Volume 82 — Georgia Reports

<p>1. An instrument in writing by which Kelly Bros. & Porter sold and transferred to one Whitney their whole stock of goods, mortgages, notes, etc., in payment of a pre-existing debt which they owed to Whitney, and by which Whitney agreed that the indebtedness which he held against the firm should be settled in consideration of the sale, and that he would pay certain other preferred creditors of the firm mentioned in the instrument, his obligation being not to pay these other preferred creditors out of the proceeds of the goods, but to pay them whether such proceeds were sufficient or not, and no trust being reserved by the instrument so far as disclosed by the record, either expressly, impliedly or secretly, for the firm or any of its members, was an absolute bill of sale and not an assignment. Coggins vs. Stephens, 73 Ga. 414, distinguished.</p> <p>(a) While the form and words of an assignment and bill of sale are generally the same, the element of trust, either express, implied or secret, distinguishes an assignment from a sale.</p> <p>2. That portion of section 1953 of the code containing the words, “or that of any other favored creditor, to the exclusion of other creditors,’’ was repealed by implication by the act of February 23, 1866.</p> <p>(a) The acts of the legislature requiring an assignor to attach to the assignment a list of creditors and schedule of indebtedness, etc., apply only to assignments, and do not apply to sales, especially .sales like the one under consideration; the facts in the record ■.showing that Kelly Bros. & Porter did not sell to Whitney the •whole of their property but only a part, and sold the other portion •to some other creditors.</p> <p>"3. Questions as to actual concealed fraud, or of the sale being made to hinder or delay creditors, were matters of fact to be passed on first by the court below and then by a jury; and as the court did not see proper to grant an injunction upon these grounds, this court cannot say that he erred.</p>

<p>Deeds. Remainders. Devises. Before Judge Boynton. Monroe superior court. February term, 1888.</p> <p>Reported in the decision.</p>

<p>1. The last clause of §4564 of the code, providing that the fine imposed in a case of bastardy shall be paid over to the ordinary, to be applied to the maintenance and education of the bastard, was repealed by the act of March 20, 1866. This act changed the penalty in cases of bastardy, and provided fora punishment largely discretionary with the court, as provided in §4310 of the code; whereas the old law provided, as a penalty for bastardy, a fine of a certain amount, and in case of its non-payment, imprisonment for a fixed time. The old law fixed a penalty which, with the interest thereon, was deemed sufficient to support and educate the child until it could earn its own support; whereas the penalty fixed by the act of 1866 is solely a punishment inflicted upon the father, and does not seem to contemplate the support and education of the child.</p> <p>(а) The retention in the code of the latter clause of §4564, was an error of the compilers, and this error was not cured by the adoption of Irwin’s revised code by the constitutional convention of 1868. In adopting that code, the convention did not intend thereby to adopt the errors contained in it.</p> <p>(б) The general rule of law being, that the solicitor-general and other officers of court are entitled to retain all the fines and forfeitures for the purpose of paying them their insolvent costs, fines arising under §4564 should be appropriated by the court to this purpose. The law as found in the code §§4552,4601, 4612(d), does not militate against the above view. These sections constitute new offences, and were enacted since the act of 1866, and the acts themselves prescribe the amount of the fines and the manner of their distribution. Section 4582 of the code, as to the distribution of fines arising from violation of the Sabbath, was virtually repealed by the act of February 27, 1875.</p>

<p>When a justice of the peace went outside the limits of his district and undertook to hold his court, he had jurisdiction neither of the subject-matter nor of the person, and no waiver or agreement made before him. outside of his jurisdiction could confer jurisdiction upon him. Outside the limits of his district, he was not a judge. Reichert vs. Voss, 78 Ga. 54, cited and distinguished.</p>

<p>Contracting to sell a gallon of whisky generally, taking an order for the same to be filled by delivery to a common carrier, and receiving the price, will not complete the sale. The sale is not completed until separation of the particular gallon from the common stock and delivery to the carrier. Hence,, the sale is not consummated at the place where the bargain is made and the price paid, but at the place where delivery is made to the carrier, the freight being paid not by the seller but by the purchaser,.and there being no contract to deliver otherwise than to the carrier at the point of shipment.</p>

<p>Statutes. Constitutional law. License. Liquors. Municipal corporations. Before Judge Smith. Harris superior court. April terra, 1888.</p> <p>Reported in the decision.</p>

<p>Yerdiet. Principal and agent/ Negligence. Evidence. Principal and surety. Bonds. Interest. Practice. Directions. Before Judge Gustin. Bibb superior court. May term, 1888.</p> <p>Reported in the decision.</p>

<p>Practice. Demurrer. Administrators. Actions. Bonds for title. Damages. Demand. Pleadings. Yerdict. Before Grigsby E. Thomas, Esq., judge pro hac vice. Talbot superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>1. Whether by the use of ordinary care a pregnant woman could avoid the consequences to herself of the negligence of a railway company, in not providing a safe and suitable landing place to alight from the cars, the conductor having designated the place as suitable and assisted her to alight, is a question for the jury. The matter being doubtful, and the doubt not being soluble by the record to the satisfaction of this court, the judgment of the superior court denying the company a new trial, will not be reversed.</p> <p>2. The like rule holds touching the question whether, after receiving the injury, the woman could, consistently with ordinary prudence, undertake a short journey to reach her home, rather than remain at the station and take immediate precautions to obviate the threatened consequences.</p> <p>3. Although in strict practice a rule nisi for a new tidal seems requisite, yet it need not be separate from the motion, nor be signed by the judge, if the judge on hearing the motion can and willrecognize as the rule that which has been signed by counsel. More especially is this so where opposing counsel has also recognized it in his acknowledgment of service. If such irregular rule has not been entered on the minutes, it may by order of the judge be entered nunc pro tunc.</p>

Evidence. Verdict. New trial. Before Judge Port. Sumter superior court. April term, 1888. Holly Eubanks was charged with the burglary of a certain gun, three pistols and a pair, of pliers. The evidence for the State tended to show as follows: The storehouse of the prosecutor was burglariously entered one Friday night, before five o’clock in the morning, and a breech-loading shot-gun and repeating pistol and a pair of pliers were taken from it.

Realty. Heirs. Administrators. Tear’s support. Before Judge Hines. Emanuel, superior court. November term, 1887. Mi's. Perneta Johnson, Rowan and J. L. Johnson, as heirs and distributees of the estate of B. W. Johnson, deceased, (the former being the widow and the other two the children of said B. W.) cited Littleton Cross, as administrator of said B. W., to a settlement. The matter wa.s appealed, by consent, from the court of ordinary to the superior court.

Judgments. Continuance. Practice. Before Judge Eort. Webster superior court. April tenn, 1888. C. & G. Cooper & Co. sued I. A. Whaley on three promissory notes given for the purchase price of an engine. The defendant filed pleas of the general issue and failure of consideration.

<p>It was not criminal negligence in a corporation not to give warning to the master-machinist employed in their establishment that there was danger of fire in the gas-room, or that there was danger that . the wall or walls would fall in case fire occurred, it not being alleged that he was ignorant of the danger or of the causes which produced it.</p>

<p>(1) That one of the attesting witnesses to a mortgage signed as judge of a county court in the State of Arkansas (the mortgage being executed in that State), was not sufficient to admit the instrument to record in this State; the certificate of the clerk of said county court not showing that that court was a court of record.</p> <p>(a) The clerk must certify positively that the signature is genuine.</p> <p>(&) While it may be true that a deputy-clerk may perform any duty which the clerk is authorized to perform, it seems that, when the deputy-clerk certifies, he must certify over his own signature, and not over that of the principal clerk.</p> <p>(c) The court below in this case having ruled that the recording of this mortgage was notice, the questions above decided are, therefore, plainly and distinctly made in the record, although it may be true that the attention of that court was not called to the defective probate, and that all the reasons and arguments presented here were not presented there.</p> <p>2. It was not error to rule out evidence as to the custom or habit of the clerk of the superior court to indorse on papers given him for • record that they were recorded on the day on which they were left at his office for record. Nor was it error to rule out evidence as to the sayings of the person in charge of the office when the witness was examining the records.</p> <p>3. It appearing that the plaintiff in execution did not respond to the claimant’s equitable plea, but insisted upon her legal rights, this court cannot pass upon her equitable rights in the case..</p>

Criminal law. Charge of court. Defendant’s statement. Before Judge Richard II. Clark. Dekalb superior court. February term, 1888. Lovejoy was indicted as being present, aiding and abetting one Pritchett in the murder of J. E. Hurst, and in another count of the same indictment, with being the actual perpetrator of the crime, together with Pritchett and another.

Bes adjudícala. Evidence. Deeds. Pleadings. Before Judge Roney. Burke superior court. December term, 1887.

<p>• 1. Claimant had no right to move to dismiss the foreclosure proceeding. It was- a matter that did not concern him, whether the execution was legal or illegal as .between the plaintiff and defendant in the execution.</p> <p>2. There was sufficient evidence to authorize the verdict that the property belonged to the defendant in execution.</p> <p>3. The necessary allegations were made in the affidavit to foreclose the lien. It did not seek to foreclose in a summary manner against land, but against the property of the defendant; and the execution was levied upon personal property. The fact that the clerk, in issuing the execution, inserted therein “ lands and tenements,” did not vitiate it. It was good at least as against the personal property. Snow vs. Council, 65 Ga. 123, distinguished.</p>

<p>Charge of court. Pleadings. Negligence. Contributory negligence. Practice.' Before Judge Maddox. Eloyd superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>Title. Boundaries. Landlord and tenant. New trial. •Before Judge Roney. Richmond superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>A father desired to give money to his married daughter, and offered to do so, but she declined, saying she preferred 'to have land. Finally, when she was not present, he left with her husband, then a prosperous merchant, $1,900, whether as an immediate gift to her, or as a temporary loan to the husband for use in his business until the father could find a suitable opportunity to invest it in land for the daughter, is disputed. The husband reported it to his wife as a gift from her father, and, with her consent, used it in his business. About one year thereafter, a farm was purchased (the husband co-operating with a son of the father in the transaction) at the price of $3,500, part cash and part on time, and a bond from the vendor to make titles to the father on payment of the purchase money in full was taken. The daughter with her husband took possession of the premises with the father’s consent, and is still in possession. The husband paid $1,700 of the purchase money, and her father paid the balance, $1,800. In the meantime, a child was born to the daughter, and her husband failed in business and became insolvent. The father, by deed of gift, conveyed the premises to one of his sons, in trust for the daughter during her life, with remainder to her child or children or their descendants, if any living at her death, and. if none, then to his other children. Of this deed and its provisions the daughter was probably not aware until shortly before filing the present .bill, which as finally shaped by an amendment, is a bill to set aside the deed made to the trustee by her father, and to compel him to convey the whole premises to her in fee simple.</p> <p>Held, that the only material question of fact is, whether the money left by the father with the husband of the daughter, was an executed gift to her, or whether it was a temporary loan to the husband.</p> <p>Held further, that if the money was an executed gift to the daughter, the 'payment by her through her husband of $1,700 of the purchase money, worked a resulting trust in her favor to the extent of seventeen undivided 35ths of the premises, and she is entitled to have the trust deed set aside and cancelled, and then to have, at her election, either a quit-claim conveyance from her father in fee simple, covering 17-35ths of the premises, so as to be a tenant in common with him, he holding 18-35ths, or to leave him sole owner and recover of him $1,700, with a lien (by decree) upon the premises for its payment.</p> <p>Held further, that if the money was not an executed gift to the daughter but a temporary loan to the husband, the jury should find for the defendants below, and the bill be thereupon dismissed.</p>

<p>1. An extraordinary motion for a new trial, if made in vacation without a previous order granted in term, derives all its efficacy and standing from what is subsequently done respecting it in term time.</p> <p>2. An extraordinary motion for a new trial to get the benefit of the statute of frauds touching a parol contract for the sale of land, where the verdict is with the substantial justice of the dispute, taking the evidence most strongly for the prevailing party, is not favored.</p> <p>3. On a bill for specific performance of a parol contract for the sale of land, the vendee being complainant and the vendor defendant, it appearing that the vendee bargained for the whole premises, consisting of one lot containing 202} acres, at $2,000 cash, and thereupon contracted with a third person to let him take a certain part (86} acres) at $1,250, and the defendant when all three were present, agreed orally to make two conveyances, one to such third person for the part he wanted, the boundary of which the defendant had no share in fixing, and the other to the complainant for the residue of the lot, and received from each ten dollars, and shortly afterwards, the complainant paid over to defendant $1,240, money belonging to the third person, and took a conveyance to such third person for the part he was to have, and in a few days thereafter tendered the balance of the $2,000, to wit, $740, and demanded a conveyance for the residue of the lot, but the defendant refused to accept the money or make the deed:</p> <p>Held, that the arrangement for the two deeds can well be treated as only a variation in the mode of executing the original contract, the payment of the money and the reception of the deed as part performance on the part of the vendee, and that possession under the deed, though taken and held by such third person, may be regarded as still further part performance in behalf of the original vendee, and these things, together with feeble possession and slight acts of ownership by him as to the residue of the lot, may suffice to take the case out of the statute of frauds as to such residue, more especially in adjudicating upon an extraordinary motion for a new trial where choice is to be made between abiding by a verdict apparently just and setting it aside on technical law;.</p>

<p>Partnership. Persons. Debtor and creditor. Assignments. Insolvency. Schedules. Fraud. Attorney and client. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>Tax. Constitutional law. Municipal corporations. Injunction. Practice in superior court. Before Judge Roney. Richmond county. At chambers, July 14, 1888.</p> <p>Reported in the decision.</p>

<p>1. An assignment legal in the State of New York where it was executed, and not intended to have effect in this State, is admissible in evidence in the courts of this State to show title of the assignee to debts due the assignors by persons residing in this State, though there are attached thereto no schedule of assets and list of creditors, as required to render valid assignments executed in Georgia,</p> <p>(a) The situs of a debt follows the creditor, and where the debtor and creditor reside in different States, the law of the domicile of the creditor prevails.</p> <p>2. "Whenever the contract itself violates the policy of our law, it is void and cannot be enforced in the courts of this State; but the acts of the legislature requiring.schedules to be annexed to deeds of assignment, do not make those schedules a part of the contract; • nor do these acts apply to contracts or assignments made out of this State. Miller vs. Kernaghan, 56 Ga. 155; Princeton Manufacturing Company vs. White, 68 Ga. 96; Herschfeld vs. Dexel & Company, 12 Ga. 582; Stricker & Company vs. Tinkham, 35 Ga. 176; and Mason & Fant vs. Stricker & Company, 37 Ga.. 262, distinguished.</p>

<p>Railroads. Pleadings. Venue. Jurisdiction. Before Judge Bower. Dougherty superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>'. Tear’s support. Burden of proof. "Witness. Contracts. Title. Before Judge Hines. Washington superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>1. The plaintiff’s evidence showing that he put himself under the conductor to work his way instead of paying his fare as a passenger, and that without the conductor’s instructions he took orders from a brakeman to couple a car to the train and was injured while so doing, the injury being due to the temporary effects of cold weather on the coupling, and not to any fault or negligence of the employes of the company, a judgment of nonsuit was not erroneous.</p> <p>2. In a plain case requiring little or no argument for its elucidation, the trial court will not be reversed for interrupting counsel “almost at the outset” of his argument, and deciding the case, it not appearing how much time had been occupied before the interruption,, or that counsel had more to say and insisted upon being heard, further.</p>

<p>Verdict. Evidence. Equity. Promissory notes. Consideration. Practice. Before Judge Roney. Richmond superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>A. demurrer to tlie bill for want of equity was properly sustained.</p>

<p>Practice. Jurisdiction. Trusts. Parties. Fraud. Minors. Decrees. Charge of court. Verdict. Before Judge Hines. "Washington superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>'Wills. Estates. Administrators and executors .Powers. Before Judge Roney. Burke superior court. .June term, 1888.</p> <p>Reported in the decision.</p>

<p>1. When a hid at a sale of real estate by auction was accepted by the auctioneers, they became the agents of the bidder, and were author ized to make an entry of the sale on their books which would bind him. An entry giving the name of the lot sold, the name of the seller or owner, the date, the name of the purchaser and the price, would be a sufficient entry to go to the jury; and parol testimony would be admissible to explain any ambiguity therein.</p> <p>2. Where personal or real property has been exposed for sale and sold at public auction, and the purchaser has refused to comply with his bid, the vendor may maintain an action for-damages.</p> <p>(a) As to whether the proper measure of damages is the difference between the price bid and the price obtained at a second sale at bidder’s risk, or the difference between the price at the first sale and the true market value of the property at the second sale, is a question upon which the authorities differ; and the question of the measure of damages, not being argued in this case", is not decided.</p> <p>3. The suit was brought in the name of Mrs. Alice M. Ansley, while in the memorandum of sale the name of the owner was stated to be “Mrs. Frank J. Ansley,” but plaintiff may be allowed to show by parol that “Frank J.” was the name of her husband, and that the words “Mrs. Frank J.” were applied to herin the memorandum, and ,' that she was the real owner of the land.</p>

<p>Evidence. New trial. Practice in superior court. J ury and jurors. Administrators. Before Judge Hines. Emanuel superior court. November term, 1887.</p> <p>Reported in tbe decision.</p>

<p>1- The presumption that the railroad company was negligent, the property of plaintiff having been damaged by the running of its trains, was satisfactorily met by the company in this case; it being shown that it exercised all reasonable care and caution to prevent the damage. The verdict against the company was, therefore, contrary to the evidence, and a new trial was properly granted.</p> <p>2. The law requires only that the engineer should blow his whistle at the blow-post and so check his train that he may be able to stop it at the crossing. It does not seem to be necessary for the regular speed to be checked before reaching the blow-post; but the testimony in this case is positive that the speed of this train could have been, and was, checked sufficiently to have stopped it at the . crossing if the animals killed had been upon it instead of a number of yards above it.</p>

<p>Landlord and tenant. Counter-affidavit. Amendment. Practice in superior court. Continuance. Before .Judge Marshall J. Clarke. Fulton superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>Guardian and ward. Jurisdiction. Before Judge Hines. McDuffie superior court. March, term, 1888.</p> <p>Reported in the decision.</p>

<p>A temporary administrator has no right to distribute any portion of his intestate’s estate, nor has he the right to agree to sell and distribute the real property thereof; nor can he interfere with the-realty for any purpose except to preserve and protect it. A notice which an applicant for dower, under §4043 of the code, is required ,' to give to the representative of her deceased husband, must be given to a permanent administrator or an executor appointed under a " will. It is not sufficient to give notice to a temporary administrator.</p>

<p>There can be no legal conviction without proof, direct or circumstantial, that the offence was committed in the county. And the lack of sufficient evidence of the venue is covered by exceptions taken by certiorari to the finding of the county judge as contrary to law and without evidence to support it.</p>

<p>1. Where the plaintiff alleged that when crossing, at night, a little bridge or crossway over the sidewalk covering a ditch two feet deep, he stepped in a hole between the outer planks of the crossing and the earth, fell into the ditch, and was injured ; and the only act alleged tending to charge negligence against the municipality was, that the bridge was badly constructed; and the evidence showed that the place where he was injured was not a bridge but a sewer a foot and a half under the ground, and that he was injured by stepping into a hole made by a recent rain on the side of the sewer, and not by falling through the bridge, nor on account of its being badly constructed; a verdict in his favor was contrary to law, the state of facts on which he recovered being different from that alleged in the declaration.</p> <p>2. A municipal corporation cannot be held liable for damages occurring by reason of a defect in its streets, sidewalks, sewers or bridges, when it has no notice thereof, or when such defect has. not existed for sufficient length of time from which notice can be inferred, provided the corporation has been guilty of no negligence in constructing or “repairing the same.</p> <p>(a) The verdict was contrary to the evidence.</p>

<p>Mortgages. Debtor and creditor. Appropriation of ■payments. New trial. Verdict. Before Judge Hines. Scriven superior court. May term, 1888.</p> <p>Reported in the decision.</p>

<p>Wills. Devises. Construction. Before Judge Roney. Richmond superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>Torts. Pleadings. Justification. Damages. Admissions. Actions. Before Judge Hines. Scriven superior court. May term, 1888.</p> <p>Reported in the decision.</p>

<p>The evidence showing that Darden raised'cotton and turned it over to English, with the understanding and agreement between them that English was to ship it in his own name to a commission merchant, and it was so shipped to plaintiffs in error; that English was indebted to them at the time it was so shipped, and when they received the cotton, they sent him, at his request, more money with which to buy cotton to be shipped to them; and that they sold Darden’s cotton and accounted to English for the proceeds of the sale, knowing nothing of Darden in the transaction, having never heard of him, or that the cotton belonged to him; a verdict in favor of Darden against plaintiffs in error for the value of the cotton' was not warranted by the evidence.</p> <p>(a) Where a principal agrees that the agency may be concealed, third parties contracting with the agent will be entitled to all the equities and all the defences which they would have had against the agent, just as if he were the real principal.</p> <p>(b) Where one gives to another such evidence of the right of selling the goods of the former as, according to the custom of trade or the common understanding of the world, usually accompanies the authority of disposal, or has given the external indicia of the right of disposing of his property, he loses the right of following it; a sale to a fair purchaser divests the first title, and the authority to sell, whether real or apparent, is good against him who gave it, though the confidence of the principal be abused by the possessor of such indicia.</p>

<p>Claims. Charge of court. Exemptions. Practice in superior court. Before Judge Richard H. Clark. Clayton superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>1. The legislature has the power to revoke licenses granted to retail liquors. Such a. license is not a contract by the State, county or city, with the person taking it out, but simply a permit granted by the authorities to do business under the license, and it may be revoked at any time.</p> <p>2. Whenever the legislature fails to except, in a local option law for a particular county, persons who have already obtained license, its intention manifestly is to revoke the license.</p> <p>3. A point made in the record but not insisted on in the argument nor in the brief submitted by counsel, will not be decided.</p>

<p>1. One wh© purchases realty from the original landlord during the term of a tenant, is entitled, after the expiration of that term, to eject theitenant, who holds over beyond his term and refuses on demand-to deliver possession, by dispossessory warrant.</p> <p>2. That thedand was conveyed to plaintiff in the warrant by deed to secure. ;a debt due him by such original landlord, would not necessarily! help the tenant holding over. If it were a deed to secure - the payment of money, it passed the title to the grantee, and after i the money became due, he would be entitled to recover the land, . unless the money were paid.</p>

<p>The evidence for the plaintiff showing that he jumped from the train when it was in motion, of his own accord, and just before it stopped at the station which was his point of destination, and after he had • been notified by the conductor that the train was going to stop at I that station; and that the train did stop there, and if he had waited ' a minute or two he could have got off without injury, the court below should have granted a nonsuit; and after refusal to grant a nonsuit, when the jury returned a verdict for the plaintiff, should ' have granted a new trial.</p>

<p>A witness in a criminal case, who once resided in Georgia, formed here a bad general character, removed to another State whilst bearing such character (which was seven or eight years before the trial), and has resided there ever since, may be impeached by proof of such bad character' left behind in Georgia, though there be no evidence touching the character formed or borne by the witness in the State to which he removed, and in which he resided at the time of testifying.</p>

<p>1. The evidence was sufficient' to authorize the verdict.</p> <p>2. Objections to the admission of evidence must be specified.</p> <p>S. When one sues as administrator, he need not prove his administratorship, unless the defendant specially deny it in his pleadings.</p> <p>4. While generally this court is bound by the facts recited in the transcript of the record, yet when there is an evident clerical error therein, the bill of exceptions may be looked to to ascertain a date.</p>

<p>The action being by a train-hand, for a personal injury alleged to have resulted from the carelessness and negligence of the conductor in ordering the train to leave the station'before the plaintiff had time to perform a duty assigned him on top of the train and get down, and the evidence failing to show that the conductor gave the order to start prematurely or improperly, a motion for a nonsuit should 11 have been granted.</p>

<p>The court did not err in refusing to dismiss the following levy on the ground of uncertainty: “Georgia, Marion county. I have this day levied the within fi. fa. on the life estate of D. V. Belk, one of the defendants, in lots of land numbers 103, 104 and 120, in the fourth district of said county, all that portion of said lots lying and being south of the road leading from Brantley, said county, by way of New Providence Baptist church and the residence of B. A. Story, late of said county, deceased, to Taz well in said county, and as the property of D. V. Belk; tenant in possession notified in terms of the law. This December 12,1884.”</p>

Equity. Fraud. Rescission. Insolvency. Injunction. Receiver. Before Judge Hines. Jefferson county. At chambers, June 19, 1888.

<p>As it is within the discretion, of the trial judge to grant a new trial on the ground of newly discovered evidence, and no point being ! made as to his power to grant it upon evidence which would not be admissible under the pleadings as they existed at the time of the trial, the judgment so granting it is affirmed. Has the judge that power ? Query.</p>

Actions. Demand. Bailments. Futures. Debtor and creditor. Amendment. Trusts. Public policy. Before Judge Yan Epps. City court of Atlanta. March term, 1888. Dancy sued Phelan, doing business as S. H. Phelan, manager,, alleging an indebtedness by Phelan to him tí'f $3,516.25, besides interest.

<p>Equity. Decrees. Dower. - Interest. Eeceivers. Before Judge Eain. Bartow superior court. January adjourned term, 1888.</p> <p>Eeported in the decision.</p>

<p>County matters. Jury and jurors. Constitutional law. Before Judge Gustin. Houston county. At chambers, July 26, 1888.</p> <p>Reported in the decision.</p>

<p>1. In an action of complaint in the nature of trover, the plaintiff having elected at the trial to accept an alternative verdict for the property or its value, and the verdict being for the property only, the same was contrary to law. The trial having been conducted on the basis of this election, both parties had rights under the election, and either of them could take advantage, by motion for a new trial, of the defect in the verdict.</p> <p>2. In trover by a creditor against his debtor, when the property converted was security for a debt, and the title was taken or retained by the creditor for that purpose, the damages recovered cannot exceed the debt with interest thereon. If partial payment has been made, the amount of such payment should be deducted. Any alternative verdict rendered should conform to these limitations.</p>

Railroads. Re's gestee. Witness.- Charge of court. Principal and agent. Attorney and client. Damages. • Before Judge. Bower. Mitchell superior court. November term, 1887.

Trade-marks. Injunction. Practice. Before Judge Marshall J. Clarke. Pulton, county. At chambers, August 4, 1888. George P. Lies & Company filed tbeir bill against L. J. Daniel, alleging, in substance, as follows: Por a long time, they have been engaged in manufacturing and selling cigars, and have made a national reputation.

Equity. Amendment. Practice. Debtor and creditor. Judgments. Set-off. lies adjudicata. Trover. Before Judge Port. Macon superior court. May term, 1888. On February 12, 1882, Marshall and Livingston entered into a contract containing the followingprovisions, in substance : Marshall agreed to furnish certain land and supplies for running a farm that year, and to sell to Livingston certain horses for $690 to be paid on September 1st of that year.

<p>Criminal law. Larceny after trust. Indictment. Bailments. Evidence. Verdict. New trial. Before Judge Fort. Sumter superior court. April term, 1888.</p> <p>The indictment charged that Isaac Williams, on July 16, 1887, “ having been entrusted with a double-case silver watch, of the value of twenty dollars, by one Dennis Gatewood, for the purpose of applying the same for the benefit of said Dennis Gatewood, and to have said watch mended and to be returned to the said Dennis Gatewood in a few days, did then and there fraudulently convert the same to his, the said Isaac Williartxs’ own use,” etc. The defendant demurred to this as insufficient, because it did not charge for what benefit to Gatewood the watch was entrusted by him to defendant ; and the demurrer was overruled.</p> <p>At the trial, Gatewood ■ testified that the watch entrusted was worth $20, and was bought by him for his minor son; that he lent it to defendant to wear at a dinner, on a promise by the latter that, if this was done, he would have it mended and return it to Gatewood ; and that defendant asked him what he would take for the watch, and he replied that he would take 150. pounds of meat, but they did not trade, and Gatewood never received any meat or money from defendant. Another witness testified that he saw a double-case silver watch in defendant’s possession, and defendant said he took it for a debt. A third testified that defendant pawned a double-case silver watch to him for the loan of seventy-five cents, and after ■ keeping it about three months, he sold it for three dollars; and that defendant never, came back to claim the watch, but in the succeeding autumn asked him not to say anything about it. He further testified that the reason he sold it for three dollars was because it was out of fix and he only wanted the value of his money.</p> <p>A witness for the defendant swore that he saw defendant give four pounds of meat to Gatewood for the watch. Another testified that defendant got $2 from him about June 4; that he also gave him some meat, in the presence of the witness just mentioned ; and that defendant had worked for him “ off and on” about eleven years, and (as to his character) he had no trouble with him — he was a good hand to work. The defendant stated that he bought the watch from Gatewood and gave him two dollars for it the same day, and afterwards Gatewood came to him and got four pound's of meat. “ He sold me the watch in a trade. I paid him that on it; that is the way he told me to let him have it along. I paid him just like he said. He sold me the watch.”</p> <p>After verdict of guilty, the defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence, and because “the court erred in not quashing said indictment and demurrer, because said indictment was too general and did not charge for what benefit said property was entrusted.” The motion was overruled; and the exceptions were, (1) that the court erred in overruling the demurrer, and (2) that he erred in refusing to grant a new trial.</p>

Charge of court. Evidence. Verdict. New trial. Before Judge Smith. Muscogee superior court. May term, 1888.

New trial. Before Judge Richard H. Clark. Dekalb superior court. March term, 1888. Miss M. M. Hammond sued J. B. Hightower for assault and battery, alleged to have been committed on 'October 3d, 1885. No written plea was filed by defendant.

Evidence. Verdict. New trial. Before Judge Smith. ■Harris superior court. April term, 1888. On a judgment obtained October IStli, 1884, for $2,132.49 principal, with interest, attorney’s fees, etc. in favor of Barnes & Sparks vs. T. N. Sparks, an execution issued. • This execution and judgment, on December 11th, 1884, were transferred to B. T. Hatcher, and on December 28th, 1885, Hatcher transferred them to Slade & Etheredge.

<p>r Privity. Misjoinder. United States courts. Removal of causes. Before Judge Roney. Burke superior court. June term, 1888.</p>

<p>Criminal law. Gaming. Verdict. Before Judge Van Epps. City court of Atlanta. June term, 1888.</p>

<p>New trial. Before Judge Richard H. Clark. Pouglas superior court. January adjourned term, 1888.</p>

■ Mortgages. Interest and usury. Contracts. Loans. Practice. Before Judge Jenkins. Wilkinson superior court. April term, 1888. On March 7, 1887, Thos. F. Griswold sought to foreclose a mortgage on lands of H. D. Hughes. Hughes pleaded usury. On the trial, plaintiff introduced the mortgage, with the note it was given to secure, and coupon notes for interest attached. It was dated September 1st, 1882, signed by defendant and made to Jas.

<p>Interest and usury. Loans. Mortgages. Charge of court. Before Judge Boynton. Houston superior court. October term, 1888.</p> <p>On April 6,1887, Olin filed his petition to foreclose a mortgage for $1,000, given by Riley to J. H. Tallman to secure a promissory note for $1,000, dated March 2, 1885, and due five years after date, with interest on the principal sum at 8 per cent, per annum from date, due and payable semi-annually, it being agreed that if default should be made in the payment of the semi-annual interest, the principal was to become due, and that the mortgage might be foreclosed and collected with interest and attorneys’ fees, and interest on the interest in default at 8 per cent, per annum from the date of the default. The petitioner alleged that the semi-annual interest due on March 1, 1886, September 1,1886, and March 1, 1887, was in default and unpaid,, wherefore Riley had become bound to pay the principal of the note and the accrued interest thereon.</p> <p>Defendant filed the following pleas: (1) Not indebted; (2) that he only borrowed and received the sum of $837.25, but gave his note for a thousand dollars, which included the $837.25, and $162.75 charged him as usury, the same being interest in excess of 8 per cent, per annum ; (3) that plaintiff was not in fact a bona fide indorsee for value and without notice, but was the real payee and lender, got the benefit of the usury charged, and had full notice thereof; (4) that defendant only borrowed and received $837.25, which was borrowed at the time the note was made, and the lender charged him as usury $162.75 in excess of 8 per cent, interest on said money loaned him, which was incorporated in the note and mortgage, rendering them to that extent illegal and void; and that the same was equally illegal and void in the hands of plaintiff, if he took said note and mortgage as a bona fide indorsee.</p> <p>Plaintiff, upon the trial, introduced the note and mortgage, with the interest notes and transfer thereof to him by Tallman, which transfer was without date. There was also introduced the application made by Riley for the loan, the substance of which is substantially stated hereafter. The parties agreed on the following statement of facts to be used as evidence :</p> <p>“ J. A. Riley, who resides in Perry, made application to A. S. Giles, who also resided in Perry and who advertised to make loans, on real estate, for a loan of money on his farm situated a mile and a half from Perry, upon the representation that the place was worth four thousand dollars. Giles was the agent, in the transaction, of R. F. Lawton, of Macon, Georgia, who was engaged in the business of making loans on real estate in Georgia. Riley agreeing to pay 16 per cent, on the amount of money he received, as commissions for negotiating the loan, Lawton sent the application to George W. Moore & Co., a partnership composed of Geo. W. Moore, Jas. H. Tallman and James B. Moore, of Hartford, Connecticut, with whom he, Lawton, had a contract to negotiate loans on real estate that he, Lawton, might send them, Lawton agreeing to pay G.eo. W. Moore & Co. five per cent, upon the amounts of loans sent them by him, and_which they negotiated for him. Geo. TV. Moore & Co. found a party who agreed to take this loan, who is the plaintiff in the case. Olin paid to Moore & Co. $1,000, the amount of money specified in the note and mortgage, and left the money with Moore & Co., and Moore & Co. was to deliver to Olin the note and mortgage of Riley when the same was received by them. Moore & Co. had no special agreement with Olin to collect the interest for him. Geo. TV. Moore & Co. are engaged in negotiating loans on real estate, and by the general custom of the business, loans negotiated by them are payable in Hartford, Connecticut, and all the interest is paid at their office. By the custom of the business, they pay to the lender for the borrower; this is done for both the convenience of the borrower and the lender; if the interest is not paid, or the note when due is not paid, Lawton notifies Moore & Co., and Moore & Cc. notify owner of the paper. Moore & Co. are not under any obligations to any one for the performance of this sendee, but this is done by them for the benefit of Geo. TV. Moore & Co’s, business, and is done in the general course of their business. This general custom was well-known in Connecticut and pursued in this case. When Moore & Co. received the money as above in payment for the application, Moore & Co. wiredLawton, ‘ J. A. Riley application approved for $1,000.’ Lawton then had mortgage and note executed, and completed abstract of title to the land, prepared and sent the papers to Geo. W. Moore & Co. and drew on Geo. W. Moore & Co. for $1,000, the amount of the note, which draft was paid by Geo. W. Moore & Co. Lawton only paid to J. A. Riley $837.50. Lawton charged Riley, in addition to the 16 per cent., $2.50 exchange, and 25 cents for a telegram sent him by Moore & Co. as to the approval of the loan. Lawton sent to A. S. Giles, to be paid to Riley, the money, before he received it from Geo. W. Moore & Co., and Geo. W. Moore & Co. received the 5 per cent, commissions for negotiating the loan. Neither Olin nor Moore & Co. knew anything about the amount of the commission charged by Lawton, but Moore & Co. Knew that Lawton charged a commission; nor did they know anything about how Lawton paid the money, — whether it was done before or after the money was received by Lawton; nor did Olin or Mooro & Oo. know anything about the charge for exchange, or for the telegram, nor did either receive any part of this money. When Law-ton sent them an application loan for negotiation and it was negotiated by them, Lawton was bound to pay them the amount of their commission, whether the borrower took the money or not. This was the only loan ever negotiated by Moore & Co. to Olin. Olin lives fifty or sixty miles from Hartford. Olin knew nothing about the amount of the commission charged. Jas. H. Tallman, to whom the note and mortgage were made, was one of the firm of Geo. W. Moore & Co.; but this was done by reason of the way in which the business was conducted when the application was sent to them and they negotiated it. The fact that it had been negotiated was telegraphed to Lawton to prevent mistakes which might occur in the transmission of the telegiam, or to save the borrower trouble if the lender should fail or refuse to take the loan when papers were received by them, bv agreement with Lawton and Moore & Co. All mortgages and notes were made in the name of Jas. H. Tallman. None of the money of Moore & Co. went into this loan. After the papers were received by Moore & Co., they were transferred by Tallman and delivered to Olin and were kept by him until delivered by him to--on for suit. The firm of Geo. W. Moore & Co. nor any other member had any business dealings with Olin before this transaction. The business relations between Lawton and Geo. W. Moore & Co. came about from the fact that Lawton went to Hartford and found Geo. W. Moore & Co. engaged in the business of negotiating loans, and sought to make a contract with them to find a market for such applications as he might send them for loans of money on real estate in Georgia. They agreed with Lawton that they would try to find customers for such applications as he would send them; when they found persons who were willing to lend the money on the applications, that he would pay them a commission for their services. Lawton had Riley’s place examined by Giles, and had an abstract of title made; all this was necessary in order to get their money. Riley knew nothing of the business relations between Lawton and Moore & Co. or their method of negotiating said loans. Lawton and Geo. W. Moore & Co., by the custom of their business, looked after said lands covered by. loans, and saw that the taxes were paid for the protection of the lender. For none of the services rendered by them for the plaintiff was. the plaintiff charged any sum. The usual attorneys’ fees for examination of titles and making abstract is one per cent', of the value of the property or the amount of loan. Lawton had other parties to whom he sent these applications for loans, and negotiated loans with other parties who had no connection whatever with Moore & Co. Lawton had all the papers prepared; he furnished applications and blank notes and mortgages, and had note mortgage filled out. The interest law of Connecticut is 6 per cent, per annum, and any [¡charge in excess is void; but this contract was made with reference to the interest allowed in Georgia.”</p> <p>The jury found for plaintiff a thousand dollars for his principal debt, with interest on the principal to the date of the verdict, interest upon interest in default, and attorney’s fees and costs. Defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence, that the court erred in refusing to give tlm charges requested by the defendant, and that he erred in the following portions of his charge</p> <p>(a) Riley filed his defence, in which he says that plaintiff ought not to recover the full amount sued for, because the contract on which the suit is based is tainted with usury, for that he only borrowed and received $837.25 and gave his note for a thousand dollars, including the sum of $837.25, which he borrowed and received, and the sum of $162.75 which was charged as usury ; that plaintiff was the payee and lender and got the benefit of the usury charged, which was in excess of the legal rate of 8 per cent.; and that he is not indebted as alleged and claimed by plaintiff. — The error alleged is, that this charge confined the issue to defendant’s third plea, and withdrew from the consideration of the jury his second and fourth pleas with the evidence introduced thereon.</p> <p>(b) If Olin was the actual lender and was not connected with Lawton and Geo. "W. Moore & Co. or either of them in negotiating for a greater compensation for the loan of this money than 8 per cent., and did not receive or contract to receive any part of the compensation paid to Lawton or Moore & Co., then you would not be authorized to make any deduction from the amount specified in this note. — The errors alleged are, that there was no evidence to authorize such charge ; that it presented alone plaintiff’s theory of the case, and entirely ignored defendant’s theory that Lawton was the real lender and plaintiff the purchaser of the note from Lawton from his agents, Geo. W. Moore & Co.; and that it ignored the defence that if plaintiff was the real lender, by the custom of Moore & Co. and Lawton, they were bound to him as his agents, to look after the payment of taxes, for which he was to pay nothing but which were paid for by Riley, and to this extent plaintiff participated in the usury.</p> <p>(c) If Riley did employ Lawton to procure a loan of money for him, and Lawton, as his agent, employed Geo. W. Moore & Co. to aid him in securing the loan from Olin, and the transfer was in good faith consummated as Riley’s agents for the compensation agreed on, then the payment of commission agreed on and the legitimate expenses for transmitting the money from the place obtained to Riley, would not be usury. — The errors alleged are the same as in the preceding ground.</p> <p>(d) If Lawton, directly or through Moore & Co., negotiated with Olin as Riley’s agent, and contracted with Olin to make the loan, and Olin in compliance with said contract deposited the amount agreed on with Moore & Co. subject to Lawton’s order to complete the loan, then Lawton had the right to draw for the money, and the contract is complete whenever the note and mortgage were sent forward pursuant to the agreement; and if Olin furnished the full amount agreed on as the loan and did not receive or contract to receive any other or greater compensation for his money than 8 per cent, named in the contract, then the contract would not be tainted with usury by reason of any compensation or commission paid by Riley to Lawton, or-any expenses or charges made by Lawton for exchange or telegraphing. — The errors alleged are, that this charge withdrew from the jury the consideration of defendant’s theory that Lawton was the real lender and sold the note to plaintiff, and was an instruction that, under the evidence, they should find against the defendant upon that issue; that it was an expression of an opinion as to the form, and effect that the jury should give to the weight of the testimony upon this issue ; that it is not law ; and that it ignored defendant’s theory made by his pleas and evidence submitted, nor was the error corrected in any other part of the charge.</p> <p>(e) If Lawton and Moore & Co. voluntarily rendered Olin services in collecting the interest and looking after the payment of taxes, this would not render the contract usurious. — The errors alleged as to this charge are, that the converse of the proposition was not given; that it ignored defendant’s theory that, under the admitted custom of Lawton and Moore & Co., to perform these services entered by implication into the contract of the parties, and if plaintiff was thereby' to receive the same and was not to pay for them, but they were in fact paid for by Riley for plaintiff’s benefit, this made said contract usurious' as to plaintiff'; that it was an instruction to the jury to find against defendant’s theory; and that there was no evidence to authorize it.</p> <p>A further ground was, that the whole charge of the court was not a fair and impartial statement of the theories of the parties, but put plaintiff’s ease prominently before the jury and passed over slightingly, if it did not ignore, the issues and theories of the defence, in.the following particulars: That Lawton was the'real lender and the contract was usurious as to him, and this defence was available against plaintiff; that the contract was usurious as to Tallman, and this defence was available as against plaintiff; and that plaintiff contracted for and received a greater rate than 8 per cent, for the loan, by obtaining services of Moore & Co. and Lawton to look after the payment of interest and taxes for his benefit, without paying anything therefor, but Riley had to pay for said services.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Street-railroads. Damages. Constitutional law. Eminent domain. Evidence. Pleadings. Before Judge Yan Epps. City court of Atlanta. March adjourned term, 1888.</p> <p>Reported in the decision.</p>

<p>'"Where a husband bought land and paid Ms vendor, as a part of the . purchase price thereof, $500 of his wife’s money, and from the facts and circumstances of the transaction it is fairly inferable that it was the intention of all parties that the husband and wife should become the joint purchasers of the property, each to own an interest in proportion to the amount paid by them respectively, the mere fact that the legal title was made to the husband will not operate to defeat the wife’s equitable title. As between the parties, a trust in her favor will be implied.</p> <p>(а) While a wife may legally give her property to her husband, a gift will never be presumed. The evidence to support it must be clear and unequivocal, and the intention of the parties free from doubt.</p> <p>(б) It does not appear that it was the purpose of the wife to lend her money to her husband, nor his to borrow; no act showing that they ever treated the transaction as one creating a debt from him to her is disclosed by the evidence. If, however, there was no intention that they should-jointly own the land, still if $500 of her money was in fact paid upon its purchase by her husband, and his vendor knew this-at the time of the transaction, a trust will be implied in her favor, to the extent that her money paid for the land, as against both her husband and his vendor; and upon her election to treat an interest in the land as hers, the title to such interest should be protected and set up by appropriate decree.</p> <p>(c) The vendor having parted with both title and possession of the land under his deed to the husband, who occupied it jointly with his wife, the presumption is that she has received whatever of income from it to which she was entitled by reason of any interest she may have had. But if she and her husband jointly owned it and the husband received all its income, he and not his vendor should account therefor.</p> <p>(d) Under the facts of the case, the wife was not entitled to a money verdict. The most she was entitled to was, to have the land sold and to share in the distribution of the proceeds, her interest being in the proportion of the purchase money paid by her to the principal of the vendor’s debt for the balance; or the land might be partitioned so as to give her that proportion in the land itself.</p> <p>(e) The vendor having removed from this to another State within less than one year after the purchase of the land in 1872, and resided there continuously until the bringing of this suit, the complainant’s cause of action was not barred.</p> <p>(/) Though an issue submitted to the jury appears to have been sufficiently full, certain and definite to base a decree upon, if counsel desire to make it more so on the next trial, the court will doubtless amend.</p> <p>(g) The court below did not err in refusing to render either of the decrees moved for by the defendant, nor in granting a new trial.</p>

Landlord and tenant. Title. Contracts. Sales. Rent. Year’s support. Before Judge Fort. Macon superior court. November term, 1887. On April 11, 1887, Mrs. Frances J. Howell sued J. E. DeYaughn in trover for a horse, 105 bushels of corn, five bales of cotton, six gallons of syrup, 262 pounds of fodder and ten bushels of potatoes, and also for the hire and use of the horse and articles mentioned. The defendant pleaded the general issue.

<p>Contracts. Bonds. Consideration. Charge of court. Yerdict. Evidence. Before Judge Bower. Decatur superior court. May term, 1888.</p> <p>Bowne sued Blount for $400 and interest, which he alleged to be due him because of a promise which Blount ■ had made to pay him five per cent, on $8,000 for going on a certaixi bond of Blount’s 'to enable Blount to gain possession of a stock of tobacco, etc. held by the receiver of Gillett Bros., and claimed by Blount. Blount pleaded the general issue, and that the contract sued upon was nudum pactum.</p> <p>The testimony .of Bowne tended to show the following facts: A large stock of tobacco, cigars, etc., which Blount claimed to have purchased from Gillett Bros., and which were worth from $8,000 to $10,000, had been seized and taken possession of by Angiei’; as receiver for Gillett Bros. Blount desired to get possession of this stock, and fixiding it necessary to give a bond in order to do so, applied to Bowne'to become his surety; Bowne agreed to do so upon Blount’s promise to pay Bowne five per cent, of the value of the goods therefor, which value Blount stated at the time to be more thaxi $8,000. In consideratiorx of this promise, Bowne went before the judge of the superior court and testified that he was worth $10,000, became the surety of Blount, and by reason thereof, the stock was released and was turned over- to Blount, and was afterwards sold by Blount. Bowne went with Blount to the warehouse, where the tobacco, etc. was stored, and authorized the warehouseman to turn the tobacco over to Blount, which he did. Bowne made no promise to take chax’ge of the sale of the stock, but Blount said he would sell it himself. The insurance receipt (put in evidence by plaintiff) was made to Bowne because, at that time, which was immediately after the signing of the bond, Bowne had the tobacco in his care; the insurance premium was paid by Blount. If any attachment was levied upon the stock after the giving of this bond, Blount gave Bowne no notice of it and never called on Bowne for another bond to relieve said stock. The insurance receipt referred to was dated May 7th, 1883, and was made to Bowne for insurance premium “ on $8,400 of tobacco, snuff and cigars, policy dated from to-day.”</p> <p>Plaintiff introduced a letter written him by Blount, dated July 19th, 1883, in which was stated, among other things, that Bowne should not be the loser but should be paid liberally for his trouble with regard to the tobacco, and that Blount would come to Atlanta soon and close out the tobacco.</p> <p>The testimony of Dorsey and Angier, referred to in the motion for a new trial, was to the effect that Blount gave a bond for the purpose of enabling him to get possession of the stock; and that there were several sureties on this bond, of whom Bowne was one. Dorsey testified that he was quite sure that the signature of Bowne to the bond resulted in its acceptance by the court. Both witnesses testified^ that they understood that Blount was to pay Bowne for going on the bond, and that Blount got the goods by virtue of the'bond; though Dorsey stated that he was not sure whether they were delivered to Blount before or after the case was compromised. They also testified that they did not have the original bond or certified copy' of it, but Angier testified that he had had it, and that the papers in the litigation had been badly scattered. The testimony of Ponder, also referred to in the motion for new trial, was to the effect that plaintiff was on Blount’s bond for five per cent, of the value of the goods, which value Blount assured him was $10,000 ; that there was something said about Bowne’s taking charge of the goods, but the witness understood this was only to make Bowne safe as a bondsman, and there was no agreement that Bowne was to sell the goods ; and that witness was present when the terms were agreed upon, but was not present when the bond was signed.</p> <p>The evidence for the defendant tended to show as follows; The agreement between him and plaintiff was, that if plaintiff should go on the bond and would take charge of the goods and sell them, defendant would give him five per cent, of the amount realized from the goods. Bowne did sign the bond, but in an hour and a half or two hours after he signed it, and before Blount had really got possession of the goods or removed them from the warehouse, they were levied on by other claims against Gillett Bros., and Blount had to pay $2,250 to get them finally released; and in this way the bond was of no benefit to Blount, and the liability of Bowne lasted only for the time mentioned. It was about a month afterwards that the goods were sold by Blount; Blount did not call on Bowne to sell goods for him, as he did not consider Bowne liable for them. It was part of the understanding that the goods were to be insured for Bowne’s benefit, and Blount paid the insurance premium, thinking that he (Blount) was going to get possession of the goods, the receipt being made to Bowne because Blount had told Bowne that the goods should be turned over to the latter. Blount’s explanation of the letter was, that when he wrote it he thought he was going to get possession of the goods.</p> <p>Blount introduced an order signed by the judge of the superior court of the Atlanta circuit, dated May 31st, 1883, to the effect that the receiver and Blount had, after a conference with all parties in interest, agreed upon a compromise *of the litigation in the matter of Gillett Bros., Blount being a party defendant to the bill, by which compromise Blount was to pay the receiver $2,200, and was to receive the stock of tobacco, etc., free from claim on part of Gillett Bros.; that said compromise was approved ; and that when Blount paid said sum, the bond given by him for the goods should be null and void. 'Blount- also introduced an order given to him by the receiver, dated June 9th, 1883, directed to the warehouseman who had the stock on storage, and ordering him to deliver to Blount said stock, stating that all claims of the receiver or of R. J.' Reynolds or of McGhee & ITart had been settled; this paper was also signed by the attorneys of Reynolds and of McGhee & Hart. Also receipts from said last named attorneys, dated June 9th, 1883, for certain sums of money, in which they agreed to relinquish all claims on the tobacco and to dismiss their actions of trover.</p> <p>The jury found for plaintiff $400, with interest from June 9th, 1883. The defendant moved for a new trial on the following grounds :</p> <p>(1) Verdict contrary to law and evidence.</p> <p>(2) Error in admitting the testimony of Bowne, Dorsey, Angier and Ponder in reference to the bond, as well as to the acceptance and approval by the court, without producing the bond; the bond, its acceptance and approval being the highest evidence. (What objection was made to this evidence is not otherwise stated in the motion.)</p> <p>(3) Ei’ror in charging: If the contract was, that Blount was to pay plaintiff $400 to go on the bond to enable defendant to get possession of the goods, and if the bond was used in court, delivered in court and stood in place of the property, and if the property was turned over by the plaintiff', or any one else, to Blount in consequence or by reason of the bond being used for the purpose, Bowne’s liability on the bond would then become fixed, and the verdict should be for the plaintiff’.</p> <p>(4) Error in charging: Or if Bowne incurred liability, though Blount never got any benefit from it, you should find for plaintiff, because, if the bond was used so as to make Bowne liable, even though he may have been liable only for a short while, or may have been relieved by some order of the court afterwards, even the fact of Bowne’s liability on the bond for one instant by the goods being turned over, by reason of the bond being given, or by the goods being put at the disposal of Blount and Bowne, or by reason of the goods being released from the receiver where Blount and Bowne could have taken possession of them, in either event Bowne’s liability would be fixed, and Blount would be liable to Bowne for what he promised to pay him for going on the bond.</p> <p>(5) Error in charging: If plaintiff, in good faith, signed the bond and the bond was used as I have just stated', although Bowne’s liability existed for an instant only, Blount would be bound to the plaintiff for the contract.</p> <p>(6) Error in charging: If he got the goods, even for an instant, or could have got them, by reason of the bond being given, the goods were released from the receiver so he could get them if he wanted to, then plaintiff would have been liable.</p> <p>(7) Error in refusing to charge : If Blount got possession of the goods under the order of the court, and not by virtue of the bond, but got them under a process of the court, then Blount would not be liable to Bowne.</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Trusts and trustees. Estates. Practice. Remainders. Parties. Sales. Heeds. Prescription* Before Judge Roney. Columbia superior court. March term, 1888.</p> <p>Reported in the decision.</p>

<p>1. According to Powell vs. Watts, 72 Ga. 770, in a statutory claim case the claimant is a competent witness in his own behalf to prove transactions between himself and the defendant in fi. fa., though the latter be dead.</p> <p>2. Declarations and tax-returns made by the vendee, when out of possession, and not in the presence of the vendor, are inadmissible at the instance of the vendee’s creditor, as evidence to subject the land to the payment of his debt.</p> <p>3. Land held by absolute deed as security for a debt still unpaid, is subject to levy and sale as the property of the vendee, under a judgment against him, no matter whether the judgment creditor gave credit on the faith of the property so held or not. The purchaser ' at sheriff’s sale would acquire the right to receive the money due on the secured debt, as in the ordinary case of purchase money where bond for titles is outstanding. Kedemption of the land would be accomplished by paying to him what would otherwise be payable to the original vendee. If the deed was made to defraud the vendor’s creditors as well as to secure a debt, the land to the extent of its whole value would be subject to judgments against the vendee, as against a statutory claim interposed by the vendor himself.</p> <p>4. An absolute deed of conveyance containing a warranty of title, and purporting to be made on a valuable consideration, is valid and binding between the parties, though made for the purpose of de- . frauding creditors. The parties being in pari delicio, and the conveyance being an executed contract, the vendor cannot impeach it as a muniment of title in the vendee, whether possession of the land has been delivered under it or not, nor whether the vendee really paid the recited purchase money or not. The vendor is estopped. But an executory contract by the vendee, such as a bond for titles to reconvey to the vendor, may, when sought to be enforced, be impeached by the vendee, or even by his creditors, if shown to be directly connected with the fraudulent scheme in which the deed originated. For the purpose of resisting the enforcement of an executory part of the fraudulent scheme, the whole scheme is open to inquiry.</p> <p>5. Delivery of a deed is sufficiently proved by being recorded, and by the maker of it being in possession of a written contract signed by the vendee stipulating for a reconveyance of the premises to the vendor.</p>

Partnership. Contracts. Consideration. Before Judge Port. Sumter superior court. November adjourned term, 1888. The bill of WVC. Gray, administrator of J. R. Hamil, charged as follows: For several years prior to and until 1884 and during a part of that year, said J. R. was in partnership with A. J. Hamil, carrying on a general mercantile business, a lime business, and a business in making brick and building houses for themselves and others; they being equal partners.

<p>Common carriers. Railroads. Delivery. Bailments. Charge of court. Practice. Damages. New trial. Before Judge Van Epps. City court of Atlanta. June term, 1888.</p> <p>Reported in the decision.</p>

Contracts. Partnership. Master and servant. Non-suit. Before Judge Smith. Muscogee superior court. May term, 1888. Griggs sued Geo. P. Swift, surviving partner of Geo.

<p>Stock-law. Judgments. Practice. Elections. Construction. Before Judge Fort. Sumter superior court. October adjourned term, 1888.</p> <p>Reported in the decision.</p>

Railroads. Diligence. Negligence. Practice in Supreme Court. Before Judge Fort. Sumter superior court. April adjourned term, 1888.

<p>The county court, where the amount sued for is within its jurisdiction, has jurisdiction to render a judgment foreclosing a mechanic’s lien on realty. Such a proceeding is not a case respecting titles to land, within the meaning of the constitution.</p>

<p>1. An affidavit for a distress warrant to enforce a landlord’s general lien for rent is amendable, under the act of October 5th, 1887.</p> <p>2. Though the amendment was not made until after the return of the papers to the court of the proper county, yet when made it related back so as to heal defects both of issuing and returning the . proceedings. Whether the distress warrant was amendable, or needed amendment, is not decided, the court below not having passed on the question.</p>

Bonds. Administrators and executors. Devastavit. Principal and surety. Crops. Sales. Presumptions. Evidence. Verdict. New trial. Practice. Before Judge Jenkins. Green superior court. March adjourned term, 1888. This case was once before in the Supreme Court, (80' Ga. 27,) and the pleadings in it up to that time will be found sufficiently reported in the decision rendered by Justice Blandeord.

Husband and wife. Married women. Debtor and creditor. Burden of proof. Eraud. JBonafides. Evidence. Presumptions. Before Judge Adams. Decatur superior court. November adjourned term, 1887. Reported in the decision.

<p>Any bona fide action of the plaintiff which chows that he -intends to -keep his judgment alive, will prevent its dormancy; and where there was an entry of levy of an execution upon certain lands, the levy was not void, although the defendant did not own the land at the time it was levied on, and there was no entry of no personal property to be found made prior to the levy on the land, the execution being based on a justice’s court judgment. Such an entry, though made by the constable of a different district from that in which the defendant resided, and although he may have made a mistake in levying upon land when there was personal property, or before the entry of no personal property to be found was made on the execution, was a sufficient entry to prevent the dormancy of the judgment.</p>

<p>1. A creditor who by tbe same contract has personal security and a mortgage upon personal property, having after maturity of the debt received the mortgaged property by contract with the principal debtor, in part payment, at more than its full value at the time he received it, may proceed against the surety as well as the principal for the balance of the debt. His inability to subrogate the surety to his rights as mortgagee against the property, is no injury to the surety, because the latter has received the full benefit ox the property by a credit on the contract.</p> <p>2. A stipulation between the creditor and the principal debtor at the time the property was received in part payment, to the effect that the latter might redeem the same within a given time, by the payment of the whole debt, is no contract for indulgence upon the debt, but a mere agreement for the privilege of redemption, and such stipulation is therefore n.o discharge of the surety.</p>

<p>1. The statutes of Georgia touching the inspection of fertilizers, relate solely to such as are offered for sale or distribution in this State.</p> <p>2. Where a farmer orders by letter, written in Georgia, commercial fertilizers for his own use, to be sent to him from South Carolina by a dealer in that State, and the goods are shipped by railroad according to order, from South Carolina to Georgia, and thereupon notes for the price are executed in Georgia and sent to South Carolina, the sale of the fertilizers is completed in South Carolina, and the laws of Georgia touching inspection, etc. have no application to the transaction. The notes are valid and collectible.</p>

<p>Criminal law. Burglary. Larceny. Evidence. Practice. Witness. Before Judge Smith. Chattahoochee superior court. September term, 1887.</p> <p>Reported in the decision.</p>

<p>•Pleading^. Amendment. Partnership. Evidence. Witness. Accounts. Practice in Supreme Court. Before Judge Hansell. Brooks superior court. May term, 1888. ;</p> <p>Reported in the decision.</p>

<p>Where accused and deceased had a quarrel, and the former stabbed the latter, who died from the effects of the wound thereby made, and the evidence for the accused showed that th"e deceased was the aggressor, passed the first insult, made an assault upon the accused, threw him out of the house, caught him around the body' and endeavored to throw him to the ground, and that during the scuffle the stab was made, it was error to instruct the jury, in substance, that if accused stabbed deceased intentionally, it would not be voluntary manslaughter, and to intimate that it would be murder. If deceased made an actual assault or attempted to commit a serious personal injury on accused, or if there were other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied, the stabbing was not murder but voluntary manslaughter, although accused intended to kill when he stabbed.</p>

■ New trial. Practice. Railroads. Negligence. Charge of court. Master and servant. Evidence. Notice. Before Judge G-ustin. Bibb, superior court. May term, 1888. John M. Carroll sued the railroad company for injuries which he sustained in a collision on that road, he being the fireman on one of the colliding engines.

Insurance. Interest. Loans. Evidence. Construction. Contracts. Rescission. Fraud. Laches. Before Judge G-ustin. Bibb superior court. May term, 1888.

<p>Statutes. Railroads. Municipal corporations. Contracts. Practice. Limitations. Consideration. Parties. Conditions. Before Judge Gustin. Bibb superior court. May term, 1888.</p> <p>On July 15tb., 1886, the mayor, etc. brought their action of complaint for certain land, against the railway company. The defendant pleaded prescription for twenty years, and for seven years under written evidence of title.</p> <p>On the trial, the plaintiff introduced an act of the legislature of December 23, 1826, (acts 1826, p. 168,) by which the land in question, with certain other lands, was granted to it, with a proviso that if it should sell, alien or encumber such land or any part of it, the portion so aliened or encumbered should revert to the State, and an additional proviso that the State might resume the land. Also an act of March 6, 1856, (acts 1855 — 56, p. 495,) confirmatory of the act of 1826, which is recited as having vested the land for. the time being in the plaintiff, and granting the land without any other condition than the proviso as to sale, lease or alienation. Also an act approved December 8, 1866, (acts 1866, p. 189,) by which, in consideration of the payment of $10,000, to be appropriated to the Georgia State Orphans’ Home by the City Council of Macon within twelve months after the passage of the act, the entire title to the land mentioned was vested in the plaintiff, without condition. — The defendant introduced an act approved April 16,1863, (acts 1862-3, p. 225,) by which it was provided that the State granted to the Macon and Brunswick Railroad Company and the Milledgeville Railroad Company ten acres each out of the lands known as the Macon reserve, to be used by these companies for shops, depots and other conveniences and fixtures necessary for said companies (the assent of the city council being first had thereto), upon such terms, conditions and limitations as should be agreed upon by the council and the companies.</p> <p>The plaintiff showed that the $10,000 referred to in the act of 1866 was paid by it to the State within the time required. On February 1, 1866, the Macon & Brunswick and the Macon & Augusta Railroad Companies, by petition to tne mayor and council, called attention to tbe acts oi 1868, and asked tbe assent of tbe city to tbe grant that tbe ten acres be set apart to each of them (attaching a map of tbe particular parts they desired so set apart), and for certain other privileges not necessary to mention. On March 20, 1866, tbe mayor and council adopted tbe report of a special committee, to whom this petition bad been referred, in which report it was stated that tbe lands asked for should be granted so long as tbe premises are used by tbe companies for the purposes set forth in tbe act of tbe legislature. The land in dispute is the ten acres to which the report of the committee applied.</p> <p>The evidence tended to show that tbe Macon & Brunswick never bad tbe property enclosed, never erected any structures upon it, and apparently never used it, not even having a track across it. Tbe defendant has some tracks over it, but has put it to no other use save to enclose a part, which it rents out for a cow pasture. It has been recognized by tbe city authorities as tbe property granted to tbe Macon & Brunswick, not by any specific act of the mayor and council, but by what seems to have been tbe understanding of some of tbe city officials, and by tbe fact that on tbe map of tbe city, known as Boardman’s map (made in 1872), which, though not officially accepted by tbe city, was tbe map generally used by these officials, tbe land is marked as that of the Macon & Brunswick railroad. The Macon & Brunswick, as originally organized, was insolvent; and possibly for that reason no steps were taken to improve the property. About July, 1886, tbe defendant contemplated tbe erection of a round-house upon it, having already erected structures and made other improvements of the railroad property, not on this land, but which were more pressing than the erection of a round-house and very expensive. The witness who testified as to this contemplated round-house, thought this work was in contemplation before the city filed this suit, but if so, not long before. Nothing seems to have been done in carrying out the idea, except the drawing up of a rough plan without dimensions and without estimate of cost.</p> <p>■On July 2, 1873, the governor of Georgia issued his proclamation seizing “all the property” of the Macon & Brunswick, because of a failure by that company to pay the interest on its bonds which had been indorsed by the State. On April 5, 1875, by executive order, the governor directed that all the property so seized be sold to the highest bidder on the first Tuesday in June, 1875 ; and that the receiver who held the road for the State should make out an advertisement under this order, setting forth with requisite particularity all the property to be sold, and publish the same, etc. The advertisement made under this order w;as dated April 7, 1875, and so far as it could be held to cover the property in dispute, advertised for sale all the railroad track, “together with the privileges, equipments and other property of said company, consisting of its roadbed superstructure, right of way, motive power, rolling-stock, depots, freight and section houses, machine shops, carpenter shops, grounds, furniture, . . . . ” By deed dated June 3, 1875, the foregoing executive order and advertisement were incited; also that the property was exposed for sale and knocked off to the State of Georgia as the highest and best bidder. It is made by James M. Smith, governor, and in consideration of the premises conveys all the lands, rights, property and effects thereinbefore mentioned, to the State of Georgia. On February 28,1880, the then governor, reciting the foregoing seizure, advertisement and sale, and using in the instrument the'general words, “grounds, lands,” etc., leased the property which had been conveyed to the State to a new corporation known as the Macon and Brunswick Railroad Company; and on the same day, the property thus leased was sold to it and conveyed by deed executed by the governor. On November 4, 1881, the Macon & Brunswick conveyed all its property, rights, franchises, etc. to the Cincinnati & Georgia Railroad Company; and on December 20, 1881, the Cincinnati & Georgia conveyed its property of every kind to the East Tennessee, Virginia and Georgia Railroad Company.</p> <p>The defendant introduced a decree and record from the Circuit Court of the United States for the eastern district of Tennessee, in the case of the Central Trust Company of New York us. The East Tennessee, Virginia & Georgia Railroad Company, foreclosing • the first mortgage lien on that railroad and its property and franchises, etc., wherever found; and an ancillary decree from the same court for the northern and southern districts of Georgia, ratifying and confirming the original decree, and directing the sale of the road - and property, including the portion lying in Georgia, at public outcry. Also the report of the officer of said court as to the sale, which was made to Allcoek, McGhee, Eleinming and others and confirmed by decree January 28, 1886. The road was in the hands of a receiver from January 10, 1885, to July 80, 1886. Defendant also introduced the certificate of incorporation of the purchasers named and their associates, under the name of the East Tennessee, Virginia and Georgia Railway Company. Also a quit-claim deed from the Central Trust Company of New York, to which the above mentioned mortgage -had been executed by the East Tennessee, Virginia & Georgia Railroad Company, to the East Tennessee, Virginia & Georgia Railway Company. Some other documentary evidence was introduced, but it does not seem material to be reported.</p> <p>It was shown that the Macon & Brunswick road was completed from Macon to Brunswick in the latter part of 1869. Also that, a short time after the sale of the old East Tennessee, Virginia and Georgia road, one of the attorneys of the new company personally and by letter called the attention of the mayor of Macon to the contract between the city and the Macon & Brunswick, and stated the readiness of the new company to sign it; and that the mayor said he would get the attorney for the city to draw up a contract and present it; that he was applied to again and said the attorney had failed to do it, and that is where the matter stands now; and that this was done a short time before the sale of the road, and “it had been continuous.”</p> <p>The jury found for the defendant. The plaintiff moved for a new trial on various grounds, the nature of which, so far as material, is sufficiently indicated in the opinion. The motion was overruled, and the plaintiff excepted.</p>

Partnership. Mistake. Laches. Sales. Rescission. Equity. Practice. Before Judge Adams. _ Chatham superior court. June term, 1888. Branch & Cooper had been partners in carrying on a general grocery business since November 5th, 1872. On June 30th, 1886, the end of a fiscal year, the books of the firm were balanced and an account of stock taken, the bad debts being stricken from the balance sheet.

<p>Administrators and executors. Equity. Jurisdiction. Parties. Practice. Chambers. Before Judge Adams. Chatham superior court. June term, 1888.</p> <p>On May 13th, 1872, Mary G. Lufburrow, executrix of the will of Matthew Lufburrow, H. Milton Lufburrow and Orlando II. Lufburrow, sons of Mary G. and Matthew Lufburrow, the minor children of 11. M. Lufburrow by their guardian ad litem, Matthew Lufburrow, son of Orlando II., and the minor children of Orlando H. by their guardian ad litem, filed, in the office of the clerk of the superior court of Chatham county, their petition addressed to the judge of the superior court, showing that, by the will of Matthew Lufburrow, said Mary G. was appointed executrix, and a considerable estate was devised; that the first item of the will directed the payment of debts, etc.; that the second item devised the whole of testator’s estate to his wife, the said Mary, for life; that the third item directed that from and immediately after the death of said wife, testator’s whole estate was to be divided into equal shares, and one of these shares was devised to testator’s son H. M. for life, and from and immediately after his death to such child or children as he may have liv-. ing at the time of his death, to them and their heirs forever; if more than one, to be equally divided between them, share and share alike, child or children of any deceased child of the testator’s son to take the part its deceased parent would have been entitled to ; that the fourth item of the will made a similar devise of the other moiety to testator’s son, Orlando H., and his children ; that the fifth item provided for a disposition of the moiety devised to either of testator’s sons, in case he should die without leaving issue ; that the sixth item provided for disposition of the estate in case both sons should die without leaving issue; and that the seventh and last item appointed testator’s wife executrix, and Greorge "W. Davis executor, of the will. The petition farther showed that said Mary Gr., H. M. and O. H., to whom the life estates were devised, had become largely and jointly indebted to various persons on account of said estate and otherwise; that said debts were due, and creditors were clamorous and about to institute proceedings by which said life estate would be made liable to pay said debts; that if the life estate were sold, the management and control of the property would pass into the hands of purchasers who would not be interested in preserving and keeping it in good order, etc.; that a large portion of the estate was in improved realty, requiring constant care, and petitioners were advised and believed it would be for their interest and that of the estate that a part of the estate, to wit, lot No. 5, Hicks tything Percival ward in Savannah, be sold and the proceeds applied to the payment of said debts, any balance which might remain in the hands of said executrix to to be reinvested by her upon the terms of the will, purchasers not being required to look to the application of said proceeds. The petition farther showed that all those interested were represented and consenting, and that no questions of fact were in dispute, and prayed for an order empowering the executrix to sell the lot mentioned, either at public or private sale, applying proceeds as above stated. Attached to the petition, as exhibits, were a copy of the will and a schedule of the indebtedness referred to in the petition. This indebtedness appeared to be in divers notes, drawn or endorsed by the said Mary G. and O. II. or II. M., and in some open accounts. The character of the indebtedness is not otherwise stated, except as to one item, which was “ bill A. M. Barbee, repairs to estate property, $1,986.69.” The entire amount of the indebtedness, as' stated, was $18,081.69.</p> <p>Upon the day the petition was filed, it was granted by an order of the judge of the superior court of said county. This order was headed: “ JEx parte Mary G. Lufburrow, executrix, et al. In Chatham superior court, in chambers.”</p> <p>On May 18th, 1886, Stephen B. and "Wm. W. Lufburrow, sons of said II. M. Lufburrow and Caroline ~W. Lufburrow, his widow, brought their action of ejectment for a half-interest in said lot No. 5, Ilicks tything, against J. J. McGowan, executor of Maria Moylan, and trustee, under her will, for her children. To this action, the defendant pleaded (besides the plea of not guilty), among other things, the bona fide purchase for value of the property by Maria Moylan under order and decree above mentioned. The court struck this plea, holding that the order for the sale of the property was an order, by the judge at chambers, for the sale of a purely legal estate, and was unauthorized by law.</p> <p>Profert of the record of the petition and order showed that, oa the day the order was granted, the proceedings in question were entered on the minutes as of that day; and also showed an order for the appointment of a guardian, ad litem for the minor petitioners, hut said order was unsigned. The defendant excepted pendente lite to the striking of said plea.</p> <p>It was agreed by counsel that Mary Gr. Lufburrow, the widow of Matthew Lufburrow, died May 12th, 1886; that H. M. Lufburrow, the father of Vm. W. and Stephen B. Lufburrow, and husband of Caroline W. Lufburrow, the plaintiffs, died December 80th, 1874, leaving said widow and sons, and a third son, John E., who died intestate in August, 1876, leaving his mother and two brothers as his only heirs at law; and that the title of the premises sued for was, at the time of his death, in Matthew Lufburrow, and passed, at his death, to the persons entitled thereto under his will. The minutes of Chatham superior court for May 13th, 1872, showed that said court was, upon that day, in regular session transacting business, and that the order or decree granting the leave to sell under the petition was duly entered upon such minutes. The deed to Maria Moylan, conveying the property in question, bore the same date, and recited the above mentioned decree for sale and also a consideration of $16,025 paid to the executrix. It was signed by Mary Gh Lufburrow, as executrix and in her own behalf, by said H. M., O. H. and Matthew Lufburrow.</p> <p>Among the other testimony, there was some introduced for defendant tending to show that the petition and decree had been prepared and the decree ready for signature a week or more before it was actually signed.</p> <p>After tbe introduction of evidence by both sides, special issues of fact were submitted to the jury, and they found, among other things, that plaintiffs were entitled to recover an undivided half-interest, and that $2,000 of the purchase money, paid by Mrs. Moylan, was used in discharging debts for which the estate of Matthew Lufburrow was liable, and by which it was benefited. The defendant moved for a new trial on the following among other grounds:</p> <p>(1) Error in refusing to reinstate the special plea which had been stricken by the court.</p> <p>(2) Error in refusing to charge as follows: The decree of the court, dated May 18th, 1872, authorizing Mary G. Lufburrow, executrix, to make sale of lot number five, Hicks tything, was a good and valid decree, and if Maria Moylan purchased said property under said decree, she obtained a good and valid title thereto; and your verdict must be for defendant.</p> <p>(3) Error in refusing to charge: If the decree under which Maria Moylan purchased the property in dispute was granted in open court while the court was in regular session, and not by the judge in chambers and while the court was not in regular session, it was a good and valid decree, and the purchaser of the property sold thereunder acquired a good'and indefeasible title.</p> <p>(4) Error in failing and refusing to refer to the jury, as a question of fact, whether or not said decree was granted in open' court during its regular session, or by the judge out of court in chambers.</p> <p>(5) Error in refusing to charge: If the plaintiffs or their privies were parties to the petition filed May 13th, 1872, and in the petition state that the estate of Matthew Lufburrow was indebted to certain parties therein named, or that the life tenants had become indebted on account of said estate, then the plaintiffs are bound by such admissions and allegations made in judicio, and are now estopped to deny the truth of the same.</p> <p>(6) Error in charging that the proceedings under which this property was sold and was purchased by Mrs. Moylan, were void, and therefore she did not get a good title.</p> <p>(7) Error in instructing tbe jury that' plaintiffs were entitled, to recover an undivided balf-interest in the premises in dispute.</p> <p>This motion was overruled. The defendant excepted and brought the case to the Supreme Court, where it was dismissed as prematurely brought, the judge having made no written judgment and decree on the verdict; but leave was granted to enter the exceptions as exceptions pendente lite. (See McGowan vs. Lufburroio, '81 Ga, 858.) The exceptions were so entered and afterward a decree was entered upon the verdict in favor of the plaintiffs and against defendant, w;hich decree, after reciting the verdict, among other things provided that, subject to a lien in favor of defendant for the amount of $2,000 on the premises recovered, the plaintiffs do recover the undivided half-interest in said lot of land, etc. Defendant assigned error on his bill of exceptions pendente lite to the action of the court in striking his special plea, and also alleged that the court erred in refusing to grant a new trial- and in rendering the decree.</p>

• Criminal law. Evidence. Continuance. Jury and jurors. Practice. Sentence. Charge of court. Alibi. Officers. Arrest. Before Judge Richard H. Clark. Dekalb superior court. February term, 1888. Robinson and Jack and Henry Goldsmith, with others, were indicted for aiding one Hubbard, alias Hubert, to escape from the custody of the marshal of the town of Decatur. The three named were separately tried and found guilty, and each excepted to the refusal of a new trial.

<p>Judgments. Mortgages. Record. Before P. W. Mbldrim, Esq., judge pro hac vice. Bryan superior court. May term, 1888.</p> <p>Reported in the decision.</p>

Discovery. Interrogatories. Continuance. Practice m superior court. Before Judge Kibbee. Pulaski superior court. May term, 1888. Mercer sued the plaintiffs in error in the county court on two promissory notes, and obtained judgment. The defendants appealed to the superior court.

<p>1. The evidence sustains the verdict.</p> <p>2. The main question in the case being, whether a certain deed was illegally procured, and it being unnecessary to take any account if the deed were valid, it was right to refuse to refer the case to an auditor and to require the jury to try that issue.</p> <p>(a) By 223597, 4202 of the code, it is within the discretion of the judge, in an equity cause, as to whether he will refer it to an auditor or not.</p>

Garnishment. Attorneys’ fees. Traverse. Words and phrases. Before Judge Harden. City court of Savannah. November term, 1887. Darnall & Susong sued J. Ben. Wilson, and had sum-mops of garnishment issued and served on J. S. Wood & Bro., who answered, denying any indebtedness, or that they had any property or effects in their hands. In their answer they prayed the court to award them the sum of $10 for costs expended in making the return.

<p>The terms of office of county judges expire every four years from the reception of the original commission, and it is the duty of the grand jury at the spring term when the four years have expired or when they will have expired before the next spring term, to fix the salary for the succeeding term. Hence, when a county judge was first appointed for a term beginning April 30th, 1884, and prior to the expiration of his first term was reappointed for another term, his commission being dated June 21st, 1888, and being received by him a few days thereafter, the grand jury at the May term, 1888, of the superior court, which was the regular spring term, had the right to fix his salary for his new term, and this action was binding upon this question, though taken and the jury discharged before the commission for the second term was issued.</p>

Wills. Legacies. Title. Before Judge Adams. Chatham superior court. March term, 1888. This case arose by hill in equity for the partition of certain lands and tenements. Mary Elizabeth Nine and Thomas A. Becker, Roman Catholic Bishop of Savannah, were parties defendant.

<p>United States courts. Removal of causes. Before Judge Harden. City court of Savannah. February term, 1888.</p> <p>The official report is embodied in the decision.</p>

<p>1. Though the fact that evidence was objected to be stated, yet if it be not stated either in the motion for a new trial or in the bill of exceptions on what ground or grounds the objection was predicated in the court below, the Supreme Court will not adjudicate upon the alleged error in admitting the evidence over the objection.</p> <p>2. The evidence, though conflicting and in its letter very strong in behalf of the accused, warranted the verdict, the case turning on the credibility of the witnesses.</p>

Bail-bonds. Jurisdiction. Before Judge Jenkins. Baldwin superior court. July term, 1888. A warrant for the arrest of one Smith on a charge of burglary committed in Baldwin county, was issued by a justice of the peace in Hancock county, who took a joint and several bond for his appearance at Baldwin superior court, signed by him, the plaintiff in error, and two others.

<p>Promissory notes. Pleadings. Consideration. Amendment. Before Judge Kibbee. Pulaski superior court. May term, 1888.</p> <p>Reported in the decision.</p>

<p>DeVaughn sold a mule to Smith,' taking, partly in consideration of ■ that sale and partly for other indebtedness, the following instrument:</p> <p>“ $232.80. Montezuma, Ga., Jany. 16th, 1886. On the first day of October next, I promise to pay J. E. DeVaughn, or order, the sum of $232.80, for value received. And to secure the payment of this note, I hereby mortgage and convey unto the said payee, his heirs, and assigns, the following described property, .to wit: one dark mare-mule named Queen, about ten years old, for which this note is given in part. Said mule to remain the property of J. E. DeVaughn until paid for.” Then follow waivers of homestead, etc.; and the instrument is signed by Smith in the presence of two witnesses, one a magistrate. It was recorded about ten months after its date.</p> <p>Meld, that this was a conditional bill of sale with reservation of title, and not a mortgage. Cases distinguished.</p> <p>(a) If Smith had paid the purchase money for the mule, he would have’acquired title to it; and possibly the instrument might have been foreclosed as a mortgage for the other indebtedness; and this may have been the reason for writing the paper in the form of both a mortgage and a bill of sale.</p>

<p>Practice. Bill of exceptions. Brief of evidence.</p> <p>Reported in the decision.</p>

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

Evidence. Railroads. Practice. Damages. Negligence. Charge of court. New trial. Before Judge Harden. City court of Savannah. May term, 1888.

<p>1. An affidavit to foreclose a lien, under section 1985 of the code, which alleged that provisions, etc. were furnished “to the saw-mill of” B. instead of to B., followed the code.</p> <p>2. Where the affidavit alleged that B. was a member of the firm of B. & Oo., and the duly authorized agent of that firm to make the affidavit, and was signed B. & Co. by B., this did not make it invalid. It was not the affidavit of B. & Co., but of B., who oould have been indicted for perjury had it been false.</p> <p>8. The affidavit being made “ for the purpose of foreclosing the lien . . . on said saw-mill and all the lumber, . . . the product of said mill, ” and the execution directing the sheriff to levy on the engine and fixtures as well as the saw-mill and lumber, if the engine and fixtures were no part of the mill, their insertion in the execution was surplusage, and the execution would still be good against the mill and its products.</p> <p>4. ' It is not necessary, under this' section of the code, to set out the fact or the terms of the contract between the parties. An affidavit, stating that the articles were furnished, their nature, and the owner of the mill at the time, was sufficient.</p> <p>5. A levy on “one saw-mill engine and fixtures, situated at Gordonia, on the Brunswick and Western railroad, on lot of land number ninety-one, in the seventh district of said county and all of the lumber now in the yard of said saw-mill, ” was sufficiently certain and specific.</p> <p>6. If any other, things except timber, logs and provisions were furnished, it would be proper to state that such other things were necessary ; but it is not essential to allege that any of the three named articles were necessary.</p>

Pleadings. Corporations. Practice. Verdict. Before C. P. Goodyear, Esq., judge pro hac vice. Ware ' superior court. April term, 1888. The official report is embodied in the decision.

Title. Estates. Remainders. Words and phrases. Before Judge Adams. Chatham superior court. June term, 1888. On June 28,1842, a marriage settlement was executed by Sarah Eenwick Jones of the first part, Robt. H. Gar-diner, Jr., of the second part, and Geo. Jones and Geo. J. Kollock of the third part, conveying the property of Sarah Eenwick Jones (describing it) to Geo. Jones and Geo.

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

Estates. Deeds. Sales. Before Judge Adams. Chatham superior court. June term, 1888. Rollin A. Beers petitioned the superior court for a partition of certain real estate, alleging that he was the owner of one undivided fourth as tenant in common with Harriet Cazenove Jones (owning one fourth), Harriet C. and Benj. L. Minor, children of Hubbard Taylor Minor, having as their guardian Geo.

<p>Bonds. City courts. Jurisdiction. Principal and surety. Before Judge Harden. City court of Savannah. February term, 1888.</p> <p>Reported in the decision.</p>

<p>Homestead. Guardian and ward. Injunction and receiver. Before Judge Kibbee. Pulaski county. At chambers, December 29, 1888.</p> <p>On April 12, -1872, Edna Hendley filed with the ordinary a petition for a homestead in the property of her husband, John A. Hendley, who died in December, -1871, for the benefit of herself and her minor children, naming them. In this petition, the land from which the homestead was sought to be set apart is referred to as the home place, and the numbers of the land lots are given. Attached was a schedule setting forth certain personalty, and stating that “the estate of John A. Hendley having been inventoried and appraised by ¥m. Hendley, administrator, no schedule is filed with this application of the property of the said estate, reference being made to the returns of the administrator.” On this appear the entries, “Entered- as filed April 26th, 1872, E. A. Burch, clerk”; “Approved April 26th, 1872, J. J. Sparrow, ordinary P. C.” . The schedule and recital, and the surveyor’s plat (sworn to April 22d, 1872) were recorded; it seems that the petition was not, but it is indorsed, “Piled April 12th, 1872; Entered April 29th, 1872, J. J. Sparrow.”</p> <p>The minors having become of age or married, a petition to the superior court for injunction, receiver and division of the estate was filed by all of them except W. L. Hendley, who was made a party defendant with Edna Hendley, alleging, in brief, as follows : None of plaintiffs are dependent upon the homestead for a support, and none of them are getting any benefit from it. W. L. Hendley is occupying the place, collecting the rents and profits and using them to the exclusion of the other heirs at law, and refuses to account to them or to permit them to enjoy the lands or share in the rents. He is insolvent. Edna Hendley aids and abets him in his efforts to defeat petitioners in the enjoyment of their rights, by taking no action to prevent it or to express her disapproval. She has rented him the premises for a number of years without consideration, to delay or defeat petitioners in obtaining any benefit of the land or in having a division of it. She does not reside on the land or demand or get any rent from him. Tie rents out what he does not use himself, and appropriates the whole to his own use. Roth refuse to have the land divided, or to consider any plan looking to an equitable adjustment of the rights of all parties. Rents are due from tenants on the land, and W. L. Hendley will collect and convert them to his own use unless enjoined, and will also rent out the land again for 1889 and transfer or assign the notes so that they cannot be reached, and before it will be possible to secure a partition. He has sold timber from the land, converted the proceeds to his own use and refused to account, and will continue to do so unless restrained. A fair division of the lands cannot be made by metes and bounds, because of the.situation of houses and other improvements thereon; and part of it being valuable for mills, etc., its value will be largely destroyed by being partitioned. The homestead is functus officio, and each one of plaintiffs and defendants owns a share of the estate. No legal homestead was ever set apart, there being no petition or other legal proceeding for it. Petitioners attach a copy of the surveyor’s plat and the schedule, •which are all that is to be found of record. They have no knowledge of any further proceedings, and are unable to find any after search. The prayers are, that the homestead be declared void and of no further force, for injunction against collecting rents, selling timber, further renting, etc., for account by defendants for the use, rents and profits of the land, for receiver to take charge of and rent the land, under direction of the court, until disposed of, that the land he sold for partition and division, and for general relief.</p> <p>The answer of defendants showed, in brief, as follows: Mrs. Hendley and the minors occupied the land from the time the homestead was set apart, and were supported, and the minors educated, out of the rents and profits of it, until the minors from time to time married or became of age and left it in possession of Mrs. Hendley and her minor grandchild (who appears as one of plaintiff's by her father as next friend) ; and Mrs. Hendley and this grandchild are living on the land and being supported, and the child educated, with its proceeds, the whole amount of which is required for these purposes. On the southern part of the lands are all the homestead houses, and out of this part some of the beneficiaries have been supported. On the northern part is land which has been for years uncultivated because of inability to procure hands, tenants and stock. In 1887, Edna Hendley gave the wife of her son and co-defendant, ~W. L. Hendley, permission to live on this northern part and to cultivate it for the support of herself and children, provided she would keep it up and pay the taxes thereon ; which she has done. Not being able to cultivate all of it, she rented out certain portions to others. Defendants deny that Edna Hendley has ever tented any part to W. L. Hendley, or that he ever appropriated any rents to his own use. He collected rents as agent for Edna Hendley, and promptly paid them over to her; and did the same for his wife. One of plaintiffs, up to a short time ago, lived with Edna Hendley on the southern part of the land, took entire charge of it and of the rents and profits, a very small portion of which went into her hands; and if there remains any part of the same not accounted for, it is in the hands of this plaintiff. He is still in possession of a portion of the property and appropriating it to his own use. W. L. Hendley does not refuse plaintiffs the light to participate in the benefits of the homestead; he has no control over it except as herein stated. He uses no portion of the land as a mere beneficiary, but transacts business for Edna Hendley, she being unable to do so. For his services, she was willing to extend some favors to his family, and hence the permission to his wife to occupy a portion of the land. The three persons named by plaintiffs as owing rents owe them, not to Edna Hendley, but to "W. L. Hendley’s wife; he acted as her agent in making rent contracts with them. The homestead is a legal and subsisting one so long as Edna Hendley shall live or remain unmarried; the lands are subject to her control, use and disposition so long as the homestead shall exist; and the rents and profits are within her control.</p> <p>On the hearing, the plaintiffs introduced the affidavits of the three tenants that they alleged owed rents, to the effect that they rented from W. L. Hendley and paid rents to him; also rent notes given by them to him. Also affidavits of two of plaintiffs as to W. L. Hendley’s possession and control, receipt of rents and sale of timber and appropriation to his own use of the proceeds ; and as to one of plaintiffs not having received any of the profits of the homestead for three years.</p> <p>The defendants introduced the original application for homestead.</p> <p>Tlie injunction and receiver were refused, the court holding as follows:</p> <p>“ The homestead right is not severable; and where, after the death of the husband, the widow applied for and obtains a homestead out of the estate of her husband for herself and children, all of whom are minors at the time of the application, the homestead estate did not expire upon the last child coming of age. The widow occupies the double position of a quasi trustee and also a beneficiary, and the homestead remains during her widowhood. The heirs at law in this case were all minors; all parties to the homestead proceedings. They existed as beneficiaries until they arrived at age, and the widow as long as she remains a widow. To divide out the homestead would, in effect, partially destroy it.”</p> <p>The plaintiffs excepted.</p>

<p>1. Where the original declaration alleged, in substance, that plaintiff was attacked in the streets of a city by a wild and ferocious steer the property of defendants, or one of them, that it was in the possession of the servants of one of them, and that the defendants knew that the animal was ferocious, dangerous, and had a propensity for attacking persons, but attempted to drive it through the streets: subsequent amendments going more into detail as to the manner of plaintiff’s injury, but alleging that the steer was wild and ferocious, and that this was known to the defendant (the other defendant having been stricken), were germane to the original declaration and did not introduce a new cause of action. But an amendment which did not allege that defendant knew the animal was vicious, or even that it was vicious, but alleged that defendant kept ' it so negligently that it escaped and injured plaintiff, introduced a distinct cause of action, and was improperly allowed.</p> <p>2. There, was no evidence that defendant had any knowledge that the steer wras vicious or ferocious or had any propensity to trample • upon people; and as, under the ruling above, plaintiff could not recover upon an allegation of negligent driving or negligent escape, the verdict in favor of defendant must be upheld.</p>

<p>A deed of which, the place of execution did not appear, and in which there was no recital of delivery, and which was not recorded, and no proof of execution made, was properly held inadmissible. No preliminary proof being offered as to the deed coming from the proper custody, etc., it was not admissible as an ancient document, though it may have been more than thirty years old.</p>

Nonsuit. Eailroads. Negligence. Before Judge Harden. City court of Savannah. July term, 1888. Samuel Dickson sued the railroad company for damages. His evidence was to the following effect: He had .been employed as a switchman by defendant for over two years. It was his duty, as “ lead-switchman,” to give all the signals to another called the “follow-switch-man,” who repeated the signals to the engineer.

. Actions. Demurrer. Practice in superior court. Deeds. Title. Estates. Evidence. Charge of court. Prescription. Verdict. Before Judge Kibbee. Dooly superior court. March term, 1888.

Criminal law. Railroads. New trial. Before Judge ■ Kibbee. Bodge superior court. February term, 1888. Tlie defendant was indicted, under the act of October 12th, 1885, for wrecking a train.

Executors. Insurance. Actions. Decrees. Ratification. Estoppel. Before Judge Harden. City court of Savannah. July term, 1888. On October 22d, 1887, Asa May sued the Equitable Life Assurance Society of the United States, upon a policy on the life of Asa May, father of the plaintifi, for $10,000, with participation in profits.

<p>1. The title to the cemetery connected with the parish church in. Savannah, called “ Christ Church,” was vested, by the provincial act of 1758, in the rector of said church as a corporation.</p> <p>2. After the Revolution, ecclesiastical property held by the rector for pious uses devolved upon the church or society constituting the , local body of Christians then and now known as “ Christ Church,” and all such property not expressly withdrawn by the State, passed to the corporation created by the act of 1789, this corporation being “ The Church Wardens and Vestrymen of the Episcopal Church in Savannah called Christ Church.”</p>

Railroads. Negligence. New trial. Before Judge Atkinson. Ware superior court. April term, 1888. The plaintiff .sued the Brunswick and Western Railroad Co. for the homicide of her husband. The material evidence tended to show as follows: Plaintiff’s husband, twenty-nine years of age, in company with two others, had taken two drinks of whiskey and a supper of beans and greens.

<p>There was no abuse of discretion in refusing to grant the injunction prayed for.</p>

<p>The plaintiffs having recovered apparently less, instead of more, than the evidence warranted, there was no canse for granting a new trial at the instance of the other party.</p>

Practice. Title. Prescription. Charge of conrt. Ejectment. Evidence. Receivers. Possession.' Insanity. Statute of limitations. New trial. Before Judge Adams. Chatham superior court. June term, 1888. On June 4, 1887, Charity C. Yerdery,'in her own right and as administratrix of the estate of George H. Conn, brought suit against the Savannah, Florida and Western Railway Company for the recovery of certain land with mesne profits.

Nonsuit. Wills. Remainders. Election. Trusts. Executors and administrators. Estates. Arbitration and award. Guardian and ward. Practice. Ratification. Deeds. Forgery. Burden of proof. Husband and wife. Tenants in common. Parties. Title. Verdict. Before Judge Richard H. Clark. Clayton superior court. March, term, 1888. Reported in the decision.

<p>Ejectment. Actions. Witness. Before t udge Harris. Fayette superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>Practice in superior court. Trials. Torts. Before Judge Marshall J. Clarke. Eulton superior court. September term, 1888.</p> <p>Reported in the decision.</p>

Charge of court. New trial. Title. Deeds. Estoppel. Bona fides. Before Judge Eain. Dade superior court. September adjourned term, 1888. Emma McCord and Willie Taylor, as heirs at law of C. C. R. Taylor, on August 30, 1887, brought ejectment against F. M. Street. A demise was- laid also in the name of E. T. Rogers, surviving partner of Rogers & Taylor, a firm composed of E. T. Rogers and C. C. li. Taylor.

<p>Municipal corporations. Powers. Injunction. Practice. Before Judge Gustin. Glynn county. At chambers, March 29, 1889.</p> <p>Reported in the decision.</p>

<p>Homestead. Exemptions. Payment. Title. Principal and agent. Officers. Before Judge Port. Macon .superior court. November term, 1888.</p> <p>Reported in tbe decision.</p>

<p>1. The declaration in an action brought under §1445 oí the code for triple damages by reason of killing cattle in an enclosure not protected by a lawful fence, is not amendable by adding a count praying exemplary damages independently of that section, nor is a charge to the jury correct that recognizes their power to find on such amendment, nor is a verdict literally correct which refers to the amendment as its basis; yet the verdict, being for much less than it should have been under the original declaration and the proof applicable thereto, will not be set aside for these errors and irregularities.</p> <p>2. The record of the defendant’s acquittal on an indictment for killing the cattle as constituting the offence of malicious mischief, though the plaintiff was the prosecutor, is not admissible in the civil action.</p> <p>8. A charge of the court on irrelevant 'and immaterial matter will not vitiate a verdict which is correct on the merits of the real controversy.</p> <p>4. An agreement to dispense with a partition fence is not the equivalent of a legal fence so as to justify the killing of stock escaping by negligence of one of the parties and depredating on the premises and crops of the other. To kill stock unnecessarily without responsibility for so doing, an actual lawful fence must have been ■' broken, not merely a contract or agreement to dispense with a fence or to -treat the dividing line as though it were a fence.</p>

<p>The sheriff cannot justify his failure to raise the money on an exe, cution in his hands by showing that the defendant filed with him an affidavit of illegality setting up deficiencies in the sheriff's advertisement, and in his description of the premises levied upon; nor will it avail the sheriff that the affidavit contained another ground setting up that the judgment was against the defendants as partners, whereas the execution was against them as individuals, the execution itself showing on its face that it was against them both as a firm and as individuals. That the sheriff took counsel on his duty in regard to receiving the affidavit and returning it to court for trial, will not protect him in so plain a matter.</p>

Certiorari. ' Elections. Fences. Stock-law. Ordinary. Practice. Before Judge Kibbee. Pulaski county. At chambers, December 15, 1888. Petitioners sought, under the code, §§1449-1455, to make the provisions of the stock-law operative in a certain militia district. They were met by a counter-petition ; and a hearing of the issue thus formed was had. before the ordinary, who thereupon ordered an election to be held.

Evidence. Boundaries. Charge of court. Practice. Yerdict. New trial. Before Judge Lumpkin. Glascock superior court. August term, 1888. This case was before this court at the March term, 1888. There had been a second verdict for the defendant, and a motion for a new trial by the plaintiffs, which motion was granted; and this decision was affirmed by this court. 81 Gra. 171. Upon the last trial, there was a verdict for the plaintiffs.

Justice courts. Jurisdiction. Liens. Before Judge Hutciiins. Q-winnett superior court. October adjourned term, 1888. Jones made an affidavit to foreclose his landlord’s special' lien against Wylie, his tenant, residing in the 408th district, G-. M., before the justice of the peace of the 407th district, Gf. M., who thereupon issued an execution, making it returnable to tbe 408th district.

Promissory notes. Principal and surety. Indorsement. Notice. Protest. Before Judge Harris. Troup superior court. November adjourned term, 1888. The official report is embodied in the decision

Criminal law. Assault with, intent to murder. Charge of court. New trial. Verdict. Evidence. Before Judge Bower. Decatur superior court. November term, 1888. John McRae and Ed. Young were indicted for assault with intent to murder, alleged to have been committed upon J. B. Lasseter and II. A. Logue.

Distress warrant. Practice in superior court. Counter-affidavits. Pleadings. Verdict. Judgments. Diligence. Principal and sui-ety. Before Judge Boynton. Monroe superior court. August term, 1888. Reported in the decision.

Practice. Levy and sale. Supersedeas. Before J udge Kibbee. Dooly superior court. September term, 1888. ,.

Heeds. Contracts. Witness. Attorney and client. Before Judge Lumpkin. Warren superior court. October term, 1888. William and Absalom Hart brought an action of complaint against- C. L. Johnson and W. R. H. Johnson on a promissory note, which contained a mortgage clause conveying certain land to secure it.

Private ways. Prescription. Contracts. New trial. Mei’dict. Evidence. Practice. Charge of court. Before Judge Fain. Catoosa superior court. February term, 1888. The official report is embodied in the decision.

Courts. Contempt. Before Judge Neel. City court of Cartersville. September term, 1888. The rule against Baker was as follows : It appearing to the court that the case- of- Graham- & Graham vs. Thos.

<p>The sheriff of a county has no power to contract a county debt or engage the credit of the county for a conveyance, such as a hack, team and driver, for use by him in executing a warrant issued by the ordinary against a lunatic or insane person. The authority to incur and pay necessary expenses under a commission of lunacy is lodged with the ordinary.</p>

<p>Criminal law. Liquor. Sales. Before Judge Boynton. Newton superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>Though a partner has no right to apply the firm assets to his individual debt without the assent of his copartner, yet where the latter testifies as a witness and does not deny that he gave his assent in one instance out of two, and where the circumstances call for such denial if consistent with truth, and the opportunity of making it was so ample, a new trial may contribute to clear up the justice of the case.</p>

Actions. Partnership. Verdict. Before Judge Meyerhardt. City court of Ployd county. September adjourned term, 1888. Bean sued “A. W. Lebetter aiid George B. Harris, using the firm name of Ledbetter and Harris,” on an account, dated August 16, 1887, for certain loose rock and .earth excavation and embankment.

Sales. Timber. Realty. Statute of frauds. Record. Contracts. Deeds. Bonajides. Vendor and purchaser. Notice. Bonds for title. Evidence. Actions. Damages. Before Judge Kibbee. Dodge superior court. August term, 1888. As supplemental to the report contained in the decision, the grounds of the motion for a new trial are added, as follows : (1-3) The verdict is contrary to law and evidence.

<p>Res ad,judicata. Railroads. Negligence. Nonsuit. Practice. Before Judge Richard H. Clark. Clayton superior court. September term, 1888.</p> <p>Reported in the decision.</p>