enforce it for a greater sum than remained due on it, be held binding on third parties.</p> <p>(a) It can make no difference that such an agreement is attested by the attorney for the plaintiff in execution.</p>

Assignments. Eraud. Executor de son tort. Before Judge John T. Clarke. Clay superior court.. September term, 1887. The Chattanooga Stove Company sued D. C. Adams, as executor de son tort of C. L. Laney, on a promissory note given the plaintiff by Laney.

New trial. Practice. Reopening case. Diligence. Before Judge Boynton. Spalding superior court. August term, 1887. The 6th ground of the motion for a new trial complained of the following as error: Cole had sworn that certain books were books of original entry, kept partly by Porter, who was in Alabama, and partly by Richardson, who was dead. The books were afterwards intro-' dueed in evidence.

<p>Conditional sales. Record. Notice. Before Judge Harris. City court of Macon. June term, 1887.</p> <p>Reported in the decision.</p>

<p>Continuance. Evidence. Jury and jurors. Before Judge Boynton. Rockdale superior court. August term, 1887.</p> <p>Reported in the decision.</p>

<p>Criminal law. Indictment. Evidence. Before Judge Harris. Campbell superior court. August adjourned term, 1887.</p> <p>Beported in the decision.</p>

Verdict. Justice’s courts. Certiorari. Before Judge Maddox. Eloyd superior court. September term, 1887. Robert Turner sued the Rome Street Railroad Company in a justice’s court for injury to his hack, caused by careless driving of its car.

<p>Where a constable made an entry of levy on certain personalty, but did not seize it or take any forthcoming bond for it, and the property was not at the place of sale when the constable pretended to sell it, the sale was illegal, and the person bidding it off got no title thereto.</p>

Sweetser, Pembrook & Company and Mills & Gibb filed a creditors’ bill against J. R. Baker and Benjamin Woolman, partners, lately- doing business under the name of Baker & Woolman, alleging, in substance, as follows: They were indebted to complainants over $2,000; the amount was due, and payment had been demanded and refused after maturity.

<p>New trial. Before Judge Adamson. City court of Carrollton. August term, 1887.</p> <p>Report unnecessary.</p>

<p>“Witness my official signature,” etc.</p>

For defendant, it was shown that he bought the mule out of a drove about two weeks before he sold it to plaintiff, and gave $90.00 for it. Did not warrant it, but said it was sound so far as he knew. It showed no signs of unsoundness up to the time of the sale. Might have caught distemper from his other animals, as they had it among them. Mule with distemper worth as much as without.

<p>1. A deed made in 1857, conveying realty to a man “for the use, benefit, advantage, and in trust for his wife and the child she now has and those she may hereafter have, to be held by him in trust for said wife and child during his natural life, and upon his death the same to go to them or the survivor or survivors of them in fee simple; or should he survive his said wife and children, to him in fee simple, free from the trust; but so long as any of the cestvis que trust survive, to be held by him as their trustee, free from his debts, liabilities and contracts,” passed to him in trust the legal estate for the term of his life and no longer, the alternative remainder in his family or himself being a legal remainder not covered by or embraced in the trust.</p> <p>2. The rule that when the trustee is barred by prescription, the beneficiaries are also barred, means that when the legal estate is barred, so is the equitable estate. In any given case, therefore, .the bar is restricted to the measure of the legal estate which the trustee takes by the conveyance. When he takes the legal fee, the bar extends to the whole fee, legal and equitable; but when he takes less than the fee, he represents less than the fee, and the bar is restricted to what he represents.</p> <p>3. According to Hill vs. Printup 48 Ga. 452, a trust estate in which minors are the beneficiaries cannot be legally sold on the petition of the trustee unless the minors are made parties by a representative properly appointed.</p> <p>4. Granting that a sale made under an order obtained 'without representation of the minors, might be duly confirmed at chambers, with such representation then had, the order of confirmation, if passed by a judge of the superior court who-was of counsel when the original order was passed, would be voidable at the election of the minors after attaining majority.</p> <p>5. The question of estoppel by standing by and seeing expensive improvements made upon the premises and failure to object, depending, in part, upon proof to be made at the trial, the discretion of the chancellor in granting a temporary injunction until the facts involved can be tried by a jury will not be controlled.</p> <p>6. The same rule applies to the alleged equitable obligation to account for the substituted property which the trustee has put in place of the property now directly in controversy.</p>

Homestead. Ordinaries. ■ Jurisdiction.. Judgments Widows. Minors. Parties. Before Judge Welleorn. White superior court. October term, 1887.

<p>Stock and stockholders. Stock assessments. Statute of limitations. Before Judge Roney. Richmond superior court.-■ October term, 1887.</p> <p>Reported in the decision.</p>

<p>1. Where exceptions to an auditor’s report were submitted to the decision of the presiding judge, who ruled in writing upon all the questions raised thereby, and a bill of exceptions to his ruling assigns error upon “each and every of the decisions and rulings of said court . . . herein above set forth, . . . and for ground . of exception refers to the said exceptions as they are now of file with said report as part of the record of said case but no exception was taken to the final judgment of the court finding a certain ’• 'amount against the other party (who thereupon filed a cross-bill of exceptions), the first named bill of exceptions will be entertained, the judgment rendered being the logical sequence of the propositions attacked thereby.</p> <p>2. In an action of trespass for entering upon land and cutting and carrying away timber, where no grant from the State was introduced conveying one lot of the land, and there was no evidence that the plaintiff was ever in possession of it, and two of the plaintiff’s deeds thereto were attacked as forgeries, to sustain which attack two certificates from the executive department were introduced, showing that the persons purporting to have attested the deeds as justices of the peace were not in commission at the date of execution, and there was nothing to rebut the presumption raised by these certificates, a finding against the plaintiff’s title to that lot of land was correct. None of the cross-ties for which plaintiff recovered came from this lot.</p> <p>(a) It is not required that such certificate, in order to create such presumption, should show that there was no such person in the State in commission as justice of the peace when the deed was executed.</p> <p>(b) The genuineness of a deed whether “ancient or modern” may be challenged.</p> <p>(c) Though a plaintiff may recover in ejectment, as against a mere' trespasser, upon prior possession alone, and while possession under a deed without more has been held sufficient to make out a prima fade case, rendering it necessary to show that the defendant’s possession was not that of a trespasser, yet it has not been held that one who merely has a deed and is not in possession can recover for trespasses on the land or cast the burden of proof upon his adversary.</p> <p>(d) A person holding a forged deed can recover thereon for purposes of title only whez*e it is accompanied with actual adverse possession, commenced without notice and in good faith.</p> <p>3. A. deed in the plaintiff’s possession from his testator to the defendant, covering a strip of the disputed lot for a railroad right of way, does not estop the defendant from denying the title of the plaintiff to such strip.</p> <p>4. The evidence sustains the finding of the judge as to the number of cross-ties from plaintiff’s land the defendant received.</p> <p>5. Where, under the contract between the defendant and the person „. who furnished the timber, cross-ties, etc., the ties were to be distributed on its right of way, to he used in constructing its track, while the other timbers were not to belong to it until they had become part of its road-bed and so accepted, though the plaintiff might recover for the ties he could not for the other timbers. The evidence supports this distinction, as it does also the finding of the judge as to the quantity of “crib” and bridge timbers that went into defendant’s possession.</p> <p>6. The defendant was not liable for acts of trespass committed by employés of sub-contractors' of the person who contracted with defendant to supply the timbers in question; there being no evidence that the defendant ratified the trespasses.</p> <p>7. Whore the sub-contractors entered upon plaintiff’s land without authority, cut down trees, turned them into cross-ties, delivered them to the principal contractor and were paid, and the principal contractor delivered them to defendant under his agreement, the plaintiff was entitled to recover of the defendant the value of the cross-ties when delivered to it, although the accession of value which the timber received in being made into cross-ties was derived from the labor of the trespassers.</p>

Damages. Interest. Diligence. Negligence. Municipal corporations. Evidence. ' Railroads. Before Judge Van Epps. City court of Atlanta. June term, 1888. Willie Young, by his mother as next friend, sued the railroad company for damages for personal injuries, claiming in his declaration that the facts set out therein constituted aggravating circumstances; and so ■his suit was for punitive as well as actual damages.

Husband and wife. Bona fides. Witness. Attorney and client. Before Judge Q-ustin. Houston superior court. April term, 1888: A fi. fa. in favor of T. O. Skellie, issued on judgment rendered October 8th, 1886, against J. B. James, was levied on certain land, which was claimed by Mary Janj.es, wife of the defendant in fi.fa.

<p>Where a plea of justification is made to an action for libel, the defendant is entitled to open and conclude the argument, though it. also plead and rely upon the plea of the general issue; and this is true, though the declaration allege special damages.</p>

Evidence. Verdict. New trial. Interrogatories.' Practice. Master and servant. Contracts. Actions. Damages. Before Judge Van Epps. City court of Atlanta. Marcia term, 1888 John Crowley sued May & Roberts (doing business under the name of The May Utility Works) for $1,094, for a breach of contract of employment. The suit was brought May 8d, 1887, and tried in March, 1888.

Actions. Damages. Evidence. Verdict. New trial. Contracts. Master and servant. Before Judge Van Epps. City court of Atlauta. June term, 1888. On April 14,1887, A. D. Rigden sued May & Roberts, doing business as the May Utility Works, for $870.50 as damages for breach of contract of employment, together with $5.00 money had and received, and $12 unpaid wages.

Criminal law. Charge of court. Husband and wife. Before Judge Richard H. Clark. . Eulton superior court. March term, 1888. Robert Cloud was indicted for murder. The testimony for the State showed that the killing occurred about midnight in a little alley near defendant’s house. The night was dark.

<p>Whore suit was brought on a promissory note, by which the maker agreed to pay to Mrs. Richards a certain sum as balance of purchase money for a lot of land when one Sims and such maker got possession of the same, and it was also stipulated in the note that one-eighth of the expense to obtain possession, as well as all other legal expenses, were to be deducted from the amount of the note, and it appeared that the maker knew, when he gave the note, that the land was subject to be administered as part of the estate of the father of Mrs. Richards, whenever the administrator of the estate, who was then suing for it, could reduce it to possession, and that Mrs. Richards’ interest was only a one-eighth interest as an heir of her father; and it further appeared that, as part of the transaction, the maker obtained a deed to himself and Sims from Mrs. Richards and her husband, conveying an undivided one-eighth part of the lot, describing it as Mrs. Richards’ distributive share as such heir; it was not a good defence that the maker did not get possession under the contract with Mrs. Richards, but that the land was administered, and he bought it at administrator’s sale. What he got by his contract, construing the note and deed together, was Mrs. Richards’ interest in the land; and as it does not appear that he could not get her interest from the administrator, it was error for the court to hold that the sale was not a sale by Mrs. Richards, as heir at law, of her distributive share, and that if defendant did not get possession of the land under the contract, but did get it by the administrator’s sale, the plaintiff could not recover.</p> <p>(a) If tlie maker should, for any legal reason, fail to get an eighth of the proceeds of the land from the administrator, he might set off against this note the amount of the deficiency.</p>

Private writings. Sealed instruments. Contracts. Statute of limitations. Actions. Practice in superior court. Before Judge Boynton. Newton superior court. March term, 1888. On August 20, 1887, J. T. Corley sued R. A. Stansell, alleging that Stansell was indebted to him $208.38, besides interest, on a contract under seal made March 24, 1874, and due November 1, 1874, a copy of which was attached, and payment of which was refused.

Criminal law. New trial. Evidence. Before Judge Powell. City court of Newnan. April term, 1888.

<p>Railroads. License. Revocation. Notice. Master and servant. Torts. Actions. Before Judge Jenkins. Greene superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>. Landlord and tenant. Contracts. Croppers. Before . Judge Powell. City court of Newnan. April term, 1888.</p> <p>M. A. Padgett was tried intbe city court of Newnan ■ on an indictment for trespass. The evidence for tire : State sliowed as follows: W. J. Wood, in the latter ■ part of 1885, leased certain lands and contracted with ■ defendant to cultivate them for 1886. Wood was to ■ furnish the land and stock, defendant to make the crop, and they were to “ go halves” in every thing made. Wood was to have control of the entire crop, and the title to it was to be in him until he was paid for all advances and until he got his half of the crop, due October, 1886. Defendant sent word to Wood that he had three bales of cotton ready to be ginned, and Wood sent for it and got only one bale, and defendant sent word that he had only one bale picked out, but he after-wards admitted that he had had two other bales' ginned and had carried one to Newnan and sold it. This was done without the consent of Wood and before he was paid for his advances. Wood had gotten $5 or $6 up to that time on account for advances, had furnished defendant $15 to assist in working the crop and three tons of guano; this guano, at the time defendant car-' ried off the cotton, was paid for, except fourteen pounds of lint-cotton, half of which defendant owed Wood. Wood got no cotton-seed for planting from defendant, and defendant is still indebted to him. Defendant told McDonald, who ginned the two bales for him, that he was in a hurry to get the cotton ginned, as he wanted to pay for a wagon he had bought in Newnan. Wood got one of these two bales from McDonald’s gin, sending for it and hauling it away.</p> <p>No evidence was introduced by defendant. In his statement he claimed that Wood got more than his half of the crop.; that he owed Wood nothing; that Wood did not furnish him 'any supplies; did let him have $15, but that was to pay for cotton-seed defendant furnished to replant the crop. Denied sending word to Wood that he (defendant) had no other cotton.</p> <p>Defendant was found guilty, and moved for a new trial on the grounds, among others, that the verdict was contrary to law and evidence, and of error in the charge of the court in holding that this was a case of landlord and cropper, and in charging §4440 of the code. The motion was overruled, and the defendant excepted.</p>

<p>1. For the landlord to go upon the rented premises before the year has expired, break open a locked out-house, and take therefrom the tenant’s cotton, against his protest and remonstrance, is a trespass for which punitive damages may be awarded, even though the cotton be bodnd for supplies which the landlord has furnished, and though such forcible seizure of it be made for the purpose of selling it and though it be fairly sold and the proceeds applied to the debt for supplies.</p> <p>2. Where the tenant, after selling to his landlord some of his effects, lóeles them up in a house in his possession on the premises, and of which he is entitled to the use, and the landlord on finding the house locked, puts another lock on it, not calling upon the tenant to surrender the property sold, and after keeping the house thus locked fo r several days, excluding the tenant from entering or using it, breaks open the house and takes therefrom the property which he has purchased, up to this time having made no demand upon the tenant to deliver it, this also is a trespass for which punitive damages may be awarded.</p> <p>S. In order to render the advice of counsel admissible evidence in mitigation of damages, it must appear that the advice was given upon a full and fair statement of the facts, or of such of them as were material to the question on which counsel was consulted.</p>

Railroads. Negligence. Passengers. Nonsuit. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1888. Mrs. Lou Ella Watson, a married woman, living with ber husband, brought her action against the railway company for damages for a personal injury sustained by her while she, a passenger, was attempting to alight from defendant’s ears.

<p>A petition for certiorari must set forth specifically the ground of error relied upon, and is not amendable.</p>

<p>Criminal law. New trial. Evidence. Witness. Diligence. Before Judge Hutchins. Jackson superior coui’t. February term, 1888.</p> <p>Reported in tbe decision.</p>

<p>' The solicitor-general has no legal authority to return into court a special presentment or indictment found by the grand jury, and i£ no return be duly entered upon the minutes of the court at the term when the presentment or indictment was found, there is no presumption that the return was duly made. An entry at a subsequent term, without an order to make the entry nunc pro tunc, will not cure the omission to enter the return at the proper time.</p>

<p>Railroads. Damages. Master and servant. Before Judge Lumpkin. Warren superior court. October term, 1887.</p> <p>Reported in the decision.</p>

<p>Municipal corporations. Officers. Master and servant. Before Judge Maddox. Eloyd superior court. March, term, 1888.</p> <p>Reported in the decision.</p>

<p>Partnership. Tenants in common. Practice in superior court. Before Judge Eain. Bartow superior court. January adjourned term, 1888.</p> <p>On June 22, 1886, Thomas II. Baker, as surviving partner of the firm of J. D. Head & Co., brought his action of ejectment for a certain tract of land against IIuldah Middibrooks. On the trial, he introduced a deed to the premises in dispute made by A. M. Middlebrooks toJ. D. Head & Co., tbeir heirs and assigns, dated February 1, 1875, being a warranty deed, accompanied by the ivritten consent of Martha Middlebrooks, containing a waiver of homestead.</p> <p>The plaintiff testified: Defendant is in possession of the property sued for. I am the surviving member of the firm of J. D. Head & Co. Head died insolvent, and his estate has no representative. He left adult children,some of whom are now alive. The firm was dissolved in June, 1876, and Head died in January or February, 1878. The firm was in debt when it dissolved. I have had the debts to pay out of my own pocket. It is necessary for me to collect its assets in order to pay its debts. The firm did nothing hut a dry goods business. A. M. Middlebrooks was in possession of the premises sued for at the date of the deed, and was so for some time prior to and after the making of the deed. Defendant is the wife of said Middlebrooks, and was living with him on the premises at the date of the deed, and just remained on in possession afterwards and after Middle-brooks left.</p> <p>Tbe defendant introduced no testimony. Tbe jury found for the plaintiff generally. The defendant moved for a new trial on the following grounds :</p> <p>(l)-(2) The verdict is contrary to law and evidence.</p> <p>(8) Error in refusing to nonsuit plaintiff, as moved by defendant, on the ground that neither Head nor his representatives nor heirs was joined in the action; and that the suit could not he brought in the name of Baker as surviving partner.</p> <p>At the hearing of the motion, plaintiff moved to dismiss it on the . ground that defendant’s remedy to .correct the errors complained of, to wit, the refusal of the court to award a nonsuit, was by bill of exceptions and not by motion for'a new trial. The motion to dismiss was overruled, and the motion for a new trial was sustained; and the plaintiff excepted.</p> <p>cited: Code, §§3015, 3366; 53 Ga. 685; 72 Ga. 189; 68 Ga. 453, 738; Code, §§1907, 3014, 221; 73 Ga. 209; 31 Conn. 145.</p> <p>cited: Code, §1907; 14 Ela. 565; 26 Mich. 1; 65 Ga. 71; 1 M. & K. 649; 12 Leigh, 264; 3 Sand. 595; 7 Heisk. 506; 2 N. W. Rep. (N. S.) 497; 2 Lindley on Part, star p. 654; 49 Miss. 758; 52 Ib. 713; 3 McLean, 27; 21 Ala. 437; 39 Mich. 133; 13 Ind. 195; 3 Barb. Ch. 165; 56 Ala. 500; 1 Brock. 456; 4 La. Ann. 56; 2 Nev. 234; 1 Dev. Eq. 103; 6 Gray, 329; 16 B. Mon. 631; 4 Ib. 488, 15 Johns. 159; 6 Wall. 316; 19 Me. 19; 3 Ore. 269; 17 Ala. 145; 23 Ala. 625; 60 Ga. 129.</p>

Trover. Evidence. New trial. Before Judge Maddox. Eloyd superior court. March term, 1888. The railway company sued the plaintiff's in error in trover, on March 2, 1886, for “ four bales of cotton marked (II) shipped from Collinsville, Alabama, November 6, 1884, and which subsequently went into the possession of said Simpson & Ledbetter, of the value of $200.” The plea was the general issue.

<p>The charter of a bank provided the sum of $200,000 as the minimum amount of capital which would authorize it to do business, and that subscribers for stock should be liable for the debts of the bank to the extent of the unpaid stock subscribed for by them, in proportion to the number of shares held by them. There was a stock subscription list amounting to $408,200, and an organization of the bank in which 2,400 shares of stock were represented. In pursuance of regular calls, the subscribers represented in the organL zation paid fifty per cent, on their subscribed stock. On June 30, 1873, a return was made to the governor, under section 1467 of the code, representing the capital stock paid in as $140,340, and containing no statement of the capital stock subscribed. No action was taken definitely fixing any amount as the capital stock, until January, 1874, when the stockholders, by resolution, declared that it was thought best to reduce the stock to full paid up stock, that certificates of stock be issued for the amount actually paid in, and that the capital stock and subscriptions bo reduced to the amounts actually paid in; providing further that the books should be opened for additional subscriptions of full paid up stock, to remain open until the whole capital stock subscribed should reach the sum of $400,000. No certificates of stock were issued until after this action. Other returns to the governor were made from year to year, showing the amount of capital stock as gradually increasing to $186,300, then decreasing to $160,000 on December 31,1880, when the last return was made. The bank, becoming insolvent in 1881, made an assignment of all its property, rights, etc., for the benefit of its creditors. Under a bill filed by the State of Georgia in behalf of itself and other creditors, the assignees were appointed receivers of all the property, etc. assigned to them. They brought a bill against the stockholders to collect the remaining fifty per cent, on their subscriptions, alleging that the resolutions above referred to were void, and that the unpaid fifty per cent, were assets of the bank which passed by the deed of assignment, and were a fund in equity to be collected and applied to the payment of the bank’s debts. To this bill creditors of the bank also were made parties defendant for the purpose of enjoining them from proceeding by separate actions against the stockholders. It appears that all the debts due by the bank have been created since the adoption of the resolutions mentioned, and no creditor sets up any special claim or equity against the stockholders; and that no credit was given upon the express faith of the original stock subscriptions; and no act or statement of the corporation is shown by which it has ever, in any manner, sought to mislead the public as to the real amount of capital stock. No publicity is shown to have been given to the subscription list, and so far as is disclosed by the record, no creditor knew what it contained:</p> <p>Held, 1. The resolutions had the effect of releasing stockholders, all of them agreeing thereto or acquiescing therein, from further liability to the bank itself, and from obligations each to the other.</p> <p>2. To the extent of the $200,000, the minimum capital stock allowed. by the charter, creditors had a right to presume that the stock had been subscribed. The fact alone of the commencement of business created that presumption; and to that extent the stockholders were correctly held to be liable, but beyond that amount no such presumption arises.</p> <p>(o) The returns required by law to be made to the governor and published were a source of information open to every person having-dealings with the bank. Whether or not they amounted to technical notice, they were a method by which a diligent person could have ascertained the true condition of the corporation with which he was about to commence dealings. If untrue, they would have been conclusive as to the liability of the bank and the stockholders; and it would not be just or equitable to consider them of no effect when true.</p> <p>(&) This case affords strong grounds for holding that the creditors have impliedly waived whatever right, if any, they may have had to call upon these stockholders. Especially is this true as to the State; the same officer being charged by law with the duty of selecting State depositories and receiving these returns.</p> <p>(c) The question as to whether or not the thirteenth section of the charter of this bank created a statutory liability as to stockholders, in addition to that upon the subscription, is not now before this court.</p> <p>3. Holding that the judgment should be affirmed, under the act of 1887, page forty-one, it is unnecessary to pass upon the questions made by the cross-bill of exceptions; and as the judgment is affirmed, it is also unnecessary to rule specially upon the motion to dismiss.</p>

<p>1. A testator bequeathed to his son a distributive share of his estate, including a portion of a plantation at a fixed price. The son was insolvent, and a large amount was in judgment against him. Soon after the will was executed, the son entered into a contract with his own son, in which the latter bound himself, in consideration that his father consented for him to become the legatee instead of his father under the will of his grandfather, and that he be allowed to retain $10,000 of the legacy, to apply the balance thereof in whatever manner his father might dictate. Three days later, his grandfather, the testator, by a codicil, annulled the former bequest and devised to him the portion intended for his father, he to stand in his father’s place. After the testator’s death, the father and son entered into another agreement to carry out the provisions of the first, reciting that the agreement was made for their mutual benefit, and providing that the son should take out certain stocks and bonds about equivalent to the amount named in the first contract, and requiring the son to transfer all the balance of his interest in the estate of his grandfather to his uncle, to be held by him for the use and benefit of his father, with the condition that the son granted . his father the right to manage, control and dispose of the plantation referred to as to him might seem proper. The agreement further provided that, in case of .the death of the father without marriage and further issue, the whole of the property held by the uncle for the use of the father, should be conveyed to the son. The father afterwards died without further issue; but previously the plantation, together with the balance of the personal assets acquired under the will, were conveyed to the‘uncle according to the agreement, with full knowledge of the father:</p> <p>Held, that the father exhausted all the power he had to direct what disposition should bo made of the plantation when he signed the last agreement; He acquired no legal tital to any of the property bequeathed, but the title was taken by the son; and the rights the father acquired in the legacy were such as were given him in the first contract signed by the son, and having died without further issue, the son is entitled to have conveyed to him all the property held by his uncle for the use of his father, whose widow acquired no right or title thereto.</p> <p>(a) The exercise of the right which the father had to direct how the balance of the legacy should be applied, and in contracting for such purpose by the second agreement, was not such a fraud on his creditors as would prevent the enforcement of the contract as between the parties.</p> <p>2. To entitle the widow' to dow'ei, the husband must be seized and possessed of the land in his own right; simple possession does not so entitle her. Expenses of administration must be paid out of the estate of the deceased.</p> <p>(a.) A demurrer to a prayer in the widow’s cross-bill that the property in controversy be sold to pay nji.fa. against her deceased husband, which she alleged was transferred to her since this litigation commenced, was properly sustained.</p>

<p>Railroads. Connecting roads. Delivery. Pleadings. Contracts. Befoi’c Judge Van Epps. City court of Atlanta. December term, 1887.</p> <p>Reported in tbe decision.</p>

<p>Railroads. Damages. Evidence. Witness. Notice to produce. Privileged communications. Contracts, Before Judge Van Epps. City court of Atlanta. June term, 1888.</p> <p>Reported in the decision.</p>

<p>1. Whether the Macon and Western railroad, or the Central railroad, after it and the Macon and Western consolidated, had power and authority under their charters or not to purchase and own stock of another railroad, the stockholders or the Savannah, Griffin and North Alabama railroad who bring this bill cannot now complain. They have acquiesced in this illegal act, if it is illegal, for from seven to fifteen years. They have received the money of these corporations, and after acquiescence for that length of time, with a fulknowledge of the facts, equity will not allow'them to complain.</p> <p>(а) The general rule is that, while a minority of the stockholders of a corporation may maintain a bill in equity in behalf of themselves and other stockholders for fraud, conspiracy or acts ultra vires, against a corporation, its officers and others who participate therein, when the minority stockholders have been injured or damaged by such acts, they must act promptly. If they postpone their complaint for an unreasonable time, they forfeit their right to equita. ble relief.</p> <p>(б) The act of purchasing and owning and voting stock in one railroad company by another railroad company, may be ultra vires so far as the public is concerned; and while the acquiescence of a stockholder will not render valid the illegal act, it will prevent him from taking advantage of its invalidity, if complaint be not made within a reasonable time after knowledge of the facts. The public or the State is not thus bound. The State, through its proper officer, may, at any time, commence proceedings to prevent it or to declare it ultra vires and illegal.</p> <p>2. The bill was filed by a few persons owning a very small portion of the capital stock of the S., G. & N. A. railroad, against the Central Railroad and Banking Company, which owns much more than a majority of the capital stock, against the trustee for the holders of mortgage bonds of the S., G. & N. A. railroad, and against the latter railroad itself. Its purpose was partly to enjoin the trustee from proceeding with his suit to foreclose the mortgage given to secure these bonds. The complainants nowhere allege that they ever made a demand on the board of directors or the stockholders of the S.,' G. & N. A. company to defend this suit, or that the board had refused to so defend; nor do they allege any excuse for not having so applied to the officials of the road, except they claim that such officials were in collusion with the parties seeking to foreclose the mortgage. This excuse is insufficient. The general ■ rule of law is, that the holders of a majority of the stock shall control the corporation, and the minority cannot interfere therewith unless they show good reason for such interference. Among other things, they should show that they made an earnest effort to obtain redress at the hands of the directors and shareholders of the corporation.</p> <p>(a) This court is satisfied that, if the defences to the foreclosure of the mortgage have any merit in them, and complainants show any good reason to the directors why they should do so, they will make a de. fence.</p> <p>3. It appears that, of the stockholders of 400 shares, who are all the complainants, one of them owns nearly 300 shares, and the record discloses that he purchased them after the litigation began. The1 law seems to be, that a person who did not own stock at the time of the transactions complained of cannot complain or bring suit to have them declared illegal.</p>

Criminal law. Evidence. Bes gestae. Practice in superior court. Declarations. Conduct of trial. Jury and jurors. Before Judge Gustin. Bibb superior court. May term, 1888.

<p>Executors. Practice. Injunction. Receivers. Jurisdiction. Before Judge Eain. Bartow county. At chambers, September 8, 1888.</p> <p>By petition to the superior court of Bartow county, Mrs. Hammond and Mrs. "Whitehead alleged as follows; They are daughters of R. C. C. Powell, who died testate on April 21, 1888, nominating Thomas II. Powell, as his executor. The will was probated, and the executor qualified. He made a pretended inventory of the estate and had appraisers appointed, who appraised what was contained in that inventory, which did not contain all of the estate of -testator, but only a number of small articles of personalty appraised at $52.40, a note on J. C. Raiford for $15 due November 1, 1888, and a note on D. W.K. Peacock for $2,993.30, (credited by cash paid January 5, 1888, $1,993.30,) and the sum of $3.80 cash in hand. Testator had other effects which were omitted from the inventory. In the summer of 1887, testator sold a farm to Peacock for $5,000. Of this amount $500 was paid by Peacock’s assuming a mortgage, and $3,500 was paid in cash before testator’s death, leaving $1,000 due by Peacock. Of the amount paid in cash, $1,500 was distributed by testator, before his death, among his five children and a child of his deceased daughter, leaving the sum of $2,000 in his hands, and which has never been accounted for by the executor. Testator was economical, and had no debts of any consequence. Petitioners cazi learzz of no investment made by him except a loan of $300, on January 13, 1888, to S. M., A. B. azid Elizabeth Kezzuedy, for which he took their note due December 1, 1888, bearizzg interest and secured by mortgage. Eor several months previous to his death, testator became so enfeebled in body and mind from disease, that he was unable to mazrage his business affairs. He was residing with Thomas H., and entrusted him largely with the management of his business; and by zzeason of his feebleziess, and the confidence existing between them, Thoznas H. acquired a cozitz’ollizig and undue influezzce over him, and secured almost unrestrained' control of the money collected from Peacock. Previous to January 1, 1888, Thomas II. was hard pressed for money and had very little property; and except the $250 before mentioned, which had been given to him by his father in the fall of 1887, he neither owned nor claimed to own property or money of any consequence. ITis wife owned a small separate estate. But shortly after Peacock paid testator, Thomas H. began to have and use money freely; he bought a mule, built a new room to his house, bought new furniture and put up a supply store, and in March, 1888, paid $1,000 for a forty acre farm, buying it from Mrs. J. W. Brinsfield. He used the money of testator in making these purchases, without his valid consent and without regard to his will or wish. Thomas H. claims all these purchases as his own, and also that the Kennedy mortgage belongs to him. Outside of these purchases, he is insolvent; and petitioners are informed that he is trying to dispose of the Brinsfield land, and fear that he will do so unless restrained. They make a similar charge as to the other property mentioned, and aver that he intends to defraud the legatees under the will, and that he has given no bond for the faithful administration of the estate. The Brinsfield farm and the Kennedy note and mortgage belong to the estate of testator. Petitioners pray that defendant be enjoined from disposing of or creating liens on the land, and from selling or transferring the note and mortgage; that he be compelled to amend his inventory by adding to it the note and mortgage and the balance collected of Peacock after deducting the amount loaned to Kennedy; that he be declared to hold the Brinsfield land, the mule, supplies and supply store in trust for the benefit of the legatees, and the title to all this property be declared to be in the estate ; and that he be removed from the executorship, and a receiver be appointed to take charge of the estate and carry out the will, or, in the event the executor be not removed, he be required to give a bond and proceed to distribute the estate. The 6th prayer was that he be enjoined from disposing of or using any of the funds or property of the estate in any manner other than as directed by the will. There is also a prayer for general relief.</p> <p>Attached to the petition as an exhibit is the will of R. C.- C. Powell, dated March 9, 1887, by which he directs that his debts be paid, and his property, real and personal, be sold; that $300 be paid to his granddaughter, and then all the remainder of the estate be divided equally between his son, Thomas H., three married daughters, and an unmarried daughter, Sallie A.; and appoints Thomas II. trustee of the property given tc two of his married daughters, Mrs. Putnam and Mrs Davis.</p> <p>Defendant answered as follows: The inventory was correct, and nothing was omitted from it which belonged to testator. Peacock did pay $500 by assuming a mortgage, and $3,500 in money, before testator’s death; but some time in January, 1888, testator gave defendant $1,000, and on March 21, 1888, testator gave him the Kennedy mortgage by due assignment; and in February or March, 1888, testator and defendant had a settlement, by which it appeared that testator was due defendant $290, and testator gave defendant an order on V. B McGinnis for this amount, which was paid. He denies that he used any undue influence over his father, or that his father’s mind was impaired, and denies that the gifts mentioned were not freely and voluntarily made by testator. He claims to own the Brinsfield farm (for which he paid $509 of the $1000 given him by his father and $500 belonging to bis wife), subject to bis wife’s equity; also tbe Kennedy mortgage. The mule was bought by him, but has not yet been paid for. The room added to bis bouse, and the furniture, were paid for out of bis wife’s money, and by the proceeds of his separate estate. He has given no bond as executor, because the law requires none, and testator knew this when he made his will. No part of the money received from his father went into the supply store. He denies any intention to violate his duty, or that he has violated it; and denies insolvency or any intention to sell the Brinsfield farm.</p> <p>■ Upon tbe bearing for injunction, etc., petitioners made tbe following proof: Up to tbe time of testator’s removal to defendant’s house, be and defendant were on unfriendly terms, and the removal was induced by much persuasion on part of defendant. Up to tbe time of bis death, testator bad been on the most friendly and affectionate terms with bis daughters. For several years before bis death, he was a sufferer from nervous dyspepsia, dropsy and affections of the kidneys, and was so enfeebled as to be almost, if not entirely, unfit to manage his business during the last year of his life. His memory failed him, so that he could not remember for any length of time the simplest business matters; and when his spells of suffering were upon him, his mind for days was wandering, and be could not recollect where he was or recognize his most intimate friends. He was confiding in his nature, and easily influenced by those who treated him kindly. Shortly after he went to live with defendant, tbe latter, in conversation with Hammond, a son m-law of testator, asked Hammond to break up tbe friendly correspondence between Hammond’s wife and her sister, Mrs. Whitehead, then Miss Sallie Powell, and to get rid of one Barksdale, an uncle of testator’s children ; and said that he (defendant) and Hammond could “work the thing” to their own advantage, and cut the other children out of anything. Hammond refused, and the subject was dropped. Not long after this, the visits of Hammond and wife, and of her other sisters, to the house of defendant to see testator, were stopped by the extreme coolness and unfriendliness of defendant and his wife, who treated the visitors with ridicule and abuse, defendant, on one occasion, going so far as to tell Mrs. Hammond to go home and stay there, and threatened to strike her with his buggy-whip. He and his wife seemed to look upon the visits with jealousy, and never allowed testator to be alone with his children. A day or two after testator’s death, Thomas H. came to the house of Hammond and stated that he knew nothing of the condition of his father’s business, or the character of his will, or what Peacock was to pay for the land, or what became of the money; and that all the money he knew of was five or six dollars in silver in liis father’s trunk. He mentioned no gifts his father had made to him, except á watch, bedstead and bedding, which he said his father gave him at the time he made his will, and that the attention of the witnesses was called to the gift at the time. It was a month or two after this conversation before the other children knew that defendant claimed any gifts of money or notes,, except the $250, which sum testator had given to each of his children in the previous November, on which date, when Hammond and his wife went to the house of defendant to receive their share, defendant took Hammond aside and told him he thought Barksdale was advising Hammond and his wife, and that Sallie A. Powell would have to sign the same kind of a receipt Mrs. Hammond did if she got anything, and that Hammond and his wife had better play for what was in sight; also that Barksdale was trying to get it all, but he (defendant) had it where it was safe, in banks in Savannah, Atlanta and Rome. •Before his death, testator frequently spoke of how he intended to divide his property, and always said he intended to divide it equally between his children. Soon after he removed to defendant’s house, defendant took Mrs. Hammond aside, upon the occasion of a visit by her there, and told her that if she and her husband would go in with defendant, they would cut out the rest of the children and get all of their father’s property themselves. This she refused to do ; and was aftei’wards treated with unkindness and not allowed to see her father alone, and di’iven to cease her visits. After the sale to Peacock, testator expressed a desire to distribute $1,500 among his five children and one grandchild, on account of property of his wife, which had gone into his hands. Mrs. Hammond went to defendant’s house to receive her share, and then told her father that she supposed that was all she would get, as she had heard that defendant said his father had given him $2,000. Defendant denied this then and there; and testator said he had never thought of such a thing; that he was then giving his children equal shares; that his will was already written, and it provided that his children should share equally in his estate at his death; and that he intended to keep the balance of his money at interest, which, whenever it Accumulated enough to amount to anything, he should divide equally among his children. It was further shown that these shares of $250 each were paid over by defendant, who seemed to have entire control of his father’s business, and paid out other moneys for him. Several times during 1887, defendant told one Bostick that testator was not competent to attend to his business, and entrusted it all to defendant; he also told Bostick, a month or two before Christmas, 1887, that testator wanted to distribute $250 to each of his children, and that all of them but Mrs. Hammond had humbled themselves to him (defendant) and accepted said $250, and that Mrs. Hammond had better play for what was in sight, as that was about all she would ever get, and that the balance was his. Soon after Christmas, he told Bostick that Mrs. Hammond had humbled herself and taken her $250; and in August, 1888, he told Bostick that he had bought the Brinsfield place and had paid for- it. Defendant began to improve his place after his father moved there, and during the summer of 1887 he put up a supply store. A physician deposed for petitioners that while, up to the last two weeks of testator’s illness, his mind was not so impaired as to entirely incapacitate him from business, yet his weakness and feebleness were such as in some degree to impair his; mental capacity. The defendant settled this witness’s medical account, and acted for his father in nearly all witness’s business dealings with him, and got the money which he paid for it out of a trunk in his father’s room, and appeared to be entrusted with all his father’s business. While testator lived with defendant, he appeared to yield to anything requested or required by defendant, and to be much under his influence. Testator owned two mules, one of which he sold for $135 shortly before he moved to his son’s,, and the other was sold for him by defendant shortly after his removal. Testator was economical and did not spend money foolishly. Mrs. Putnam, one of testator’s children, had several conversations with defendant shortly before testator’s death, and in none of them did defendant say ai^thing about gifts of property or money to him by his father, other than what was given to the other children. Testator told Mrs. Putnam and her husband, after he sold the land to Peacock, that he intended, after giving his children $1,500, to put the balance of the money at interest, secured by mortgage on realty, and to live out of the interest, without spending it all, and when it had accumulated, to divide it among his children. Hammond deposed that, in the conversation defendant had with him as to the correspondence with Barksdale, etc., defendant did not tell him that if the correspondence of Mrs. Hammond with Barksdale was broken up the different members of the family would get along better; and further, that there was no such correspondence. At the time defendant told him about the money being in the banks at Savannah, Atlanta and Rome, testator was not apart with defendant, but testator told Mrs. Hammond that his money was in the bank at Cartersville; and when the $250 was paid to Mrs. Hammond, defendant took the trunk key out of his pocket and went and got the money. The tax books of Bartow county for 1887 show that defendant gave in no property, and for 1888, that he gave in between six and-seven hundred dollars.</p> <p>For the defendant it was shown, by his affidavit, that of his wife, and by others, as follows: He did not propose to Mrs. Hammond to go with him into a scheme to cut out the other children. He did not threaten to strike her. Bid tell her to go home and stay there', but simply had his whip in his hand and wás taking it into-the house. Bid not propose to Hammond a scheme to cut the other children out or anything of the sort, but told him that testator said that, if the correspondence between Mrs. Hammond and Barksdale was broken up, the different members of the family would get along better ; also, at the request of testator, that the money, was in the banks, as stated. Never told Bostick that testator was incompetent to transact business. Testator kept the money in his own trunk and kept the key to it, and when he so directed, defendant would get the money out and hand it to him, or would pay it as directed. Used no undue influence, persuasions, etc. to induce testator to make him gifts. He and his wife stayed in the presence of testator at his special request, because, he said, when they did so, there was less quarrelling at him. Testator’s mind was not impaired; he was perfectly sane, acted on his own judgment, was capable to transact business, and did so up to two weeks before his death. Affiants saw nothing to indicate the exercise of undue influeuce over him by defendant, or to show that his will was not free and sufficiently strong to manage his affairs. At the time testator sold the land to Peacock, he was not living at defendant’s house, and defendant refused to advise him one way or the other about selling the land.</p> <p>Defendant’s wife deposed that she never heard defendant say anything about testator’s giving him anything; that she was present when testator gave him $1,000.00 v in January, 1888; that $500.00 of the money used to pay for the Brinsfield farm were the proceeds of cotton raised on her farm; that the money used in paying for the goods in the supply store' was the separate property of deponent; that the stock was not worth more than $175.00 or $200,00 ; that the $200.00 paid by Peacock, December 31, 1887, was paid over to Sallie Whitehead ; that neither deponent nor defendant ever sought to control or influence testator, who kept his own money himself; and that the addition to the house of defendant did not cost over $15.00 or $20.00, which was deponent’s money, and her money paid for the furniture mentioned in the bill. Before the Brinsfield farm was purchased, and when defendant was not present, testator spoke of it to a witness as the place Thomas was speaking of buying, and said he thought it cheap at $1,000.00, in which opinion witness concurred. Testator told a witness, after the purchase of the Brinsfield farm, that he had given Thomas’ the-money to buy it; and at the request of testator, this witness attested his signature to the transfer of the Kennedy mortgage, and testator was then sound in mind, and witness saw nothing to induce him to .believe-that the transfer was not free and voluntary. S. M. Kennedy testified that, in the transaction in which he borrowed money from testator and gave a mortgage, the entire affair was managed by testator intelligently for himself, when defendant was not present, and had nothing to do with the loan .so far as witness knows; and the money was taken by testator from his own pocket and handed to witness. Y. B. McGinnis testified that, in February, 1888, he received a written order from testator asking him to pay defendant $292.18, which he owed testator by note and account, and he paid it; and that the order, note and account have all been lost or destroyed. Peacock testified, as to the terms of his trade with testator, that testator managed all the details of the affair and was careful and pains-. taking about it; that deponent had heard that testator’s children claimed some interest in this land, and called attention to this fact, and testator said he would arrange the matter, and some time afterwards testator returned and presented papers from each of the children acknowledging receipt of $250.00 each, for which they relinquished any claim to a distributive share of their mother’s estate, and an agreement to sign a receipt on the payment to them of that amount, and all. of the children signed these papers. As late as January, 1888, Peacock had a settlement with testator, and saw nothing about him but the same methodical and painstaking manner of attending to business which had distinguished him for thirty years. 'W. W. Roberts deposed that, in March, 1888, he sold defendant a mule for $145.00 due. in November. 1888, and. that none of this has been paid,</p> <p>The presiding judge directed that, within thirty days, defendant execute to the ordinary a bond with security for $2,200, conditioned for the faithful administration of testator’s estate; and that upon his failure to give this bond, the court would, by order, upon application from complainant’s counsel, remove defendant as executor and appoint a receiver. It was further ordered that the injunction be refused as to the Brinsfield land, the mule, supply store and furniture; and that the injunction be granted as to all the other property mentioned' in the petition. To this order the defendant excepted.</p>

Practice. Evidence. Eailroads. Negligence. Charge of court. Verdict. Before Judge Van Epps. City court of Atlanta. March term, 1888. Mrs. Georgia Nash sued the railroad company for damages for the homicide of her husband. On the trial she proved that her husband, at the time of his death, was a car-coupler for defendant at $45 per month.

Criminal law. Charge of court. Good, character. Evidence. lies gestae. Before Judge Maddox. Eloyd superior court. March term, 1888.

Criminal law. Murder. Evidence. Verdict. New trial. 'Charge of court. Before Judge Richard II. Clark. Eulton superior court. March term, 1888. A brief statement of the principal facts shown by the evidence is added, in connection with the report contained in the decision. About fifteen minutes before the killing, defendant came to the house where he and deceased lived, took a gun and went out.

<p>1. That Burke was himself imposed upon by the forgery by Knapp of the name of Knapp’s wife as maker and grantor of a note and deed, [ would not preclude Burke from complaining of the payment by a ' bank of a check drawn upon it by Burke in favor of Mrs. Knapp to . Knapp, upon the forged indorsement by Knapp of her name upon said check. Nor is it true that, because Knapp’s own indorsement was genuine and followed the forged indorsement of his wife’s name and he was the last indorser, the bank was not bound to look . to the genuineness of her indorsement.</p> <p>2. When the bank reported to Burke, in a statement of its account with him and return of his bank book with the check in question, that it had paid the money on the check, it appearing therefrom that the money was so paid on the indorsement of Mrs. Knapp though actually paid to Knapp, he being the last indorser, Burke had a right to rely upon the supposition that Mrs. Knapp’s indorsement was genuine, there being nothing to put him upon notice that it was forged.</p> <p>3. The money being in the hands of the bank on general deposit, it was entitled to hold it without payment of interest; consequently Burke could not recover interest thereon from the time the check was improperly paid. The bank not having paid out the money, , as between itself and its depositor, it is only chargeable with interest as if the money had still remained in its hands.</p>

<p>1. A declaration by a corporation against a common carrier, alleging an alternative contract to deliver to the plaintiff or Ií. M. Beaty & Co. for the plaintiff, is not supported by proof of a contract to deliver to and for H. M. Beaty & Co. Nor does such proof support the more loose allegation of a contract to deliver generally for the plaintiff, without specifying to whom.</p> <p>2. That Ii. M. Beaty & Co., the consignees, were agents of the corporation, though their agency was not disclosed to the consignors or the carrier, would entitle the corporation to take the benefit of the contract and sue upon it in the corporate name, but would not dispense with correctly pleading the undertaking to deliver which was actually entered into, or with proving the same as pleaded. The terms of the contract would not be changed by the element of agency; that element would only vary the legal consequences in respect to parties.</p> <p>3. Where the testimony (all of it introduced by the plaintiff) can be made consistent by construing the word “ we ” as meaning H. 3M. ■ Beaty & Co., but cannot be so harmonized if construed to mean a a corporation of which H. M. Beaty is president, the former construction is the one to be adopted.</p> <p>4. To recover of a common carrier damages for mere delay in performing the contract of carriage, the value of such goods at the the place of destination when they ought to have arrived should ' appear, and also their value when they did arrive ; the difference j between these values being generally the measure of damages. And to show when they ought to have arrived, the contract being silent, it should appear what length of time was usually required or was reasonably necessary to effect the transit.</p> <p>5. Under an allegation in the declaration that some of the grates in question were delivered at destination in a broken and damaged condition, evidence that “ the grates ” were delivered in that condition -will not justify an inference either that all or any particular number of them were broken and damaged. To base any recovery on this part of the declaration, it ought to appear, approximately at least, how many were so injured, and how much the injury impaired or diminished their value.</p> <p>6. A railroad company whose line extends from Atlanta to West Point, Georgia, having received at Atlanta goods for shipment, consigned to Dallas, Texas, and having fixed by contract with the consignor the rate of freight for the whole distance, apportioning a part of the same amongst three carriers, itself included, to New Orleans, and assessing the balance for the transportation beyond New Orleans, the contract was, prima facie, a “through contract,” and bound the initial company for performance to Dallas, the point of destination. This was so, notwithstanding the named rate was made subject to change without notice, the effect being to limit the agreed special rate to the particular shipments with reference to which the rate was established, but not to allow any change, either along or at the terminus of the route, which would effect these shipments.</p>

<p>Statute of limitations. Actions. Diligence. Before JuclgeWELLBORN. Hall superior court. February term, 1888.</p> <p>Reported in the decision.</p>

Verdict. Evidence. Charge of court. Jury and jurors. Constitutional law. Before Thomas ~W. Milner, Esq., judge pro hac vice. City court of Cartersville. March term, 1888. Reported in the decision.

<p>1. The evidence was conflicting as to whether or not the railroad train was stopped a sufficient length of time to enable plaintiff to safely alight from it; and there was sufficient evidence to sustain a verdict in her favor.</p> <p>2. Plaintiff showed that she was confined to her bed and room for months, suffered great pain and still suffers pain from the injuries she received; and a verdict in her favor for $500 damages was, therefore, not excessive.</p>

<p>This case is settled by the decision of this court in Dover vs. State, March term, 1888, (80 Ga. 781,) in which it was decided that the building of a fence aronnd a militia district which had adopted the no fence law, as provided in section 1455(a) of the code, is not a condition precedent to the operation of the law.</p>

<p>Prior to the constitution of 1877, if the property of one were damaged by the building of sewers and grading of streets, unless it was done unskilfully, it was damnum absque injuria, and the provisions in that constitution as to compensation for damages to private property, as well as for its taking for public use, did not make that a nuisance in law which was not a nuisance before. Hence, a suit for damages, both past and future, must still be brought within four years from the doing of such work by the city. As there was no original nuisance, there could be no continuing nuisance. Smith vs. City of Atlanta, 75 Ga. 110, distinguished.</p>

Criminal law. Liquor. Minors. Before Judge Van Epps. City court of Atlanta. March term, 1888. Dick Blair was tried on an accusation charging him with having sold spirituous liquors to a minor, without first obtaining. written authority of the parent or guardian of said minor.

<p>' Criminal law. Pleadings. Autre fois convict. Before Judge Van Epps. City court of Atlanta. March term, 1888.</p> <p>Reported in the decision.</p>

<p>A grantee o£ water privileges who by express stipulation is without right to dam up the water so as in any manner to overflow or injure a certain spring on the premises, cannot obstruct or affect it injuriously by erecting a dam or embankment across its outlet, and compressing’ the water in its passage through the same within a narrow and confined channel, although at the date of the grant the spring was not'flowing naturally, hut had artificial works across ' the outlet, which retarded the flow. The owner not having covenanted to keep his spring in an artificial condition, could let it revert to its natural condition without subjecting it to he overflowed or otherwise injured by dams or obstructions thereafter erected. ' That he had obstructed it himself was no license to another to do it.</p>

Water and water-courses. Torts. Damages. Before Judge Boynton. Henry superior court. April term 1888. B. W. Grant sued L. A. Euglar, alleging as follows: Grant owned certain land, and Euglar owned an adjoining tract.

<p>Witness. Evidence. Torts. Damages. Charge of court. Before Judge Van Epps. City court of Atlanta, June term, 1888.</p> <p>Reported in the decision.</p>

<p>1. In his statement to the jury, the accused having imputed to his wife the use of words which may have been the provocation upon which he acted in giving her the mortal blow; the court was warranted in charging upon the insufficiency of words as provocation according to section 4325 of the code, and in commenting upon and explaining the import of the section to the jury.</p> <p>2. If the wife, merely to irritate, vex and insult her husband, told him he was not the father of their children, and he,' provoked by her words and the animus with which they were uttered, killed her, though in a sudden heat of passion, it was murder.</p> <p>3. If in good faith he believed her declaration to be a truthful confession of her infidelity, and in a sudden transport of passion consequent upon the discovery, he instantly killed her, whether with this origin the homicide would or might be only voluntary manslaughter, is not a question now for decision, the same not having been made in the motion for a new trial or in the bill of exceptions. Moreover, the accused did not say or suggest in his statement that he believed .what his wife said and acted upon that belief.</p> <p>4. That the wife was unchaste or otherwise a bad woman would certainly not justify the homicide, nor would it, in the absence of a sudden heat of passion resulting from adequate cause, tend to reduce the homicide below the grade of murder.</p> <p>5. Whilst the charge of the court refers to some irrelevant matters, such as self-defence, reasonable fear, etc., the verdict being correct, these irrelevancies were harmless, and are not cause for a new trial.</p> <p>6. It is legally true, and the jury may be so instructed, that the responsibility is upon them to recommend or forbear to recommend imprisonment for life in lieu of capital punishment, and that to do what they think right and proper in that regard rests -with them and their consciences.</p>

lies adjudícala. Fraud. Injunction. Discretion. Before Judge Hutchins. Gwinnett county. At chambers, July 2, 1888. After the case in 80 Ga. was decided, the Craigs filed their petition against Cosby, the sheriff, and against S. C. McCandless and C. H. Brand. This, petition set up the defences that were contained in their affidavit of illegality, and detailed -all the facts and circumstances touching their becoming securities on the replevy bond.

<p>Tax. "Wild laud. Redemption. Before Judge Fain. Murray superior court. August.term, 1888.</p> <p>Reported in the decision.</p>

<p>Where one bought land in good faith, and received from one who represented himself as agent of the owners oi the land, a bond for titles with the signatures of such owners thereto by such person as agent, such bond, though a forgery, will constitute good color of title; and the grantee of .the party purchasing, having in good [ faith been in possession of the land, under such color of title, for seven years, had a good title by prescription. Simmons vs. Lane, 25 Ga. 178, cited and distinguished.</p> <p>(a) In the present case, the plaintiff admitted that the pretended agent signed the bond in question, and proved that no authority to sign the bond had been given to the pretended agent, thus supplying the lack of proof on the part of defendant to show the authority of the agent, or to show that the bond was a forgery.</p>

<p>Res adjudícala. Supersedeas bond. Judgments. Before Judge Neel. City court of Cartersville. June term, 1888.</p> <p>Reported in the decision.</p>

<p>Administrators. Sales. Advertisement. Title. Partition. Praud. Before Judge Marshall J. Clarice. Pulton superior court. March, term, 1888.</p> <p>Reported in the decision.</p>

<p>Malicious prosecutions. Pleadings. Practice. Evidence. Probable cause. Before Judge Van Epps. City-court of Atlanta. June term, 1888.</p> <p>Reported in the decision.</p>

<p>Where a defendant in execution by motion alleges that a sheriff’s return of personal service upon him is untrue, and the sheriff answers that he did make such personal service, and this answer is traversed by defendant, the case thereby made should be entered on the issue docket of the court.</p> <p>(а) This is true, though the case is not in the superior court, but in the city court of Atlanta, for laws in relation to practice in the superior court are, by the act constituting that city court, made applicable to the latter court; and even without such provision in the city court act, the statute mentioned would be applicable to the city court.</p> <p>(б) The case having been by mistake entered on the motion docket, it was proper to dismiss it from that docket, but it should not have been dismissed out of court because upon a call of the motion docket no counsel appeared for defendant. So while the judgment is affirmed, direction is given that the case be entered upon the • issue docket and there stand for trial according to law.</p>

<p>Amendment. Charge of court. Contracts. Infancy. Ratification. Before Judge Fain. Murray superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>1. Relatively to subsequent creditors of the purchaser, a conditional sale of chattels not duly recorded, is the same as an absolute sale.</p> <p>2. When no part of the purchase money has been paid, a sale may be rescinded by mutual consent, though the purchase money notes have been transferred to a third person, provided the seller takes up the notes in consequence of the rescission, and either returns them to the maker or holds them subject to his order.</p> <p>3. The rescission of a sale is complete as soon as the relation of debtor and creditor for the whole purchase money is dissolved, and thisis accomplished when the purchaser holds the property for the seller, and the seller holds the notes for the purchaser.</p> <p>4. An attachment against the purchaser, levied upon the goods after a complete rescission of the sale, is not effective against the title of the seller.</p>

<p>1. A bill for specific performance to compel defendant to make title to complainants to certain lands, which they alleged they had purchased from him, was properly dismissed where their evidence showed that, at the time of filing the bill and at the time of the trial, they were indebted to him in a large amount for the purchase money, which they had failed to tender him, and when their evidence did not show that they had made an offer to perform their part of the contract or were able to perform it, and where the description of the land in the bill and in the evidence was so vague and uncertain that its boundaries could not have been described by the court in its decree with sufficient certainty.</p> <p>2. A ground of exception that the court refused to allow certain witnesses to testify, cannot be considered when the record fails to disclose what the testimony was, or what the witnesses would have testified; but assuming that the testimony would have been that’ complainants made a contract with one Turner as to the land, and that the contract made by them with defendant was the same as that made with Turner, and that the witnesses would have testified as to what the contract between complainants and Turner was, the evidence would have been immaterial, because witnesses for complainants had testified that the contract with defendant was the same as that made with Turner, that defendant had simply taken Turner’s place, and that complainants had explained to defendant, at the time, the terms of the contract between them and Turner. But the exclusion of testimony as to what the contract between complainants and Turner was, because Turner was dead, was an exclusion for á wrong reason; though the evidence was properly excluded, as stated.</p>

<p>The fund in question being in the hands of the receiver, and the rank of all claims thereon having been finally fixed, and all claims of a higher dignity than that of the plaintiff in error having been paid, and there being left a balance sufficient to pay her claims, there being no other unpaid claim of equal dignity with hers, it was error for the court to refuse to order it paid, it also appearing that the land upon which she held a mortgage, when sold by the receiver, brought more than sufficient to pay off the mortgage, and that the fund raised from the sale of this land was put into the general fund , and distributed according to the priorities of the various claimants.</p>

<p>Principal and surety. Homestead. "Waiver. Interest and usury. Yerdict. Before Judge Gustin. Crawford superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>A nonsuit was properly granted. So far as the testimony shows, the rope furnished plaintiff (a well-digger by occupation) by the defendant, for the purpose of cleaning out the well in question, and by the breaking of which the plaintiff was injured, was a good rope. It was carefully examined by both the plaintiff and the overseer of the road, and there was no defect in it which could be discovered by the use of ordinary care. There was no negligence shown by the testimony on the part of plaintiff or defendant; both parties pronounced the rope good. It appears from the evidence to have been one of those accidents which could not have been foreseen, so as to have been provided against by either party.</p>

Criminal law. Evidence. New trial. Before Judge Harris. Coweta superior court. March term, 1888. Billy Echols was tried on a charge of having murdered her child. On the trial the State showed as follows : The child was found, about the middle of February, 1888, in an old dry well. Its skull had been fractured in two places, and there was a cord tied around its neck so tightly as to cut into its skin. It seemed to have been dead ten or twelve days, possibly a fortnight.

<p>The dormancy of a judgment which was obtained and on which execution issued in 1876, but upon which execution no entry by the proper officer was made until 1888, was not prevented by the fact that in 1888 it was levied upon property which had been set apart as a homestead for the family of defendant in execution prior to the date of the judgment, which homestead did not expire until December, 1886. Hart vs. Evans, 80 Ga. 380, cited and distinguished.</p>

<p>From the petition and exhibits thereto, it appears that the partition in question of certain lands between petitioner and her mother, made under the provisions of the will of petitioner’s father by appraisers appointed by the ordinary, was made in April, 1874, and that the appraisers made their return to the ordinary in the same month and year, and that petitioner knew in what manner the - land had been divided. If the division was unequal, she ought to have filed her objections then and had the matter passed on by the ordinary, so that, if the objections were sustained, ho could have appointed new appraisers and had a new partition made. After waiting fourteen years, it was too late for her to object to the return or to have a new division made. The demurrer to the partition was therefore properly sustained.</p>

<p>While a contract can he made by correspondence through the mails or by telegrams, the offer of a seller must be accepted by the purchaser unequivocally, unconditionally and without variance of any sort. There must be a mutual assent of the parties, and they must assent to the same thing in the same sense.</p> <p>(а) Therefore, when the party who proposed to sell in this case lived in Chattanooga, Tennessee, and the other party in Rome, Georgia, and such resident of Chattanooga wrote such other party that she would accept a certain amount for the property in question, one-third cash and the balance on time, her offer meant that she would . accept the cash and make deed to the purchaser in Chattanooga; and when such other party wrote accepting her offer, and saying that the money was 'ready at Rome, and directing her to send the deeds to Rome, it was not a full acceptance of the offer she had made, and therefore was not a complete contract.</p> <p>(б) That in a subsequent letter she stated that, just after writing the other party, she received a better offer, would not benefit the other party, as neither in that letter nor in any other did she express assent to the new terms mentioned.</p>

Jury and jurors. Indictment. Abatement. Practice. Before Judge Adamson. City court of Carrollton. May term, 1888. Henry Crawford was tried on a special presentment, charging him with having sold liquors without license.

<p>•. There is no law for serving a copy of the summons of garnishment, making a return of service on the original, filing it in the office of the clerk of the superior court, and having that court to render judgment against the garnishee for failing to answer, on making proof that' judgment has been rendered in the superior court of ,' another county on an attachment returned to that court, there being nothing of file or on record in the court to which the garnish- . ment was returned to connect the garnishment with the attachment ' in the other county.</p>

<p>1. It appears that plaintiff lent the machine to the defendant without any fraudulent misrepresentation by the latter. If so, a possessory warrant would not lie for it.</p> <p>2. The warrant in this case seems to have been sued out under the second clause of section 4032 of the code, and affiant seems to have relied upon the fact that the machine had “been recently in her possession, and had been taken possession of by defendant under some pretended claim without lawful warrant or authority,” etc.; but the affiant failed to state, in accordance with this clause, that</p> <p>[ the machine “had disappeared without her consent ”; and it further appears from her testimony that she could not truthfully so state in her affidavit. It was not error, therefore, to hold that the warrant was void, and that no valid judgment could be pronounced upon it. Peak vs. Cogborn, 50 Ga. 562, cited and distinguished.</p>

<p>New tidal. Evidence. Witness. Practice. Before Judge Harris. Coweta superior court. March term, 1888.</p> <p>Eeported in the decision.</p>

<p>1. If the sheriff, in executing a writ of possession, remove from the premises any person not mentioned in the writ and not within its legal operation according to section 3638 of the code, such removal amounts to official misconduct, and he thereby subjects himself and his sureties to an action upon his official bond at the suit of the person so aggrieved.</p> <p>2. No preliminary recovery against the sheriff for the wrong is requisite to entitle the injured party to sue on the bond.</p>

<p>A solicitor-general who brings money into court from fines and forfeitures, is entitled to. have the several amounts due him paid first. When they are paid, if there is a surplus, the insolvent orders of the former solicitor-general and the clerk and sheriff are next paid, according to their priorities. If their still be a surplus, it is then paid into the treasury of the county.</p> <p>(a) It is the duty of solicitors-general, when a prisoner has been tried and convicted' and sentenced to pay a fine and the costs of the .prosecution, to put in a bill of costs the jail fees, and to collect and pay the same over to the proper county officer.</p>

<p>1. One who holds land under a tenant for life, acquires no title by prescription as against those entitled in remainder, if they bring suit within seven years after the death of the tenant for life. .</p> <p>2. A trustee appointed to hold during the coverture of the tenant for life, she being a married woman, and for her only, has no title to the fee, and does not represent the remaindermen. ''</p>

<p>Injunction. Public alleys. Damages. Before Judge Marshall J. Clarke. Eulton county. At chambers, August 2, 1888.</p> <p>Reported in the decision.</p>

<p>Promissory notes. Railroads. Stock and stockholders Contracts. Before Judge Boynton. Spalding superior court. August term, 1888.</p> <p>Reported in the decision.</p>

<p>Notice. Evidence. Practice. Continuance. Before Judge Fain. Bartow superior court. July term, 1887.</p> <p>Reported in the decision.</p>

<p>When, the building of a bridge is let out by the county, and it is built by a contractor, from whom the proper county authorities fail or neglect to take a bond of sufficient guaranty, and any person is damaged by reason of any defect in the bridge, he can bring his action either againstthe contractor or against the county. It is not necessary that he should sue the contractor to insolvency before he can sue the county.</p>

<p>Wills. Ademption. Legacies. Married women. Before Judge Lumpkin. Glascock superior court. February term, 1888.</p> <p>Reported in the decision.</p>

<p>Criminal law. Evidence. Motive. Presumptions. Before Judge Wellborn. Hall superior court. February term, 1888.</p> <p>Reported in the decision.</p>

<p>The proviso in section 4038 of the code, to the effect that a defendant in a possessory warrant case, who can satisfactorily show quiet and peaceable possession of the property for four years next immediately preceding the issuance of the warrant, shall be entitled to have the warrant dismissed, extends to the preceding section, 4035, and the two should be construed together. The defendant in . this case did show that he and those under whom he claimed had been in such possession, and that they had bought the property and paid a fair price for it; and their possession could be tacked together so as to show possession adverse to plaintiff for four years.</p>

<p>Practice. Judgments. Reinstatement. Before Judge Maddox. Polk superior court. February term, 1888.</p> <p>Reported in tbe decision.</p>

<p>1. The evidence fully authorized the verdict.</p> <p>2. The defendant was accused of entering a railroad car and stealing therefrom a certain'quantity of corn. There was no evidence that the car was broken open, or if broken that the defendant did it; but the evidence showed that corn was stolen from the car, and that defendant was arrested in the streets with one of the stolen sacks of corn in his possession. The proof showed a misdemeanor under §4419 of the code.</p>

<p>Criminal law. Evidence. Verdict. New trial. Before Judge Van Epps. City court of Atlanta. March, term, 1888.</p> <p>Reported in the decision.</p>

<p>Newly discovered evidence. Diligence. Before Judge Richard H. Clark. Eulton superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>1. The record should show that the motion to rule out testimony, refusal to do which is assigned as error, was made before the conclusion of the case to the jury.</p> <p>2. The verdict was authorized by the evidence.</p>

<p>' Verdict. Charge of court. Before Judge Richard H. Clark. Eultou superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>Witness. Evidence. Before Judge Hutchins. Wal•ton superior court. August term, 1888.</p> <p>Reported in the decision.</p>

<p>Private. Avays. Prescription. Obstructions. Before Judge Marshall J. Clarke. Eulton Superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>1. Alcohol is a spirituous and intoxicating liquor, and it was not necessary for the State to prove that it is intoxicating.</p> <p>(а) A fact known to every man of common understanding will he taken judicial cognizance of.</p> <p>(б) Where it is not well-known and recognized by the people generally that a drink is intoxicating, proof that it is should be required.</p> <p>2. Although no license may have been required of druggists for the sale of alcohol, if it is a spirituous or intoxicating liquor no druggist or other person has a right to sell or furnish it to a minor without the written consent of his parent or guardian.</p> <p>‘3. That the sale was not made by the accused himself, but by his cleric, cannot avail him.</p>

<p>Where one, fraudulently representing himself to be the agent of another thereby gets possession of goods which the party delivering did no intend to sell to him, and the title to which such party did not intend to go into him, but the custody alone of the goods was entrusted to him, upon such fraudulent representation, for delivery of them to his alleged principal, and the goods are converted to his own use by the party so obtaining them, he is guilty of larceny.</p>

<p>Evidence. "Witness. New trial. Before Judge Adam-son. , City court of Carrollton. May term, 1888.</p> <p>Reported in the decision.</p>

<p>Contracts. Construction. Before Judge Marshall J. Clarke. Eulton superior court. March, term, 1888.</p> <p>Reported in the decision.</p>

<p>New trial. Newly discovered evidence. Before Judge Richard H. Clark. Eulton superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>Bills of exchange. Acceptance. Before Judge Fain. Whitfield superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>Criminal law. Evidence. Demurrer. Practice. "Witness. Charge of court. Before Judge Richard H. Clark. Eulton superior court. March- term, 1888.</p> <p>Reported in the decision.</p>

<p>Homestead. Exemptions. Garnishment. Before Judge Eain. Murray superior court. August term, 1888.</p> <p>Reported in the decision.</p>

<p>Wills. Remainders. Division. Evidence. Before Judge Boynton. Pike superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>A testator devised the property in question to his daughter Martha, for the use of her and her daughter Mayler, and after Martha’s death, one-half to be equally divided between three grandchildren (naming them), the other half to go to Mayler, and if she die without heirs, to be equally divided between the three grandchildren named. Martha is still alive. Mayler died without issue and intestate. One of the other three grandchildren.named, after the death, of Mayler, filed his petition for a partition as legatee under the will:</p> <p>Held, that the land was not, under the will, to he divided until after the death of the life tenant, Martha. Her daughter had a joint use of it with her mother during her mother’s life, and if she had lived, she could have received only her portion of the land after the death of her mother; so that, whether the petitioner claims under the clause of the will in which half of the property is given to him and two other grandchildren, or under the clause which provides that, in case of Mayler’s death without heirs, the property is to he equally divided between petitioner and the two other grandchildren, he has commenced his proceeding before the time contemplated by the testator for the division of the property.</p>

<p>Liquor. Laws. Evidence. Practice. Before Judge Fain. Catoosa, superior court. March, term, 1888</p> <p>Reported in the decision.</p>

<p>"Wills. Legacies. Evidence. Before Judge Lump-kin. Glascock superior court. February term, 1888.</p> <p>Reported in the decision.</p>

<p>1. Where a railroad company receives freight for shipment, and its employés strike or cease to work for the company, it is still hound to forward the freight within a reasonable time; but if the strike is accompanied with violence and intimidation, so as to render it un- . safe to forward the freight, the company is thereby relieved from liability for delay, especially when the resistance made by the strikers is of such a character as could not be overcome by tho company, or controlled by the civil authorities when called .upon by it.</p> <p>2. If the proceeds of flour sold when it did arrive, although unusually delayed in arriving, were sufficient to pay the amount of the draft advanced by plaintiff upon the faith of its shipment, he could not recover in this action. Profits he anticipated making at the time he made the advance could not be recovered by him from the railroad' company.</p> <p>3. The bill of lading for the flour not having been indorsed to plaintiff . by the party in whose favor it was issued, the former could not maintain an action against the company upon it. .</p> <p>(а) Even if there had been such indorsement, a bill of lading is not such a negotiable instrument as to give to the assignee any other or greater rights than the assignor had; and the assignor having received the bill of lading with the knowledge that the flour was not at the time on the line of road of defendant, but on the line of a connecting road, he could not have recovered damages for delay in its delivery, if the connecting road was prevented from forwarding it by an armed mob.</p> <p>(б) It is too late, after a case has been argued and after the court has spent hours in its investigation, to suggest mistakes in the record; such suggestions should be made on or before the calling of the case.</p>

<p>Garnishment. Municipal corporations. Practice. Before Judge Van Epps. City court of Atlanta. June term, 1888.</p> <p>• Reported in the decision.</p>

Principal and surety. Bonds. Duress. Pleadings. Before Judge Simmons. Bibb superior court. April term, 1887.