Volume 83 — Georgia Reports

<p>1. In ejectment no recovery can be had upon the title oí a person from whom no demise is laid in the declaration.</p> <p>2. A sheriff acquires no title to land by levying upon it and selling it; and if he did, his official deed made in pursuance of such sale would pass his title to the purchaser.</p> <p>3. No recovery can be had upon the demise of a person who had conveyed away his whole title before the action was brought.</p> <p>4. A declaration in ejectment setting out demises severally from two persons, is not amendable by engrafting upon one of these demises an equitable claim for money in favor of a third person against the defendants. The new matter is not germane to the original cause of action either as to parties or the subject-matter.</p> <p>5. A recital of service made in a judgment foreclosing a mortgage upon realty, if silent as to the mode of service, is to be read in connection with the sheriff’s return; and where the'return sets out that the service was by leaving a copy at the defendant’s residence, that mode and no other is the one shown by the record, or judgment roll, the whole of which must be taken together. Such mode being virtually no service, the judgment of foreclosure is void for lack of jurisdiction in the court to render it, and a purchaser under it is not protected.</p> <p>6. However illegal the consideration of a promissory note may be, and whatsoever waivers of defences it may contain, it is too late to urge defences, either directly or collaterally, after final judgment has been recovered, that judgment being conclusive against any and all defences which the debtor could have made in the exercise of due diligence.</p>

Assignments. Debtor and creditor. Fraud. Practice. Before Judge Roney. Richmond county. At chambers, February 12, 1889.

<p>Contracts. Futures. Damages. Telegraph companies. Before Judge Maddox. Floyd superior court. September term, 1888.</p> <p>Cothran & Co. sued the Westérn Union Telegraph Co., in a magistrate’s court, for damages alleged to have been sustained by the omission, by the carelessness of defendant’s agent, of the word “ sell ” from the following telegram :</p> <p>“Check. 6 p. m. 30 paid Mch. Rome, Ga., 10 Meh., 1887.</p> <p>(8) To S. TI. Phelan, Atlanta, Ga.:</p> <p>Close hundred barrels May pork continue instructions remainder sell fifty bags June coffee all to days close close four thousand bushels short May wheat if reaches eighty two three quarters or eighty.</p> <p>C. H. Cothran & Co.”</p> <p>The case was taken by appeal to the superior court. On the trial there, the plaintiffs introduced the original telegram, copied above. Also James Cothran, one of plaintiffs, who testified, in substance, as follows: The telegram was given by him to an operator of defendant on the day it bears date, for transmission to Phelan, but was not properly sent. Plaintiffs were damaged in this way: On March 4th, 1887, they sold fifty bags of coffee at 12-J cents per pound, and on March 10th, 1887, it had advanced to .1295 ; so they wished to sell fifty bags more, and sent the telegram. The defendant omitted the word “sell” and the word “close” included the coffee also, so that instead of having fifty bags of coffee sold fifty bags were closed out. The actual loss on the coffee by this transaction was $32.50, besides $10.00 paid for commissions and thirty-seven cents for the telegram, and all this loss occurred because of the error in sending the telegram. Plaintiffs did not know of the error until about March 16th, 1887, for though they received the advice about Phelan closing instead of selling before that time, they supposed' it was an error which had occurred in Phelan’s office and which he would be responsible for. "Witness does not remember what changes there were in the market then, as some time has elapsed and prices may have fluctuated wildly. „ As soon as plaintiffs found out certainly, they took action to correct the mistake; and they were damaged as above stated. This loss was charged to their account. Does not remember whether Phelan failed soon after, but he owed them money when he did fail. As to settlements with Phelan, every night plaintiffs would run up their account and would see what the state of it was, and if he owed them they would draw on him, and if they owed him they would remit, daily if necessary. Never had any strictly money transactions with Phelan for everything done was by draft; it was the same thing as money. This matter was balanced on their books long before Phelan failed. Their transactions with him in two days would have been more than enough to wipe out this transaction, being for frequently $2,500.00 per day.</p> <p>It was admitted that a demand had been made on the proper representatives of the defendant for the amount claimed by plaintiffs, according to law. Defendant moved for a nonsuit, on the ground that the basis of the suit is a contract dealing in futures, that there was no property in hand and that it was to be settled by paying the difference when the day of judgment arrived; insisting that it is a gaming contract and that, under the law, there can be no recovery. The motion was sustained, and plaintiffs excepted.</p>

Certiorari. Jury and jurors. Practice. Pleadings. Consideration. Fertilizers. Before Judge Boynton. Bockdale superior court. August adjourned term, 1888. George W. Scott & Co. sued McDonald in a magistrate’s court, on an account dated November, 1884, for ten sacks of gossypium guano, $36, with interest. Defendant pleaded non-assumpsit, and also that the consideration of the account had failed, because the guano was entirely worthless and of no benefit whatever.

<p>1. Where one enters into possession, and at his own expense erects > buildings on the city lots of another, under a parol contract that he is so to do and is to pay a certain annual ground-rent each and every year-, and that he is to retain possession as long as he so pays, but on failure to pay, the owner is to take possession of the premises, including the buildings, as his property absolutely, and where this is done in contemplation of reducing tjle contract to writing, which is not accomplished in the lifetime of the owner, but after his death, his executor, with the assent and approbation of all persons interested, does, in connection with the other party, reduce it to writing, - under seal, the latter stipulating in writing to pay the agreed rent . for each and every year, or in default, after ninety days’ notice, to ; surrender the premises and the buildings thereon, or be- considered . as a tenant holding over, and the former stipulating that the latter, ’ his heirs and assigns, shall retain possession as tenant so long as the . rents are paid, etc., the contract does not create a tenancy from year , to year, but is prima facie a perpetual -lease on condition of prompt payment of the ground-rent annually, the written contract being, by ■ its own terms, only an embodiment of the previous parol contract.</p> <p>Though -an injunction be not .absolutely necessary to prevent a threatened wrong, yet where the bill has been pending for several terms, with no demurrer thereto filed by the defendants, a motion ,to dismiss ought to be denied, the relief by injunction sought, or some of it, being such as the court has power to grant on the facts, equitable and legal, alleged in the bill.</p>

Tax-collector. Taxes. Comptroller-general. Principal and surety. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1888.

<p>Criminal law. Charge of court. Malice. Onus. Practice. Verdict. Evidence. New trial. Before Judge Brown. Chattooga superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>To an action for the amount of a subscription to the capital stock of a railroad company, the defendant pleaded as follows: He subscribed for $250 of stock in the A. & H. company which had been incorporated under the general railroad law, the charter providing that the road should run from Atlanta to Hawkinsville through certain named counties. Subsequently the company, through its directors, applied for and obtained from the legislature a charter, which changed the capital stock from $250,000 to $500,000, and also changed the route in a specified manner. Afterwards the company procured the legislature to pass another act, in which its name was changed from the Atlanta and Hawkinsville to the Atlanta and Florida company, its route changed, and it was allowed to make various extensions and branches, etc. Each of these changes was material, without defendant’s consent, and had not been considered or anticipated in his contract to take stock. The original scheme contemplated by the original incorporators of the Atlanta and Hawkinsville railroad was abandoned, and the subscribers were thereby released. Certain named persons applied to the legislature and obtained a charter under the name of the Atlanta and Hawkinsville company, which, under the name of the Atlanta and Florida company, made the transfer of defendant’s subscription to the plaintiff. Said company was a different one from the one to. whose capital stock he had subscribed; and he had never subscribed to the stock of the Atlanta and Florida company. Held,</p> <p>1. It was error to sustain a demurrer to these pleas.</p> <p>(а) If the charter of a 'corporation is materially, fundamentally or radically changed by the legislature after a person has subscribed to stock therein, without his consent, he is released from such subscription.</p> <p>(б) If it be true that the general law, under which the first charter was obtained, authorized amendments to be made to the charter, the route to be changed and the capital stock increased, the particular mode for making these changes was pointed out in the general law, which nowhere provides for a change of the terminus of the road after it has been agreed upon by the stockholders.</p> <p>(c) A change of the terminus of a road is a fundamental alteration, which releases the subscriber to its stock .before the change was made, if made without his consent. If the defendant assented to such change, he would not be released.</p> <p>2. The act of 1886 (with its amendment, passed by the same legislature,) is not an amendment to the original charter of the A. & H. company, obtained under the general law, but is a separate, independent and distinct charter.</p>

<p>The plaintiff having been employed by the railroad company to work in the construction of its track, and having sustained inj uries by the breaking of a hammer in his hands furnished him by the company, and not having been injured by the running of the cars or machinery or by any other employé of the company, there was no presumption in his favor against the company under §3033 of the code; but his case falls under the general law of master and servant, under which the burden was upon him to show negligence on the part of the company in furnishing him with a defective hammer.</p> <p>(а) The mere fact that this and other hammers were defective, and that the injury resulted therefrom, is not sufficient to authorize an inference of negligence on the part of the company in their purchase and selection.</p> <p>(б) A hammer thus used is not included in the term “ machinery ” as used in 23033 of the code.</p> <p>(e) The verdict was contrary to law and evidence.</p>

<p>Though no court is actually held at the appearance term of a case duly served, the defendant can file his plea at the time appointed hy law for the court to convene, and he may file it as late as the following term ; and if judgment he rendered at the latter term, no plea having been filed or answer made, the judgment is not void, and cannot he attacked hy affidavit of illegality. The defendant has had his day in court, and at most the judgment is only irregular.</p>

<p>1. The question of prescription does not arise where as much as seven years possession is not shown. And where proceedings to assign dower affect the element of prescription only, their regularity is not in question in such case.</p> <p>2. The residuary devisee has both title and the right of possession, according to the face of the will, although assent of the executor (the executor having declined to qualify) be not affirmatively shown, the will having been probated more than twenty years; and although the devise of the residuum was after the payment of debts, etc., the existence of debts or charges upon the estate not being proved, the presumption after such a lapse of time being against their existence.</p> <p>3. Certificate of sale by the deputy-collector of internal revenue for internal revenue taxes does not pass title to the land, and is not evidence that title has pssed, but only that the holder has a right to acquire title by deed, or to receive the money necessary to effect redemption.</p> <p>4. The defendant in ejectment cannot defeat the action or delay recovery until he is reimbursed for an alleged payment to redeem the land from tax sale under the United States revenue laws, where it does not appear that he in fact redeemed, and where if he did, the money advanced, if not belonging to the tenant in dower, belonged jointly to himself and another, such other not being a party before the court and being interested in the question of reimbursement.</p>

Pleadings. Actions. Amendment. Evidence. Res gestee. Practice. Kailroads. Negligence; Before Judge Harris. City court of Macon-. December term, 1888. This report is to be taken in connection with the facts stated in the decision. The plaintiff' testified, in brief, as follows: When her husband (Abe Kitchens) was killed, he was twenty-nine years old, and earned $1.10 per day.

Prohibition. Municipal corporations. Liquor. Laws. License. Zebulon. Practice. Before Judge Boynton. Pike county. At chambers, March 5, 1889. The petition of Beckham et al. set forth the following : They are citizens of Zebulon, Pike county, and owners of real estate and personal estate in said town.

,. Criminal law. Jury and jurors. Practice in superior court. Evidence. Before Judge Boynton. Butts superior court. September term, 1888. Thomas Shaw, together with O. L. Welch, Jasper Willard and Jesse Yancy, was indicted for the murder of Thomas McNair. Upon the trial of Shaw, the evidence for the State tended to show as follows: Welch, Willard and one Wilson met, on the evening before the killing, at Welch’s store. Yancy was not there, and it does not appear that Shaw was.

<p>Judgments. Motion to reinstate. Claims. Practice. Before Judge (Justin. Bibb superior court. November term, 1888.</p> <p>Reported in the decision.</p>

<p>Fraud. Partnership. Insolvency. Sales. Debtor and creditor. Charge of court. Before Judge Atkinson.</p> <p>"Ware superior court. November term, 1888.</p> <p>An execution based on a judgment of the fourth day of February, 1888, for $67 principal (no interest), in favor of Bagley & Rivers against S. E. Cribb and G. W. Phillips, was, on the 22d day of March, 1888, levied on one black mule, one iron-gray mare-mule and one gray horse named “Joe Brown,” as the property of said defendants. A claim to the property levied on was interposed by D. T. Cribb & Co.</p> <p>Upon the trial, plaintiffs in execution put in evidence their fi. fa. with the entry of levy thereon. Also the following returns from the tax digest of Ware county for the year 1887: Cribb & Phillips, total number of acres of land 15, number 329, 8th district, value $400; merchandise of every kind $1,500; horse, mules, hogs and all other stock $1,250 ; plantation and mechanical tools, etc. $100; value of all other property $1,300 ; aggregate value of whole property $4,550. Cribb, Stephen E., value of household and kitchen furniture $245; horses, mules, etc. $26; aggregate value of whole property $271. It was admitted that no returns appeared on said digest for D. T. Cribb or Mary J. Cribb, who composed the firm of D. T. Cribb & Co.</p> <p>Plaintiffs also introduced the officer who made the levy, who testified that the property was pointed out by the attorney for plaintiffs; that when he went to levy on it, he called on S. E. Cribb, told him his business and asked where the horse and mules were ; S. E. Cribb told him, and went with him to the lot of D. T. Cribb & Co. where they were, loaned him bridle and saddle, and he took charge of them. S. E. Cribb appeared to be in control, and witness saw no one else in charge.</p> <p>Claimants introduced a conveyance dated November 1, 1887, between S. E. Cribb and G. W. Phillips, composing the firm of Cribh & Phillips, and D. T. and M. J. Cribb, composing the firm of D. T. Cribb & Co. Consideration recited was $2,000 in hand paid. By this instrument, the-parties first mentioned conveyed to the parties last mentioned 15 acres of lot 325 in the eighth district of said county (describing it), with still, fixtures) etc. thereon, and wind-mill and dip-barrels and turpentine and timber privileges on a number of lots of land mentioned; also eight head of mules described as follows : “ Three iron-gray mare-mules, two black horse-mules, one sorrel-mule, one bay mare-mule, one black mare-mule and one roan horse named Joe Brown ; all of the aforesaid property sold under and Subject to a mortgage given by the said Cribb & Phillips to Baldwin & Co., dated December 31st, 1886,” etc.</p> <p>Also bill of sale by Cribb & Phillips to Baldwin & Co., in consideration of $1,200 in hand paid, to “three'iron-gray horse-mules and four black mare-mules and one sorrel-mule.” This instrument was dated February 21, 1887s and upon it was the entry, “Paid and satisfied by D. T. Cribb & Co. February 5, 1888. Baldwin & Co.” Also two promissory notes by Cribb & Phillips to Baldwin & Co. or order, each dated December 31,1886, each for $1,776.22, one due November 1, 1887, and the other December 15, 1887, and each indorsed, “without recourse on us, Baldwin & Co.” -also a conveyance dated December 31, 1886, by Cribb & Phillips to Baldwin & Co. in consideration of an advance of $5,328.66 for the purpose of enabling them, Cribb & Phillips,'to maintain and carry on a turpentine farm and distillery, the advance being evidenced by three promissory notes of the same date, each for $1,776.22, due July 1st, November 1st, and December 15th, 1887, respectively, with interest, etc., and containing various stipulations and agreements as to the shipment of naval stores by Cribb & Phillips to Baldwin & Co., etc.; and conveying, by way of mortgage, the 15 acres of land already mentioned, with still, fixtures, etc., turpentine and timber privileges on the lands mentioned in the conveyance by Cribb & Phillips to D. T. Cribb & Co.; also the stock of goods situated in the stoi’ehouse in the town of G-lenmore, belonging to Cribb & Phillips; also the stock of goods “belonging to D. T. Cribb & .Co.” in the same town, etc.; all the described property being declared by Cribb & Phillips to be theirs and in their own name, right and possession, etc. This instrument bears the entry, “Georgia, Chatham county; paid, satisfied, cancelled, attest this December 28, 1887.” Also a transfer of the above mortgage by Baldwin & Co. to Peacock, Hunt & Co., in consideration of $1,776.22 paid by the latter. This transfer is dated December 23, 1887. All the above mentioned instruments were recorded in the office of the clerk of the superior court of "Ware county before the date of plaintiffs’ judgment, except the promissory notes mentioned.</p> <p>Claimants also introduced an indenture dated December 23, 1887, between D. T. Cribb & Co. and Peacock, Hunt & Co. by which, for the securing of three promissory notes of the same date, each for $1,000, due respectively July 1st, September 1st and November 1st, 1888, and renewals and other advances, etc., said D. T. Cribb & Co. mortgaged to Peacock, Hunt & Co. the fifteen acres of land mentioned, with still, fixtures, etc., and also the turpentine and timber privileges mentioned in the deed of Cribb & Phillips to D. T. Cribb & Co.; also eight head of mules described in the same manner as the eight mules mentioned in said deed; also crude turpentine, spirits of turpentine, etc.; also stock of goods, etc. in the store located on said fifteen acres of land, etc.</p> <p>S. E. Cribb testified, for claimants, in substance, as follows: Cribb & Phillips were engaged in the turpentine business át Glenmore; they became embarrassed and sold out to D. T. Cribb & Co., a firm composed of D. T. Cribb,'witness’s brother, and M. J. Cribb, witness’s wife, and made the deed dated November 1, 1887. It was a bona fide transaction on a valuable consideration, and not made to defraud or delay creditors. The consideration mentioned in that deed was paid as follows : $1,200 was paid by D. T. Cribb & Co. to Baldwin & Co. in satisfaction of the bill of sale to the mules and horse dated February 21, 1887; $200 was paid by Cribb & Co. to Baldwin & Co. in satisfaction of the debt Cribb & Co. owed them for the horse “Joe Brown”; and $600 was paid by Cribb & Co. to Cribb & Phillips, $300 cash being paid to each of the last named firm. Witness’s wife and brother each put in $300 of this amount, of their own money. Witness used most of his in paying off debts of Cribb & Phillips. His wife had brought some of this money, with her from Carolina, years ago; had sold a piece of land which she owned at Grlenmore for a part of it, and he really did not' know where .she did get it all, but she had it and it was hers. How much money his brother had he did not know, but enough to pay his part of the $600 and to pay some besides in settling up the debts of Cribb &-Phillips which Cribb & Co. assumed. In addition to this $2,000, all the property in the deed, which was the entire property of Cribb & Phillips, was sold to Cribb & Co. subject' to the mortgage given by Cribb & Phillips to Baldwin & Co., dated December 31, 1886. There was then due upon this mortgage about $2,076.22, so that the property was sold at a fair price and for all it was worth at-the time. Some time in October, the store and stock of goods of Cribb & Phillips at Glenmore, worth from two to three thousand dollars, were destroyed by fire. The firm owed at the time about $5,500. This loss was the cause of their embarrassment. They tried to arrange their indebtedness and continue business, but could not, and so sold to D. T. Cribb & Co. for what the business was worth, thinking it better to do that than have it sold out at a. sacrifice under a mortgage against them. With the .mortgage on the business, being burned out. and owing what they did, Cribb & Phillips had no credit, but witness’s wife and brother having some means of their own, being out of debt and with the property sold them by Cribb & Phillips, had a good credit and were able to make all necessary arrangements and run the business. The horse and mules levied on belonged to D. T. Cribb & Co. and are. the same, or some of the same, described and embraced in the deed and mortgage, the horse Joe Brown being paid for by Cribb & Co. to Baldwin & Co., and the mules part of those embraced in the bill of sale. With what money his wife and brother put in the business they raised the balance by mortgaging the property, and out of the business. His brother continued to manage a turpentine business at Naylor, where he was receiving a salary of $50 per month, and witness was employed by Cribb & Co. to run their business at Glen-more, for the reason he was familiar with it. His brother understands all about the turpentine business, but his wife knows little or nothing about it. Cribb & Co. pay him a salary of $50 per month. At the time Cribb & Phillips sold out to Cribb & Co. it was understood and agreed that witness was to be employed to run the business for them, and he was so employed by them at the time for the salary stated, and is so.engaged, and it was in this capacity that he was acting when the sheriff made the levy. The land sold by his wife at Glenmore was land he had given her about two years before. He did not remember whether he had made any tax returns for her the year before or not, but knew she had money, and so did her brother.</p> <p>The jury found the property subject, and the claimants moved for a new trial on the grounds that the verdict was contrary to law and evidence, and because the court charged as stated in the decision. The motion was overruled, and the claimants excepted.</p>

Judgments. Attorney and client. Liens. . Practice. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1888. A suit on a promissory note for $584.35 and interest was brought to the March term, 1888, of Fulton superior court, hy Geo. C. Furse against J. A. Furse, of Barnwell county, South Carolina, and Mrs. H. A. Furse, of Fulton county, Georgia. She was served; J. A. Furse was not.

Verdict. Evidence. Principal and surety. Bona fides. Sales. Before Emmett Womack, Esq., judge fro hac vice. Butts superior court. March term, 1888. This case was an action of complaint for land, bought by Mary Henrietta Gunn against Isaac Slaughter. The plaintiff, having died during the progress of the cause, her administrator was made a party in her stead.

<p>1. Where no motion for a continuance is made for absence of counsel or witnesses, the court does not err by disregarding such absence, the accused having had full time after his arrest to prepare for trial. Cumulative evidence to provean alibi, even if newly discovered, is not cause for a new trial.</p> <p>2. A charge to the jury which, properly construed, makes presence at the time and place of the homicide a necessary condition of guilt, is favorable, not prejudicial to the accused.</p> <p>3. Touching alibi, the rule in Georgia as established by authority consists of two branches. The first is,' that to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence. In sense and substance, the charge of the court in the present case conformed to the rule, certainly to the latter branch of it.</p> <p>4. Thp jury are not precluded from considering the prisoner’s state-ment throughout by instructing them ‡!)* the statute allows them to believe it on material matters in preference to the sworn testimony.</p> <p>5. The evidence was conflicting, the credibility of the witnesses was for the jury, and their verdict was warranted if the}’- believed those who testified in behalf of the State and did not believe those who testified in behalf of the accused.</p>

Liens. Evidence. Witness. Notice. Mortgages. Bonafides. Before Judge Lumpkin.. Warren superior court. April term, 1888. This is a contest over a fund brought into court under rule against the sheriff at the instance of T. E. Massengale.

Landlord and tenant. Liens. Principal and agent. Before Judge Boynton.- Newton superior court.

<p>1. Where the trial judge fails to approve the grounds of the motion for a new trial, but certifies that they “are subject to correction by the record of the proceedings as made out by the stenographer and in the brief of evidence,” this court will decline to consider such grounds, especially as, in order to verify them, it is necessary to read 275 pages of closely written and printed matter, and it is the duty of trial judges and not of this court to make such verification.</p> <p>(•a) If a judge refuses to approve the grounds of a motion for a new trial as true when they are true,, the law provides a sufficient remedy for the movants to compel such approval.</p> <p>2. This court cannot pass upon the merits of the case, as brought up in the ground that the verdict is contrary to the evidence, where the so-called brief of evidence consists of 275 closely written and . printed pages, made up in great part of questions of counsel, colloquies between counsel and court, wranglings of counsel among themselves, witticisms and sharp retorts of counsel and witnesses, . remarks of the stenographer, and page after page of repetitions and-irrelevant matter.</p> <p>3. When an officer arrests a prisoner in a district or village where there is excitement at the time, and there is danger of a riot at the commitment trial, and the magistrate of the district is consulted about carrying the prisoner to another district before a magistrate there, and assents thereto, it is within the discretion of the arresting officer to carry the prisoner to the other district.</p> <p>(a) The officer did not abuse his discretion in carrying the prisoner on . the cars to the county site sixteen miles from the place of arrest, the magistrate at the county site being perhaps more accessible, considering the means of transportation, than the magistrate of an adjoining district four or five miles off from the railroad.</p> <p>4. While it is the duty of an arresting officer to carry his prisoner before some officer authorized to inquire into the accusation, and if he wilfully or negligently fails to do this, and detains the prisoner for an unreasonable length of time before carrying him before the magistrate, he is guilty of false imprisonment and liable to damages, yet if they arrive at the place where the magistrate resides at night and ata time when the magistrate is not accessible, the officer may place the prisoner in jail during the night for safe-keeping, and will not be liable therefor.</p>

<p>Practice. Brief of evidence. New trial. Amendment. Before Judge Brown. Pickens superior court. April term, 1888.</p> <p>Peported in the decision.</p>

Interest and usury. Promissory notes. Evidence. Practice. Before Judge Gustin. Crawford superior court. October term, 1888. J. A. and J. B. Long and W. J. Newberry, as executors of Alford Long, sued W. J. McGee for $1,243.24, with interest, on six promissory notes, payable to Alford Long or bearer.

Levy and sale. Estoppel.' Officers. Evidence. Interrogatories. Executions. Possession. Nonsuit. Before Judge Bichard H. Clark. Douglas superior court. July adjourned term, 1888. Allen sued Whitley in trover for a certain mule. It seems that Whitley died pending the action, and that his administrators were made parties.

<p>Indictment. Criminal law. Taxes. Officers. Practice. Demurrer. New trial. Continuance. Jury and jurors. Principal and surety. Evidence. Yenue. Yerdiet. Waiver. Before Judge Hines. Washington superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>1. Where an owner rents land for a year to a tenant who, besides giving his promissory note for the stipulated rent, payable in cotton, contracts in writing that the title to all the crops shall remain in the landlord until the rent and all advances are paid, and the tenant dies before the cultivation of the crop is finished, the landlord, by himself or his agent, may enter and finish the cultivation without being an intruder, if, under all the circumstances, the entry for such purpose be reasonably necessary to protect his interest. On the trial of an issue involving the charge of intrusion, the written contract is admissible in evidencei</p> <p>2. On the death of a tenant for one year only, leaving a widow, she and not the administrator is entitled to possession of the dwelling-house and the out-houses appurtenant thereto, for the residue of the term. The landlord will not be an intruder as to these if he resumes possession of them with the widow’s consent,</p>

<p>1. There was no error in refusing to continue a case to procure certain testimony, where no diligence to procure it was shown and no full and proper showing for continuance made.</p> <p>2. Where a party has stood by and allowed a mortgage to be foreclosed for its full amount, she cannot, in a subsequent litigation, go behind the judgment and attack the original contract on account of usury .therein, hut is bound by the judgment; she not alleging that there was any fraud, accident, or mistake in procuring it, or that, when it was rendered, she had no knowledge of this usury; and it does not appear on the face of the judgment that there was usury therein.</p> <p>(а) Though where a judgment shows on its face that there was a usurious rate of interest, a homestead may be good as agaiust it, the note, mortgage and judgment in this case all show that the rate of interest was legal.</p> <p>(б) It was not error, under the facts in this case, to hold that it was unnecessary for the plaintiff in the mortgage fi. fa. to make an affidavit that the land was subject before the sheriff could sell it; the levy having been made several months before the homestead was set apart, and the mortgage, rule nisi and rule absolute all showing, that homestead had been waived.</p>

Elections. Officers. Governor. Before Judge Milner. Bartow county. At chambers, March 4, 1889. Held: and there were 2,288 ballots cast for tax-collector by legally qualified voters; of said number, petitioner received 885, Linn 827, and the others a much smaller number of votes. By a plurality of 58 votes, petitioner became the duly elected tax-collector of the county and entitled to exercise the duties of said office.

<p>Damages. Water and water-courses. Torts. Negligence. Before Judge Neel. City court of Carters-ville. September term, 1888.</p> <p>Reported in tte decision.</p>

<p>Railroads. Negligence. Charge of court. Before Judge Eve. City court of Richmond county. May term, 1888.</p> <p>Thomas B. Phinizy recovered a verdict for $165 damages against the railroad company for killing a mule by one of its trains. It appeared that the animal (testified to be worth $160 to $175) escaped or was taken from the plaintiff’s pasture at night and went about eleven miles to or just inside the city limits of Augusta, where the train struck it on a trestle and killed it, about four to four and a half o’clock in the morning. There was a good fence around the pasture; there were other mules therein, and none of them disappeared. The trestle was between a public crossing over the track and the blow-post, which was about 400 yards from th crossing and 220 yards from the trestle. The track was somewhat curved, and was on a down-grade in the direction the train was moving, but the view from the; blow-post to the trestle was unobstructed, and the' whole distance could probably have been seen in daylight. The engineer of the train testified, however, that he could see only about 30 or 35 yards ahead with the engine’s headlight, which was a good one; that he blew the whistle at the blow-post, and then saw the mule on the track about 25 or 30 yards ahead; that the train was nearly half the distance from the post to the trestle (in one place he says about sixty yards from the trestle); that he blew on brakes, and these were applied, the engine was reversed, the bell was rung, and the “cattle alarm” was blown to make the mule leave the track, as required by the company’s rule; that everything possible was done to stop the train, which had twelve freight and two passenger coaches ; that the mule left the track once and then got on it again, tried to cross the trestle, became fastened thereon, and was struck by the engine, which moved twenty or twenty-five feet further and stopped; that it was moving about three or four miles an hour when it struck the mule; and that it required a distance of about 125 yards to stop this train at that place. The fireman of the engine, the conductor of the train and two train-hands gave testimony tending, in certain particulars, to corroborate the engineer. A witness for the plaintiff) who lived in a house near the railroad, testified that he heard the whistle blow when the train was near his garden, which was about 270 feet from the blow-post; that after this the cattle signal was blown ; and that, from examination of mule-tracks found about the track and near the trestle, it appeared that the animal had run both up and down the track.</p> <p>The case came to this court on exception to the overruling of the defendant’s motion for a new trial, .the grounds of which are as follows :</p> <p>(1-2) The verdict is contrary to law and evidence.</p> <p>. (8) The court erroneously charged the jury touching "acts of alleged negligence of the defendant which were not the. proximate cause of the damage and did not, under the evidence, contribute thereto, by charging section 708 and the substance of section 710 of the code, and then stating that he had read these sections at the request of the plaintiff’s counsel.</p> <p>(4) The court added this charge: “ While the doing of the act prohibited cannot be claimed as diligence, but is to be taken as negligence if the act resulted in damage here claimed, but. if the damage did not result from the act, though it be an unlawful act, it would not imply negligence.” The error is, the clear implication that the prohibited act, i. e. the blowing of the whistle, might have caused the damage, the evidence showing that this act was done to prevent the injury; also the implication that the blowing of the whistle was an act of negligence under the circumstances, that might be excused but not justified in the eyes of the law.</p>

<p>Officers. Costs. Before Judge Wellborn. Lumpkin superior court. October term, 1888.</p> <p>Beported in the decision.</p>

Levy and sale. Taxes. Constables. Before Judge Richard H. Clark. Douglas superior court. July adjourned term, 1888. Three executions in favor of Alfred Austell against W. N. Magouirk were levied on certain land, to which J. P. Watson interposed a claim.

Actions. Statute of limitations. Amendment. New-trial. Before Judge Wellborn. Hall superior court. August term, 1888. To the report contained in the decision, it is necessary to add only the following : The note set out in the amendment, and the interrogatories of the plaintiff, were introduced in evidence.

<p>1. ’When, pending suit against the son, his mother conveys land to him, and before judgment he conveys it back to her, and after judgment the land is levied upon as his property, and she interposes a claim, upon the trial of the claim case, evidence both parol and in writing is admissible in her favor to show the facts and circumstances under which both deeds were made, and the causes and considerations moving thereto, the issue being fraud or no fraud.</p> <p>2. Objections to evidence must specify the ground which was presented to the court below on the trial.</p> <p>3. The court, without request, need not charge on the credibility of witnesses, or the mode of impeachment.</p> <p>4. The evidence warranted the verdict.</p>

Verdict. New trial. Evidence. Pleadings. Warranty. Consideration. Contracts. Damages. Before Edward Hunter, Esq., judge pro hac vice. Johnson superior court. September term, 1888. The following statement is supplemental to the report contained in the decision: The special plea of defendant was, in brief, this: The engine and boiler, for which the notes were given, were not what they were represented by plaintiffs to be.

<p>Contracts. Torts. Municipal corporations. Actions.' Privity. Before H. C. Tuck, Esq., judge pro hac vice. City court of Clarke county. , December adjourned term, 1888.</p> <p>Reported in the decision.</p>

<p>Equity. Practice in superior court. Amendments. Actions. Jurisdiction. Before Judge Harris. Meriwether superior court. August term, 1888.</p> <p>Reported in the decision.</p>

<p>1. Construed altogether, the charge of the court in this case did not encroach upon the province of the jury.</p> <p>2. A plea of justification to a declaration containing several counts, each laying actionable words, goes to the whole declaration, unless the plea is restricted in its terms to certain parts or certain counts; and such plea waives the general issue.</p> <p>3. A plea treated as one of justification by both parties and by the court throughout the trial, is to be so treated after verdict, though it may be defective. Such a plea in an action of slander, reaffirms the charge or charges justified, and avers the truth of the words spoken. If the words impute a crime punishable by law, and are not in the nature of privileged communications, the filing of a plea of justification may be attended with one of three results: (1) if wholly unwarranted, the jury may treat it as an aggravation; (2) if proved true it defeats the action; (3) if not proved true, the evidence given under it may mitigate the damages.</p> <p>4. No amount of evidence going to negative malice will wholly defeat the action under a plea of justification, the words being actionable per se and not privileged. Nothing short of proving the truth of the plea will suffice.</p> <p>5. Nothing material was done or omitted to the prejudice of the plaintiff in error, by the charge of the court, or in refusing to charge as requested.</p> <p>6. It is not the duty of the court to instruct the jury in an ordinary action at law for a tort, though both justification and set-offs be pleaded, that they may return a special verdict.</p> <p>7. Causes of challenge to a juror propter defectum, must be discovered and urged before verdict; and improper language or conduct attributed to a juror proved by one witness only and denied on oath by the juror, is not cause for a new trial.</p> <p>8. Th e verdict being a second one for the same amount of damages the Supreme Court cannot pronounce, under the evidence in the record, that it was excessive or not warranted by the evidence and the law, the judge below being satisfied therewith. Though it seems a harsh verdict it is not illegal.</p>

New trial. Evidence. Verdict. Attorneys. Witness. Charge of court. Practice. Before Judge Kibbee. Pulaski superior court. May term, 1888.

<p>Judgments. Illegality. Jurisdiction. Hes adjudicata. Amendment. Before Judge Roney. Burke superior court. December adjourned term, 1887.</p> <p>Reported in the decision.</p>

<p>1. The constitutional provision that private property is not to betaken for public purposes without just and adequate compensation being first paid,- is too plain to be misunderstood, and is not to be-violated or evaded by the legislature or the courts.</p> <p>2. The method of ascertaining what is just and adequate compensation is matter for adoption and regulation by the legislature. Inasmuch as trial by jury is not a constitutional right in cases involving the power of eminent domain, a statutory appeal given in such cases from the award of assessors is subject to legislative discretion, both in its allowance and in the consequences of its allowance, the latter being in the nature of terms and conditions of the appeal system.</p> <p>3. A railroad corporation, created under the general law of 1881, may, after having paid or tendered to the land-owner the compensation awarded by the assessors, prosecute the work of construction pending an appeal from the award to the superior court, the statute allowing the appeal providing expressly that the same shall not hinder or delay the progress of the work.</p> <p>4. Tender of the sum assessed and awarded, duly made and continued, but refused, is the equivalent of actual payment of the award, in its effects on. the right of the corporation to enter upon the land and prosecute the work of construction.</p> <p>5. Although the tender was imperfectly pleaded, especially in not making it continuous, yet the impending damage not being irreparable, the fact of tender not being disputed, and no lack of solvency of the corporation being .alleged, the discretion of the judge in denying the injunction upon the condition prescribed in his order will not be controlled. Injunction before decree is discretionary in all cases.</p>

<p>Pleadings. Amendment. Practice. Nonsuit. Mistrial. Before Judge Harris. City court of Macon. December term, 1888.</p> <p>Deported in the decision,</p>

<p>1. Claimants have no right to move to quash aft. fa.; their proper motion is to dismiss the levy.</p> <p>2. Under the act of 1886 creating the board of commissioners of Pulaski county, they had the power to audit and examine the accounts of the tax-collector thereof; and if in such examination they ascertained that he was indebted to the county for taxes collected and not paid to the treasurer, they had the power to bring him to a.speedy settlement by issuing an execution against him, they having exclusive jurisdiction of the matter.</p> <p>(a) This act is to be construed with reference to the general law in connection with such matters.</p> <p>3. It did not matter whether the commissioners or their clerk signed the executibn. If the clerk had signed it, he would have done so by order of the commissioners.</p> <p>4. Construing together the two sections of the constitution found in §§5228, 5177 of the code, the legislature has the power to pass separate and distinct acts for any counties which require county commissioners; and it is not necessary that these acts shall be uniform in their operation in all such counties. The intimation in Conley v. Poole, 67 Ga. 254, to the contrary, was obiter.</p>

<p>If in resistance to an execution issued against him for county taxes, the tax-collector denies on oath that he owes the money or any part of it, the issue thus formed should be tried in the superior court, even though no counsel should appear in behalf of the county. The execution itself makes a prima facie case for the plaintiff, and it is for the tax-collector to show that the amount, or some part thereof, is not due. The court, having erroneously dismissed the case on account of the absence of counsel without excuse, committed no error in reinstating it at the next term on the docket, upon motion of attorneys representing the county.</p>

<p>1. Where the plaintiff showed a legal title to the premises in dispute, and the defendant had no title but relied upon an alleged contract between her and the plaintiff’s vendor, which she asserted was that this vendor was to purchase the land, and when she had paid him $150 he was to make her a title thereto, and on this point the evidence was conflicting, she testifying that she paid him the $150, and he testifying that she had never paid him a cent on the purchase money but that the amount she did pay him was for rent of the premises, there was no error in refusing to grant a new trial on the ground that the verdict for the plaintiff was contrary to law and evidence.</p> <p>2. Where the defendant, by equitable plea, distinctly made the allegation that the plaintiff, at the time he purchased, knew that she had bargained with his vendor for the land and had. paid the purchase money, and testimony on this question was admitted, an objection to a charge of the court on this subject, that the question as to whether the plaintiff was an innocent purchaser or not was not involved in the case, is not well-taken.</p> <p>3. Whenever the burden is upon the plaintiff, he has the right to open and conclude the argument, although the defendant in his pleas may take the affirmative upon certain issues in the case</p>

<p>Where two parties in good faith claim title to the same land, and one of them is enjoined from entering or trespassing thereon upon the application of the other, the object of the injunction is to preserve the land in statu quo until the title is settled by proper proceedings. The plaintiff has no more right to disturb the status quo than the defendant had, and if he undertakes to commit the same acts that the defendant had been enjoined from committing, he also should be restrained. But both should be placed upon equal terms; and the plaintiff having been required, upon the grant of the injunction, to give a bond according to the act of October 13, 1885, the defendant should be required to give a similar bond within such reasonable time as may be allowed, in default of which the injunction as to the plaintiff must be dissolved.</p>

<p>1. Where the direct evidence touching the fact of an alleged marriage is conflicting, one of the parties to such marriage affirming and the other denying that it took place, and where all the material circumstances save the fact that the party denying it contracted á subsequent marriage with a third person, which was regularly solemnized, go to support and corroborate the affirmative witness, a finding by the jury to the effect that the testimony of that witness was true is not contrary to evidence or to law.</p> <p>2. The presumption of law, founded on cohabitation and repute, that a marriage had taken place, will not prevail over proof of a subsequent marriage in' fact by one of the parties with a third person; bat notwithstanding such proof, circumstantial evidence, as well as direct, may be used to establish the actual occurrence of such prior marriage as matter of fact to be found by the jury.</p>

<p>Garnishment. Judgments. Privilege. Laches. Practice.' Jurisdiction. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>1. The verdict was contrary to the evidence.</p> <p>2. When a widow elects to take dower in the estate of her husband, and it is assigned to her, that election estops her from claimk g a child’s part in any land which may afterwards he discovered, and which belonged to her husband at the time of his death. She may still assert her right to dower therein, and thus carry out a previous election; but having once made her election, she is bound by it.</p>

<p>Homestead. Exemptions. Debtor and creditor. Judgments. Promissory notes. Interest and usury. Evidence. Before Judge Richard H. Clark. Douglas superior court. July adjourned term, 1888.</p> <p>A ft. fa. issuing from the county court iu favor of W. J. Stewart against Newton Stisher, upon a judgment rendered April 27th, 1885, was levied upon certain land, to which the wife of the defendant interposed a claim. At the trial, the plaintiff' introduced in evidence, in addition to this ft. fa., the original declaration in the suit upon which it was founded, together with a copy of the note sued onpacknowledgment of service and waiver of process by'.defendant, and a judgment rendered by default. The note is dated February 27th, 1883, promises to pay $100.00, for value received, on December 25th thereafter, waives homestead and exemption, and recites that it is to bear 8 per cent, interest from maturity. He also introduced a deed from Newton Stisher to J. W. Stewart, dated November 16th, 1881, conveying the property in question ; also a deed from W, J. Stewart, executor of J. W. Stewart, to Newton Stisher, conveying the same land, dated January 15th, 1886, and reciting that it is made for the purpose of having the laud levied upon for the balance of purchase money, in accordance with section 3656 of the code. S. E. Grow, a witness for the plaintiff testified, in rebuttal to evidence for claimant, that in 1881 and 1882, plaintiff and his father, J. W. Stewart, were partners in business, which was continued after the death of the latter by the former until 1883 ; and that the interest in the note sued on was 10 per cent, and stricken to 8 per cent, by plaintiff, but that it never was 12 per cent</p> <p>The claimant introduced the proceedings instituted by her on November 24th, 1883, to obtain a homestead in the land in question; approved by the ordinary December 7th, 1883. The name of the plaintiff does not appear in the list of her husband’s creditors attached to her petition. The defendant in ft. fa. testified that when he gave the note on which the execution was founded, 12 per cent, interest was put in it, and this was changed to 8 per cent, after the execution of the note without his knowledge or consent; and that it was given for supplies, etc. purchased from Stewart in 1881 and 1883.</p> <p>The property was found not subject. The plaintiff moved for a new trial on the following grounds :</p> <p>(1-3) The verdict is contrary to law and evidence.</p> <p>(4-6) The court erred in admitting the testimony of defendant in ft. fa. as to usury in the note, and in refusing to rule out his testimony and that of Grow on that subject; the ground of objection to this evidence being that the claimant was estopped by the plaintiff’s judgment against the defendant, there being no usury on the face of the proceedings.</p> <p>(5) The court erred in charging the jury as follows, to wit: “If you believe from the evidence that, although "W. J. Stewart, the plaintiff in this cas'e, was not notified in writing of the application of the claimant for a homestead, and of the time and place of hearing the same, and if his name did not appear in the list of creditors attached to said application, yet it still be a good homestead, but he would have the right to show on this trial some reason that he could have shown before the ordinary why said homestead should not have been granted”; and why it would not be good as against him.</p> <p>The motion was overruled, and plaintifi excepted.</p>

<p>Deeds. Debtor and creditor. Equity. Mortgages. Evidence. Pleadings. Amendment. Cancellation. Before Judge Kjbbee. Dooly superior court. September term, 1888.</p> <p>Reported in tlie decision.</p>

<p>Distress warrant. Practice. Jurisdiction. Landlord and-tenant. Before Judge Fort. Macon superior court. November term, 1889.</p> <p>Reported in tbe decision.</p>

Actions. Contracts. Landlord and tenant. Before Judge Kibbee. Pulaski courity. At chambers, December 24, 1888.

<p>1. Where pending an application for partition of realty the original petitioners sold their interest to another person, the proceedings were not thereby vacated, and it was not error to allow the other person to be made a party plaintiff in the application; it not appearing that the original petitioners were dismissed.</p> <p>(a) Hor would service made on some of the defendants after such sale and before the purchaser was made a party, be illegal and void.</p> <p>2. Where the property in question was a gold mine, and from the price shown to have been paid for it in .1830 must have been considered valuable then, and no paper title was shown as to the interest of two persons who owned, about fifty years previously, a portion of the interest claimed by petitioners, but .it was shown , that these two had not been heard of for a number of years, and that petitioners had claimed their alleged interest for more than thirty years and had exercised unequivocal and undisputed ownership for a long time and received all the rents of that interest (except for a- short time when they received nearly all), an actual ouster as against the two persons was rightfully presumed.</p>

<p>Though, property be sold at a judicial sale under a junior mortgage and purchased by the junior mortgagee, the proceeds of the sale belong to the debtor, under the maxim caveat emptor, and if applied by the court to liens superior to both mortgages, and the property be after-wards sold under the senior mortgage, there is,.when the proceeds of the second sale come up for distribution, no right of subrogation in the junior mortgagee as purchaser at the first sale, to the position originally held by the owners of the superior liens discharged out of the proceeds of that sale.</p>

<p>Practice. Pleadings. Demurrer. Evidence. Payment. Contracts. Debtor and creditor. Yerdict. Before Judge Harris. City court of Macon. December term, 1888.</p> <p>Deported in the decision.</p>

<p>Prescription. Fraud. Notice. Title. Before Judge Hines. Dodge county. At chambers, January 20, 1888.</p> <p>Reported in the decision.</p>

<p>A will reciting that the testator owned land in partnership with another, and leaving it discretionary with the executrix to sell his half or buy the other half, or to divide, or to sell the lot altogether and divide the money, authorized-a private sale by the executrix in connection with the owner of the other half.</p>

Misnomer. Verdict. Judgment. Amendment. Before Judge Gustin. Bibb superior court. May term, 1888. An execution in favor of Geo. S. Riley, agent, against J. R. Hicks, having been levied on certain land, Hicks interposed an affidavit of illegality on the grounds (1) 'that he was never sued or served, nor was any verdict ever had against him in any ease in which Geo.

<p>Actions. Statute of limitations. Promissory notes.. Before Judge Atkinson. Ware superior court. April term, 1888.</p> <p>Reported in the decision.</p>

<p>Nonsuit. Practice. Affidavits. Service. Interrogatories. Before Judge Harris. City court of Macon. ^December term, 1888.</p> <p>Reported in tbe decision.</p>

<p>Purging in the judgment of foreclosure, a mortgage of all the usury in the debt which it was given to secure, does not prevent the waiver of homestead and exemption from being void and remaining void. The mortgage lien will be postponed to an exemption right after-wards asserted in the property, but the lien can be enforced after such right expires.</p>

<p>An employé cannot recover for an injury caused by the use of defective machinery, appliances or tools, when he has knowledge of such defect, and especially when his knowledge is equal to or better than that of his employer. Where the allegations made by plaintiff show that he either knew or ought to have known the danger of riding on track on a load of cross-ties, he is not entitled to recover. Nor was he entitled to recover on account of alleged negligence of the engineer, as, according to the facts alleged, the engineer was his fellow-servant.</p>

<p>Where a watchman in a railroad yard uses a platform- appropriated to the transfer of freights, for the-purpose of running along it at might in the dark, he does so at his own risk, it not appearing that the platform was intended by the company for such a purpose, or that he had any reason to think it was so intended.</p>

<p>1. Jumping from a rapidly moving train, known to be so moving, where such jumping is not invited or ordered by the agents of the railroad company, or is not done to avoid some apparently threatened peril, is such negligence as will bar a recovery in damages.</p> <p>(a) One who was an experienced train-hand, having been at such work all his life, ought to have known that it was reckless conduct, on the part of any one to jump from a train moving at the rate of twenty-five or more miles an hour.</p> <p>2. When a motion for a nonsuit is made, or a demurrer to a declaration filed, it is the duty of the trial judge to pass upon it, although the case be one wherein negligence is alleged. But if, without a demurrer or a motion to nonsuit, the case is submitted to the jury, the court must leave to them the question of negligence, and may not express any opinion on the subject when it is solely a question of fact.</p>

<p>1. The evidence upon the main point in the case being conflicting, the j ury believing the witnesses for the plaintiff, and the court being satisfied with the verdict, this court will not interfere with the judgment refusing a new trial.</p> <p>2. The plaintiff had the right to take the testimony of a female witness by interrogatories. If the defendant had desired to have her examined before the court and jury, the judge had powerto compel her presence, and doubtless would have done so upon proper application, and the assignment of sufficient reasons for the necessity of her attendance.</p>

<p>' Promissory notes. Drafts. Indorsement. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>On a verdict for a gross sum against both defendants in an action of law, a judgment in solido against both was properly entered, and the execution issuing on such judgment may be collected out of the property of either, the co-debtors being left to adjust between themselves the question of relative liability as to their respective proportions of the indebtedness.</p>

Injunction. Trusts. Practice in Supreme Court. Amendment. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1889. A bill was filed by Mrs. M. E. Trippe, a minor, by her husband, E. B. Trippe, as her next friend, against' her father, J. L. Winter, as trustee, for injunction, account, receiver and general relief. There was a hearing before the chancellor upon the bill, the answer of the defendant, and affidavits submitted by both sides.

<p>Rule. Attorney and client. New trial. Before Judge Hutchins. Gwinnett superior court. October term, 1888.</p> <p>On Febuary 2, 1878, J. P. Simmons, who had he-come the owner of an execution in favor of Martin, administratrix of G-ordon, v. G. ~W. Arnold, for $968, interest and costs, issued September 5, 1874, upon a judgment rendered October 6, 1871, and who was attorney for the plaintiff therein, executed to John Neal the following instrument:</p> <p>“$500. Atlanta, G-a., Feb. 2d, 1878. (Stating the case and describing the execution.) Received of John Neal five hundred dollars, for and in consideration of which sum I hereby transfer and assign to him an interest in and the control of said judgment and fi. fa. to that amount, with 12 per cent, interest thereon from this date until the first day of November next and until the same is paid; and as the owner and assignee of said judgment and fi.fa. and the plaintiff’s attorney therein, I also hereby agree to collect said sum with such interest for said Neal free of charge, and to guarantee the payment thereof to him.”</p> <p>On January 21,1879, a payment of $100 was made by Arnold to Neal; and on September 12,1883, he received, by W. M. Sessions, $319.40, paid by E. Faw. In 1887, the executors of Neal petitioned for a rule against Simmons as an attorney at law, to show cause why he had not paid the amount due them on the execution or should not do so, alleging that he had caused the payments stated to be made, which left due to Neal, on-September 12, 1883, $413.38, with interest from that date; and that he had collected all that the judgment called for, or a sufficient sum to pay the amount due petitioners by virtue of his transfer and obligation to collect, etc. A rule nisi having been issued, he answered that, at the time he transferred the interest to Neal, he reserved all other interest than $500 to himself; that he afterwards collected from Arnold all that was due on thefi.fa., except the principal sum of $500 and interest which he had transferred to Neal, and received no part of that either as Neal’s attorney or otherwise ; that while, as an independent contract, he agreed to collect Neal’s interest free of charge, the relation of attorney and client never existed between them in relation to this fi. fa.; that before Arnold had settled it, Neal took possession and control of it and placed it in the hands of other attorneys for collection, thereby ignoring respondent’s agreement to collect his part and releasing him from the duty or power to do so; and that the guaranty of a certain rate of interest on the judgment in excess of that set forth therein, could not be inquired into in this proceeding, hut if respondent is liable to plaintiffs at all, such liability would be adjudicated in another proceeding.</p> <p>This answer was traversed by the plaintiffs. On the trial, the execution appeared in evidence. It hears several entries of receipts for costs of officers, and five of levies on property, two of these being stated to have been dismissed by order of the plaintiff’s attorney, and it not appearing what were the results of the other three. There is a receipt for $90.85, dated September 12, 1883, from James P. Simmons, assignee, to E. Eaw, who had received it from the sheriff, this amount having been applied to this fi. fa. from sale of property of Arnold under a ft. fa. in favor of one Trippe. There is also a statement, dated September 12, 1883, signed by James P. Simmons, assignee, that the ft. fa. is entitled to the following credits not heretofore entered thereon, separate receipts for which have been given to the defendant :</p> <p>1877. Jan’y 22. Prom deft., by S. J. Winn, $127.33</p> <p>1878. 90.00 Jan’y 1st. “</p> <p>1878. “ paid Neal, 13.14 Pob’y 6th. “</p> <p>1879. (C 75.00 Jan’y 20th. “</p> <p>1880. “ out of note on Peb’y 16th. “</p> <p>J. A. Gunter,..... 350.00</p> <p>1880. Peb’y 16th. Prom deft...... 300.00</p> <p>1881. April 5th. “ “ in Marietta (be-</p> <p>sides costs), . .... 240.32</p> <p>1881. May 9th. Prom deft, out of note on</p> <p>J. A. Gunter,.....100.00</p> <p>1881. Nov. 3d. Prom deft, proceeds from</p> <p>Gardner ft. fa.....39.50</p> <p>1881. Dec. 19th. Prom deft, out of note on</p> <p>J. A. Gunter, .... 115.00</p> <p>1882. July 8th. Prom deft, balance note on</p> <p>J. A. Gunter, .... 34.20</p> <p>1883. Peb’y 5th. Prom deft......100.00</p> <p>Then there is a receipt, with same date, signed, “W. M. Sessions, atty. for John Neal, transferee,” to defendant Arnold, by E. Paw, for $305.08.</p> <p>The following receipt was admitted in evidence over respondent’s objection:</p> <p>“Received of G. W. Arnold a note made by Joel A. Gunter, dated January 8th, 1878, and due on or by the 15th day of November next, for $525.00, and payable to said Arnold or bearer for land, and which note I am to hold as collateral security for the payment of $500 to John Neal, of Atlanta, Ga., with 20 per cent, interest thereon until paid, and which sum said Neal paid for said Simmons and myself to the Atlanta Savings Bank of Ga. and took from said Simmons the control of that amount of afi.fa. from Cobb superior court in favor of Georgia V. Martin, adm’x, etc., v. myself, and the payment of which sum to said Neal said Simmons guaranteed for in said control,. and which sum, when, paid by said Arnold or by said Gunter on said note, is to be entered as a credit on said ft. fa. for the benefit of said Arnold as the defendant therein; and said Arnold also paid to said bank for me thirteen and ($13.14) dollars, which last Sum is to be entered as a credit on saidji/a. • both of which payments were made this day, 2d day of February, 1878.</p> <p>James P. Simmons, assignee and pl’ff’s atty.”</p> <p>Then was introduced, over objection, a cost fi. fa. in favor of G. W. Arnold, for the use of the officers of court, against James P. Simmons, assignee, etc., reciting that he had a fi.fa. levied on property of Arnold, who filed his illegality to the same, and that the jury found in favor of the defendant in fi.fa., and also found that said fi.fa. had been paid in full.</p> <p>W. M. Sessions testified: Simmons had the control of the execution against Arnold, and managed- and directed it until it was finally disposed of on the illegality. Witness was attorney for Neal in his lifetime, and for his executors since his death ; had control of the obligation sued on for a number of years before Neal’s death, and knew all about the transaction. The execution was all the time in the control of Simmons or his attorneys. E. Eaw generally represented him. Simmons directed the levies, and had exclusive control of the fi. fa. When the illegality was filed by Arnold, Simmons asked witness to represent him as his attorney on the trial, and this was done. Witness never had control of the fi.fa. as Neal’s attorney, but did represent Simmons by express employment. ”</p> <p>The jury found for the plaintiffs $371.60. The defendant moved for a new trial on the following among other grounds:</p> <p>(1) The court erred in overruling defendant’s motion to dismiss the case and discharge the rule on the grounds, first, that the relation of client and attorney did not subsist between the parties, but the case made is that of debtor and creditor, and the plaintiffs’ remedy would be by ordinary suit upon the contract.;, and second, that the contract relied on is violative of the law inhibiting maintenance and champerty.</p> <p>(2) The court erred in admitting the cost fi.fa. and. defendant’s receipt for the Gunter note, above set forth; they not being pertinent to the issue, but tending to mislead the jury.</p> <p>(3) The verdict is contrary to the evidence.</p> <p>Because of doubt as to the remedy, and the admission' of the cost fi.fa., the court granted a new trial; and the plaintiffs excepted.</p>

<p>On a trial for rape it is manifest error to .charge the jury that if they credit the testimony of the injured female, or if they believe she swore the truth, they must find the defendant guilty. Such a charge is in effect a decision by the judge of the whole case, except the credibility of the witness. Whether the accused be guilty or innocent, he is entitled to be tried by a jury, as to all the elements of fact involved in the charge.</p>

<p>Criminal law. Larceny. Indictment. Practice-Charge of court. Verdict. New trial. Before JudgeWellborn. Habersham superior court. September-term, 1888.</p> <p>Reported in the decision.</p>

Criminal law. Indictment. Practice. Motion in arrest of judgment. Before Judge Bower. Decatur superior court. May term, 1888. , The indictment against. Travis charged him with forgery, “for that the said Tom Travis, in the county aforesaid” (Decatur county), “on the first day of August, in the year of our Lord, 1887, with force and arms, did wrongfully and fraudulently make, sign and forge the following writing, to wit. ‘Savannah, Florida & Western Railway. July, 1887.

Criminal law. Verdict. Motion m arrest of judgment. Before Judge Bower. Dougherty superior court. October term, 1888.

<p>Indictment. Criminal law. Evidence. New .trial. Before Judge Roney. Burke superior court. June term, 1888.</p> <p>Reported in the decision.</p>

Sales. Warranty. Vendor and purchaser. New trial. Attorneys’ fees. Before Judge Marshall J. Clarke. Fulton superior court. September term,-1-888. -Harper ...g.ued Chambers & .Company in a .justice’s court. His, account ffitacbed to tbe summons was for .$65, money paid Cbam.bers-.&.. Co. March 17, 1886, for .one horse, which they warranted to be sound and suitable for the use intended, that of a dray-horse, and .all other purposes.

New trial. Evidence. Verdict. Before Judge Harden. City court of Savannah. November term, 1888. On October 24, 1887, Belle Boston sued the railroad company for damages. Her testimony tended to show as follows.: About half past nine o’clock at night, she hoarded a street-car of defendant to put her daughter on, intending to at once leave the car herself and walk home.

<p>The superior court erred in granting an injunction, under the facts disclosed in the petition therefor.</p>

<p>Under the facts, the superior court erred in refusing to grant a new trial.</p>

New trial. Evidence. Verdict. Before Judge Well-born. Lumpkin superior court. October term, 1888. Christian Wahl brought his bill against Thomas Christian and Wofford Christian, and afterwards Tí,. J. Castleberry was made a party defendant.

<p>The oral testimony adduced on the trial, being necessary to be considered in determining the questions in the case, but not being included in the judge’s approval of the brief of evidence, nor appearing to have been filed, is not properly before this court.</p>

<p>Telegraph eompauies. Damages. Negligence. Before Judge Hansell. Thomas superior court. April adjourned term, 1888.</p> <p>Reported in the decision.</p>

<p>Distress warrant. Landlord and tenant.. Liens. Justice courts. Practice. Claim. Demand. Juiyand and jurors. Verdict. Before Judge Boynton. Bock-dale superior court. September adjourned term, 1888.</p> <p>On November 5, 1884, D. M. Parker, as agent of George W. Scott & Co., made oath before a magistrate (of what militia district does not appear) in Bockdale county, that on tke 7 th of January, 1884, one Abe Sims, of said county, leased of John T. Henderson, trustee, thirty acres of land, more or less, to be planted in cotton in said year, for wbicb be was to pay one fourth of the cotton grown thereon to said trustee, that said Henderson, such trustee, on March 20, 1884, assigned the lease in writing to affiant, as agent for Scott & Co., as security, etc.; that the land was so cultivated in said year by Sirhs, and he had made on it in said year four hales of lint cotton, one fourth of which, for rental, was due and unpaid, estimated of the value of $50; and that demand for payment for said rental had been made of said Sims (which he refused to pay) since said rental had become due, which rental, by reason of the transfer aforesaid, was due to Geo. ~W. Scott & Co.</p> <p>On the same day, the same magistrate issued execution, stating the recitals in the affidavit mentioned, and commanding, “any lawful constable of the county,” of the entire crop of cotton raised and grown during 1884 by said Sims on the land described, to cause to be made by levy and sale said sum of $50 principal, with interest and cost, and to make return to tbe November term, 1884, of tbe justice’s court of the 476 district G. M., said county.” Tbe following entry of levy was made:</p> <p>“I have this day executed the within distress warrant hy levying on one bale of cotton and seed out of the same as the property of Abe Sims. This November 6, 1884. W. A. Tyardlaw, L. C.”</p> <p>A claim was- interposed by TI. P. & D. M. Almand. Tbe matter was returned to tbe justice’s court of tbe 475 district G. M., of said county, where a judgement was rendered by tbe magistrate, from wbicb judgement an appeal was taken to a jury in said court. When tbe case was called in its order, counsel for claimants moved to dismiss the levy for various reasons, wbicb were afterwards insisted on before tbe jury, and are hereinafter set out, but tbe court declined to entertain tbe motion on tbe ground that tbe case was on tbe appeal, and all questions of law and fact were for tbe jury.</p> <p>Plaintiffs introduced tbe affidavit of foreclosure, tbe fi.fa. based thereon with the entry of levy mentioned, and the rent contract between Sims and Henderson with tbe transfer of tbe same. Also tbe following oral testimony : Wardlaw, L. C., testified that he was constable of the 476 district G. M. of said county, and that in. said district, on a road, be levied on a lot of cotton in tbe seed in tbe possession of Sims, wbicb was carried to Hammock & Parker’s gin at Conyers ; that he did not follow tbe cotton through tbe gin to see whether it was the identical cotton he earned there or not; and that claimants stated the cotton levied on was theirs, and filed their affidavit and gave bond for tbe same. I). P. Carr testified, for claimants, that tbe cotton levied on was raised by Sims on.land in tbe 476 district GL M. in the year 1884; that Sims made about four bales on said laud; that Sims lived in the 475 district; that witness saw him loading the cotton in the field in said district and on said lands in said district rented, and followed the wagon containing it and notified the bailiff, Wardlaw; and that witness, as agent for D. M. Parker and Scott & Co., made several demands on Sims for rent after the same became due, and before the foreclosure of the lien, which Sims refused to pay. D. M. Parker swore that he was agent for Scott & Co., and as such agent claimed the amount of rent due, and authorized Carr to make demand for the same after it became due; and that the cotton levied on by Wardlaw was carried to the gin. Both the last named witnesses testified that they did not know the cotton levied on to be the cotton claimed and in issue.</p> <p>The evidence then closed and the counsel for claimants insisted before the jury that the claims should be sustained :</p> <p>• (1) Because neither the affidavit of foreclosure nor the evidence show that demand for payment was made by the owner or his agent.</p> <p>(2) Because the affidavit did not allege when the rent became due, nor whether it became due before foreclosure or not.</p> <p>(3) Because there was no evidence that the cotton claimed was the cotton levied on, or that it was raised on the land in question.</p> <p>(4) Because the evidence showed that Sims resided in the 475 district Gr. M., and not in the 476 district G-. M., to which latter district thefi. fa. was made returnable on its face.</p> <p>(5) Because the law and the evidence demand a verdict for claimants.</p> <p>It seems , that the jury at first returned a verdict or •made a verdict in favor of claimants, but they changed the verdict of their own motion, if changed at all, and explained that it was their intention to find the property subject to the fi. fa. and not subject to the claimants, which was done before the panel was dissolved, after which the jury were called and they all answered that it was their verdict to make said property subject as stated. Claimants carried the cause by certiorari to the superior court, alleging as error that the court below would not entertain their motion to dismiss the levy, that the verdict was contrary to the law and evidence, and that it was error to allow the change in the verdict. The certiorari was overruled, and the claimants excepted.</p>

Principal and agent. Futures. Yerdict. New trial. Practice in Supreme Court. Before Judge Wellborn. Hall superior court. August term, 1888. This was a suit on the following account: “Meador. & Griffin, brokers for R. T. Brown, advanced to Weare Commission Co., of Chicago, 111., for said R. T. Brown: 250 bbls. June pork bought at $9.75 sold at.........$ 8 37| 250 “ August “ “ “ 9.25 “ “ ........ 8 60 5,000 bus. June wheat “ “ .82J “ “.......... 74£perbu.

Injunction and receiver. Traders. Executions. Practice. Before Judge Roberts. Pulaski county. At Chambers, February 26,1889.

Receivers. Practice in superior court. Before Judge ITansell. Brooks county. At chambers, February 21, 1889. The plaintiff’s petition alleged as follows : W. F. Johnson is indebted to it $90 upon a justice’s court judgment, and is insolvent.

Receivers. Injunction. Practice in superior court. Before Judge Hansell. Brooks county. At Chambers, February 21st, 1889. The petition of Frank & Pray et al. alleged as follows : M. M. Stapler, of Florida, but now in Clinch county, Ga., is indebted to plaintiffs, and is insolvent and about to leave Georgia for Florida.

Injunction. Before Judge Hansell. Thomas county. At chambers, March 7, 1889. T. M. McIntosh filed his bill alleging as follows : On -day of-, he purchased from Mrs. F. W. Hughes a certain lot in the town of Thomasville, a copy of her conveyance being attached to the bill. Before and at the time of making the conveyance, Mrs. Hughes owned a parcel of land at the corner of Jefferson and Dawson streets, about 210 feet square.

Pleadings. Actions. Master and servant. Contracts. Before Judge Van Epps. City court of Atlanta. December term, 1888. Tbe declaration of Saunders alleged that the Atlanta & Florida Railroad Co., a corporation under the laws of this State, was indebted to him in the sum of $540, which it refused to pay, as will more fully appear by reference to the bill of particulars attached.

<p>Pleadings. Amendment. Practice. Nonsuit. Railroads. Before Judge Van Epps. City court of Atlanta. March, term, 1889.</p> <p>Reported in the decision.</p>

<p>Charge of court. Jury. Railroads. Negligence. Practice. Before Judge Van Epps. City court of Atlanta. March term, 1889.</p> <p>Reported in the decision.</p>

Injunction. lies- adjudicata.. Practice. Before Judge Marshall J. Clarke. Fnlton superior court. March, term, 1889. For report of the facts, only reference to 76 Ga. 182, is necessary. After that decision, there was a trial before a jury; and after the introduction of evidence by both sides, the judge directed a verdict in favor of the church trustees.

Nuisance. Jurisdiction. Equity. Courts. Before Judge Marshall J. Clarke. Eulton superior court. March, term, 1889.

<p>Street-railroads. Passengers. Infants. Negligence. Damages. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1889.</p> <p>Butler Moore, by bis next friend, sued tbe railroad company for personal injuries. • According to bis evidence, be was nine years old at tbe time of tbe injury. Had been up town to procure some meal for bis mother, which he intended to send home by the driver of one of defendant’s cars. Got on the car and rode for some distance on the front platform; had no money to pay his fare; was not going to ride, but the driver told him to get up ; did not tell the driver he was not going to pay, or did not want to ride, but told him to stop the ear, and when he stopped, got on it. After the car had proceeded some distance, the driver went inside and sat down to eat his breakfast; he did not stop the car, and left nobody to drive the mules which were pulling it. A negro boy about ten years old and plaintiff were on the front platform, and the negro started to drive; plaintiff asked to be allowed to drive; the negro said nothing, but pushed plaintiff off; he caught to the front piece of the car, and was thrown under it; two of its wheels ran over both of his legs. He was picked up by the driver, and carried home by some colored men; stayed in bed a number of weeks and suffered most excruciating pain, his legs being terribly mashed and broken. Has recovered his health, but his legs are badly bent and twisted and permanently deformed, and probably the muscles and bones will never be as strong as they otherwise would have. been. He lost a year from school; he still suffers, and is likely to suffer, some pain from the injury, especially in damp weather. His capacity for earning money was reduced one fourth, according to the estimate of one of his witnesses. Plaintiff had ridden on cars, and generally paid his fare; thought he would get on and have a ride, unless the driver told him to get off, and put his bundles down on the floor of the front platform. When he stopped the car, he was going to tell the driver to carry the meal home, and the driver said, “Get up there, sore toe,” but said nothing to him about paying his fare, and he had ridden on this driver’s car without paying any; was Walking along, and the driver stopped, and he got on; the driver did not ask him to pay then; other drivers on that line had carried bundles for him, but he did not think this driver ever had. The car was going up grade at the time of the injury, dragged plaintiff six or eight feet before the first wheel struck him, eight or ten feet further before the Second wheel passed over him, and went about twenty feet before it stopped; the driver jumped out, caught the brake and stopped it. He did not know plaintiff was off, until the wheels ran over him. From what one witness saw, the negro had not pushed plaintiff at all; witness thought plaintiff went to step off, and stepped too far. Plaintiff testified that he did not tell anybody after he was hurt that h§ was tussling over the lines, and that the negro shoved or pushed him off, and that he did not remember cursing the negro or telling him that he would have his father to shoot him for pushing him off. The car could have been stopped in two yards or less, with the brake.</p> <p>The testimony for defendant tended to show that, from the effect of the injury, there was a shortening of the right leg from about a quarter to a half inch, and the left leg was considerably bowed outward, and was somewhat larger than the' right leg; that a large seal-had been left on the right thigh ; that plaintiff seemed to walk remarkably well, limped some, but that could be avoided by an extra sole on his shoe, perhaps one thickness of leather, which would not interfere with his walk; that considering his age and the compensating power of nature, he would be practically almost as strong as anybody, and his capacity to earn a living not be materially lessened; and that the deformity would always exist, and so far as lifting and getting about were concerned, he would not be as strong as before, though the strength of the bones was not impaired. "Witnesses testified that after the plaintiff was run over, he charged the negro with having pushed him off the car, and cursed him, etc. A witness had known the driver, Robinson, to ask boys to ride with him, and to let them stand upon the front platform with him while he was driving; but he did know whether Robinson allowed them to ride free or not. He was sitting near the door of the car within reach of the brake, and the car was going slowly at the time of the injury. By the rules of defendant, the drivers drove continuously for some length of time, with no opportunity to stop and eat, and thus they were compelled to eat their meals on the cars. The negro had paid his fare. Plaintiff waved to the driver to stop the car, and ran up as though he thought it was not going to stop ; the driver told him to wait and he would stop, and plaintiff got on, laid his bundles down, went inside where he stayed for a short time, and then came out on the platform. The first the driver knew of the accident he felt the car jump, and he put on the brakes at once. He had not heard a word pass between the boys. After the accident, he took a policeman and went to the little negro’s house and hunted for him but could not find him. The driver did not know but that plaintiff' would pay his fare, and took it for granted he would pay it; he always had paid, and never rode on this car without paying; he did not say anything to the driver about carrying the bundles and himself walking. If the driver had been standing with his lines in his hands when the boy was pushed or fell off, he did not know whether he could have stopped the car or not; after he got to the brake, he stopped it in six feet; it had already run over the boy.</p> <p>After verdict for the plaintiff', a new trial was moved for and refused, and the defendant excepted.</p>

Torts. Proprietary medicines. Poisons. Nonsuit. Charge of court. Evidence. Before Judge Van Epps. City court of Atlanta. March term, 1889.

<p>Insolvent costs of the solicitor of the city court of Atlanta are not part °I the “expenses of courts” within the meaning of the constitution ; and an act of the legislature requiring the commissioners of Fulton county to levy a tax to pay a certain proportion of the amount claimed by two ex-solicitors of the city court of Atlanta to be due them on account of insolvent costs not collected from the fine and forfeiture fund, is unconstitutional and void, whether the words “expenses of courts” are given the common construction placed upon them at the time they were incorporated in the constitution, or (as would seem proper from the power to levy taxes involved) a strict construction.</p> <p>(«) It is unnecessary in this case to determine whether or not the legislature has the power to define what are expenses of courts, as the act in question does not say the claims of the ex-solicitors are such expenses, nor indicate that they are to be so regarded.</p> <p>(6) The law providing the means and manner of payment of the solicitor of the city court of Atlanta, is a general law applicable to the subject-matter, and is within the constitutional, inhibition, against the enactment of special laws where provision has been made by general law.</p>

Stock and stockholders. Corporations. Equity. Debtor and creditor. Auditors. Parties. Continuance. Assignments. Fraud. Interest. Held: claimed and owned by said company at the time, to wit, the time of the execution of said deed of assignment.” On November 9,1887, complainant further amended and charged that Parkins and Burns, and the company through them as its officers, had attempted to perpetrate a fraud upon complainant and the other creditors in this : Parkins…

<p>In prosecutions for wrongful sale of mortgaged property, as well as in other prosecutions, the indictment or accusation must allege that the crime was committed in the county where the prosecution is proceeding. It is too late after the accused has been put upon trial, the evidence submitted, and the argument of counsel in part heard, to amend the accusation in a city court so as to charge that the offence was committed in the county alleged in the affidavit on which the accusation is based.</p>

Habeas corpus. Evidence. Discovery. Equity. Contempt. Jurisdiction. Practice. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1889.

<p>Service. Process. Amendment. Before Judge Van Epps. City court of Atlanta. June term, 1889.</p> <p>Reported in the decision.</p>

Railroads. Damages. Negligence. Verdict. Witness. Character. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1889. J. D. Dadd sued the railroad company for a personal injury claimed to have been caused by the negligence of defendant, laying his damages at $4,000.

<p>1. The law does not contemplate absolute, but only a qualified or relative compensation in damages for personal injuries resulting in the loss of a limb, there being no money equivalent for such injuries.</p> <p>2. The damages found being extreme if not excessive, the error of the court in charging the jury on that branch of the case is cause for a new trial; the error being in referring the jury to certain elements of damage as to which there was no evidence, such as habits, avocation, money made by labor, prospect of increased earnings, prospects of obtaining steady and remunerative employment, el celera, the person injured being a child nine years of age.</p> <p>3. No other errors appear, of sufficient importance to require a new trial, or even to merit discussion. If any at all, they were harmless.</p> <p>4. There was no issue in the case, and no controverted fact, to which the admission made by counsel on the former trial as to ringing the bell upon the engine was relevant.</p> <p>5. In admitting doubtful evidence, the better practice is not to call attention of the jury to its doubtful character. But to do so, it seems, is but an irregularity.</p> <p>6. The city council of Atlanta could by ordinance adopt a city code compiled by the city attorney. The adoption, not the compilation, was the legislative act.</p> <p>7. Due care according to age and capacity is all the law exacts of a child of tender years. Ordinary care, which is that of every prudent man, is not the standard for a child.</p> <p>8. The refusal-to charge as requested touching the mode of arriving at a verdict was not error.</p> <p>9. As a matter of direction, this court orders that the new trial be confined to assessing the damages, the right to recover having been satisfactorily established.</p>

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

Criminal law. Perjury.. Evidence. Witness. Charge of court. Presumptions. Sanity. Prisoner’s statement. Before Judge Richard H. Clark. Pulton superior court. March term, 1889. The defendant excepted to the overruling of his motion for a new trial on the following among other grounds : (2) The court charged: “The defendant is to be tried upon what he is alleged to have sworn.

Negotiable instruments. Promissory notes. Notice Bona Jides. Vendor and purchaser. Principal and agent. Before Judge Van Epps. City court of Atlanta. December term, 1888. W. E. Phillips sued Mrs. Loyd as maker, and H. D. Phillips as endorser, on a promissory note payable to the order of the latter.

<p>New trial. Evidence. Practice. Witness. Railroads. Negligence. Master and servant. Charge of court. Verdict. Before Judge Van Epps. City court of Atlanta. June term, 1889.</p> <p>G-ordon Parker sued the railroad company for damages. On February 19,1884, his right arm was mashed by the dead-blocks of moving cars while he was coupling. He gave proper signals and was using all possible care. It was his duty to make a coupling then and there. He knew what a brakeman ought to do, and all about the rules of the road, as a brakeman. He supposed the book shown to him by counsel, marked “rulebook,” was the rule-book of the company; that is what it says. He knew nothing of brakemen’s and couplers’ duties except from seeing and being around. Had never seen a rule-book before he was hurt. Had never been informed of any rule on the subject of sticks. Sticks were not in use at the time he was hurt. Had never seen any rule against going between the cars and coupling ; never knew of any such rule. When he was hurt he had just set the coupling-pin, and as he turned around the cars propelled by an engine were on him and caught him. The cars which he was to couple were one and a half car-lengths apart when he first gave the signal to stop; the engine was coming up grade, and had the engineer obeyed his signal he could have stopped before he got to plaintiff. After fixing the pin, he could not have gotten out before the cars hit. He was between the cars when they struck the first time and from then until after he was hurt. He made no attempt to couple from the outside; and it was impossible to do so. After he went in to make the coupling, the cars struck and rebounded. He stayed between them to try to make the coupling again, and the engineer, not obeying the signal to stop the train which he had given before he went between the cars, continued to push the cars attached to the engine up grade until they again struck the car to which the coupling was to be made, and hurt plaintiff. It did hot take them long to come together again. The fireman saw plaintiff’s signal and repeated it to the engineer in time for him to have stopped. Sticks were not in use for coupling on defendant’s road at the time the plaintiff was hurt. There was no way a man could couple cars without going between them, though sometimes he could couple with a stick if the bumpers happened to hit nicely. The yardmaster in charge of the train which hurt plaintiff, and under whom plaintiff was working, had never said anything to him with reference to the use of sticks and never notified him of any rule that brakemen were 'prohibited from going between the cars to couple them.</p> <p>Nor the defendant Perkerson testified: Has been a conductor for defendant since the fall of 1883, and during that time has been acquainted with the rules and mode of managing and running trains on the road. The rule and custom was that persons were not allowed to go between the cars to make couplings. The book offered by counsel is the rule-book that was in effect when witness went on the road. Another has come out since. Sticks were used for making couplings on trains; this enabled couplers to keep from between the cars. Had never seen the rule-book offered ; knows it is a rule-book from its appearance and the way it is bound. Does not know where it came from, and does not know that every rule in it was in the original book. All he knows about the rules and customs among yard men is, that he saw the rules published in the rule-book and on the bulletin orders. Did not know what the custom among yard men was. Had known men on the line to couple without sticks. The master-mechanic furnished the sticks. Did not know whether yard men were furnished with sticks or notified that they could get them. Did not furnish the brakemen the rule books, but supposed if they applied for the books, they were furnished. Did not know of a brakeman having ever applied for or obtained one. A pin could not be set with a stick, but could be set by hand before the cars came together, and after they came together a stick could be .used. When witness gives the engineer a signal to stop, he expects him to obey it and has the right so to expect; and a brakeman in the discharge of his duties has the same right. When a stick was used, the brakeman set his pin and then came out and inserted the link with his stick and then knocked the pin down. The rules requiring that “ all employes are required to make themselves familiar with the rules and regulations; and ignorance of the rules will not be received as an excuse for their violation”; and that brakemen “are positively prohibited from going between cars for the purpose of coupling them,” were in force at the time of the injury.</p> <p>A witness thought employes had been suspended for not using the sticks ; and there was other testimony to the effect that the rule as to sticks, etc. was of force and sticks were of use on the road before and at the time plaintiff was hurt; and that all’employés were required to read the bulletin. Witness Turner was asked by plaintiff’s counsel: “When a brakeman in the discharge of his duty gives a signal for the engineer to stop, and he the right to rely upon the engineer’s stopping?” The court sustained an objection to this question ; counsel said to the witness : “I will ask you if it is possible to transact business on a railroad unless the brakeman, giving a signal, acts upon the idea that the engineer will obey it?” An objection to this also was sustained. The witness did testify that it was the duty of an engineer, when he receives from a brakeman a signal to stop, to obey it; “that is what they are supposed to do.”</p> <p>The jury found for the defendant, and plaintiff moved for a new trial on the following grounds :</p> <p>(1) Because the defendant’s counsel was permitted to ask witness Perkerson to “look at the book carefully and see whether you have any cause to doubt whether that is the rule-book” ; over objection that this was leading and matter of opinion. Also : “Is he in any danger of being mashed by the cars ?” to which the witness answered, “No.” Plaintiff objected to this question because it was leading and had been preceded by the following question and answer: “A car-coupler who keeps from between the cars in making a coupling stays on the outside?” Answer : “Yes sir.”</p> <p>(2) Error in admitting a book claimed to be the rule-book of defendant, over objection that it had not been proved to contain the rules of force at the time of the accident, and there was no evidence that plaintiff had or ought to have knowledge of it and the rules it contained, or was in any way bound by it.</p> <p>(3) Error in sustaining objections to the questions asked of defendant’s witness Turner, as indicated in the report of Turner’s testimony above.</p> <p>(4) Error in stating, as to whether it was possible to transact business on a railroad unless a brakeman giving a signal acted upon the idea that the engineer would obey it, that the court did not think that was material under the law; and in sustaining objection to á question to that effect asked of witness Turner.</p> <p>(5) Error in refusing to charge that an employe being in the dischai’ge of his duty has the right to rely upon other employes doing their duty.</p> <p>(6) The court charged that if the'engineer failed to take or to regard a signal given to stop, and came back rapidly and even negligently, and the plaintiff could have by ordinary care extricated himself, he cannot recover, even if the engineer was negligent.—Error, because calculated to mislead the jury and make them believe that it was the duty of plaintiff to have gotten from between the cars after they first struck, and because it was an opinion on .a matter of fact by the court.</p> <p>(7) The court charged: See whether, after the cars struck the first time in the manner alleged, and a coupling could not be made, it was still the duty of plaintiff to stay in there and try again, and to remain there between the cars until the car which he alleges was rebounding struck again, the engine meantime.continuing to come back, or whether the circumstances were such as to apprise him of the engineer’s negligence and of his own danger, and make it his duty to get out, and whether in that case he could, by ordinary care, have gotten out and avoided being hurt.—Error, because it compelled the jury to find for defendant unless they believed it was plaintiff’s duty to stay between the cars, and because it failed to show the jury that plaintiff might be entitled to recover if it was his right to stay between the cars, even if it was not his duty to do so.</p> <p>(8-9) About 10 o’clock, February 7, the jury retired; at 9 o’clock, February 8, they announced that they were unable to agree upon a verdict. They were called into court, when a juror stated that the trouble was about the law; that the jurors did not seem to understand tbe law about the negligence of the plaintiff. They were asked by the court whether the failure to agree grew out of a failure to grasp the law of the case, or out of a difference as to what the facts proved. A juror stated that the jury did not seem to understand the nature of the evidence; that he thought there was no trouble in the jury-box as to the law the court gave in charge; and that there was a suggestion that' they would like to hear the charge on that particular point as to the negligence of the plaintiff. The court then charged: If the plaintiff was guilty of any negligence whatever in the act which resulted in his injury, he could not recover. In order for an employe of a railroad company to recover for a personal injury happening to him in the service of the road, the employé must be guilty. of no contributory fault. In other words, he must be blameless in the transaction which resulted in his injury. In addition to that rule on that subject, I also charge you that if an employe could, by the exercise of ordinary care and diligence on his part, haves avoided the injury, he could not recover even if the railroad company was negligent itself; that is, if the railroad company was negligent in the way that the engineer moved the train, and the plaintiff, after a peril brought upon him by that negligence had commenced! to operate and was impending over him,—if the plaintiff could by ordinary care on his part have .avoided in-, jury—that is, have extricated himself from his perilous; situation, he could not recover. Now, in so far as your disagreement relates to any question of fact, I will state as follows : If you disagree about a matter of law I could aid you, but in so far as it is a matter of evidence I cannot aid you, as you are the judges of the evidence, except by some rules of law for your guidance. I can, however, give you this rule : In a civil case, when the jury cannot reconcile the testimony of witnesses conflicting, they can find a verdict according to the preponderance of testimony. If you will follow this rule, I think you will have no difficulty in arriving at a verdict. If juries would follow this rule, there would never be any necessity for a mistrial in a civil case.—Then the court charged as quoted in the last paragraph of the opinion.</p> <p>Plaintiff’s counsel stated that he would like to call the attention of the-court to further instructions proper to be given; and pending this the jury retired. Plaintiff’s counsel then insisted that the charge as given was subject to specified objections* and urged that the instructions stated below and a full charge applicable to the defendant’s negligence, should be given to the jury. The court declined to charge further; and the jury, after being absent not over five minutes, returned a verdict for the defendant. The charges requested were, that the plaintiff should not be considered at fault for not extricating himself from between the cars if the jury believed, in view of all the facts, that due care o'n his part did not require him to do so ; that in determining whether it was his duty so to do, all the surrounding circumstances may be considered, and the fact that an employé has the right to rely upon other employés doing their duty; and that the court also should present all the law, both pro and con, applicable to the plaintiff’s alleged negligence. «</p> <p>The motion was overruled, and plaintiff excepted.</p>

<p>1. “While at common law one convicted of felony or treason forfeited all his rights of citizenship and was deemed to be civiliter mortuds, as these corisequences do not in this State follow conviction of felony, an action for injuries received by one while a. felon and in confinement is maintainable.</p> <p>.2. Where by the terms of the act incorporating the defendant it was not located in any particular county but could carry on its opera,tions in any county of the State, and where it established its office in Atlanta “ for the purpose of electing its officers, and for the purpose of conducting its financial operations,” the proper court of Fulton county had jurisdiction.</p> <p>3. A plea to the eflect that the company to which the plaintiff was committed by the látate after his conviction was located in Dade county, and that the defendant was a mere stockholder in that company, and therefore the action, if any, should be brought against that company, was properly stricken; the plaintiff not complaining against the company referred to but against the defendant. Whatever defence may have been had under this plea could be had under the plea of the general issue.' . . ...</p>

<p>Criminal law. Continuance. Liquor. Minors. Charge of court. Evidence. Before Judge Van Epps. City court of Atlanta. March term, 1889.</p> <p>Reported iu the decision.</p>

<p>Pleadings. Payment. Contracts. Consideration. Vendor and purchaser. Equity. Rescission. Before Judge Van Epps. City court of Atlanta. March term, 1889.</p> <p>Reported in the decision.</p>

<p>Railroads. Damages. Accord and satisfaction. Fraud. Contracts. Rescission. Tender. Before Judge Yan Epps. City court of Atlanta. June term, 1889.</p> <p>Reported in the decision.</p>

<p>Executions issued by a justice’s court on July 30, upon judgments rendered July 26, were irregular but not void, and could not be attacked collaterally. Where a claim was interposed to levies made under such executions, it was error to dismiss the levies and exclude the executions from evidence, on motion of the claimant, because they were issued before the éxpiration of four days after the date of the judgment.</p>

<p>Trover. Affidavits. Bonds. Conversion. Exemptions. Practice. Attorney and client. Principal and surety. Bona jides. Before Judge Van Epps. City court of Atlanta. December term, 1888.</p> <p>Beported in the decision.</p>

Charge of court. New trial. Criminal law. Gaming. Landlord and tenant. Evidence. Before Judge Van Epps. City court of Atlanta. June term, 1889. Robert Stevenson was indicted for keeping a gaming-house. The State’s testimony was to the following effect: Defendant and others were arrested by the police in a room back of defendant’s storage-room. Some of them, including defendant,were playing cards, and he had cards in his hands. He had a bar-room in front of his storage-room.

<p>In so far as unpaid tax executions belong to the tax-collector after bis term of .office expires, they are subject to the equities existing between him and the tax-payer resulting from the true state of their accounts with each other; and such collector, or his administrator after his death, may in a proper case be perpetually enjoined from enforcing them, neither the State nor the county being a party to thé litigation, and no injunction being sought against them or either of them.</p>

Railroads. Negligence. Charge of court. Evidence Damages. Before Judge Van Epps. City court of Atlanta. September term, 1889. The plaintiff was employed by the defendant to clean ears, and was injured by being caught between the ends of one stationary and another shoved back by the engine to be coupled.

Railroads. Negligence. Words and phrases. Charge of court. Damages. Verdict. New trial. Before Judge Van Epps. City court of Atlanta. June term, 1889. B. F. Lanier sued the railroad company for damages in crushing his left hand between two car bumpers while he was making a coupling, causing the loss of his second and third fingers and injury to his first.

<p>In a suit against a railroad company for the homicide of one walking on its track in front of a passenger-train, if it appear from the plaintiff’s evidence that the person killed did not exercise ordinary diligence to avoid the consequences of the company’s negligence, and that he could have avoided them by such diligence, a nonsuit is proper.</p> <p>(a) The use of the track.by pedestrians with the company’s knowledge, does not bind it to the exercise of extraordinary care and diligence to protect them. If such use amounts to a license, it must be on condition that the pedestrian shall exercise ordinary care and diligence to avoid injury.</p>

<p>1. A report of the trial consisting of interrogative and responsive dialogue between counsel and witnesses concerning the facts, interlarded with remarks by court and counsel, is not a brief of evidence, and a decision holding it to be and approving it as a brief, will, on direct exception.thereto, be reversed.</p> <p>2. A judgment denying a new trial will not be reversed by the Supreme Court, as a consequence of reversing a previous decision erroneously holding that a given document filed with the motion for a new trial was a brief of the evidence. The rule in respect to incidental reversal of dependent judgments stated.</p>

<p>A quantity of written matter containing the declaration, copies of certain interrogatories and a stenographic report of questions and answers, followed hy a certificate of the court below that “ this brief is approved as true and correct,” is not the brief of evidence which the law requires. There.being no brief of evidence before this court, it cannot tell whether the court erred in refusing to grant a nonsuit or whether the interrogatories objected to were improperly admitted.</p>

<p>A school-building was erected in a town from subscriptions of citizens and of the municipal government. The legislature authorized that municipal government to levy and collect taxes to establish and maintain schools in the town, to employ teachers and fix their salaries, and to make rules for the government of such schools. The tax was not imposed, a sufficient fund for the purpose being raised from liquor licenses, until that source of revenue was destroyed by the adoption of a prohibitory law. The municipal government employed a teacher for one year, and at the end of that term decided not to retain him further; but the citizens who had subscribed to the erection of the school-building held a meeting and determined that this teacher should be retained; although, if the building belonged jointly to them and the municipal government, the latter owned a majority interest. Held:</p> <p>An injunction at the instance of the municipal government, restraining the teacher from taking possession of the building, was not an abuse of discretion.</p>

Evidence. Contracts. Ambiguities. Municipal corporations. Damages. Before Judge Van Epps. City court of Atlanta. March, term, 1889.

Constitutional law. Statutes. Local option. Liquor. Practice. Demurrer. Evidence. Charge of court. New trial. Before Judge Richard IL Clark. Douglas superior court. January term, 1889.

<p>Practice. Amendment. Actions. Torts. Limitations. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>Practice. Charge of court. Railroads. Carriers. Contracts. Evidence. Pleadings. Mistake. Interest. Demand. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1889.</p> <p>Reported in the decision.</p>

Claims. Affidavits. Principal and agent. Before Judge Hines. Scriven superior court. May term, 1889. A ji. fa. in favor of Larned against S. H. Hadden was levied upon land, and a claim was interposed by Clarissa Hadden, through her agent C. H. Hadden. The following was the affidavit made by him : “ I, Chas.

Interest and usury. Cotton factors. Contracts. Practice. Before Judge Hines. Scriven superior court. November term, 1888. Guilmartin & Co. sued White for $126, with interest from January 1, 1887, and attorneys’ fees, alleging thus : On February 26, 1886, they were cotton factors, and as such consented to make advances to White before the first of September thereafter, not to exceed $1,000.

<p>Deeds. Exceptions. Reservations. Description. Evidence. Practice. Before Judge Hines. Johnson superior court. March term, 1889.</p> <p>Reported in the decision.</p>

Criminal law. Murder. Evidence. Insanity. Witness. Charge of court. Practice. Before Judge Boynton. Washington superior court. March term, 1889. J. D. E. Taylor was indicted for the murder of W. I. Cone. The evidence for the State showed, in brief, as follows : On the day and in the county charged in the indictment, Taylor killed Cone and Dr. Robson by shooting them with a pistol.

<p>Railroads. Negligence. Master and servant. Actions. Pleadings. Amendment. Evidence. Nonsuit. Before Judge Marshall J. Clark Eulton superior court. March, term, 1889.</p> <p>Reported in the decision.</p>

<p>1. In a suit upon a promissory note payable to S and purchased after maturity by the plaintiff, the defendant could introduce in evidence so much of the account current between him and S for the year in which the note was made and due, as he regarded necessary to his defence. If the balance of the account was material and would aid the plaintiff, he could himself introduce it.</p> <p>2. The general rule that the oldest lien or the oldest item in an account will be first paid, upon the presumption that such was the fair intention of the parties, was applicable to the facts.</p> <p>3. Losses sustained by buying or selling “futures” cannot be recoered in a court of law.</p>

Contracts. Damages. Demand. Actions. Charge of court. Evidence. Pleadings. Before Judge Hines. Bulloch superior court. April term, 1889. In connection with the third and fourth heads of the opinion, the following is added : It was in the evidence that defendants had engaged to build bridges, etc. on a projected railroad, and desired plaintiffs to furnish them sawed lumber for this purpose; and plaintiffs required the contract sued on to be made.

<p>If the testimony of the engineer, fireman, conductor and a passenger on the train is to be believed against the Supposition of two witnesses, the railroad company exercised all ordinary and reasonable care and diligence to prevent the accident, whether the horse killed had fallen through a trestle or was standing still. The grant of a second new trial to the company was proper.</p>

<p>Railroads. Negligence. Nonsuit. Practice. Bill of exceptions. Before Judge Hines. Johnson superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>The note in suit being barred on its face by the statute of limitations a new promise will not be implied from unsigned credits entered upon a separate paper sewed to the note and, according to the evidence of the creditor, handed to him in that condition by the administratrix of the maker, it not appearing that any of the credits are in her handwriting. Nor will it vary the matter that some corresponding credits not specially pointed out were previously entered upon another paper (not now produced but then attached to the note) by the daughter and some by the granddaughter of the administratrix under her orders or direction. The construction of sections 2934 and 2935 of the code by a majority of the court in Green v. Juhan, 66 Ga. 531, disapproved.</p>

<p>1. In the sale of goods by words of description which comprehend quality as well as variety, the descriptive words may be trusted by the purchaser as a warranty of both, and though inspection by him before acceptance will exclude from the warranty all patent defects, it will have no influence on those which are latent.</p> <p>2. Defects not discovered by the inspection actually made, and not discoverable by such as ought to have been made, are properly , classed as latent. Hence corn musty and “blue-eyed” packed in bulk beneath sound corn, is a latent defect - in the whole lot as a car-load, delivery and acceptance being made without breaking bulk or unloading the car.</p> <p>3. A custom of trade in the city of Augusta, by which, contrary to the general law of the State, acceptance of corn in bulk and paying for it after inspection are considered as waiving or releasing all claim upon the seller to answer for any defects of quality, is not binding except upon those who have recognized it in their own transactions and thus adopted it for their own dealings. '</p> <p>4. The contract of sale embracing thirty car-loads of com in bulk, to be delivered on board by the car-load at the point of destination, a defect of quality in some of the corn accepted and paid for will not justify the buyer in rejecting ten other car-loads subsequently tendered according to the contract, neither of the parties electing or intending to rescind or abandon the contract in whole or in part.</p> <p>5. In the present case, according to the weight of the evidence, the purchaser, some of the corn accepted and paid for having been dedefective, is entitled to recover for breach of warranty, and the seller is entitled to recover for breach of contract in rejecting cars which ought to have been accepted.</p> <p>6. A part of the sum sued for being the expenses of resale, and the broker who made it being a witness for the plaintiff, it was proper to inquire of him on cross-examination not only as to the amount of his commissions, but whether they had been paid or not.</p>

<p>Verdict. Pleadings. New trial. Practice. Before Judge Hines. Burke superior court. February adjourned term, 1889.</p> <p>Reported in tbe decision.</p>

<p>Innkeepers. Principal and agent. Notice. Before Judge Eve. City court of Richmond county. February term, 1889.</p> <p>Reported in the decision.</p>

<p>Powers. Wills. Debtor and creditor. Bona fides. Equity. Pleadings. Claims. Estates. Before Judge Roney. Richardson superior court. April term, 1889.</p> <p>Reported in the decision.</p>

Torts. Actions. Demurrer. Husband and wife. Master and servant. Before Judge Honey. Bichmond superior court. April term, 1889. The body of the declaration of Mrs. Hill was as follows : “1.

<p>Homestead. Mortgages. Estoppel. Constitutional law. Vendor and purchaser. Before Judge Roney. Richmond superior court. April term, 1889.</p> <p>Reported in the decision.</p>

<p>Judgments. Dormancy. Witness. Administrators and executors. Parties. Estoppel. Inventory. Before Judge Roney. Richmond superior court. April term, 1889.</p> <p>On December 21, 1869, James H. Royall and ¥m. S. C. Morris, as executors of John 0. Poytbress, deceased, sued Armstead Fulcher, and on April 30, 1873, recovered against him a judgment for $500. Execution issued May 1, 1873, and on July 3, 1873, was levied on 800 acres of land, more or less. To 725 acres of this tract a claim was interposed by Mary Ann Fulcher, wife of defendant va.fi. fa,., in behalf of herself and certain remaindermen under a trust deed in which she and they were named as the beneficiaries, the trustee not being in life at the time of making the claim. This issue was finally disposed of in favor of the claimant, upon a second trial, on April 21, 1885.</p> <p>On June 7, 1873, process of garnishment was sued out for the plaintiffs in fi. fa. to reach a fund claimed to be due the defendant in fi. fa., and the answers thereto having been traversed, the issue was disposed of on March 3, 1885, by the dismissal of the garnishment by the plaintiffs’ attorney. On the same day, the defendant in fi.fa. paid to that attorney $100 on account of the judgment in question. It had, on February 26, 1879, been assigned to Mary E. Mandell and Annie N. Munnerlyn, legatees under the will of Poythress, by J. T. Miller, as executor, he having succeeded the two executors above named, who had died.</p> <p>Armstead Fulcher died intestate, and James A Fulcher (the present defendant) was appointed administrator of the estate, upon his petition to the court of ordinary dated May 6, 1887, reciting that the estate was of the probable valué of $1,000 and consisted mainly of 450 acres of land. The inventory and appraisement sworn to by the administrator values this land at $1,125, the only other property mentioned therein being $91 worth of personalty. This land was part offthe land that had been levied on and claimed. On August 1, 1887, notice of the judgment in question as a claim against the estate was given to the administrator by the plaintiffs’ attorneys.</p> <p>’ On September 19, 1888, a scire facias was issued, notifying the administrator to show cause why the judgment should not be declared of full force aud execution directed to issue against him in favor of the assignees, to be levied on the estate in his hands unadministered. By way of amendment to this, the plaintiffs alleged that, on the several trials of the claim case, the defendant testified as a witness, and was examined by depositions October 9, 1873, and thus had full notice of the pendency of the proceedings; and that by reason of the payment of $100 on the judgment by the defendant therein when the garnishment proceeding was dismissed, the execution was of full force (at the date the scire facias was issued). They prayed that said defendant show cause why he should not be made a party defendant, and when so made a party,, required to show cause why he should not pay over to the plaintiffs, from the property in his hands to he administered, the amount of the balance due on the fi. fa.</p> <p>The defendant demurred to the scire facias because (1) the writ alleges that the judgment which it seeks to enforce was obtained against defendant’s intestate in his lifetime and execution issued thereon prior to his death, and that said judgment and execution are still of force; (2) it does not seek to make this defendant a party to said judgment; (3) it fails to show any reason why the execution cannot be levied on the estate of the intestate alleged to be in the hands of defendant as administrator, unadministered; (4) it fails to show of what that estate consists, so as to enable the court to judge of the necessity for the increased costs sought to be entailed thereon by the issuing of said writ; and (5) it shows that the judgment sought to be enforced is dormant, and a revival of it barred by the statute of limitations. The fifth ground of demurrer was partially sustained, it being held good as to all property beside that set forth in the claim affidavit. The other grounds were overruled entirely, and the defendant excepted pendente lite. The plaintiffs so excepted to the sustaining in part of the ground mentioned.</p> <p>The defendant pleaded the following facts in bar: All the property set out in his inventory as administrator was the sole and separate property of the wife of Armstead Fulcher, who died about thirteen months before him, and upon her death was taken possession of by him as her sole heir without administration, under §1761 of the code, subject to her debts, she having died without any lineal descendant. There are outstanding debts of hers sufficient to absorb the entire property, among which is a note for $1,000 and interest given by Mrs. Fulcher and her husband to defendant in payment for the property in his hands as administrator and for supplies furnished by him to her to run the plantation, he having conveyed it to her and taken the note in payment for it and the supplies. There are other debts amounting to about $250 of hers, which her husband failed to pay by reason of his death so soon after she died. Of this amount, $27.25 is due de- ■ fendant for her funeral expenses paid by him. The property set forth in the inventory is not worth more than $1,000. No other assets ever came into his hands as administrator. He has fully administered the estate except as to said assets, which are not sufficient to satisfy debts of a higher nature against deceased, to wit, the debts of his wife. Attached to the plea is a copy of the note signed “Mary A. J. Fulcher; A. A. Fulcher,” dated Oct.. 24, 1885, promising to pay, on or before the first day of January next, to J. A. Fulcher, $1,000, “for value received in payment of land and supplies for our use.” It is endorsed with a credit of $10 paid Feh. 10, 1887.</p> <p>On the trial, the deed referred to in the plea appeared in evidence. It is dated February 5, 1880, is from James A. Fulcher to Mary A. Fulcher, and conveys, in consideration of $212.81, tbe land in question, containing 750 acres. From the testimony of the defendant it appears that he acquired title by paying a debt due to one Burdell, to whom a security deed had been made by Armstead A. Defendant, had bought 100 acres of the land for $800, and in order to get title, took up Burdell’s claim, which amounted to $836. In the claim case defendant testified that Armstead A. afterwards paid him this $336 ; but in the present trial he explains by saying that he took Armstead A’s and his wife’s note for that amount as so much cash, and this was the way the payment was made. He now testifies that he never actually received the money, but did receive a mule valued at' $80 thereon. After taking up the Bur-dell debt, defendant made a deed of gift to Mrs. Fulcher for an expressed but not paid consideration of $5. Subsequently the property was sold at sheriff’s sale for taxes, and defendant bought it, and afterwards made the deed to Mrs. Fulcher above described as in evidence. In the meantime, however, Mr. and Mrs. Fulcher owed him various amounts for supplies he purchased and paid for, and used by them in running the plantation; and at the time of making this deed, he took Mr. and Mrs. Fulcher’s joint note for $1,000 (attached to his plea and in evidence), and gave them up the accounts and notes he held against them up to that time. This $1,000 note was the cause of his transfer to his aunt, Mrs. Fulcher; it was to secure all claims he had against her. Of the consideration of the deed $40 was paid; the balance is due. He could not say how much was due him, but claimed that the amount of the note was due. He kept no books, and having given up his accounts and other memoranda of indebtedness, he had no evidence of it left but the $1,000 note. Mr. and Mrs. Fulcher wantpd him to be satisfied for what he did for them, and he was so satisfied by taking this note. The land was trust property belonging to Mrs. Fulcher. It was responsible for supplies. All but 450 acres was sold before her death, which was in February, 1886. She left no children; her husband was her sole heir. Defendant paid her funeral expenses during the life of her husband. These were not allowed him by the ordinary. He returned the 450 acres as administrator of Armstead A. Fulcher. This land is responsible for the payment of other debts due him by Mrs. Fulcher to five other persons, including a guano debt; all these amounting to about $275. It is sand land, of not much account, value about nine to twelve hundred dollars, fifty acres tolerably good. The 450 acres was included in that involved in the claim case. It is all the property defendant has, except the bed and other little things returned to the ordinary.</p> <p>A witness introduced by the plaintiffs testified that Armstead Fulcher came to him to get money to pay some indebtedness to defendant, saying he would secure witness in land. Did not know whether or not he ever paid defendant. Afterwards defendant told witness he had a $1,000 note against the place, and perhaps showed it. Witness counted the thing as lost, but afterwards Mr. and Mrs. Fulcher came to him and made him a deed to 31 acres of land, which he has still. This cancelled the debt.</p> <p>The jury found for the defendant. The plaintiffs moved for a new trial on the following grounds:</p> <p>(1) The court, at the opening of the case, after both parties had announced ready upon the hearing of the argument upon the demurrer filed by the defendant and motion to continue the case upon the ground that this was not the trial term, directed the case to proceed and ruled, as matter of law, that the judgment set forth in the scire facias was dormant except .as to the property involved in the claim case.</p> <p>(2) The court permitted defendant to testify as to matters arising between himself and Armstead and Mary Fulcher; plaintiffs objecting that he was a party to the contract, directly interested in the matter in issue, and could not testify as to the consideration or circumstances under which the note set out in his plea was given; the testimony particularly objectionable being as follows : The note put in evidence given me by Mr. and Mrs. Fulcher is the cause of my having transferred to my aunt this land. They had been owing me ever since I bought the land from Burdell. I never have been paid. When they gave me this note, I gave them al'l'the accounts I had against them. She died February, 1886. This note relates to this very land. My aunt said she wanted to secure me. I told her I did not want the land; I wanted the money; and they gave me this note. The debt, existed against Mr. and Mrs. Fulcher. My aunt gave me this note to secure me against all claims against her.</p> <p>(3) The court permitted defendant to testify that the real estate set forth in the inventory of the estate of Armstead Fulcher, was property that Armstead had inherited by virtue of being the heir at law of his deceased wife, and chargeable with her debts; plaintiffs objecting that defendant was estopped by his return of the property absolutely as that of his intestate, and could not by parol change the character of that return.</p> <p>(4) The court refused to charge that a return of property by an administrator as that of his intestate, estops him from showing that it was the property of some other person and chargeable with that person’s debts.</p> <p>(5) The court refused to charge that if it appears that defendant claims as a creditor by note of Armstead Fulcher, and plaintiffs’ debt is a valid judgment as to the estate, they are entitled to recover against him, as administrator, to be paid in preference to the note due him personally.</p> <p>(6) The verdict was contrary to the charge, given at plaintiffs’ request, that if the $1,000 note was in whole or in part for the debt of A. A. Fulcher, and Mary A. was security thereon and not a joint maker, then it is void so far as she is concerned.</p> <p>(7) The verdict was contrary to the evidence, particularly in that it appeared from defendant’s testimony that a portion of the debt represented by the note he held was an obligation of Armstead Fulcher taken up from Burdell, and that the money advanced by. defendant from time to time for the making of this note was upon orders of Fulcher himself.</p> <p>(8) Under the facts of the case and under defendant’s testimony, the note referred to is void, it appearing that it was first given for the debts of Armstead Fulcher, and afterwards for his and Mary A. Fulcher’s; and defendant not being able to show how much of the debt of each was in this note, and the burden being on him to do so, he must lose it.</p> <p>(9) The court charged that if this property belonged to Mrs. Fulcher, as it was determined to be in the claim case, then it is justly chargeable with all debts that she owed. The court here erred in limiting plaintiffs’ rights to the issue in the claim case, which was not the title relied on by defendant, but his own personal deed, the note stating in payment of lands, etc.</p> <p>Separate from the motion for a new trial, the plaintiffs moved that the court vacate his ruling upon the demurrer, the same having been verbally rendered and not placed on record, and being the matter set forth in the first ground of the motion for a new trial; in order that, should a new trial be granted, the case might proceed as if no such ruling had been made and the trial be had de novo in every particular. This order was granted, and at the same time the motion for a new trial was sustained ; the court being of the opinion that the judgment was not dormant in whole or in part, and that, under the evidence and the law, the plaintiffs were entitled to the issuing of an execution against defendant as administrator. The defendant assigned error upon both of these rulings, and upon the matter complained of by him pendente lite.</p>

<p>Trusts. Mortgages. Parties. Practice. Before Judge Boney. Burke superior court. June term, 1889.</p> <p>Beported in the decision.</p>

Municipal corporations. Taxation. Contracts. Injunction. Before Judge Roney. Richmond county. At chambers, June 29, 1889. The Augusta Factory sought an injunction against the municipal authorities of Augusta to prevent the enforcement of an execution for municipal taxes of 1887, which was levied February 18, 1889.

Verdict. Witness. Criminal law. Husband and wife. Before Judge Roney. Richmond superior court. October term, 1888. Drysdale was indicted for assault with intent to murder, committed on Jack Adams. Jack was the only-witness introduced by the State, and testimony in conflict with his was introduced for the defendant. The verdict was guilty of shooting at another; and upon the refusal of a new trial exception was taken.

<p>Sales. Contracts. Vendor and purchaser. Principal and agent. Stock. Dividends. Before Judge Honey. McDuffie superior court. September term, 1888.</p> <p>Reported in the decision.</p>

<p>Distress warrant. Rent. Contracts. Nonsuit. Evidence. Landlord and tenant. Practice. Before Judge Lumpkin. Hancock superior court. April term, 1889.</p> <p>Reported in the decision.</p>

Actions. Pleadings. Amendment. Railroads. Passengers. Before Judge Hines. Taliaferro superior court. August term, 1889. Murden sued the railroad company, making the following allegations, in brief: Defendant is a corporation doing business in Georgia, and having a line of road and an agent in Taliaferro county, where the action was brought.

<p>Where the railroad company bought certain articles from the plaintiff, who agreed to take pay for the same in capital stock of the company, but nothing was said as to the value the stock was to bear, the par value should be inferred.</p>

<p>An allegation that the railroad company was negligent in not having a key placed in the bolt which fastened the tender to the engine, in consequence of which the bolt came out, the engine and tender separated, and the fireman was thrown between them to the ground and injured, is not supported by proof that the bolt was not long enough to go through so as to be keyed and thereby prevented from coming out, and that the train was stopped and the engineer and fireman attempted to fasten the bolt, but it was so short that this could not be done. Whether on a proper allegation there could be a recovery is not decided.</p>

<p>Mortgages. Promissory notes. Actions. Res adjudicada. Before Judge Eve. City court of Richmond county. May term, 1889.</p> <p>Reported in the decision.</p>

Bule. Sheriffs. Illegality. Officers. Before Judge Lumpkin. Oglethorpe superior court. April term, 1889. At the October term, 1868, of Oglethorpe superior court, a judgment was rendered in favor of Glenn et al., executors, v. W. H. Paul, Richard Ward, and Thomas R. Tiller, administrator of M. W. Woods, deceased.

Injunction and receiver. Practice. Before Judge Lumpkin. Hancock superior court. April tei’m, 1889.

<p>Ejectment. Contracts. Leases. Landlord and tenant. Before Judge Lumpkin. Wilkes superior court. May term, 1889.</p> <p>Reported in the decision.</p>

<p>1. The sum sued for in a magistrate’s court being $50, as wages for a certain time, if the action was well-founded, that sum bore interest from the time it was due up to the date of the judgment, and the amount of principal and interest claimed at the time of the judgment being therefore more than $50, an appeal to the superior court could properly be taken.</p> <p>2. Where one is hired to serve another without any agreement as to the duration of service, there is no inflexible rule of law as to the length of time the hiring is to continue, but this question will be governed by the circumstances of each particular case. Where wages are payable at a stipulated period, such circumstance standing alone indicates that the hiring is for such period ; but if there be anything in the contract showing that the hiring was intended to be for a long term, the mere reservation of wages for a lesser term will not control the hiring.</p> <p>[nj The verdict, being right, will not be disturbed, though there was ' error in the charge of the court.</p>

<p>Attachments. . Affidavits. Partnership. Practice. Verdict. Before Judge Roney. Richmond superior court. April term, 1889.</p> <p>Repoi’ted in the decision.</p>

<p>Wills. Estates. Remainders. Before Judge Roney. McDuffie superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>Probate. Wills. Heirs. Pleadings. Charge of court. Before Judge Lumpkin. Taliaferro superior court. February term, 1889.</p> <p>Reported in the decision.</p>

Deeds. Wills. Construction. Before Judge Lumpkin. Hancock superior court. April term, 1889.

Tenants in common. Alleys. Injunction. Before Judge Marshall J. Clarke. Fulton superior court. October term, 1889.

Criminal law. Robbery. Verdict. New trial. Before Judge Richard H. Clark. Dekalb superior court. February term, 1889. Green and Jim Scott were indicted and tried for robbery.

Verdict. Evidence. Before Judge Marshall J. Clarke. Fulton superior court. October term, 1888. Attachment in justice’s court.