Volume 84 — Georgia Reports

<p>One who gets upon a fast mail train during one of its fixed stops at a station, where these stops are too short for him to transact his business and get off, has no right to notice, by signal or otherwise, to alight before the train resumes it journey; it not appearing that the conductor or other proper agent knew that he had come aboard, nor that there was any usage or custom to give notice or make signals for the benefit of such visitors. This applies to a father who, in conformity to a known custom of travel, attends his daughter at her request, under circumstances rendering such attendance necessary, to aid her 'and her infant children to enter the train and procure seats as passengers. If, whilst he is in the car, the train starts before he has finished his undertaking, he must either remain until he can make known his wish to get off, or take the risk of alighting whilst the train is in motion.</p>

Certiorari. Actions. Accounts. Partnership. Before Judge Hutchins. Jackson superior court. February term, 1889. Action injustice’s court by E. A. McDonald against Mi's. P. G. Thompson, upon an account for sawing lumber. Yerdict for the plaintiff for $31.69.

<p>Where two persons pleaded guilty to an indictment for; simple larceny of 450 pounds of lint-cotton of the value of $35, and another was indicted and tried for receiving the same cotton knowing it to be stolen, and it was shown by the evidence to have been packed into one bale, the offence of which the principal thieves had been convicted was a misdemeanor, but the offence shown by the evidence was a felony, of which the city court of. Clarke county had no jurisdiction.</p>

<p>Assumpsit. Verdict. Contracts. Before Judge Hutoiiins. Gwinnett superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>Though the preponderance of evidence show that a muledid not come up to the warranty made by the seller as to its age and soundness, if it fail entirely to show any damage thereby sustained by the buyer, or any value of the animal at the time he honght it or after-wards, a verdict for the amount of a note given for part of the purchase price is right.</p>

<p>Damages. Pleadings. Demurrer. Fraud. Attorney and client. Bonds. Before Judge Hutchins. Gwinnett superior court. March term, 1889.</p> <p>In connection with this decision, see 80 Ga. 709, and 81 Ga. 650.</p>

<p>A machinist employed by a corporation in its factory, not to use machinery, but to keep it in good order, and having knowledge that some of it is imperfect and that employes cannot be relied upon to prevent it from becoming dangerous for lack of oil, takes the risk of discovering the condition of the machinery at the time he attempts to repair it, such risk being incident to his vocation. The incompetency or negligence of other employes, or of officers or agents of the corporation, resulting in putting the machinery out of order and rendering it dangerous, will not make the corporation liable for an injury which he sustains in handling the machinery whilst engaged without their assistance in repairing it</p>

<p>Criminal law. Biot. Jurors. Verdict. Evidence. Practice. Before Judge Hutchins. Jackson superior court. August term, 1888.</p> <p>Memory Tucker, G. N. Arnold, Joseph Statham, Andrew Martin, Billy Bobertson, Prank Bobertson, James Archer and M. J. C. Statham were indicted for riot; it being charged that, on January 2, 1887, they assembled in a violent and tumultuous manner and went, about one o’clock at night, to the dwelling of "W\ O. Shellnut, broke down his door, dragged him from his bed, carried him (in his night clothes only) about 150 yards to a church, blindfolded him, tied his hands together, tied a rope around his neck, hung him twice until he became unconscious each time, dragged him about 40 yards into the woods, stripped him of his shirt and drawers, threw him across a log, and with a leathern strap twice doubled' beat and wounded him until he was perfectly exhausted and helpless. Five of these, the two Stathams, Arnold, Martin and Billy Bobertson, were put on trial. The two Stathams and Bobertson were found guilty, with a recommendation to the clemency of the court; Arnold and Martin were found not guilty. Those convicted moved for a new' trial on the grounds that the verdict was contrary to law and evidence, and was the result of a mere compromise ; because of the facts as to the juror stated in the first two divisions of the opinion; and because of newly discovered testimony, hereafter stated.</p> <p>On the trial, the testimony of the numerous witnesses introduced was generally conflicting as to most matters. That Shellnut was taken from his room at night and beaten was not denied; the main conflict was as to who were the persons who did this, ■ as to the hour when it occurred, and as to its extent. Shellnut testified that it was between eleven and twelve o’clock when they came; that he was aroused from sleep by their knocking the door down; that they jerked him from the bed, not giving him time to get his clothes nor his wooden leg which he wore, carried him about 150 yards away, blindfolded him and tied his hands and legs, put a halter around his neck, drew him up in the church and asked him where Statham’s money was; that they again drew him up, and when he became conscious again, they were dragging him over the ground and Billy Robertson was lashing him to a log; that after barbarously beating him with a wagon line doubled and twisted, they again asked him where the money was, and in order to save his life he told them that one Griffith got the money and gave him $5 to keep quiet, which was an untrue statement; that he recognized Tucker, Arnold, Martin, Joe Statham, Archer and the two Robertsons, and there were others; that they returned with him, between one and half past one o’clock, to the house of M. J. C. Statham, knocked at the door, asked for Mrs. Statham, and when she came, said, “ Howdy, Grandmama,” and then took him into the house and untied him; that Statham had threatened, during the day, that there would be bad times for him (Shellnut), and he would have to bring in the money Mrs Statham claimed to have lost; that they had said their store had been robbed on the previous Tuesday night; that later in the same night that the beating occurred, Statham sent for Memory Tucker, and they took out a warrant against Shellnut for burglary, and on the next day but one carried him to jail, where be remained twenty-seven days; that during tbe night in question, John Dial, Jack Dial and Jim Spence came to Statbam’s bouse and there saw Sbellnut; that while be was being carried out from bis room to tbe church and woods, be struggled and cried as much as he could, and tbe fuss could have been beard for a half to three quarters of a mile, but they held bis mouth so that be could not hollo; that the leather line they tied bim with was frozen and bad been used by Statham for a well-rope ; that there was a light in Shellnut’s bouse when they came, and be recognized them when they took bold of bim; that there was no moon, but tbe stars gave a good light; that they bad their faces smutted, having put smut on their bands and rubbed them on their faces; that Tucker bad an old sack wrapped round bis waist, not a disguise, and they bad on overcoats, except Frank Robertson, and another bad on blankets; that Joe Statham, Martin and Bill Robertson left tbe log before Sbellnut was carried from there to tbe bouse, and when, on arrival there, they turned bim loose, Joe Statham caught bim ; that they bad tried to wash tbe Tjiaek ofi; that it was after three o’clock when Tucker came, and be bad just begun to write when tbe Dials came; that Sbellnut did not tell them then who bad done tbe beating, as be did not want to do so before M. J. C. Statham, who was not in it; that they never blindfolded bim till they reached the church, and be got it slipped from over bis left eye and could see when part of the crowd left; that Sbellnut .has a civil suit for $10,000 damages against these parties, etc.</p> <p>J. W. Spence, Jonathan Dial, John Dial, David Dial and four other witnesses were introduced by tbe State, Their testimony tended to show that, about midnight. Sbellnut’s wife, Jack Dial and one Furguson went to Spence’s house, about three quarters of a mile from that of Shellnut, and all of them went to Statham’s and found Statham, his wife, Joe Statham, Martin and Shellnut; that Shellnut was lying on a lounge and said he was beaten nearly to death; that Statham said he was not hurt much, but they had whipped him a little; that Jonathan Dial heard blows and one long groan as he went to his home, about half a mile from Statham’s, and saw Joe Statham, early the next morning, smutty around the eyes, and he said to Dial, in answer to the question if they had hurt Shellnut much, “Not much, and pretty bad too. ” John Dial also testified to seeing this smut, and that it was near to three o’clock in the morning. David Dial swore that he was at Frank Robertson’s house on the night in question, and between seven and eight o’clock Frank and Bill Robertson went oft together, the former saying he was going to Statham’s for a sack of flour; and that he returned between two and three o’clock, not bringing any flour and not saying where he had been. Furguson testified that he was at Bill Roberston’s and Bill was not there at bedtime, and witness saw him there dressed about an hour before day. Shellnut was corroborated, in part, as to what occurred on his being taken away from his room, by his mother-in-law. When his wife went to Dial’s, she said they had taken her husband out to kill him. Spence testified that Shellnut’s general character was “ rough,” and would not swear he would believe him on oath; and Furguson testified that his general character was bad. Three other witnesses for the State testified that his general character was good, and that they would believe him on oath.</p> <p>The testimony for the defence was to the eftect that, when Shellnut was brought back, the crowd first went to the house where he lived (which was in M. J. C. Statham’s yard) and called for his wife and mother, and finding that they had gone, called for M. J. C. Statham and said he must take care of Shellnut; that he took Shellnut in, treated him well, called for Joe and. Andrew Martin and made them get his clothes and put them on him; that the men who brought him were all disguised, having on dough-faces and coats turned wrong side out, and could not be distinguished ; that Shellnut told Spence that Griffith stole the money and gave him five dollars to keep the secret, and wanted to swear out a warrant for Griffith; that M. J. CStatham heard a lumbering about the time he supposed the crowd first came, and asked Joe about the horses, and Joe replied that they were all right, and M. J. C. lay down again, and in half an hour they came with Shellnut; that M. J. C. Statham then spoke to Joe and Andrew Martin, who were there sound asleep ; that Bill Robertson went to his brother Frank’s after supper that night, staid till eight o’clock and then went to one Flanigan’s and staid till nearly day, and did not see Tucker, Martin, M. J. C. Statham nor Joe Statham that night'; that Frank was at home when he got there, and went back into the house after going with Bill to the gate as he left, and Bill saw him no more that night; that he met Frank and Jim Archer and one Morrow, a bailifi, the next morning, and they induced him to go with them to arrest Griffith, which was done; that Frank Robertson moved away afterwards, and the witnesses did not know where he was ; that Martin and Joe Statham saw no black on each other’s face; that when Martin was waked, he saw six or eight people through the window, but heard no crying or groaning ; that the men were unknown to him or to Joe or M. J. C. or Mrs. Statham; that Martin was staying at Statham’s that night, got there about eight o’clock, and was asleep, as was Joe also, when M. J. O. Statham asked him about the horses ; that Shelliiut’s character was bad, and the witnesses would not believe him on oath, etc. There was some testimony as to certain statements of Shellnut in conversations, inconsistent in some measure with his testimony.</p> <p>The newly discovered- testimony was by J. D. Morrow, his wife and J. A. Archer, and was to the effect that Joe Statham went to Morrow’s house on the night in question between eleven and twelve o’clock for the purpose of getting the warrant for Griffith executed, and was seen distinctly in good light by Morrow and wife, and by Archer,and had no smut or black about his eyes, cheeks, ears or neck; with affidavits of defendants, their counsel and others, relative thereto.</p> <p>Defendants excepted to the refusal of a new trial.</p>

<p>Where coadministrators join in procuring an order to sell land for distribution amongst the heirs, and one of them sells in presence of the other, but at a very low' price, and immediately stipulates with the bidder to take the land for himself at an advance of $50.00, the bidder having neither paid the purchase money nor taken a conveyance, the transaction is virtually a purchase by the administrator at his own sale. If he goes forward and executes a deed to the bidder in which the coadministrator refuses to join, receives a check for the amount of the bid, returns the check (which thereupon is destroyed by the bidderl, and takes a deed from the latter, paying the agreed $50.00, the land remains the property of the estate, both legally and equitably; and the two deeds ought to be cancelled as a fraudulent cloud upon the title, and the land be resold.</p>

<p>1. A sale of land by the sheriff in November under a general fi. fa. does not divest the lien of the State and county for the year’s taxes of the defendant in fi. fa.</p> <p>2. It is not a fraud for the sheriff to sell for taxes, upon due levy and return to him by a constable, the same land which he had previously sold under a general fi. fa. against the Same defendant; nor is it a fraud for any one to purchase at the tax sale though having full notice of the prior sale.</p>

Bailroacls. Nonsuit. Negligence. Damages. Evidence. Yerdict. Before Judge Hutchins. Clarke superior court. April term, 1889. Chandler sued the railroad company for damages, alleging as follows: On June 2, 1888, he and his wife and little child were in a buggy traveling a public road in Jackson county, from Center to Jefferson. When about a mile from Nicholson, a station on the railroad, it became necessary for them to cross the railroad track at the public road crossing.

<p>Criminal law. Trials. Practice. Before Judge Wellborn. Union superior court. April term, 1889.</p> <p>Reported in the decision.</p>

<p>Ejectment. Parent and child. Gifts. Loans. Charge of court. Before Judge Hutchins. Walton superior court. August term, 1889.</p> <p>Reported in the decision.</p>

<p>Certiorari. Notice. Practice. Before Judge Well-born. Lumpkin superior court. April term, 1889.</p>

<p>1. Attorneys fees, though embraced in a promissory note given for rent, are not collectible by distress warrant, and the surety on a replevy bond growing out of a levy of the distress warrant is not liable for such fees- If they are included in a judgment entered up against him when the issue on the warrant was disposed of, the judgment may be purged of the same on motion, but the whole judgment will not be set aside because of such error as to a part, the judgment showing on its face how much of it was erroneous.</p> <p>2. Where the result has been reached which was designed and intended by the surety in executing a replevy bond, the judgment thereon will not be set aside for irregularity in treating the bond as accepted, and returning the papers into court for trial of the issue.</p> <p>S. Where the surety on a repievy bond signed the same, knowing that by reason of a previous claim in respect to which he was .surety upon a forthcoming bond given by the claimant, the property would not be delivered to his principal in the replevy bond as a result of giving that bond, the non-delivery of the property will not render the replevy bond invalid. Nor is it material that, a portion of the property had been found not subject on the trial of the claim when the replevy bond was given. In order to replevy any of the property levied upon under a distress warrant, a bond covering the whole condemnation money is necessary.</p> <p>4. A distress warrant cannot he resisted by a set-off which has no connection with the rent contract or the demised premises. But for the plaintiff to pay the set-off debt instead of withholding payment for the benefit of the surety on the replevy bond may entitle the surety to a release from the judgment as to an amount equal to that so paid voluntarily by the creditor.</p> <p>5. It is no wrong to the surety on a replevy bond for the counsel of his principal to forbear urging a defence which is not available, or to admit the truth as to the genuineness of notes and the consideration for which they were given.</p>

<p>Ejectment. Amendment. Pleadings. Demurrer. Evidence. Deeds. Notice. Bonafides. Nonsuit. Practice. Before Judge Wellborn. Rabun superior court. March term, 1889.</p> <p>Reported in the decision.</p>

Actions. Contracts. Damages. Accord and satisfaction. lies adjudicata. Before lion. G. H. Prior, judge pro hac vice. Hall superior court. January term, 1889.

<p>Courts. Contempt. Powers. Municipal corporations. Constitutional law. Statutes. Executions. Levy and sale. Before -Judge Hutchins. Rabun superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>New trial. Practice. Evidence. Ejectment. Title Pleadings. lies adjudicata. Before Judge Wellborn. Hall superior court. January adjourned term, 1889.</p> <p>Reported in tlie decision.</p>

<p>1. On the trial of a case made by a bill for cancellation of deeds on account of fraud and undue influence in procuring them to be executed, a physician having testified for the defendants as to the mental capacity of the grantor, the court’s charge, which stated fully what was expert testimony, was not erroneous for not stating that the physician was an expert witness; it being presumable that this fact was insisted upon by defendants’ counsel.</p> <p>2. The defendants not having pleaded that the deeds were deeds of gift, and they appearing on their face to be deeds of bargain and salé for a valuable consideration, it was not error not to charge upon whether they were deeds of gift made upon only a good consideration ; nor was it error to charge that inadequacy of consideration was a circumstance, connected with other facts in the case, to show fraud in their procurement.</p> <p>3. The law upon the only issues made by the pleadings having been fairly submitted to the jury, and the evidence authorizing the verdict, the refusal of a new trial was correct.</p>

Justices’ courts. Jurisdiction. Stock-law. Practice. Before Judge Winn. Cobb superior court. March, adjourned term, 1889.

Administrators. Actions. Limitations. Amendment. Before Judge Wellborn. Hall superior court. July term, 1889. Action on administrator’s bond, by the ordinary for the use of a child, Boswell, and grandchildren, Wright; and Staten, of Barnes, brought in January, 1888.

Criminal law. Continuance. Before Judge Winn. Cobb superior court. March term, 1889. Indictment for assault with intent to murder Mizell.

<p>Allegata and probata. Payment. Evidence. Title. Redemption. Equity. Before Judge Wellborn. Hall superior court. July term, 1889.</p> <p>On November 16,1887, Martha Bramlett et at., aB the only heirs at -law of Elizabeth Maddox (except H. O. Maddox), brought their bill against H. C. Maddox, E. M. Whelchel, and B. B. Whelchel as administrator of Aaron Whelchel, alleging (so far as is now material) as follows: Elizabeth Maddox was the daughter of John Whelchel, and the wife of H. H. Maddox, who died about 1858, leaving her in possession of all of land lot 107, and 100 acres of lot 110 adjoining lot 107, the whole tract consisting of 350 acres, in the 11th district of Hall county, which she had received from her deceased father and in the exclusive possession of which she had been for ten years or over. It was administered upon as the estate of her husband, and sold at administrator’s sale to pay his debts. In order that she might keep the land, her brothers, Aaron Whelchel, of Hall county, now dead, and E. M. Whelchel, of Lumpkin county, agreed with her that they would buy it in for her and allow her to redeem it at the price paid by them. In pursuance of this agreement, Aaron bid off the land at a little over $400, which he paid himself, E. M. not paying anything; bnt Aaron, relying on the promise of 3?. M. to assist him in advancing the money for the benefit of their sister, took the deed to both of them. Shortly afterward, she sold enough of the land to her daughter, Mrs. Martha Bramlett, to pay ofi the whole purchase money with interest, with the consent of Aaron, the part sold being 150 acres cut off the north part of the tract and now owned and possessed by Mrs. Bramlett, aud received from her $506, out of which Mrs. Maddox paid Aaron in full for the amount advanced and paid by him for himself and for F. M. for the whole tract. Aaron, through procrastination, failed to execute a conveyance to her; and she, having the fullest confidence in her brothers, neglected to demand one. From the time of the administrator’s sale up to her death, she was in the exclusive adverse possession of the entire tract of land, and during the whole time, over twenty years, she claimed to be owner in fee, and paid all the taxes; and neither Aaron nor F. M. paid any of the taxes or exercised any ownership over it or any part of it, but always recognized it as her land. After the death of Aaron and of Mrs. Maddox, her son, H. C. Maddox, seeking to defraud complainants and knowing the above facts, persuaded F. M. to make him pretended conveyances to the land; and F. M., not understanding the fraudulent intent of H. C., said if he had any right in the land H. C. might have it. But F. M. had in equity no right, title or interest in the land. It is now in' the possession of one Ellis, who cultivated it under Mrs. Maddox until her death, and continued in possession as the tenant of all the heirs at law with the knowledge and consent of II. C. There is no administration upon the estate of Mrs. Maddox and no necessity for any; her estate owes no debts. Complainants brought proceedings for partition against H. C., and he fraudulently set up that they had no title to the land. The prayers were, that the land, except 150 acres belonging to Mrs. Bramlett, be decreed to belong to the heirs at law of Mi’S. Maddox; that commissioners be appointed to partition it between them and H. C. Maddox, or to sell it and divide the proceeds; that he be enjoined from setting up his defence at law to their application for partition, and that said application await the trial of this bill; etc.</p> <p>Defendants answered, in substance, as follows : Elizabeth Maddox never owned any part of the land, and never claimed any right to it. H. H. Maddox died in possession of it and claimed it in his own right. After his death, his administrator, in November, 1860, sold the land at administrator’s sale, and it was bought by Aarou and M. F. Whelchel for $435, half of which was paid by Aaron and the other' half by M. F., upon which payment the administrator executed to them a deed to the land. At the time of the sale, Mrs. Maddox was living on the land, was poor and had a lai’ge family to support; and Aaron and M. F. allowed her to remain, cultivate and enjoy the land, free of rent or other charge except taxes. On January 11, 1864, Aaron sold to Mrs. Bramlett 150 acres of the land for $506 in Confederate money, and she went into possession of it, but no deed was ever made to her. Aaron and M. F. did not buy the land for their sister, and she never paid them a dollar for it; she never in her lifetime claimed to have bought it, and never disputed the title of Aaron and M. F. M. F. sold 125 acres of the land to H. C. Maddox, who is and has been since said purchase in possession. The balance belongs jointly to Aaron’s estate and to said M. F., and IT. C. is their agent and is managing it for them. Complainants have never had any interest in the land or any part of it. Aaron never promised Mrs. Maddox to make her a deed to it, nor did she so desire or expect. It is untrue that IT. C. after her death induced M. F. to make him a deed for the purpose of defrauding complainants. He bargained for the 125 acres from M. F. in 1874, with the understanding that Mrs. Maddox should remain on it and enjoy the rents, etc. of it during her life ; but the deed to him by M. F. was not executed until July 14, 1885. After the death of Mrs. Maddox, H. C. took possession of the land and rented it to Ellis; etc.</p> <p>The material parts of the evidence are stated in the decision. A verdict and decree for the complainants were rendered; and the defendants moved for a new trial- on the ground that these were contrary to law and evidence. Exception was taken to the overruling of this motion.</p>

<p>A decision of this court made adversely to counsel present and ready to argue the cause, but not heard from, will be re-examined in the light of full argument; but if found correct, the decision will be adhered to notwithstanding the inadvertence of the court in making it up and announcing it without having heard the argument beforehand.</p>

Deeds. Debtor and creditor. Fraud. Notice. Evidence. Admissions. Before Judge Wellborn. Hall superior court. July term, 1889. On January 7, 1888, the plaintiffs caused an attachment to issue against S. E. Johnson. On the next November 19, they recovered judgment against him, and the execution issuing thereupon was, on the 10th of the following month, levied on land as his property.

<p>Evidence. Verdict. Before Judge Winn. Cobb superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>Imprisonment for debt being abolished, attachment for contempt is not a remedy for obliging the payment of a mere debt from the :ecutors to a legatee, adjudged upon citation to account before '•'dinary under section 2598 of the code.</p> <p>Though actual fraud by the executors might render them subject to attachment, such fraud would have to be alleged upon the record and be the subject of direct adjudication.</p>

Mortgages. Jurisdiction- Executions. Levy. Amendments. Justices’courts. Before Judge Milner. Bar-tow superior court. January adjourned term, 1889. On April 26, 1884, Oasey mortgaged to Hamilton, to secure the payment of a note, a mule and crops; the mortgage being executed in Floyd county and recorded there.

Appeal. Bonds. Principal and surety. Parties. Continuance. Practice. Before Judge Milner. Bar-tow superior court. January term, 1889. The Planters’ and Miners’ Bank sued Abda Johnson upon a promissory note in a magistrate’s court, and obtained judgment. Johnson appealed to the superior court on December 21, 1880, and gave an appeal bond with A. R. Hudgins as security. At the January term, 1889, of the superior court, the case came on to be heard.

<p>Where plaintiffs in partition claim under a sheriff’s deed to them, reciting a sale of two thirds of the land by execution for State and county taxes, and also under a writing in which the defendants’ grantor acknowledges himself to be plaintiffs, tenant as to that amount of the land (he having held the land for them as well as for himself, for fourteen years before this proceeding, and claiming to have bought an undivided third), it is error to award a nonsuit.</p>

<p>The uncontradicted testimony of the servants of the railroad company showing that they did everything that they could to prevent the killing of plaintiff’s cow, but that it was impossible to stop the train in time, a recovery by the plaintiff was not warranted.</p>

<p>It appearing on motion for continuance that the absent witness had been duly subpoenaed; that he was absent without the procurement or consent of the defendant; that the defendant expected to procure his presence at the next term of the court; and that the motion was made in good faith, and not for the purpose of delay; and that the facts which defendant expected to prove by him were material, it was error to refuse to grant a continuance; the counter-showing being merely to the effect that plaintiff had talked to the defendant’s witness, and that the witness said he did not know anything about the case.</p>

Levy and sale. Deeds. Evidence. Title. Before Judge Milner. Murray superior court. February term, 1889. Bill for partition. The complainant introduced a deed from the sheriff, described in the decision. It recited levy and sale under execution, and was objected to because not accompanied by any execution, and because the levy recited was void for uncertainty. The loss of the execution was proved; and the objections were overruled. The defendant excepted.

Mortgages. Probate. Evidence. Levy. Yerdict. Accounts. Payment. Presumptions. Practice. Estoppel. Before Judge Milner. Gordon superior court. February term, 1889.

<p>Partnership. Debtor and creditor. Notice. Title. Fraud. Equity. Evidence. New trial. Before Judge Milner. Catoosa superior court. February term, 1889.</p> <p>Reported in the decision.</p>

Year’s suppoi’t. Minors. Partition. Before Judge Milner. Whitfield superior court. April term, 1889. In 1884, James Ketchum died, leaving a widow and seven minor children; also an estate of realty and personalty, which, on application by the widow, was duly set apart by the ordinary as a year’s support for her and the children.

Trusts. Evidence. Yerdict. Before Judge Neel. City court of Cartersville. June term, 1889.

<p>Money rule. Judgments. Executions. Contribution. Before Judge Milner. Bartow superior court. January term, 1889.</p> <p>Reported in the decision.</p>

<p>A suit in a justice’s court upon an account for “damage in timber, was not sustained by evidence showing that plaintiff and defendant contracted that plaintiff should have all the timber suitable for making cross-ties on certain land, at a specified sum which he paid to defendant; that afterwards plaintiff got from the land about 250 cross-ties, and then defendant refused to allow him to get more ; and that there were at least 200 more he could have got had he not been so prevented. This evidence made a case for recovery, but not upon the account sued on, there being no damage to timber.</p> <p>Simmons, J., not presiding, because of sickness.</p>

<p>License. Liquor. Statutes. Criminal law. Before Judge Milner. Gordon superior court. February term, 1889.</p> <p>Reported in the decision.</p>

<p>Principal and surety. Verdict. Before Judge Milner. Whitfield superior court. April term, 1889.</p> <p>Reported in the decision.</p>

<p>Money rule. Witness. Administrator. Before Judge Milner. Gordon superior court. February term, 1889.</p> <p>Reported in the decision.</p>

<p>Relationship. ■ Disqualification. Before Judge Milner. Bartow superior court. January adjourned term, 1889.</p> <p>Action by Blalock in a justice’s court, on a promissory note. He recovered, and the defendant carried the case to the superior court by certiorari, which was sustained, and the plaintifi excepted.</p>

<p>1. In an. action upon administrators’bond, the original justice court summons of a suit against them was not admissible to show the rendition of a judgment against them as such. The judgment should have appeared on the justice’s docket.</p> <p>2. Refusal to allow the magistrate who rendered the judgment, and who was present in court, to amend an insufficient entry of the judgment on his docket by transcribing thereupon the entry appearing on the original summons, was not error. Irregular judgments must be amended in the court rendering them, at its term-time.</p> <p>3. The only judgment in evidence being against the administrators individually, and the execution following the same, the nonsuit was proper.</p>

<p>A fund in court having been raised by sale, under an execution following a judgment against him. individually, of individual property of one of a partnership, whether an older judgment and execution against that partnership would be entitled to preference in distribution of the fund, would depend on whether the partner whose property was sold was served with a copy of the process in the suit against the partnership. Such service not appearing, it was error to award the fund to the judgment against the partnership."</p>

Negligence. Master and servant. Nonsuit. Before Judge Neel. City court of Cartersville. June term, 1889.

<p>Contracts. Principal and surety. . Consideration. Interest. Before Judge Milner. Bartow superior court. July term, 1889.</p> <p>On May 29, 1888, T. H. and P. M. Kennedy, as administrators of James Kennedy, sued W. T. and James C. Wofford, alleging an indebtedness of defendants of $125, besides interest, on a written bond or obligation dated August 1, 1879, and due October 25, 1882, reciting that James Kennedy had, on August 1, 1879, paid off the principal, interest and costs on two Ji. fas. as stated in the instrument, and had the same assigned to him by the plaintiffs (stating the parties, date of judgments and items of the amounts of each fi. fa.); making the total amount paid by Kennedy $557.87. In both these Ji. fas. Wm. T. Wofford was defendant, but James C. Wofford was uot a party. In consideration thereof and the accommodation extended by James Kennedy, Wm. T. and James C. Wofford agreed to pay or make good to him interest at the rate of tivelve per cent, per annum on said sum of $557.87, from the date of the instrument until the whole of said sum was paid, that is to say, “ the fi. fas. bear interest on the principal at the rate of seven per cent., and it is the meaning and intention of this instrument that we are to pay and make good to said Kennedy the additional sum sufficient to make the interest on the whole amount paid, both principal, interest and costs ($557.87), amounting to twelve per cent, per annum.”</p> <p>Plaintiffs amended their declaration, alleging that on August 1, 1879, W. T. and James C. Wofford procured James Kennedy, who was then the sheriff of Bartow county, to pay off and have transferred to him the fi-.fas. mentioned in the obligation, the transfer of the fi. fas. and the execution of said obligation being made at the same-time; that Kennedy was induced by the giving of this obligation to pay oft and take the transfer of said jü. fas. to himself so as to grant W. T. Wofford an indulgence of time within which to pay the same, which was done by Kennedy, and said fi. fas. were not in fact levied upon the property of W. T. Wofford until June 1, 1881; that on the 25th day of October, 1882, an order was passed by the judge of the superior court directing the payment of the principal, interest and costs due on said fi. fas. arising from the sale of the property of W. T. Wofford, then in the hands of the sheriff for distribution among the judgment creditors of said Wofford, and at said date the extra interest under the contract sued on became due and payable, which interest defendants failed and refused to pay; and that the principal, interest and costs due on said fi. fas. were in fact paid to plaintiffs under said order of the court on December 2'0, 1882.</p> <p>The plaintiffs excepted to the dismissal of the action on demurrer, the grounds of which appear in the opinion.</p>

<p>Verdict. Jury and jurors. Practice. Time. Sunday. Before Judge Winn. Cobb superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>The charter of Dalton giving the mayor and council power to abate nuisances, public or private, and to pass all ordinances they might deem necessary for preserving health, peace, good order and good government of the city, and to enforce all ordinances by them adopted not inconsistent with the laws of this State, the power to establish fire limits is necessarily implied, and the mayor and council could pass an ordinance making it unlawful to erect a wooden or frame building on a certain lot, prescribing a punishment, and making it lawful for the marshal to enter upon the premises with sufficient force to remove such building at the expense of its owner. This ordinance is consistent with the general laws of the Statel</p>

<p>That a question could have been litigated in a former controversy between the same parties is enough to settle it by the judgment rendered in that case as to all the property involved in that litigation ; but to settle the question as to other property, it must appear that it was actually litigated, not only that it might have been. Thus, a waiver of exemption applicable to cotton as well as other personalty, may be urged to condemn the cotton after the other property has been adjudicated exempt, although the waiver might have been but was not urged to subject the other property. Simmons, J., not presiding, because of sickness.</p>

<p>1. It is not clearly apparent on the face of the declaration that some of the damages claimed were barred by the statute of limitations ; hut if this did appear, there being a cause of action set forth for damages not barred, it was too late to demur specially to the former at the trial term, the objection not being one which would be available in arrest of judgment.</p> <p>2. The rule that objections to evidence admitted over objection must appear applies to the present case, even if the evidence complained of was notjadmissible.</p> <p>3. The evidence, though conflicting and some of it obscure, warranted the verdict if the jury so believed.</p>

Levy and sale. Yendor and purchaser. Rescission. Judgments. Evidence. Notice. Bonds for title. Before J udge Milner. Murray superior court. August term, 1889.

Actions. Pleadings. Amendments. Railroads. Before Judge Maddox. Polk superior court. February term, 1889. Action for damages by Lucy Smith and her husband, for the homicide of her minor son by a former marriage, by the negligent running of the railroad train, on which the deceased was employed as coupler, brakeman, etc. The material parts of the declaration are fully set out in the opinion.

<p>Attorney and client. Evidence. Verdict. New trial. Jurors. Interest. Practice. Before Judge Milner. Bartow superior court. January adjourned term, 1889.</p> <p>Reported in the decision.</p>

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

<p>1. A motion for continuance on part of the defendant indicted for-murder should have been sustained, where he showed that he had-caused a subpoena to be put into the hands of an officer for a named-, witness, who lived within the jurisdiction of the court and was-, temporarily absent from home in another State; that the showing-was made in good faith and not for delay; that the witness was -. not absent by defendant’s procurement or consent, and he expected to have his attendance at the next term and expected, to prove by him that the deceased fired the first shot and' •was hilled by another person than defendant. Showing that the • witness had said, when informed that a subpoena would probably be * out for him, that his testimony would do defendant no good, was not strictly a counter-showing.</p> <p>2. A statement of defendant that the deceased fired first, if made after the difficulty, was properly rejected; but if made during the progress of the difficulty, was admissible as a part of the res geslx.</p> <p>S. A statement by one jointly indicted With this defendant as to the knife being the only weapon that person had, if made during the progress of' the difficulty, or so near the time thereof as to be free from all suspicion as to its truth, was admissible in testimony.</p> <p>4. An allegation of error in refusing to rule out testimony, as to which the record is not sufficiently explicit, cannot be passed upon-</p>

<p>The purpose of plaintiff’s bill being to enjoin the defendant from ditching land, on the ground that plaintiff had purchased from a former proprietor (under whom defendant claimed) the right to dig a mill-race to a spring, and that the swamp defendant was attempting to drain was above the spring and the ditching was a diversion of the water from the spring which fed the race: Held, that if there was no water flowing through the swamp that fed the race, the defendant had a right to ditch and drain it for his own use; but if there was water flowing through the swamp that fed the race, and the ditching would divert it therefrom, an injunction would have been proper. But under conflicting evidence, this court cannot say that there was error in refusing such injunction.</p>

<p>Interference with the possession of land by causing it to be overflowed and the crops thereon to be destroyed, though by the holder of the title, gives him who has the right of possession and the actual possession a right of action for such interference.</p>

<p>1. A petition for homestead may be amended by adding to the schedule something which has been omitted, but not by striking therefrom any article of property therein set forth. If the applicant has by mistake inserted property belonging not to him but to another, he should dismiss his application and file another one, omitting such articles of property not belonging to him as were in the previous schedule.</p> <p>2. The sale by the applicant, after making his application, of an iron safe which he had placed on his schedule, was sufficient to have defeated the application, unless he accounted for the money the safe brought, and delivered up the same for the benefit of his creditors.</p> <p>S. The receiver contemplated by the code, §§2033 — 5, should be appointed by the court, though there be no motion therefor.</p>

<p>Homestead. Constitutional law. Waiver. Subrogation. Indorsement. Debtor and creditor. Equity. Interest and usury. Before Judge Maddox. Eloyd superior court. March adjourned term, 1889.</p> <p>Deported in the decision.</p>

<p>Railroads. Negligence. Yerdict. New trial. Before Judge Milner. Bartow superior court. January adjourned term, 1889.</p> <p>Reported in the decision.</p>

<p>Under its charter, the mayor and aldermen of Cartersville have a right to make an annual contract to supply the city with water and gas, provided they make provision for the payment of the same. If a contract for a longer space of time is illegal, yet where the water and gas companies have complied with their part of the same, by erecting their plants at great expense in order to furnish the city with gas and water, and the city has received the benefits thereof for a year, it should pay for the gas and water consumed and used during that time.</p> <p>(a) If the mayor and council have illegally exempted the water-works company from taxation and refused to levy a tax on its property, they may be compelled to do so by mandamus.</p>

<p>Petition for injunction. Before Judge Maddox. Walker county. At chambers, July 6, 1889.</p> <p>Reported in the decision.</p>

<p>Practice. Verdict. New tidal. Before Judge Winn. Floyd superior court. March, term, 1889.</p> <p>Reported in the decision.</p>

Deeds. Res adjudicata. Evidence. Practice. Verdict. Before Judge Maddox. Floyd superior court. March adjourned term, 1889.

<p>Contracts. Statute of frauds. Construction. Trusts. Before Judge Maddox. Floyd superior court. March adjourned term, 1889.</p> <p>Reported in the decision.</p>

<p>Injunction. Practice. Constitutional law. Before Judge Maddox. Floyd county. At chambers, May 27, 1889.</p> <p>Reported in the decision. .</p>

Certiorari. Attachment. Claim. Admissions. Title. Yerdiet. Charge of court. Evidence. Practice. Before Judge Maddox. Eloyd superior court. March adjourned term, 1889. Attachment in favor of Jewell against Johnson, levied on a mare, to which a claim was interposed by Harvey Brothers. The property was found subject by a jury in the city court of Floyd county.

Removal of causes. United States courts. Jurisdiction. Before Judge Maddox. Floyd superior court. March term, 1889.

<p>The claim of a creditor holding the title to land as security for money advanced to and used by the debtor to pay the balance of the purchase price thereof, ought to prevail over that of a subsequent general judgment creditor, on a rule for distribution of money arising from levy and sale of the land under code, §3586. If usury were charged the debtor by the creditor holding the title as security, yet the .judgment creditor, by claiming the fund as a party to the rule, recognized the validity of the proceedings and the title to be in the other party who had advanced the money to take up notes for the balance of the purchase price of the land, some of which notes were taken up from the judgment creditor.</p>

<p>Estates. Title. Trusts. Before Judge Maddox. Floyd superior court. March adjourned term, 1889.</p> <p>On September, 1857, Chas. O. Force and Mary Smith (widow of Nathaniel Smith), in consideration of a marriage to be solemnized between them (which was solemnized on the same day), executed a deed of settlement with T. J. Word, trustee, whereby it was agreed that all the property of Mrs. Smith, embracing her interest in the estate of Nathaniel Smith (the property in dispute in this case being a part of it), should remain her separate property and estate, not subject to the control, debts or liabilities of Force; “but the right and title to said property shall vest in said Thos. J. Word of the third part, to be used by him with the approbation and consent of the said Mary during the coverture, for her use, benefit and advantage, and immediately upon her death to go to her children, share and share alike, free .from said trust; or in case said Mary should survive her intended husband, the trust is to determine at his death, and the absolute title and control of said property revest in said Mary as it now is and has been.” In May, 1869, Mrs. Force and Word, trustee, conveyed the property by deed to one Scott, under whom the defendants to this action claimed; this deed reciting that the intention of the marriage settlement was to confer upon Word the power, with the approval and consent of Mrs, Force, to sell or otherwise use the property as she might direct, and that, deeming it important and necessary to sell it to raise funds to build herself a home, she advised Word to make the sale to Scott at the price named in their deed to him. She died in 1887, leaving surviving her Force and the plaintiffs to this suit, her children. The suit was commenced on February 29,1888, Among the defences was a plea that an estate in remainder that became absolute to plaintiffs on the death of their mother was not created by the marriage settlement, but if such an estate was created it was defeated by the sale of the property by Word to Scott, with the consent and approbation of Mrs. Force during her coverture; said sale being for a full and adequate consideration received, by the trustee and by Mrs. Force, and greatly for her benefit and advantage; and by the trust declared in the deed and the power conferred therein, the trustee was authorized to make the sale with the consent and approbation of Mrs. Force, and by uniting with her trustee in the sale she gave her consent and approbation to it Rnd received the amount the land was sold for, and actually appropriated it to her own use and advantage.</p> <p>There was a verdict for the plaintiffs ; and a motion by the defendants for a new trial having been overruled, they excepted.</p>

<p>1. The indictment being for the larceny of money from a house, the bills stolen being two 20’s and one 1U$, evidence tending to show that the accused when arrested had in his possession a small sum in change and certain articles of property was of slight relevancy, but its admission was not substantial error.</p> <p>2. In criminal as well as civil cases, the jury should, if practicable, reconcile all the evidence, so as to impute perjury needlessly to none of the witnesses.</p> <p>3. Instead of charging the jury in general terms that confessions are to be received with greatest caution, the court, after charging the jury properly as to their right to reject the confession entirely if not free and voluntary, may restrict the charge touching caution to dealing with it after ascertaining it to be in evidence, that is, after finding it to be free and voluntary.</p> <p>4. Reasonable doubt is not equivalent of any doubt. A correct charge on reasonable doubt as to the w'hole case and all the evidence is sufficient. It is not incumbent upon the court to carve the case or the evidence into different propositions, and apply the rule of reasonable doubt to one or more of them severally.</p>

<p>A railroad company which, has purchased from the owner of land a right of way through the same, is liable to the tenant of that owner for any damage sustained by its having thrown down the fence enclosing and protecting his growing crops, in consequence of which cattle entered and destroyed those crops; irrespective of whether or not the landlord would be liable for failure to keep up the fence. In the absence of evidence as to how much less the cost of protecting the crops would be than their value, a verdict for less than that value was sustained.</p>

Burglary. Criminal law. Evidence. Indictment. Practice. Judgments. Verdict. Before Judge Harris. Coweta superior court. March teim, 1889. Indictment for burglary. The testimony for the State showed as follows: On the morning of thelóth or 16th of January, 1889, the fastening of a door of the Atlanta & West Point Pail road Company in Grantville, Coweta county, was found broken or knocked out of the door and the door open.

<p>Certiorari. Practice. Before Judge Harris. Meriwether superior court. August term, 1889.</p> <p>Reported in the decision.</p>

<p>Where a testator died in 1850, leaving an estate to his wife for life with remainder to others, for one of whom the testator’s executor was made guardian and trustee, and who died in 1862, and there was no administration upon his estate, and the life tenant died in 1863, and the estate then went into the hands of the executor, who sold it and received the proceeds in 1865, the heirs-at-law of the remainderman referred to stood, as to the time within which to bring suit against the executor for the remainderman’s share, upon the same plane as would have stood his administrator had one been appointed; and such suit, not having been brought until September, 1886, was barred. Section 2607 of the code did not apply to this remainderman’s heirs ; they were not heirs, distributees or legatees under the will, but of one of the legatees thereunder.</p>

<p>Burglary. Criminal law. Evidence. Yerdict. Before Judge Harris. Meriwether superior court. February term, 1889.</p> <p>Reported in the decision.</p>

Equity. Yendor and purchaser. Administrators. Sales. Contracts. Notice. Title. Debtor and creditor. Before Judge Boynton. Upson superior court. January term, 1889.

<p>Judgments. Contracts. Practice. Mortgages. Landlord and tenant. Election. Before Judge Boynton. Henry superior court. April term, 1889.</p> <p>Walker filed his petition, in the ordinary short form, against W. T. Mosely and N. H. Mosely, alleging that they were indebted to him stated amounts of principal and interest on a promissory note, a copy of which was annexed, which they refused to pay. The note sued on was signed by both the defendants, dated Eebruary 8, 1878, and by it defendants agreed, they or either of them, to pay Chas. Walker or bearer by November 1, 1878, $600 for value received. ' It contained a waiver of exemption or homestead as to parts of certain described land, etc. “which we have this day mortgaged to Chas. Walker for the payment of the above sum, and we hereby, to secure the payment, give to him a mortgage lien upon said land. If not punctually paid at maturity, to draw interest at the rate of 12 per cent, per annum until paid. If not punctually paid at maturity, we agree to be recognized as the tenants of said Chas. Walker, and we hereby constitute him our landlord to collect out of us the amount of 2,000 pounds of good lint-cotton for rent.” The defendants were served; and on October 24, 1885, there being no issuable defence filed on oath, judgment was rendered by the court in favor of the plaintifi against the defendants for principal, interest and costs. At the April term, 1888, N. H. Mosely moved to set aside the judgment on the following among other grounds.</p> <p>(1) It is apparent from the record that the contract sued on is a conditional contract in writing, in that it contains a waiver of exemption or homestead on the land mentioned, which ■ waiver is limited to certain named lots of land, and to only parts of those lots, and evidence and a finding thereon as to what parts of each lot, was necessary before any sensible or legal judgment could be rendered;' The verdict of a jury was.required by law to say, upon proof, how much and what parts of each lot were covered by this restricted, conditional and vague waiver.</p> <p>(2) By the express terms of the contract, if the debt fell due and was not paid punctually at maturity,' new conditions became a part of it; defendants became the tenants of Chas. Walker, and he became their landlord to collect 2,000 pounds of good lint-cotton for (rent. Proof should have been submitted and the verdict of a jury found as to whether the terms of this contract had been complied with or not, as nothing appeared upon the face of the pleadings to show whether they had been complied with or not. The judgment rendered does not follow the pleadings, and is therefore void.</p> <p>(3) It appears from the face of the pleadings that, by the terms of the contract sued on, defendants became the-tenants of Walker on and after November 1, 1878, and that they constituted him their landlord to collect of them 2,000 pounds of lint-cotton for rent. There is no allegation in the pleadings or record that- Chas. Walker did not assume the position of landlord, • nor that defendents did not recognize themselves as his tenants, as in the contract provided; nor is there any allegation therein that Walker did not, as landlord, collect said' 2,000 pounds of good lint-cotton. Such pleadings were necessary, and if there had been such, then a verdict would have been necessary.</p> <p>(4) The contract sued on is a mortgage upon land, and the proceedings had thereon are null and void; if the plaintiff had any right to proceed against the defendants in said suit, it was by foreclosure of the contract as a mortgage, as is apparent from the pleadings.</p> <p>(5) The court had no power to render the judgment without a verdict of a jury first had, which fully appears by reference to the pleadings; the suit being upon a conditional contract in writing.</p> <p>The motion was overruled, and movant excepted.</p>

<p>Equity. Practice. Amendment. Process. Waiver. Before Judge Boynton. Pike superior court. April term, 1889.</p> <p>Reported in the decision.</p>

<p>1. Under the evidence, a verdict against a city for $1,500, for injuries sustained by its negligence in knowingly allowing a hole made by the removal of a plank from a bridge on one of its principal streets, to remain from five to twenty days, was demanded, and was moderate.</p> <p>2. If a demurrer be improperly overruled, no new trial is needed; such overruling should be excepted to.</p> <p>3. Complaint of admission of testimony should show that the specified objection was made when the testimony was offered,</p> <p>(a) The context of the declaration showing that the omission of the word “not” was merely a clerical error, such omission would not form basis for objection to testimony.</p> <p>4. The evidence authorized a finding that the city authorities were negligent in the manner in which they kept up the bridge or in allowing the hole to be therein.</p> <p>5. Failure to charge, as to the measure of damages, that-the jury should consider plaintiff’s declining years, and the apparent decrease year by year of his capacity to labor, was no hurt to the defendant where the verdict was as small as it could rightfully have been had such charge been given.</p> <p>6. Points of law proper as grounds for demurrer ought not to he made first in this court under aground for.new trial that the verdict was contrary to law.</p>

Judgments. Pleadings. Estoppel. Administrators. Principal and surety. Practice. Before Judge Milner. Murray superior court. August term, 1889. Action by the ordinary for the use of Hill, on the bond of Plenry et al., administrators, commenced January 16, 1889. On the trial, it appeared that on September 27,1887, Hill sued these administrators and two other defendants on a promissory note made by the administrators’ intestate and the other two defendants.

<p>Criminal law. Evidence. Municipal corporations. Before Judge Boynton. Rockdale county. At chambers, May 29, 1889.</p> <p>Ike Carr was brought before the mayor of Conyers charged with “quarrelling, cursing and acting otherwise disorderly” in the corporate limits of Conyers, on May 1, 1889. On May 21, 1889, he was found .guilty and sentenced to pay a fine of $10 and costs, and upon failure to pay the same, that he work in the city chain-gang for 25 days, and then be discharged. On his trial before the mayor one Jones testified that, in front of a furniture store of a Mr. Tucker,'defendant met him on the sidewalk and told him he had sworn a lie on him (defendant) and he could whip witness in two minutes. Smith, the marshal, was about three feet off. Defendant told witness he had told alie on him in the mayor’s court and he could whip him in five minutes. No one was present but Smith, and no one was near on the streets. Smith, the marshal, testified that defendant had been fined to work on the streets 15 days by the mayor, on the first of May, on a charge of fighting, quarrelling and acting otherwise disorderly. Witness took him out of the court-house and went on down with him to get some tools and put him to work. When they were going down the street, defendant said that Jones swore a lie on him and he would whip him for it if it took him ten years. They met Jones on the street and defendant told him he had sworn a dam lie on him, or something to that effect, and he could whip him. There was no one near but witness, Jones and defendaut. What defendant said was in an ordinary tone. Jones testified against Ike in the other case. One Langford testified that he was in the back part of his store and heard a noise towards the front door. Went up there, and Smith had defendant and was taking a knife out of his pocket. Heard some talk, but could not tell anything that was said.</p> <p>The defendant made the following statement, in brief: Jones testified before the mayor on the first case that defendant and his wife were fighting and quarrel-ling and acting otherwise disorderly, which was not true, and the mayor sentenced him to work on the streets fifteen days. Smith took defendant, and they went down the street, and in front of the furniture store defendant saw the mayor and Jones going in the store, and they were having a big laugh and glee over the matter, and it made him mad, and when Jones stepped out, he told Jones he had sworn a lie on him, and he could whip him (Jones) in five minutes. This was said in a low tone, and no one was present but Smith, Jones and defendant. Jones told Smith to make a case against defendant, and Smith grabbed him and told him he had a knife in his pocket and to give it to him (Smith). Defendant told him he had one. Smith became excited and talked loudly, and Langford came to the door. That was all that was said or done. Defendant was fined for nothing in the first case, and had had no fight or quarrel with his wife.</p> <p>Defendant, by petition for certiorari to the superior court, alleged as error that the court had no jurisdiction of the offence; if anything, it was simply abusive language likely to cause a breach of the peace, and could not be tried except on indictment; it did not disturb the town, but was simply a personal matter in which the town had no concern; and that the judgment and fine wei’e contrary to law and evidence, and the fine was excessive, cruel and unusual. The writ of certiorari was refused, and defendant.excepted.</p>

Illegality. Executions. Principal and surety. Levy and sale. Judgments. Before Judge Boynton. Rock-dale superior court. February adjourned term, 1889. Affidavit of illegality by J. R. McCalla to the levy of an execution in favor of Knox, administrator, against C. R. McCalla, principal, and affiant, security. It was dismissed on demurrer, and the execution ordered to proceed ; and the security excepted.

<p>Mortgages -witnessed by two persons, of whom neither was an officer authorized to attest them, were improperly recorded upon the affidavit of one of the witnesses, stating merely that he saw the mortgagor sign the mortgages, and that he himself signed the same as a witness and saw the other witness sign the same. As to them a subsequent judgment lien should take a precedence in the distribution of a fund raised by levy and sale under a fi.fa. issued upon them.</p>

<p>Evidence. Verdict. New trial. Before Judge Boynton. Newton superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>Injunction. Administrators. Attorney and client. Judgments. Before Judge Boynton. Spalding county. At chambers, October 14, 1889. .</p> <p>Reported in the'decision.</p>

Injunction.. Practice. Before Judge Smith. Sumter county. At chambers, December 7, 1889. Fort dal. petitioned for injunction and general relief against the railway company, which made answer; and a hearing was had before the judge on the pleadings and on affidavits submitted. He ordered that the injunction prayed for be granted until final hearing or further order ; and the company excepted.

<p>Bankruptcy. Exemptions. Executions. Constitutional law. Before Judge Jenkins. Greene superior court. March term, 1889.</p> <p>Reported in the decision.</p>

Rule. Garnishment. Wages. Before Judge Lump-kin. Morgan superior court. September term, 1889. John A. Bearden sued M. A. Hammond for $240, which he alleged to be due him as clerk at $40 per month from Feb. 1st to Sept. 1st, 1887.

<p>New trial. Practice. Before Judge Lumpkin. Greene superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>A wife is not liable upon a note and mortgage given by her to the agent of an insurance company for money lent by him to her husband to pay the premium due on an insurance policy upon his life, providing that upon his death it should be payable to his wife, if living, otherwise to his executors, administrators or assigns, and designating his children as beneficiaries, should she not be in life at the time of his death ; it not being shown what interest she had in the policy, what it was worth or its value, or that it was for her benefit alone.</p> <p>Simmons, J., not presiding, because of sickness.</p>

<p>Liens. Notice. Principal and agent. Before Judge Lumpkin. Morgan superior court. September term, 1889.</p> <p>Reported in the decision.</p>

Ejectment. Evidence. Contracts. Before Judge Lumpkin. Morgan superior court. September term, 1889. On February 11,1887, this suit in ejectment was filed, laying demises from Mrs. Mary J. Davenport and her four children, and from Mrs. Davenport and the children separately.

<p>Railroads. Negligence. Master and servant. Before Judge Lumpkin. Morgan superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>Criminal law. Liquor. Sales. Before Judge Gustin. Houston superior court. April term, 1889.</p> <p>Reported in the decision.</p>

Bail roads. Damages. Negligence. Evidence. Charge of court. Before Judge Gustin. Houston superior court. October term, 1888. The injury was alleged to have occurred on February 12th, 1887.

Charge of court. New trial. Yerdict. Before Judge (xustin. Houston superior court. April term, 1889. The Lithgow Manufacturing Company brought to Houston county court its action of complaint against Ed. J. Houser and. Jeff. D. Houser, late partners under the name of Houser & Houser, as acceptors of a draft for $282.50, drawn by Kennedy Bros, in favor of plaintiff, dated November 9,1882, and due thirty days later; and recovered judgment there July 21, 1884.

Service. Ejectment. Amendment. Pleadings. Interest and usury. Principal and surety. Evidence. Practice. Deeds. Title. Mesne profits. Debtor and creditor. Before Judge Dustin. Houston superior court. April term, 1889. The action was by Wilson Brown against Daniel Pol-hill for land and mesne profits. The abstract of title attaehed to the declaration ivas, a deed from Polhill to J. P. Brown, and a subsequent deed from J. P. Brown to the plaintiff.

<p>Railroads. Torts. Parent and child. Actions. Statutes. Constitutional law. Construction. Damages. Before Judge Gustin. Houston superior court. April term, 1889.</p> <p>Reported in the decision.</p>

<p>1. In a suit against a railroad company for damages from its negligence in not keeping in good order its road and road-bed on an embankment through which ran a culvert, testimony to the effect that a certain point before reaching the place of the disaster, and where trouble had previously occurred from the track’s rising from quicksand pressure in wet weather, was found on arrival to be in good condition and being watched by section forces, and that after passing that point the company’s servants apprehended no further danger, “having passed the only point at which there was any particular reason to apprehend danger,” should not have been excluded.</p> <p>2. What citizens of that particular locality, attracted to the culvert where the accident occurred, stated as to the rain, height of water and its effects, etc., was mere hearsay, and was properly excluded.</p> <p>3. The testimony of one of the company’s servants that it was always his custom to carefully examine the bridges and culverts on the road, was not admissible.</p> <p>4. 5. The rules of the company, placed in evidence by the plaintiff, requiring the road-master to go or send to any point on the road at which he had reason to apprehend there might be danger, it being his business to examine the road and know its condition, and he having testified that about three hours before the accident he went down into the water and examined the culvert under the embankment, and found everything as he thought safe, it was error to exclude his testimony that he “apprehended no danger there,” and that he “thought there might be danger” at another, place to which he had sent the road hands.</p> <p>6. Testimony that there was no reason why the culvert should have been suspected by the company’s servants, and that there was no indication of danger to require men to watch it, was not admissible, it not appearing that the witnesses were experts or knew anything of railroad embankments or culverts, although they lived in the neighborhood, and had stated the facts and circumstances of the rainfall as touching the culvert in question.</p> <p>7, 8. Exclusion of testimony that the witness could “ account for this washing only by the fact that at this particular point the flood was so much more sudden and severe, amounting in fact to a regular water-spout,” and that he knew “nothing more than that the officers and employes were all anxious to prevent accident, used in this case all the diligence and care possible under the circumstances to prevent accident and to discover and repair damage from the heavy rain, so excessive and unusual in its character and suddenness,” was not error.</p> <p>■9. The pressure of the case is upon the question whether the company was negligent in not knowing of the washout, so as to have given the plaintiff due notice and warning ; and this is a question for the jury, under proper instructions by the court.</p>

<p>1. If the subscriber to stock of a railroad company was induced to give his note therefor by representations of the president and other agents of the company that stock to the amount of only $3,000 and bonds to the amount of only $12,000 per mile would be issued, and in fact at the time these representations were made, stock to the amount o£ $12,000 and bonds to the amount of $15,000 per mile had been, or agreed to be and afterwards were, issued, his subscription is not binding.</p> <p>2. A clause in the subscriber’s note that “the line of said railroad shall be located and shall run from the court-house in McDonough a distance not greater than the distance from said court-house to the present site of the East Tennessee, Virginia and Georgia railroad depot,” is ambiguous, and’is for submission to the jury to say whether the understanding of the parties was that the distance should be taken literally as expressed, or only substantially with reference to the convenience of the citizen and the public.</p>

<p>Where the attorney in fact of an executor advertised land of the estate for sale for cash, and immediately after the sale made a contract with the purchaser whereby the latter was to have immediate possession and time to pay the money until a claim for dower against the estate was settled, and was to pay interest, and after the claim for dower was settled another contract was made by which the purchaser was to have more time until a claim for year’s support against the estate was settled, and was to pay interest, and at the request of the attorney in fact the purchaser paid a small amount of debts against the estate, such as court costs, advertising and a balance on testator’s coffin, and held possession of the land from the time of salo, the executor lost the right to resell at the purchaser’s risk on his failure to pay. The new contract with him was a private one between him and the attorney in fact, whose remedy at that time was to bring suit for the purchase money.</p>

<p>Where the court cannot say, as a matter of law, that the facts alleged do not constitute negligence on the part of a railroad company, the case is for submission to the jury. It is for them to determine whether it was negligence to keep locked the closet in the passenger-coach, leaving no place for passengers to attend to calls of nature, and for all of the company’s servants to remain away from the coach so that the closet could not he unlocked, and to stop the coach over a cut twenty feet deep without notice to passengers of the danger to which they would be exposed if they attempted to go out.</p>

Municipal corporations. Tax. License. Before Judge Gustin. Bibb superior court. May term, 1889. Gunn wits tried before the recorder of Macon on the charge of running a wagon in that city without first obtaining a license to do so. He was adjudged guilty and fined; and upon the overruling of a certiorari to this decision, he excepted. For the other facts see the decision.

<p>Principal and agent. Debtor and creditor. Estoppel. Garnishment. Title. Admissions. Before Judge Harris. City court of Macon. June term, 1889.</p> <p>Reported in the decision.</p>

Injunction. Railroads. Municipal corporations. Statutes. Streets. Alleys. Easements. The Harvey case before Judge Boynton. The Mathews case before Judge Gober. Bibb superior court. November term, 1889. Petitions for injunction, relief, etc. Petitioners own houses (one a storehouse) and lots in Macon on Fourth and Pine streets and the twenty-foot alley referred to in the decision, and this alley is the direct avenue to their property from Fifth street.

Injunction. Railroads. Streets. License. Damages. Practice. The Ray case before Judge Gober. The Donohue case before Judge Boynton. Bibb superior court. November term, 1889. These cases are similar to those of Harvey and Mathews, just preceding.

Actions. Vendor and purchaser. Assignment. Contracts. Champerty. Before Judge Maddox. Polk superior court. August term, 1889. In his lifetime, IV. P. Janes made to Thompson Colbert a mortgage on certain lands in Dougherty county, to secure a note for $2,200, dated January 5, 1874, and due on or before the next November 15. In 1875, W. F. Janes died, aud his son, C. G. Janes, was appointed his administrator.

<p>Jurisdiction. Sales. Wilis. Minors.. Trusts, Title, Amendment. Tenants in common. Practice, Before Judge Boynton. Rockdale superior court. February térm, 1889.</p> <p>On January 26, 1885, Jennie A. Black, Elizabeth Laird, Mary A. Cowan, Joanna Sanders and Georgia Bailey, (children of Olaiborn W. Bailey, deceased,) and Leila Ficquett (formerly the wife of David C. Bailey, a son of Olaiborn W. Bailey), and David O. Bailey, Jr., and Annie May Bailey (minor children of David O. Bailey, deceased, and Leila Bailey, now Leila Ficquett), the minors suing by next friend, brought complaint against Blake, for 230 acres of land; reciting, as their abstract of title, a deed from Thos. P. Born to Olaiborn "W. Bailey, dated February 10,1863, conveying the land sued for in consideration of $1,550, and the will of Claiborn W. Bailey, dated February 20, 1864, appointing his wife, Mary Jane, to be his executrix, and providing that she should carry out this will by managing in such manner as he would, and that his sons, John ~W. and David O. Bailey, should each have a horse and saddle when they were of age, and his five daughters, when they came of age, each -have a bed-and furniture, and a cow, “and the balance not willed by me in the schedule above to be equally divided among all my children and my wife”; this will having been probated in common form on March 30, 1864, and admitted to record. The plaintiffs alleged that “they are the children, grandchildren, the legatees and devisees of the said Olaiborn W. as mentioned and embraced in said will”; that the testator died owing no debts; that Mary Jane Bailey soon afterwards qualified as executrix, possessed herself of the deceased’s personal property and of the land sued for, controlled the land as executrix for a number of years, and then made a pretended private sale of the same, without authority under the will or order from the proper court, and contrary to law, thereby depriving herself of the possession and control; and that she refuses to recover the same, etc.</p> <p>The defendant pleaded, inter alia, not guilty; and that the plaintiffs joined in an application for sale with their mother, Mary J. Bailey, executrix of C. W. Bailey, and the land was sold, and a part ($850) of the proceeds was reinvested on January 8, 1873, in plaintiffs’ behalf, ip the land (75 acres) on which Mary J. Bailey resides, which sale and investment have been ratified by the plaintiffs.</p> <p>XJpon the first trial, the verdict, was for Jennie A. Black, Elizabeth Laird, Mary A. Cowan, Joanna Sanders and Georgia Bailey, each one ninth undivided interest in the land sued for; and against the two minor plaintiffs. On a second trial, the jury found “for the plaintiffs five ninths of land in controversy.” In the court’s charge the jury were,instructed that the widow of I). C. Bailey, and the two minors by their next friend, were parties plaintiff' when the suit was commenced, but were no longer so and not to be so regarded.</p> <p>In evidence appeared the following: The will .of Claiborn "W. Bailey, already fully set forth. The petition of Mary J. Bailey, reciting that under the will she is trustee for Jane A. Barnes, Francis M. Bailey, Elizabeth C. Laird, John W. Bailey, Mary C. Cowan, Georgia A. Bailey, David C. Bailey and Joanna I. Bailey, children of Claiborn W. Bailey; and is about to make an application for leave to sell the land left by testator “ to herself during her natural life, and at her death or intermarriage to her children ”; and that Georgia A., David C. 'and Joanna I. Bailey are minors ; and praying that John ~W. Bailey be appointed guardian ad litem to represent them in this application. This prayer was granted at chambers February 12, 1872. On October 25, 1872, the appointment was accepted by John W. Bailey. On the same day, he acknowledged service as such, and for himself together with Jane A. Barnes, F. M. Bailey, E. C. Laird and Mary A. Cowan, of the petition of Mary J. Bailey to the judge of the superior court for leave to sell the land therein described (the land now sued for) and to invest the proceeds in a place that would be more conducive to the interest of the estate; this acknowledgment stating that “ we . . believe that the interest of all concerned will be promoted by the sale and investment as prayed for.” The petition recites that the testator left, in addition to this land, personal property; that by the will she (Mrs. Bailey) is made trustee for their children, and authorized to carry out certain provisions as to certain bequests to the children as they arrive at majority or marry ; that said property is all that belongs to the estate of testator now in the possession of petitioner; that the land is in large bodies and so situated that petitioner cannot cultivate it in such manner as she would like for the benefit of the heirs, and cannot give it her personal superintendence; that some of the children have married and others have reached their majority; and that she desires to sell the premises at public or private sale, and to reinvest the proceeds in a smaller place that can be managed better and will yield a better income, “ and to discharge said debts,” pay off’ said bequests and carry into effect the provisions of the will. On October 81, 1872, at chambers, the judge of the superior court passed an order reciting that the parties interested are properly represented before the court, and no question of fact is for determination, and the court is satisfied that the petition ought to be granted; and directing that Mary J. Bailey, trustee for the children mentioned in the petition, be authorized to sell at public or private sale the property therein described, execute titles, reinvest the proceeds in a smaller place, “ pay said debts ” and carry into effect the provisions of said will; and further directing that she make return of her actions, etc. This return was made and sworn to March 28, 1873. It states that the land in question was sold, in November, 1872, to John Black for $2,300; that in December of that year $850 were invested in 75 acres of land and improvements, $900 paid to D. N. Baker for' notes held against the estate to that amount, $35 to E. B. Rosser to satisfy a ft. fa. held by him against the estate, $40 to J. A. Kennedy on account against estate, $135 for a mule for the farm, $286 to legatees, and $15 for tax; and that the balance remains in the hands of Mary J. Bailey.</p> <p>The deed to John W. Black, conveying the land in dispute, is from Mary. J. Bailey,..trustee for the children of Claiborn W. Bailey, and is dated January —, 1873. It recites-tire passage-of the order of sale; and a consideration of $2,300 cash. On August 6, 1874, John W. Black conveyed the land to D. N. Baker by deed, for $2,450. Both of these deeds were recorded on November 2, 1885. On January 3, 1882, the wife (sole heir) and the administrator of D. N. Baker conveyed the land to the defendant by deed, for $1,250, and this deed was recorded at once. The youngest of the eight children left.by Claiborn "W. Bailey, Joanna Sanders, was born January 15, 1859 ; David C. Bailey, the next youngest, June 1, 1854; Georgia Bailey, January 9, 1851; all the rest before then.</p> <p>Testimony on other features of the litigation need not here be detailed. After verdict, the defendant moved for a new trial, which was denied, and he excepted. The only grounds of the motion referred to in the decision are as follows :</p> <p>Refusal to grant a nonsuit for misjoinder of plaintiffs, the children of C. W. Bailey joining with the widow and children of D. C. Bailey, the former claiming as legatees of O. W. Bailey and the latter as heirs at law of D. C. Bailey; the ruling of the coui’t being based on the idea that the first verdict, having been against the heirs of D. C. Bailey, eliminated them from the ease. And the failure of the court in the charge to present defendant’s theory that there could be no recovery by any of the plaintiffs unless the proof showed joint title.</p> <p>Error in charging that the proceeding by which the older for sale was obtained, and the sale thereunder, were void for want of jurisdiction in the judge of the superior court to grant such an order in vacation.</p>

<p>The contract being an undertaking to pay a definite amount of money on a certain named day, provided that by that time a specified mortgage is taken up and cancelled, and the declaration alleging a performance of this condition, a failure to prove its performance before the commencement of the action entitles the defendanfto a nonsuit. The condition being precedent to the right of action, its performance pending the suit will not suffice.</p>

<p>1. An ordinary bill of exchange, negotiable as commercial paper, payable out of no particular fund, though drawn by a creditor upon his debtor and delivered to his own creditor to be collected by him and the proceeds applied to the claim of the latter creditor against the former, will not, while unaccepted, operate as an assignment, legal or equitable, of a debt due by account from the drawee of the bill to the drawer thereof.</p> <p>2. Nor can the bill be made so to operate by extrinsic evidence if the intention was to give preference of one creditor of the drawer over another by mere incidental or equitable assignment of the account) not in actual payment of the preferred creditor, but by way of collateral security or authority to collect and apply proceeds.</p> <p>3. As the acceptance of a bill, to be obligatory, must be made in writing, an oral promise by the drawee to pay so much upon it as may be ascertained to be due has no efficacy in holding off creditors of the drawer who may serve garnishment upon the drawee before the bill is either accepted or paid in whole or in part.</p>

Justices’ courts. Jurisdiction. Constitutional law. Telegraph companies. Judgments. Nullities. Accord and satisfaction. Actions. Charge- of court. Yerdict. Before Judge Harris. City court of Macon. December term, 1888. The telegraphic message involved was dated at Macon, Georgia, November 9th, 1887 ; directed to Mrs. Frances M. Taylor, care of Charles Taylor, Brunswick, Georgia; signed M. G. Bayne; and stated: “ Case postponed.

Railroads. Negligence. Charge of court. Evidence. Verdict. Before Judge Gustin. Bibb superior court. May term, 1889. Ryles sued the railroad company for damages sustained by him while employed as a train-hand, in coupling ears of a freight-train known as number 39.

<p>Militia districts. Practice. Counties. Ordinary. Before Judge Smith. Marion superior court. April term, 1889.</p> <p>The petition of Hillsman and others to the ordinary ¡alleged that they were citizens and property-owners of 948th district Gr. M., or Brantley district, of Marion county, and deemed it necessary and expedient to change the lines between that district and the 710th district GL M., or Pineville district; setting forth the change of line desired and describing the territory to be taken from the 948th and added to the 710th district, and alleging that the change was expedient and necessary, because: (1) The portion of the territory to be taken from the 948th and added to the 710th district is almost timberless, and the 710th district has of force in it the “stock law.” (2) The parties to be affected by the change are willing and anxious for it, as will appear by their written petition attached. (3) If the change should be made, there would still be in the 948th district a sufficient number of residents to form a captain’s company under the militia laws of this State.</p> <p>Attached to the petition was a diagram showing the proposed change, and a consent in writing to the change, with signatures of fourteen persons including petitioners. The ordinary appointed three of the petitioners as commissioners to lay out and define the line, directing them to report by the first Tuesday in February, 1889. They did report, defining the line as prayed for.</p> <p>Harris and sixty others, as citizens of the 948th district, filed a counter-petition, asking that the change be refused, for the reasons that it is neither expedient nor necessary as the law contemplates; that the benefits to be gained to those desiring the change by no means counterbalance the very great loss and heavy damage to be incurred by those who would be “liners” were such a change made, those to be damaged far outnumbering those to be benefited; and that the change would cut off so much of the 948th district as not to leave in it a captain’s company as required by law. They also demurred to the petition, on the following-grounds : (1) The facts set out fail to show that it is necessary and expedient to make the change ; the desire of the applicants to be cut off into the 710th district, because their lands are timberless and because the stock law is of force there, is not of sufficient necessity and expediency to the public to authorize the change, though it might be to the private iuterest of the applicants. (2) Because the proposed change so disfigures the 948th district, in running in so zigzag a manner and leaving a narrow strip of that district from \ to 1J miles wide and four miles in length on the Chattahoochee county line, as to show that it is not necessary and expedient to make the change. (3) If the change is made, it will discommode and inconvenience as many or more of the neighbors of applicants, by placing them in the category of which applicants complain. This demurrer was overruled.</p> <p>On the trial, Hillsman testified for the applicants : He and all the parties reside within the territory desired to be cut off from the 948th district and added to the 710th. Applicants are, with one exception, all the parties who reside within that territory. It is necessary and expedient to make the change, because the territory desired to be cut off is timberless, is in the extreme southwest corner of the 948th district, and the voters in that territory would have to go but from two to two and a half miles further to reach the precinct after the change than before. The territory to be changed is about four or five miles across. The diagram attached to the petition is correct, and shows the proposed line. He has seen all the parties in the territory to be cut off' and all but one were willing and anxious for the change. There is a fence along the proposed line that, with very little work, could be made a lawful fence. Several of those who signed the counter-petition live six or seven miles from the proposed line and some off them out of the distinct, and but few of those who signed it own either stock or land.</p> <p>F or the objectors three witnesses testified. One of them saw some of the parties sign the counter-petition and others told him to sign their names. About twenty-seven of the counter-petitioners would be either on the proposed line or within one and a half miles of it, seventeen being land-owners or stock-owners, and "would be inconvenienced by the change, as they had no pastures built, and it was then the first of February and there was no time to build them. He did not know whether all the parties whose names were on the petition lived in the 948th district, but thought they did. There would be a strip of land between the Chattahoochee county line and the proposed line, from one to one and a half miles wide and about four or five miles long. All the parties who signed the counter-petition are opposed to the change. Another testified that all who signed the counter-petition lived in the 948th district and owned either stock or land. A large number of them would be either on the line or within one or two miles of it. Stock would range from two to three miles and get into the stock law district. He was verbally authorized to sign for some and saw others sign, but there were a great many names on the petition whom he did not see sign and for whom he was not authorized to sign. There were a great many in the 948th district who did not sign either petition. There would be over one hundred men left in the 948th district after the proposed territory was cut ofF, enough to form a captain’s company.</p> <p>The ordinary granted the application for the change. On this ruling with others made by the ordinary at the trial, error was assigned by certiorari, which was sustained ; and the petitioners excepted.</p>

Burglary. Criminal law. Before Judge Smith. Muscogee superior court. May term, 1889. Kent was indicted for burglary of goods from a factory. The evidence showed that he was detected in the act of entering the front door of the building and of returning, shortly afterwards, with the stolen goods. He was immediately arrested and soon afterwards admitted his guilt. The facts as to the manner of his entering the house are stated in the opinion.

<p>The marriage of a boy in his sixteenth year, although declared by the code to be void in the sense of being absolutely void, may nevertheless be ratified and confirmed by continuing, after arriving at the age of seventeen years, to cohabit with his wife as such., The code of 1863 required a license, or the publication of banns, as a condition to the validity of any marriage ; but this provision of the code was repealed by the act of December, 1863, by which repeal the common law as to informal marriages was restored. The power to make marriage by consent and cohabitation being thus-reinstated, the power to complete and confirm by like means an inchoate and imperfect marriage was also revived.</p>

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

<p>Interest and usury. Verdict. Before Judge Smith. Taylor superior court. August adjourned term, 1888.</p> <p>Action by H. B. Pope, who was the sole heir of S. L. Pope, to recover of Marshall money alleged to have been usury paid to him by plaintiff. After the first trial, the case came to the Supreme Court, and is reported in 78 Ga. 635. At a subsequent trial, the evidence for the plaintiff showed, in brief, as follows : On January 25, 1882, S. L. Pope made to Marshall a fee simple warranty deed, reciting a consideration of $3,000, and conveying about 2,000 acres of land; and an agreement to remain on, look after and take charge of this land, holding possession only as tenant or agent of Marshall, reciting that Marshall had bought the land from him and he had received payment for it. On the next day he made two notes for $510 each, payable to Marshall or bearer, for the rent of this land for 1882 and 1883, due in one and two years respectively; and Marshall made to him a bond for title reciting the giving of these notes and the conveyance of the land, agreeing to make Pope a quit-claim title to the land upon payment of the notes and also of the sums of $1,245 and $1,515.60 respectively on the days the notes fell due, and reserving the right to enter on the land and dispossess Pope if these payments were not made-He also wrote to Pope a letter of the same date, calling attention to a mistake of $28 in the calculation as to the amount specified in the bond, and stating that as the bond was $28 short, he had taken that much out of the amount he was then sending by express, the amount so sent being $509.83. With this letter was enclosed a calculation showing that interest on the $3,000 was computed at the rate of 17 per cent., making $510 per annum. After the death of S. L. Pope, the plaintiff desired to pay the debts of the. estate and secure a clear title to it, and to borrow money for this purpose; but in order to do so, he was compelled to pay off the incumbrance held by Marshall. He executed to a loan company a mortgage on the land (which was worth seven to twelve dollars per acre), on his title as sole heir at law, for $8,500, and thus obtained the money to pay Marshall, who claimed that the estate owed him $3,000 principal and interest at 17 per cent, per annum from January 26, 1882, for two years on half the principal, and to June 1, 1883, on the'other half. On the latter date, plaintiff paid him $3,885.50 to satisfy his claim, having in the previous January paid him $125 interest; was forced to settle with him on his own terms, or lose the loan, and so settled but under protest, taking his quit-claim deed to the land, reciting a consideration of $3,900. Marshall’stated to plaintiff that S. L. Pope borrowed $3,000 from him and secured it by making the deed to the land, giving a note for the $3,000 and two other notes for $510 each for the interest on the $3,000 ; that one Smith advised S. L. Pope not to borrow the money as the terms were too hard, and upon Pope’s asserting his intention to disregard this advice, Smith began to write a bond, whereupon Marshall intex’fered and told Smith that he wrote his own bonds ; and that after lending the money, he heard that the land mortgaged to him was entailed by the will of Pope, and asked Pope to insure his life for his (Marshall’s) benefit to secure the loan, but upon investigation, found the will and title all right.</p> <p>The testimony of Marshall, Smith and Danielly showed as follows: S. L. Pope had applied to Marshall several times for a loan, offering 18 per cent, per annum as interest, but Marshall declined to lend. Afterwards, and before the consummation of the trade between them, Pope offered to sell Marshall the land referred to, for $3,000, saying he must have some money. Marshall told him he would buy the land provided he could make a good title; examined the title and closed the trade with him. They went to Smith’s office, and Smith and Danielly witnessed the deed. Smith thought Marshall was lending the money to Pope, and proposed to write a bond for reconveyance, but it was explained to him that it was a sale and not a loan, and he said he thought Marshall had made a good trade. The deed was recorded the same day. Marshall paid out part of the money for Pope, and on the next day sent Pope $509 by express. There was no arrangement and nothing said between them before or on the day of the sale that Marshall was to reconvey the land to Pope, but after the consummation of the trade, and on the next day, when Pope came to receive the balance of the money as per agreement, he asked if Marshall would be willing to- sell the land back to him, Marshall replied, as he had no special use for it, that if Pope would give for the rent of it what 17 per cent. per annum would be on the amount of the price paid him for it, Marshall would sell him the place back. To this Pope agreed, and Marshall gave him the bond for titles, and they made the figures for this trade on this basis. Pope hurried off on the first train'and before the whole matter was fixed up, and after he left, Marshall discovered a mistake of $28 in the calculation, and wrote the letter in evidence, making the figures on it in order to have the mistake corrected. Pope gave him the two rent notes, and a note for $125 which he afterwards borrowed of Marshall; and these three are the only notes Marshall ever held against him. After his death, plaintiff’ asked Marshall if his brother owed him; Marshall replied that he owed him two notes of $510 each and one for $125. Plaintiff said he thought S. L. Pope owed Marshall two or three thousand dollars borrowed money; but Marshall replied that he owed the two notes for $510 each for the rent of the .land he had sold Marshall for $3,000, and the note for $125 borrowed money, and then showed plaintiff the notes and the deed; and plaintiff admitted it to be a sale or said it looked so to him. Marshall asked if he had found the bond which Marshall had given to his brother; he said no, and Marshall told him he had agreed to sell the land back, explained to him the terms, and told him if he should not find the bond he would carry out the agreement with him. Plaintiff thanked him and said he would pay the money promptly. Afterwards he said he wanted to pay up the whole matter and get a deed to the place. Before doing so, he brought his attorney, who offered Marshall $3,500 for all the- papers Marshall held against S. L. Pope and for a deed to the land, the note for $125 having been already paid by plaintiff. Marshall declined to accept this proposition, and afterwards plaintiff told him he did not authorize the attorney to make it but was willing to pay the claims as contracted by his brother, and insisted on paying Marshall 12 per cent, interest on the claim past due when Marshall wanted to count it at 7 per cent. They agreed to the amount to be paid, $3,885.50, and it was paid, and plaintiff expressed himself as satisfied with the settlement. Marshall never told that he loaned his brother $8,000, nor that he held his brother’s note for $3,000 nor that Smith advised S. L. Pope not to borrow the money, or anything like it. He did not lend Pope the money but purchased the land, and so stated to Danielly in Pope’s presence; and Pope assented to this statement.</p> <p>The jury, on October 3, 1888, found for the plaintiff $475.50, with interest at 7 per cent, from June 1st, 1883. To a denial of a new trial the defendant excepted.</p>

<p>Application of payments. Verdict. Before Judge Smith. Talbot superior court. March term, 1889.</p> <p>Cox, Hill & Thompson sued Wall on two promissory notes made by Wall to them, one for $428.22 with attorneys’ fees and interest at 8 per cent,, dated October 11th, 1884, and due one day after date, the other of the same date, due at the same time and for the same amount. On the latter, was a credit of $50.00, June 23d, 1885. The defendant pleaded payment in full. On the trial, the plaintiffs introduced the notes, and also an account of Wall with them, running from December 4th, 1884, to December 31st, 1885, with credits running from December 9th, 1884, to February 27th, 1886, showing a balance due on this account of |44.87.</p> <p>Wall testified that he gave the notes sued on, and at the same time instructed plaintiffs to pay on them all the money subsequently remitted; and that he had remitted more than enough to pay them. After giving the notes, he traded with plaintiffs on open account, and owed them on this account. He admitted writing the letters to plaintiff, hereafter mentioned. J. H. Worrill presented to him, in July or August of 1886, the notes sued on and the account, and he asked Worrill for an extension of time, promising to pay his indebtedness. He did not then tell Worrill that the notes were paid. His son testified that he was present when the notes were given to plaintiffs, and heard his father instruct them to place on the notes as credits all the money remitted to them.</p> <p>In rebuttal, a witness testified as follows: Was travelling salesman for plaintiffs. Defendant had made several payments to witness for plaintiff's since October 11th, 1884; on December 3d, 1884, $128; on June 20th, 1885, $100; on March 21st, 1885, $75; on September 8th, 1885, $60 ; on November 8th, 1885, $75 ; on February 9th, 188-, $75. He gave no instructions as to where the credits should be placed. Witness sold defendant goods for plaintiffs, at different dates after October 11th, 1884, as shown by the account above mentioned. When witness went to see him he generally sold him goods, and if defendant needed goods before witness arrived lie ordered them direct from the house. Witness took the notes sued on. On one occasion defendant paid him $50 ; witness did not have his account, and credited the payment on one of the notes. Several times when defendant made payments, witness would pull out his account and say, “ Well, I put this credit on your account,” and he would reply, “ That’s all right; it does not make any difference to me so I get credit for it.” When witness placed the credit on the note he called defendant’s attention to it, and defendant replied, “That’s all right, I expect to pay them up soon.” He never did direct the credit of any payment that he made. All the money collected by witness from defendant was remitted to plaintiffs. On October 27th, 1884, defendant paid $153.15, of which $19.02 was credited on his account, and $143.13 on a note given by him November 10th, 1881, which paid it.</p> <p>Plaintiffs introduced letters from defendant to them. On December 22d, 1884, he wrote stating that he sent by express that day $100 to go on his account. <On February 9th, 1885, he wrote stating that he enclosed by express that day $100, and also sent a small order which he hoped would be filled and forwarded to him. The order was for certain whiskey, and this whiskey appears on the account mentioned. On November 6th, 1885, he wrote stating that he sent that morning by express $100, and also another order. The order was for two barrels of whiskey, one of which appears on the account. On December 30th, 1885, he wrote stating that he enclosed that day by express $150 and sent a small order, which was for a barrel of whiskey which appears on the account. On June 18th, 1886, he wrote stating that he enclosed that day by express $110. In none of these letters did he state to what the money enclosed was to be applied. On August 18th, 1886, he wrote expressing his regret that his note was sued before he was notified; saying nothing as to not owing the notes, or as to payments not being properly applied, but stating that his intention was to pay the.two notes in the fall, that he was coming to make general satisfaction “with you all,” and that he would make notes to be paid in hank at the end of every thirty days until the claim was paid. Also that he hoped plaintiffs would show him some favor “about the two notes I owe you all.” The account shows credits as follows: December 9th and 22d, 1884, §177; for 1885, January 24th, §100; February 10th, §100; March 24th, §75; September 14th, §60; October 21st, §100; November 7th, §100; November 26th, §75; December 31st, §150; for 1886, January 18th, §110; February 27th, §75.</p> <p>The jury found for the defendant, and the plaintiff moved for a new trial on the grounds that the verdict was contrary to law and. evidence. The motion was overruled, and exception was taken.</p>

<p>There being some evidence to sustain the verdict that the paper propounded was not the last will and testament of the deceased (though this court would notso find), and thepresiding judge being satisfied, • his judgment refusing a new trial was not an abuse of discretion.</p>

Criminal law. Adultery. Evidence. Yerdiet. Before Judge Smith. Muscogee superior court. November adjourned term, 1888. Weems was indicted for adultery and fornication. The testimony of Cox, the prosecutor, was as follows : Was married to his present wife about eleven years ago • had been married twice before; has a daughter about twelve years old by a former wife. Present wife is twenty-six or twenty-seven years old. Moved to Columbus about fourteen months ago.

<p>Bigamy. Criminal law. Indictment. Evidence. Before Judge John T. Clarke. Early superior court. 'April term, 1889.</p> <p>Reported in the decision.</p>

<p>After verdict for the defendant in a suit upon a promissory note, the grant of a new trial solely upon the ground of newly discovered evidence consisting of a paper the sometime existence of which the plaintiff knew, but supposed it to be lost or destroyed, but toughing which he introduced no testimony, gives no reason for not so doing, and which he discovers immediately after the trial, and which would not necessarily show that the defendant’s plea was untrue, is erroneous.</p>

Principal and surety. Debtor and creditor. Before Judge Port. Stewart superior court. October term, 1888. Held: but being wholly thrown off his guard by the assurances of plaintiff, he paid over the same to the principal and permitted him to depart west from the limits of the State. And now plaintiff is legally and equitably es-topped from denying that the principal has discharged the debt.

<p>Actions. Debtor and creditor. Pleadings. Before Judge Port. Macon superior court. May term, 1889.</p> <p>Reported in the decision.</p>

<p>Where two persons are jointly interested in personal property, legally or equitably, and one of them delivers the possession of it to a a third person, the other cannot recover the same by possessory warrant in his own behalf alone.</p>

Distress warrant. Landlord' and tenant. Liens. Crops. Before Judge Eort. Sumter superior court. May term, 1889. Harris sued out a distress warrant against Daniel, alleging a certain indebtedness for rent which would be due one month afterwards, and that the tenant was seeking, to remove his goods from the premises. These allegations were denied by counter-affidavit.

<p>Interest and usury. Contracts. Promissory notes. Pleadings. Before Judge Smith. Muscogee superior court. November adjourned term, 1888.</p> <p>[Reported in tbe decision.</p>

<p>1. Refusal of a continuance for the absence of a physician who had testified at the coroner’s inquest, was not error, where the testimony expected to be given by him was such as might have been shown by any other physician, and where the only moans taken to procure his attendance was the placing of a subpcena in the hands of the sheriff, counsel having been assigned to the accused several days before the case was called; although it was shown that the witness lived either in Georgia or Florida.</p> <p>2. The verdict, guilty of murder, is supported by the evidence, and is not contrary to law.</p> <p>3. Though requests to charge he legal, refusal to give them is not error if they are fully covered by the charge as given, which omits no defence or theory of the accused and is as favorable to him as he has any right to expect.</p>

<p>Injunction. Year’s support. Jurisdiction. Before Judge Guerry. Lee county. At chambers, November. 26, 1889.</p> <p>Reported in the decision.</p> <p>cited Code, §§331, 3144; 54 Ga. 87, 467; 52 Ga.. 153 ; 53 Ga. 302; 24 Ga. 558; 47 Ga. 195; 68 Ga. 735.</p>

Vendor and purchaser. Contracts. Pleadings. Fraud. Sales. Abatement. Rescission. Before Judge Bower. Decatur superior court. May term, 1889. James M. Boyce petitioned for the foreclosure of a mortgage given to him by Mrs. Thompson to secure the payment of certain notes. She pleaded as follows: As the sole heir of her mother, she owned a house and lot in Bainbridge.

Charge of court. Practice. Verdict. Before Judge Bower. Mitchell superior court. November term, 1888. J. T. Spence, as executor of J. H. Spence, sued C. W. Collins upon a promissory note dated April 7th, 1877, due November 1st, 1877, for $157.28 with interest, payable to the order of John W. Pearce, signed by Collins and endorsed by Pearce. The defendant pleaded not indebted, and payment in full. Upon the trial plaintiff introduced the note and closed.

<p>Railroads. Negligence. Gharge of court. Verdict Practice. Before Judge Smith. Muscogee superior court. November adjourned term, 1888.</p> <p>Reported in the decision.</p> <p>cited Code, §§2067, 3368 ; 67 Ga. 307, 468; 58 Ga. 468 ; 71 Ga. 22 ; Rwy. Ac. L. §§110, 220 8 Am. Rep. 508 ; 10 Id. 332; 37 Id. 385 ; 40 Id. 228; 41 Id. 337; 99 Am. Dec. 287.</p> <p>cited Code, §§2972, 3034; 78 Ga. 35 ; 82 Ga. 229; 81 Ga. 476 ; 80 Ga. 212; 76 Ga. 333 ; 66 Ga. 746; 50 Ga. 353 ; 67 Ga. 306 ; 45 Ga. 288.</p>

<p>A contract between landlord and cropper provided that the cropper should prepare the cotton for market as rapidly as the same could reasonably be done, by picking and carrying it to whatever gin might be selected by the landlord, and thence to market, where it should be sold by the landlord if he thought proper; that should the cropper fail or neglect within a reasonable time to perform any of the stipulations on his part, the landlord might employ other labor to do so and deduct the amount thereby expended from the cropper’s share; and that the title to all the crop should remain in the landlord until all the cropper’s indebtedness to him should be fully paid, after which the cropper was to receive whatever might be due him. On October 27, the cropper was indebted to the landlord $1271 The landlord went to the farm and ascertained that seven or eight thousand pounds of the cotton had been gathered and stored in the gin-house, and requested the cropper to have it packed and sent to market so that the indebtedness might be paid, and for fear the gin-house might be burned. The cropper refused, saying he would not gin and pack it until he had finished gathering the crop.</p> <p>Held, that no such conversion of the property by the cropper was shown as to authorize a recovery in trover.</p>

Foreclosure of mortgage. Vendor and purchaser. Pleadings. Before Judge Bower. Decatur superior court. May term, 1889. The decision reports the case. The pleas referred to are as follows (omitting the first, which the opinion sets out): 2. Defendant has repeatedly applied to plaintifi to explain the want of said recitals and why the names of the heirs are all signed in the same handwriting, and plaintifi'has refused to do so. 3.

Verdict. Pleadings. Practice. Before Judge Bower. Decatur superior court. May term, 1889. Brinson sued Polleys & Lloyd. His evidence was as follows: In May, 1882, Polleys made a contract with him to buy land, return it for tares and keep trespassers off it. He said there was a company of them and they proposed to buy a hundred thousand acres of land. Was to give plaintiff $5.00 a lot for buying, and $1.25 a lot to see that the taxes were returned and keep off trespassers.

Administrators. Actions. Jurisdiction. Damages. Railroads. Master and servant. Negligence. Evidence. Interrogatories. Officers. Before Judge Van Epps. City court of Atlanta. March term, 1889.

<p>Criminal law. Murder. Evidence. New trial. Before Judge Milner. Gordon-superior court. February term, 1889.</p> <p>Amos King was indicted for murder, on Friday, December 6, 1888, of Daniel Printup. The evidence was entirely circumstantial. Printup was found, about three or half past three o’clock in the morning, lying dead near the railroad track and depot in the town of Calhoun, Gordon county, between the main and side track, his head towards the main line. Trains passed frequently during the night; the way-freight came at half past three, but he was not killed by that train. There was no blood on the tracks. He was cold and stiff, except one leg, which seemed to be limp. His skull was fractured. There was a gash, sufficient to have caused his death, on the right side of his head, about three inches long, extending to his brain, and looking as if it had been done with some sharp instrument like an axe. The witness who so testified also said that the wound could have been made with a round stick, and that it looked like it was done with a stick or shovel. Printup’s leg was broken, according to the testimony of one witness. Another testified that a heel was torn off but it had not bled any, that the wound on the head looked like it had been cut with something, and that there was a small puddle of blood where the body was lying. A passenger-train passed this place at fourteen minutes after two o’clock, but there was no indication that it killed Printup. The corner of a passenger-coach is round. On the night of the killing, Printup, defendant and others were at a party, and defendant was drinking and shoving and knocking one Hamp Bosseau, and Printup told him that Ilamp’s father had just died and it looked like defendant wanted to impose on his boy and run over him; but no further quarrel appears to have occurred. With a number of others, Printup left the pai’ty, stopped at the house of one Hester Ann, and left there alone before twelve o’clock. On the way to this house, he and those with him were approached by defendant, and a little conversation ensued between defendant and one Jennie Bosseau relative to her carrying some chickens to Rome, where defendant’s family lived. When defendant left this crowd, he went towards the railroad, and they went down the street. He returned to the party about one o’clock, and about fifteen minutes afterwards, Bill Harlon (who had gone out with Printup when he left) came in, and they sat down. Bill looked like he was asleep, had his head down between his hands; they did not take much further part in the party; did not have much to say. Defendant also had a little row with a boy named Willie Harper, and John Harper interfered, and defendant got a little mad and asked John if he wanted to take it up. Defendant and Jennie Bosseauwere sitting side by side; Will Harper was drunk and going about cursing, and wanted to get out between defendant and Jennie, and defendant told him to go off, and pushed him around; and Printup told John Harper that his brother and defendant were drunk, and to take him away and not let him be slapped around; and at last Jennie caught hold of Will and said, “ Come, let’s go,” and they left. Defendant left the party the second time about half past one or two o’clock. Nancy Lay, who left with him, testified that he went home with her and staid there from two until five o’clock; that there was only one room, with two beds in it, and one door; that he laid in one bed by himself, and she never missed him during the night; and .that she was sure he was in the room from two until five o’clock. She staid up only long enough to fix the bed, got up when the four o’clock passenger-train went down, and when the five o’clock train passed she left the house, leaving defendant there in bed. Printup does not appear to have been seen again after he left Hester Ann’s until his body was found. His clothing was not much disturbed and looked much like it looked previously in the night. Bill Harlon testified that he did not go back to the party at all; that he did not know who killed Printup; that he left the party with Printup and others, left them before they reached Hester Ann’s, went home and went to bed Two days after the killing, Nancy Lay discovered a stain on the pillow-cases on which defendant had slept. No one else had slept on them, and nobody had slept in the bed since he did. She could not say whether or not it was blood. The coroner examined them after the inquest was over. He testified that he thought the stain was blood, that he examined for blood stains on defendant, but did not find anything that looked like blood. No witness testified as to noticing any indications of blood on defendant. About half past six o’clock Friday morning, about a mile from one Peacock’s, towards whose place defendant was going, he told two witnesses that Printup was lying dead on the railroad; and said he (defendant) was going to Peacock’s. About the same time, he asked another if she had heard the news about deceased; did not say how dead deceased was. “ At about good daylight,” he told another that deceased “ was dead as hell”; said he knew it was deceased by his “ damned red hat.” He told this witness he came from Peacock’s, which was about a mile and a half off. He had been working for Peacock, and was at his house on Saturday but was absent on Friday. Peacock and a number of other witnesses (all who testified on the subject) swore that he was of good character, peaceable, industrious and hard-working. No one testified as t'o any quarrelling or previous difficulty between him .and Printup. The father of Printup testified that defendant told him, “ They lay the death of Daniel down to me, and the time’s coming when I will tell what I know. I never wounded him or nothing.” The jury found the dendant guilty, with recommendation to the mercy of the court, and he moved for a new trial on the grounds that the verdict was contrary to law and evidence. The motion was overruled, and he excepted.</p>

Indictment for bastardy, and conviction, before Judge Harris, at the March term, 1889, of Coweta superior court. The defendant excepted to the overruling of his motion for a new trial, the grounds of which were that the verdict was contrary to law and evidence.

Injunction. Debtor and creditor. Mortgage. Fraud. Bona fides. Notice. Title. Evidence. Practice. Before Judge Jenkins. Morgan county. At chambers, December 20, 1889. On the 24th, 28th and 30th of October, 1889, the plaintiffs sued out attachments under tbe code, §3297, against B. F. Kohler & Company, of Richmond county, which attachments were levied by the sheriff of Morgan county upon a stock of goods in Madison in the possession of S..

Petition for equitable relief, praying injunction to restrain the building of railroad depots, tracks, etc. on an encroachment granted to the defendants in a street in Macon, opposite property of plaintiffs. Before Judge' Richard H. Clark. Bibb superior court. May term,. 1889.

<p>Petition for injunction, receiver, general relief, etc. Before Judge (Justin. Bibb superior court. May term, 1889.</p> <p>On January 22, 1889, Mathews et al, judgment creditors of Williams and Williams & Co. (executions upon which judgments had been issued and returned' unsatisfied), and other creditors, brought their petition against Williams, his wife, Williams & Co., Cabaniss (cashier of the Exchange Bank), and Westcott, alleging, in brief, as follows : Prior to and during 1886, when the greater part of plaintiffs’ debts was contracted, Williams and Williams & Co. were traders. Williams individually owned large property, real and personal, and the firm a large stock of goods. Plaintiffs extended credit to them on the faith that they were abundantly solvent, derived from the fact that Williams owned the property mentioned, and from fraudulent statements by him as to its value and the amount of his indebtedness. But he and his firm were then stretching their credit to its utmost limit and buying all the goods from everywhere they could, with a view to realize as much as possible in cash before their failure; they were insolvent when they purchased plaintiffs’ goods, and bought them with no intention of paying for them. After having purchased all the goods they could, Williams gave mortgages covering all the property owned by him or his firm, and made large transfers of real estate, the deeds being recorded some time after his failure ; all with the intent to put his property out of the reach of his creditors. In one instance land so sold has been repurchased in the name of Mi’s. Williams. The mortgages generally show on their face that they were made to obtain fresh loans and advances, and not to secure indebtedness already existing. Williams must have realized large sums from the mortgages and transfers, but he did not apply such sums to the reduction of his. other indebtedness. The raising of this money by mortgages and sales was part of the scheme to reduce his visible •assets to such a size as could be embraced within the homestead exemption allowed by law, and under color ■of such homestead to hinder, delay, defeat and defraud his creditors. Williams & Co. made a voluntary assignment of the firm’s assets, which were already exhausted (so far as they were of a nature to he reached by creditors) in paying off preferences and liens, and no part ■remains for plaintiffs. On or about February 1st, 1887, Williams proceeded to have all his property set apart to his wife, under a so-called homestead exemption, her application therefor embracing a large amount of real and personal property. The order of the court setting apart such homestead was void, because the applicant failed to return, disclose or deliver the moneys which Williams possessed at the time, and which with other personal property he then and has since fraudulently concealed and kept out of the reach of all levying officers; also because the proceedings were no attempt to comply with the law regulating the setting apart of homesteads, but were grossly and fraudulently irregular and defective. Under color of seeking the homestead, the debtor only sought to tie up the property in the hands of a so-called receiver of court, so that creditors could not touch it; and after getting it so tied up, he has taken ho further steps towards having it sold, but has continued to enjoy, use and possess the whole property nominally in the receiver’s hands. The applicant sets out her husband’s financial embarrassment, and that he has largely mortgaged his property, and prays for a homestead of $1,600 out of the equity of redemption wherein the right of a homestead had not been waived in favor of special creditors, and asks that appraisers be appointed to examine and value the prop- ■ erty and make report showing its state as to leins, its rental value, and how it should be set apart for the benefit of the family ; also that a receiver be appointed to take charge of and manage the property, etc. The schedule attached to the application shows' mortgages on the property aggregating about $11,000, subject to be reduced by such payments as have been made thereon ; but it does not appear anywhere in the proceedings which of these mortgage debts contain a waiver of homestead, nor as to what property the homestead right was so waived. Nor do such proceedings state the value of the personalty, either as to the separate articles thereof or in the aggregate; nowhere is it claimed that the personalty alone does not exceed $1,600, and the value of it in fact was $12,000. No appraisers were appointed ; no inquiry was made as to the value of the personalty, nor as to how far the homestead right had been lost therein ; nor was any evidence taken as to any of these questions. The ordinary issued an order to the county surveyor to lay ofí a homestead in the realty, not specifying the value of the realty to be set apart, although a portion of the homestead sought and set apart was in personalty; nor was any inquiry directed by the surveyor, or by appraisers or otherwise, as to the amount of incumbrances on the realty, or how far the homestead right had been waived or lost. By the surveyor’s sworn return the value of the realty was $5,600, but its real value was more. On February 23d, 1887, the application was approved; the order of approval recites that the return -of the surveyor shows that there is more property than the applicant is entitled to, but that the property in the schedule is covered by mortgages, which after being paid “ will leave little as the equity of redemption out of which the applicant can have the benefit of the homestead applied for” ; and therefore it is ordered that "Westcott be appointed receiver to take charge of any excess of property in the schedule, after paying oil the lawful incumbrances to be disposed of as by law in such cases provided. This order was based on the ex parte application for homestead; no creditor was present to object, and no caveat was filed or heard. Plaintiffs are non-residents, and had not such length of notice as would have enabled them to object. The schedule of creditors was not full and complete, the name of one of the plaintiffs, The Foss-Schneider Brewing Company, not being embraced therein ; it had no notice of the homestead application until after the hom.estead.was set apart. While plaintiffs have thus been prevented from enforcing their judgments, Williams has paid oft the greater part of the mortgage debts, and his wife now claims the property as her own. He remains in the possession and enjoyment of all the property embraced in the homestead application. The mortgages given before the homestead by Williams, are when renewed given by his wife on the same property, and the debts are assumed by her. On January 5th, 1888, she gave a mortgage of $8,000 to Cabaniss, cashier of the Exchange Bank, on all the furniture, etc. in the Commercial hotel, which is the same property described in the mortgage of December 27th, 1886, given by Williams to the same mortgagee, which latter mortgage appears on the record as cancelled January 6th, 1888. In her homstead application Mrs. Williams makes oath that all of said property was the property of her husband ; prior to that time she never owned or claimed any property as her own, and since then has had no means of acquiring any, except with money or property given her since such time by her husband. Petitioners believe that the expenses of the hotel and bar business, and the large payments to discharge the mortgage liens, were defrayed out of the profits made by Williams as the proprietor of the Commercial hotel, and in his other business, and in part with moneys fraudulently kept hack by him out of the schedule. On January 26th, 1887, he conveyed by warranty deed, for the expressed consideration of $900.50, to Louis Sararese, three lots of the real estate in Macon; which deed was recorded August 11th, 1887; and afterwards the executrix of Sararese conveyed the same property to Mrs. Williams for $1,000, the deed being dated January 1st, 1888. The latter purchase was really made by Williams, and the title taken in his wife’s name in fraud of creditors ; or else was purchased with funds given her by him during his insolvency, or with proceeds or profits of their property given her by him during that time. All the land and property now claimed by her is the property of her husband, and subject to his debts; and all his transfers to his wife were made without valuable consideration, with intent to delay and defraud creditors, and as to plaintiffs are fraudulent and void. After placing their executions in the hands of the sheriff and his deputies, they often demanded that those officers levy the same on defendants’ property; but these officers have refused to do so, for the reason that they know'of no property of defendants subject to levy and sale, not being able to discover any not embraced in the homestead schedule and plat, which Williams claims as exempt, and the officers are afraid to levy on the same by reason of the penalties fixed by law for levying on homestead property. Thus plaintiffs are without remedy at law.</p> <p>Williams and his wife made affidavits in the nature of an answer, in brief, as follows : Respondents do not know that plaintiffs have the judgments against Williams as stated in their bill, and leave them to make proof. He owes Foss, Schneider & Company nothing, and has a receipt showing a settlement between them. Each of the mortgages referred to was given for a valid subsisting debt, in good faitli, and without any intention to hinder, delay or defraud any of his creditors. He has no belief that the property would pay the mortgage debts. The hotel furniture and bar-room supplies are taxed $2,000 and would probably bring little more if any more than that sum. They were mortgaged to Oabaniss, cashier of the Exchange Bank, to secure a debt due him of $3,185.77, $800 of which has been paid. Williams made no statements or representations of the value or condition of his property to any creditor that were untrue or for the purpose of obtaining credit; nor has he ever bought any goods whatever with the intention of not paying for them. In making the assignment by the firm of Williams & Co., all property and effects were put in the schedule, to the best of Williams’ knowledge and belief, he not being the active manager of the firm, .but having some knowledge of its business and books. The homestead schedule included all his property and effects, to the best of his knowledge ^.nd belief. He knows of nothing that was left out. He had no money at that time to put in the schedule. He had paid out all he had honestly, in legitimate business transactions, and none was retained. The land sold to Sararese was to pay an honest debt due him for a considerable time before, and the same was thereby extinguished. After his death, his legal representative sought to sell this land in the course of administration, and as some money had been made out of the homestead property in which Mrs. Williams and children were interested, it was used in the purchase of this land, and the title taken in Mrs. Williams’ name, not for the purpose of defrauding creditors, but to be used as part of the homestead for the benefit of the family. Bespondents believe that this land is not subject to complainant’s judgments, but if so it can be reached by levy of their executions. The mortgages on Williams’ property at the time of the assignment amounted to about $10,000; part of the real estate was sold under a mortgage thereon at sheriff’s sale, and brought $3,000, two-thirds of which went to R. L. Henry’s mortgage debt, and the remainder to Cabaniss. The remaining mortgaged property which was included in the homestead is worth between $7,000 and $8,000, and the mortgages thereon amount to about $11,400; so that all the benefit William’s family derives from the homestead is the use of the property. The foreclosure of the mortgages and selling of the property, if now made, would extinguish all homestead right, and leave a portion of the mortgage debt unpaid; complainants could get no part of the proceeds of such sale. None of the said mortgages were made to secure advances of money, hut were made to secure a valid subsisting debt, and no money was advanced thereon ; nor has any money been received by Williams on the sale of any mortgaged lots, or any lots. The application for homestead was suggested and advised by counsel as proper, under the circumstances, in order to prevent respondents from being put into the streets, and to secure such use of the hotel property as the indulgence of creditors who held the mortgages would allow. It was applied for by Mrs. Williams for herself and her four minor children, who are still minors, with another since added. Williams has no individual back debts due him; whatever was not collected long ago is worthless; such claims were returned in the homestead schedule. As the mortgage creditors have continued to he indulgent to respondents, and it was known that the sale of the property would not pay the mortgage debts, the homestead receiver was not called onto act. No party in interest appeared to deem any action by him advisable ; complainants could not be benefited by forcing the property to sale, for they could not share in any proceeds thereof. All creditors had due notice of the homestead application ; the firm of Foss-Schneider Beer Company was not a creditor, and not entitled to notice. If any of complainants or their counsel were not present at the hearing of the homestead application, it was their own fault; the judgment was regularly had, and remains unappealed from. Respondents used the property under said judgment for the benefit of the family, and intended wrong to nobody. Williams is endeavoring to save money, with which in connection with the mortgaged property he may pay his debts, and believes he will be able to do so if not interfered with as asked for in the bill. He submits the validity of the homestead judgment to the decision of the court.</p> <p>At the hearing before the judge in chambers, a general demurrer by Williams and wife was considered for the purposes of this case, together with the pleadings above set forth, and the following evidence : Plaintiffs introduced the oath verifying the petition for injunction ; also the original homestead application of Mrs. Williams, and the proceedings thereon ; also the execution in favor of Mathews against Williams; also the deeds from Williams to Sararese, and from Sararese, executrix, to Mrs. Williams, referred to in the petition; also the mortgages therein referred to, from Williams to Oabaniss, cashier, and from Mrs. Williams to the same mortgagee. Also an affidavit by Westcott, that he has never been called on to act as receiver in.the homestead proceedings ; was never notified of his appointment as such; never acted as such, nor took charge of any of the property of Williams as such; and no moneys have come into his hands as such; and that he has no recollection of ever hearing that he has been named as such, prior to his talking to O’Pry, his deputy, a few months ago. Also affidavit of the county tax-receiver, showing that in 1885, Williams returned for taxation $4,000 in realty, and $7,600 in merchandise and other personalty, making the total $11,600; that for the year 1886 he returned realty $9,000, furniture and live-stock $2,125, making the total $11,125 ; that for 1887 he returned realty $6,300, and personalty $135 ; and that in 1888 he returned realty $7,300 and personalty $135; all the above returns being in his individual name. Also that in the years 1887 and 1888, he returned $2,000 of furniture as “ agent hotel.” The tax-receiver swears, after having refreshed his recollection by reference to the digests, that Williams, as agent, made no return during any of the years stated, except as above set forth; that Mrs. Williams made no return during 1885 or 1886 at all, nor for the years 1887 and 1888 further than is shown above; and that the entries on the digest are correct. In her petition to the ordinary Mrs. Williams alleges that her husband is the head of a family consisting of petitioner and their four minor and only children, naming them ; that her husband is embarrassed,' and has- mortgaged most of his property in trying to satisfy his creditors, and refuses to apply for the homestead exemption to which he is entitled ; that petitioner applies to have so much of his property arid effects as are unincumbered by liens to creditors, and where the homestead exemption has not been waived in favor of special creditors where there are mortgage liens, set apart to the value of $1,600; that she has attached an inventory of all the property, real or personal, and back debts due her husband, and all effects of every kind due or belonging to him, which she can discover ; that the homestead she asks for will have to be derived out of the equity of redemption; and that she has attached a schedule of his creditors and their places of residence, as far as she has been able to ascertain the same after due diligence. She prays for an order to the county surveyor to make survey, etc.; that appraisers be appointed to examine and appraise all the property and effects, and report the value thereof to the-court, showing the state of the property as to liens, how and where situate, the rental value of the same, and what portion and how it should be set apart; and that a receiver be appointed, if necessary, to take charge of the same, and such orders be passed as are proper for securing to the family the benefit of the exemption applied for. Attached is a long inventory of the furniture-stated to he in rooms, presumably in the hotel and bar;, also a list of hotel accounts due Williams, amounting-to $845.58; also a statement of the realty owned by him; also á schedule of his creditors, in which all of the plaintiffs are comprised save the Foss-Schneider Brewing Company. Most of these creditors are stated to be unsecured. Five of the largest are the mortgagees-mentioned in the pleadings. The application for homestead is sworn to by Mrs. Williams. The county surveyor, in obedience to the order issued by the ordinary, made a plat of the real estate, and made a sworn return in which he stated that, in his opinion, the land was of the value of $5,600. The order of the ordinary approved the application and appointed Westcott as receiver, as already set forth.</p> <p>The application for injunction and receiver was refused, and the plaintiffs excepted.</p>

Petition for injunction. Before Judge Gustin. Bibbsuperior court. May term, 1889. On or about December 1, 1885, J. D. Yarborough and bis brother, Gr. W., made to J. H. Tallman a promissory note for ¡$700, and to secure it made a mortgage on 385 acres of land described therein. This note and mortgage were transferred by Tallman to L. Miller, who, in May, 1888, proceeded to foreclose the mortgage and caused the Yarboroughs to be served with rule nisi.

Injunction. Practice. Judgments. Levy and sale. Before Judge Smith. Talbot county. At chambers, June 15,1889. On February 6, 1885, Slade & Etheredge brought, to the March term of Talbot superior court, their suit against James Allen on a promissory note dated May 10, 1883, and at the September term, 1886, obtained judgment by default for $480, with interest from date (September 15, 1886) at twelve per cent.

Injunction. Practice. Before Judge Fort. Sumter county. At chambers, July 16, 1889. Mrs. Rubsam by her petition alleged that on January 80, 1889, she purchased of Cobb certain land in Americus, being the southeast corner of a four acre tract, bounded on the north by said tract, on the east by Reese street, on the south by Church street and on the west by the land of Julia Robinson; which description is the same as given in Cobb’s deed to hex’.

<p>Claim. Verdict. New trial. Before Judge Fort. Schley superior court. April term, 1889.</p> <p>A distress warrant in favor of M. R. Edwards against Willis Ellison, for the rent of certain land for 1885, was levied, December 14, 1885, upon certain personalty, including two cows and calves, one steer and one heifer, marked with “underbit and overbit” in each ear. Becky Harvey interposed her claim January 9, 1886. Upon the trial, the bailiff who made the levy testified that he found the cows in the possession of Ellison, brother-in-law of claimant, who lived with him; also that he made a levy of a mortgage fi. fa. on November 25, 1885, and that Becky Harvey interposed a claim, and he left the property on the place, which was formerly owned by Owens. The plaintiff testified that the cattle levied on belonged to Ellison, who had owned them ever since 1881, when plaintiff bought the place from Owens, the cattle then being four or five head, and havinereased since to about six head. Claimant and Ellison both lived on the place when plaintiff bought it. She told plaintiff" to raise the cattle for Ellison, or if he did not help Ellison McElmurray would sell his cattle. Plaintiff had never heard of claimant putting in any claim to the cattle until since this levy; does not know where Ellison got them; never told Owens that he would admit that the cattle were claimant’s. The tax books showed that claimant gave m no property; but that Ellison, at and previous to the time of the levy, gave in $65 worth of stock. On May 20, 1881, to secure the payment of a note, Ellison gave to McElmurray a mortgage (which appeared in evidence) covering his crops, certain hogs, and three heads of cows and calves, marked with an “underbit and overbit” in each ear.</p> <p>The testimony of the claimant and of two other witnesses tended to show that about fourteen years ago, she bought from Hobbs a cow which was one of the cattle under levy, and the others were raised from her; that the cattle levied on belonged to claimant, and defendant had never had any control of them nor exercised any acts of ownership over them; that they staid in Owens’ pasture up to the time he sold the place to Edwards in 1881, and in the possession of claimant, who always claimed them; and that Edwards told Owens that he would admit that they were claimant’s cows, and that he had no doubt they were hers.</p> <p>The jury found the property subject, and the claimant moved for a new trial on the general grounds. The overruling of the motion was excepted to.</p>

Criminal law. Verdict. Before Judge Eort. Schley superior court. April term, 1889. Grantham was tried for assault with intent to murder Mose Porter, and was convicted of stabbing. He moved for a new trial on the grounds that the verdict was contrary to law and unsupported by the evidence. The evidence showed that, while Porter was nailing up a gate, the defendant approached him, cursed him and told him he was going to kill him.

Rents. Taxes. Redemption. Tender. Sales. Pleadings. Practice. Jurisdiction. Before Judge Port. Sumter superior court. April term, 1889. On May 31, 1883, two tax executions against George Lamar were levied on certain real estate, and on the first Tuesday in July thereafter, the property was sold under them to Sheppard for $15, and a sheriff’s deed was made to him. After paying off the executions, $1.55 was left in the sheriff’s hands.

Money rule. Liens. Laborers. Mortgages. Actions. Practice. Before Judge Bower. Decatur superior court. May adjourned term, 1889.

<p>The special lien of a laborer applies only to the products of his labor, and the foreclosure of such lien will not entitle him to participate in the proceeds of other personal property before the court for distribution, although the affidavit of foreclosure and theft, fa. issued thereon embrace such other property. Had a laborer’s general lien been claimed and foreclosed, the result would have been otherwise.</p>

Criminal law. Shooting at another. Practice. Before Judge Bower. Mitchell superior court. May term, 1889. Indictment for assault with intent to murder; verdict, guilty of shooting at another. The defendant’s motion for a new trial was overruled, and he excepted.

Certiorari. Evidence. Yerdict. Before Judge Bower. Decatur superior court. May term, 1889. This was a suit against the railway company, in a justice’s court, for $38.25 for a bale of cotton lost. The testimony of Lytle, one of the plaintiffs, and Townsend, a warehouseman, tended to show the following : On November 11th, 1886, plaintiffs owned a bale of cotton stored at Townsend’s warehouse, and instructed Townsend to ship it to New York.

Partition. Service. Minors. Parties. Trusts. Deeds. Tenants in common. Before Judge Bower. Dougherty superior court. April adjourned term, 1889.

<p>Actions. Railroads. Damages. Before Judge Bower. Dougherty superior court. April term, 1889.</p> <p>Action commenced February 9, 1888, against the railroad company for damages from personal injuries. The exception is to the dismissal of the declaration on general demurrer. The allegations were these:</p> <p>On April 19, 1887, plaintiff was in the service of the company as a switchman and car-coupler in its depot yard at Albany; and while engaged in the performance of his duties under the direction of the company’s yardmaster, who had charge of the track, switches and cars of the company in the yard, he was ordered by the yardmaster to make a coupling between a standing car and a switch-engine with a box-ear attached thereto, this being a part of his duty. He proceeded to do so with all possible care and prudence and without fault or negligence, stepping between the rails (which was usual and ueeessary in order to make the coupling safely); but when he attempted to follow the backward motion of the cars in order that he might prevent being injured, he found that his left foot was held fast by the cross-ties or iron rail of the track, and that it was impossible for him to relieve it or stop the train, although he made every effort to do so. His foot, being so held, was run over by the wheel of the car next to the engine (to which car he had coupled the standing car), and was injured so as to necessitate amputation three inches above the ankle. His injury was caused by the negligence of the company, the,track being negligently and improperly kept for a yard track, the cross-ties being placed too close together and closer than the regulation rule of two feet from center to center; and the spaces between them were not filled and the track made level between the rails, as is usual and necessary in yard tracks. The iron on the track was old and worn, and had been so long in use that it was laminated and had sharp hangs or prongs protruding from its inner edges, and either this worn and defective iron caught his foot, or it was caught between the cross-ties. One or both of these causes contributed directly to his injury, which would not have occurred had the track been properly and safely constructed. He did not know its imperfect and dangerous condition before his injury, but presumed that it was safe, as he had a right to do. But its condition, as above stated, was well-known to the company, which used and allowed it to remain in that condition until after his injury. He performed his duty in safety and -without fault on his part; and the injury was caused by the unsafe and dangerous track kept by the company. Before his injury, he was strong, healthy, twenty-one years old, capable of doing any kind of manual labor, and earning from the company eighty cents per day (except on Thursdays, when he earned $1.25), with good prospect for increased wages; but owing to said injury and damage his occupation is lost, and.he finds great difficulty in getting such employment as he is able to do.</p>

Practice in Supreme Court. Injunction. Hollinshead et al. petitioned for injunction against the municipal authorities of Lincolnton, to prevent their proceeding under a certain act of the legislature, alleged to be unconstitutional.

<p>In complaint upon an account, with closely conflicting evidence, a charge that “if the plaintiff fails to make out his case, or if you have any doubt as to whether the plaintiff has made out his case fully, the defendant should have a verdict, because it is the plaintiff’s duty to make out his case before he is entitled to recover,” is erroneous, and requires a new trial after verdict for the defendant, although no other error be found in the charge.</p>

Money rule. Judgments. Mortgages. Liens. Novation. Before Judge Bower. Decatur superior court. May adjourned term, 1889. Under a mortgage execution for $1,469.72, besides interest, etc., in favor of Williams & Company against Bryan, the sheriff* sold 1,825 acres of land of Bryan for $525. Donalson et al. brought a rule and claimed that certain executions against Bryan held by them (older than the mortgage execution) should be satisfied from the fund.

Debt. Bonds. Administrators. Executions. Judgments. Devastavit. Evidence. Before Judge Bower. Dougherty superior court. April adjourned term, 1889.

Res adjudicata. Ejectment. Before Judge G-ustin. Dougherty superior court. October adjourned term, 1888. On a trial subsequent to the decision in 75 Ga., the jury found for the defendant an undivided half of the premises in dispute, and for the plaintiffs the other half. The defendant excepted to the overruling of his motion for a new trial.

Telegraphs. Damages. Verdict. Practice. Before Judge TIansell. Thomas superior court. April term, 1889. Carroll delivered to the telegraph company a message directed to Jacksonville, Fla., ordering fresh meat.

New trial. Promissory notes. Verdict. Before Judge Roberts. Pulaski superior court. May term, 1889.

<p>Illegality. Claim. Bonds. Sheriffs. Before Judge Smith. Taylor superior court. February term, 1889.</p> <p>An execution for $486.40 against Houser, in favor of J. J. and Annie E. Williams for the use of officers of court, having been levied, Houser interposed his affidavit of illegality on the following grounds :</p> <p>(1) Of the amount of the execution, $372.85 was charged for feeding certain cattle and a horse. The sheriff' had levied a small mortgage fi. fa. against J. J. Williams upon said property, and Annie Williams interposed her claim and gave a forthcoming bond for the same; whereupon the sheriff turned the property into her possession until the day of sale in case it was found subject. This claim was dismissed, and the claimant filed another claim, which the court sustained upon the jury finding the property not subject. Said property never was offered for sale, and was legally in possession and kept by the claimant, for the forthcoming bond was accepted by the sheriff'. The charge for keeping said stock is illegal, and deponent does not owe it.</p> <p>(2) The sheriff’ did not proceed to advertise and sell the property for six months after the first claim was dismissed and the fi. fa. ordered to proceed, but delayed to do so until after the succeeding term of the court; and if he held the stock he did so illegally.</p> <p>(3) After allowing thé claimant to hold the property for six months after filing her claim under her forthcoming bond, the sheriff took possession of it without the consent of herself or her security. He put the cattle on his own swamp and there kept them without any cost to himself, and the horse was no actual cost to him. The mortgage was for only $150.00 ; the property was mortgaged to deponent as he thought in good faith, and the mortgage was foreclosed and the property claimed by Mrs. Williams; the sheriff knew of the amount of the mortgage, hut did not attempt to relieve either party from costs by obtaining an order for sale; this being the privilege of himself and claimant, and deponent being unable to do so as the • claim was pending. He therefore prays an equitable relief if the other grounds are held insufficient.</p> <p>Por the other facts see the decision.</p>

<p>Where a sale was made of fifteen tons of guano in an entire contract, and a note given therefor, if any of the bags of guano in the fifteen tons had not been branded and tagged according to law, the consideration of the note was illegal in part and the whole promise failed. The contract could not be severed so as to authorize a recovery for that portion of the guano which had been branded.</p>

<p>Ejectment. Evidence. Mes adjudieata. Homesteads. Judgments. Usury. Before Judge Smith. Chattahoochee superior court. March term, 1889.</p> <p>Reported in the decision.</p>

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

Murder. Criminal law. Yerdict. Evidence. Charge of court. Confessions. Practice. Before Judge John T. Clarke. Early superior court. Special term, May, 1889.

<p>Wills. Charge of court. Before Judge Bower. Mitchell superior court. March term, 1889.</p> <p>Reported in the decision.</p>

<p>Whether it was error for the superior court to refuse to sanction a petition for certiorari, cannot be decided where a copy of the petition is not embodied in the bill of exceptions, nor attached thereto and verified by the judge.</p>

Liens. Debtor and creditor. Fraud. . Before Judge Bower. Decatur superior court. May term, 1889.

<p>The act of 1876, providing that the tax-collector of Dougherty county should be ex officio sheriff for the purpose of levying and collecting tax JL fas. only, etc., was not obnoxious to the constitution of 1868.</p> <p>On this subject that constitution differs from the present one.</p>

<p>Injunction. Municipal corporations. Albany. Elections. Constitutional law. Before Judge Bower. Dougherty county. At chambers, January 25, 1890.</p> <p>Reported in the decision.</p>

<p>Yerdict. Master and servant. Contracts. Evidence. Pleadings. Charge of court. Costs. Practice. Before Judge Roberts. Pulaski superior court. May term, 1889.</p> <p>Reported in the decision.</p>

<p>Claim. Lien. Notice. Bona fides. Before Judge Atkinson. Pierce superior court. March term, 1889.</p> <p>Oh October 23d, 1888, Forbes foreclosed a general laborer’s lien on two mules and a mare, as the property of Goodwin his former employer. The contract of labor upon which his affidavit was based, was alleged to have been made on January 1st, 1888, and to have terminated, after being fully completed, on October 22d, 1888. Execution issued and was levied, on October 24th, 1888, upon the animals mentioned in the affidavit, which were found in the possession of Goodwin, and they were claimed by Chisholm & Co. On the trial of the claim case, the plaintiff introduced the affidavit, execution and entry of levy thereon.</p> <p>For the claimants J. E. McConnel testified that he came into Pierce county on October 25th, 1888, as the agent of claimants, and took charge'of their property; found the property in controversy in possession of the sheriff'; and shortly afterwards, witnessed the deed from defendant to claimants and saw defendant’s wife sign it. Over the objection of plaintiff, the deed was admitted in evidence. It was dated October 22d, 1888, and recorded November 2d, 1888. It recited an indebtedness to claimants by Goodwin of $4,000 or other large sum, and that Goodwin had theretofore executed to claimants a mortgage to secure the debt, and by reason of failing health and other embarrassments had been unable to meet the payments stipulated in the mortgage. In consideration of the mortgage debt and in liquidation thereof, he conveyed to claimants his turpentine business in Pierce county, and all of his mules and horses on said premises, as well as every other property of said business. One of the claimants testified that Goodwin sold to his firm the property in dispute on October 22d, 1888, the trade being completed on that day; that he was to cancel all the indebtedness of Goodwin to the firm in payment of the property mentioned in the deed ; that they intended at the time to reduce this trade to writing, and the deed signed November 2d was the closing up of the trade; that he had not delivered said evidence of debt; that he left the property in dispute in possession of defendant, who was to hold it for claimants; that defendant was sick on the day of the trade, and could not come to execute the deed until some time after the property had-been sold; that the property in dispute was a part of the property sold to claimants on October 22d, 1888; and that within a few days after the trade, witness sent McConnel to take charge of the property.</p> <p>The jury found the property not subject. The plaintiff’ moved for a new trial on the grounds that the verdict was contrary to law and evidence, and because of error in allowing, over the objection of the plaintiff, the introduction in evidence of the deed from defendant to claimants, the deed not having been probated, and the witness who attested it testifying that it was not signed on the day and date therein set forth but some time thereafter; and of error in allowing the claimants to prove by parol, over the objection of plaintiff, what the terms of the purchase from defendant by claimants were, and also the date of the purchase, it being in. evidence that the contract and the deed covered the same transaction. The motion was overruled, and the plaintiff excepted.</p>

<p>Claim. Verdict. Evidence. Charge of court. • Practice. Before Judge Atkinson. Wayne superior court. March term, 1889.</p> <p>On August 23, 1871, Eliza Drawdy brought complaint on a promissory note against T. P. Littlefield and 5. C. Littlefield, “doing business as partners . . under the firm name and style of T. P. Littlefield & Brother,” and on March 24, 1873, obtained judgment against “T. P. Littlefield and Sylvan us C. Littlefield, copartners under the firm name of T. P. Littlefield & Bro., for the sum of $855 as principal, the sum of $207 as interest, and the sum of $12 as costs of suit.” The execution issued therefrom was, on April 29, 1878, levied on land in the town of Jesup, including the Jesup House and a store occupied by one Weiss and the other buildings thereon, the same being three fourths of an acre, and also upon the furniture belonging to the Jesup House, specifying it; all as the property of T. P. Littlefield. A claim was interposed by Lizzie H. Littlefield, the wife of T. P. Littlefield. On the trial, there was testimony for plaintiff to the effect that .T. P. Littlefield was in possession of the property at the time of the levy, with some tendency to contradiction of this on behalf of the claimant. Tax digests introduced tended to show that in 1872, T. P. Littlefield returned one acre of land in "Wayne county, valued at $3,000, and Littlefield & Co. returned $1,800 of merchandise; that in 1873, T. P. Littlefield returned 300 acres of land in lot 43 of the 3d district of Wayne county, valued at $320, and a house and lot in Jesup valued at $3,000, and Littlefield & Co. returned city or town property valued at $500 and merchandise valued at $2,500, and S. C. Littlefield & Bro. returned 490 acres of land in lot 75 of the 3d district of Wayne county, valued at $500; and that in 1874, T. P. Littlefield returned 2 acres of land valued at $3,000 and furniture valued at $300, and returned, as agent for Lizzie II. Littlefield, 244 acres of land in lot 43 of the 3d district, valued at $400, and S. O. Little-field & Bro. returned the same as they did in 1873.</p> <p>A deed from T. P. Littlefield to the claimant, dated February 15,1872, and conveying the realty under levy, in consideration of $500 and of love and affection, appeared in evidence. It bears an entry of record on July 28, 1873. There was testimony for the claimant that in 1868 T. P. and S. C. Littlefield commenced a merchandise and saw-mill business, the value of the stock of goods they carried b$ing from four to six thousand dollars, and the saw-mill being worth fifteen to twenty thousand dollars. It seems that the latter was sold in 1871, and the store was burned afterwards. Littlefield testified that he was amply solvent at the time his deed to claimant was made, owing few debts compared to Ms interest in the business property; and that plaintiff was to be paid her debt when timber was cut, but he sold out his interest in the timber before it ■ was cut to his brother and another, and they assumed the responsibility of it all.</p> <p>On June 21,1875, the plaiutiff’s execution was levied by the sheriff on the property now in controversy, as the property of T. P. Littlefield; and the same was advertised for sale on the 7th of the next September. On that day, the present claimant made a claim affidavit and bond and placed them in the hands of T. P. Littlefield to be delivered to the sheriff. Upon further consultation with her attorney, she withdrew her claim, and the property was knocked off to her attorney for her at $50; and the sheriff made her a deed thereto. The plaintiff thereupon filed her bill in equity to have the sale decreed to be fraudulent and void, alleging that her agent, Zachariah Drawdy, was present for her at the time and place of sale to bid for the property up to the amount of her execution, but the sheriff announced publicly to him and the others present that the sale would be postponed until the right of property was tried under the claim which had been interposed, and which he had accepted; whereupon Zachariah Drawdy and the other bidders (except one Whaley, the clerk of the court and the claimant’s attorney) left the place of sale; and thereupon claimant’s attorney demanded and received from the sheriff the claim bond, and that officer forthwith proceeded to sell the property, which was knocked off to claimant’s attorney for $50, although worth $3,000 or other large sum; that he purchased for claimant and her husband; that these three and the sheriff confederated to defraud plaintiff, and the proceeding by them as related was a deliberate fraud; and that the execution remained unpaid, and T. P. Littlefield owned no other property out of which it could be made. This bill was answered by the claimant, denying all unlawful combination and confederacy, etc., and setting up her claim of title under both her deed from T. P. Littlefield, already referred to, and the sheriff’s deed. A verdict was rendered that the sheriff’s sale was fraudulent, illegal and void and should be set aside, and that the sheriff’s deed should be cancelled; and a decree to this effect was entered March 14, 1878.</p> <p>There was testimony that two -deeds were made to this property by Clary and Hazlehurst, one to claimant and the other to her husband, the first late in 1868 or early in 1869; that until the second was tendered to Clary in court, he would have sworn that it was the one made to claimant, but now sees that it must have been the first one; that Littlefield’s store was burned and in the fire he lost the deed from Clary and Hazlehurst to claimant, it never having been recorded; that Littlefield asked Clary for a new one, in order to save the expense of establishing a copy; that the consideration was $150, $75 of which was paid in cash by Littlefield, and the rest in his note, which Hazlehurst returned to him cancelled in consideration of his havingbuilt the house on the land; that the lost deed was to the claimant and was delivered; that the house was built before the deed was made; that Hazlehurst was president of the railroad company; that Littlefield never did claim any title to the property, made her a deed in 1872, etc. It appears that Clary was dead at the time of this trial, and his testimony now offered was taken on the former trial. The claimant’s attorney testified that what was offered was the substance of what Clary testified to, and was written out by him (counsel) on the night after the first trial, while the facts were fresh in his recollection. At first this testimony was admitted and read to the jury; but at the close of the introduction of evidence, it was, on plaintiff’s motion, ruled out.</p> <p>Upon the second verdict finding the property subject, the claimant moved for a new trial on the following among other grounds:</p> <p>Yerdict contrary to law and evidence.</p> <p>Refusal to charge that when suits are brought against copartners, the plaintiff can in his declaration disclose the names of the individual members of said firm or copartnership and have each one of them served with process, and when judgment is obtained it is competent for the plaintiff so to mold it as to take judgment against them first as copartners, and such judgment would bind the copartnership property, that is to say, the firm property; but that such a judgment would not bind the private property of the individual members of said firm, but if the plaintiff should desire to have a judgment which will bind not only the firm property but also the private property of the individual members of said firm, he shall draw his judgment using .such words as show that it binds the firm and private property alike ; and that, tried by this rule, the judgment in this case does not bind the individual property of T. P. Little-field, and therefore, in order for the jury to find the property subject, they must find that it was at some period after plaintiff’s debt was in existence the property of the firm against whom the judgment was taken, and unless they should so find, their verdict must be for the claimant.</p> <p>Error in the charge: “ It is insisted upon the part of the claimant in this case that the judgment upon which this execution issued is not a judgment which could be levied upon the goods and chattels of T. P. Littlefield. The record of that judgment you will have before you. The court charges you in this case that this judgment is such a judgment as could be levied legally upon the personal goods of T. P. Littlefield.”</p> <p>The court erred in charging that every voluntary deed or conveyance, not for a Valuable consideration, made by a debtor insolvent at the time of such conveyance, is void,” because this was not applicable to the facts, and because it was an improper charge unless the court had charged further: “Provided the plaintiff’s debts were in existence at the time of such conveyance.”</p> <p>Error in the charge: “ In claim cases the burden of proof is with the plaintiff in the first place to establish that possession in the defendant in ji. fa., or show- the title in him. If you find from the evidence in this case that T. P. Littlefield at any time since the date of the rendition of this judgment was in possession of the property described in that levy, then the court charges you that the burden of proof would be upon the claimant to show that she had a clear paper title to the property.”</p> <p>■ Error in allowing in evidence the equity proceeding in which plaintiff was complainant, and claimant, her attorney and the sheriff’ were the respondents, viz. the original bill and exhibits, the answer and exhibits, the decree of the court, and all the entries appearing on these papers, over claimants’ objection that they were illegal and irrelevant and prejudicial to her case.</p> <p>Error in ruling out the testimony of Willis Clary and T. P. Littlefield as to the existence of a former deed made by Willis Clary and Geo. II. Hazlehurst to claimant, which deed T. P. Littlefield swore was lost or destroyed.</p> <p>The motion was overruled, and the claimant excepted.</p>

Railroads. Negligence. Passengers. Charge of court. Before Judge Atkinson. Appling superior court. March term, 1889. Crine sued the railway company for damages, for personal injuries sustained by him while a passenger on one of its trains.

Garnishment. Before Judge Atkinson. Glynn superior court. May term, 1889. Moore & Valentino sued Carlton & Sleeper for $296.-05, and caused summons of garnishment to be issued and served upon Read, who answered denying any indebtedness.

Robbery. Criminal law. Charge of court. Verdict. Before Judge Atkinson. Coffee superior court. April term, 1889. Indictment for robbery, one count charging its commission by intimidation, the other by force. The jury found the defendants guilty on the latter count.

<p>Certiorari. Possessory warrant. Practice. Bonds. Before Judge Atkinson. Glynn superior court. May term, 1889.</p> <p>Williams made affidavit to obtain possession of a large bible, which he alleged had been harbored, concealed or taken possession of by West under some pretended claim, etc.; and a possessory warrant issued. Neither affidavit nor warrant stated the value of the bible. On the trial before the magistrate, the evidence for the plaintiff tended to show that he was the sexton of Bryant Baptist church in Brunswick, had charge of all the property therein and kept its keys ; and that the bible was in the church on the night of May 27th, 1888. To the best of his knowledge, the bible before the court was the same bible. One of the clasps of the bible that was in the church (he thought the top clasp) was off, and one was off the bible in court; there was nothing else by which.he could identify it. It is stated in the petition for certiorari that it was the bottom clasp which was off the bible in court. The bible was missed from the church on May 29th, 1888, and it was found that the door of the church had been taken off the hinges to effect an entrance. On May 28th, 1888, the church gave an excursion to Jacksonville. The pastor of the church testified that the bible in court was the bible of the church, and that he recognized it by the clasp, which was identical with the clasp of the one lost, and by spots on the cover. He purchased the bible for $9. It was shown that about seven similar bibles had been sold in Brunswick for one McGarvey, for whom the bible in question was also sold to the pastor of the Bryant church ; and McGarvey said he never sold any bible with the clasp broken off. Spots were not uncommon, and lie could not tell any of the bibles of that kind from another of the same kind. The person who sold the bible to the pastor for McGarvey said she sold three bibles of a kind similar to -the bible in court, and the one she sold to the pastor was splotched.; she did not think the other two were splotched. One Christopher testified for the plaintiff that he had learned that defendant had purchased a bible from a white man and went to see defendant, and after he saw the book he believed it to be the book taken from the church, and defendant told him he bought the book on Monday evening. One 'Williams testified that defendant told him he bought the book “ in the time” of the excursion. One Ann Guyton testified, tbat a white man came to her. house about dusk of the day of the excursion and offered to sell her a biblé, and she told him she did not want to buy, and to go to the house of defendant. The constable who served the warrant testified that when he arrested defendant, he showed the warrant to him and- told him he would have to take that book he had, and that defendant said all right, the book was at his house, “ let’s go and get it”; and they went to his house and got it.</p> <p>The testimony for the defendant tended to show that, on the night of the 25th of May, 1888, he gave $1.25 to his wife with which to buy the bible in court, from a white man who brought it to his house for sale, defendant not wishing to buy but his wife wanting to purchase this bible. He supposed the bible in the condition it was in was worth about seven or eight dollars. The clasp was then lost off it, and the man said it was a sample by which he had sold many bibles and this had got badly used in handling. A receipt was taken from this man in the name of defendant’s wife and this receipt was put in evidence, it being dated May 25th, 1888, and being signed “ George Wilson.” This purchase was before the Bryant excursion ; it was Monday after defendant bought the book that the Bryant excursion left. Defendant denied that he had said that he bought the book on Monday, and testified that Christopher, a deacon of Bryant church, and one Crowder came to see him about the missing bible, and were unable to identify the bible in court as the missing oue, but he told them if they would just give him $1.25 which he paid for it, as it was the church in trouble, they could take the. book. Crowder was willing to do it, but Christopher refused. Defendant also denied that he said that he bought the book at the time of the excursion. Various witnesses for the defendant testified to seeing the bible in court, or one exactly like it, at his housé on Sunday before the excursion, and defendant’s wife corroborated his testimony.</p> <p>The magistrate found in favor of the plaintiff’. The defendant carried the case by certiorari to the superior court, alleging that this finding was against the evidence and the law, and further alleged that the judgment of the magistrate was void and erroneous in that the judgment did not fix the amount of the bond that was to be given by the plaintiff, and the affidavit and warrant did not allege- any value of the bible. The bond required by the magistrate of the plaintiff was “ a sum equal to double the value of the property as required by law,” but it did not state what the value of the propeifiy was. The certiorari was overruled, and the judgment entered by the magistrate, awarding the possession of the property to the plaintiff*in the possessory warrant, was affirmed, provided the plaintiff gave bond in the sum of $20 payable to defendant, conditioned for the forthcoming and production of the property, etc. "West excepted.</p>

Criminal law. Forcible entry and detainer. Charge of court. Evidence. Practice. Before Judge Atkinson. Glynn superior court. May term, 1889. Indictment for forcible entry. The evidence showed that on April 23, 1889, and for some time previously, Wallace was in possession of the premises described in the indictment, under lease from Kaisers. He had consented for defendant to erect and use a stable which immediately adjoined these premises.

Criminal law. Charge of court. Evidence. Practice. New trial. Before Judge Adams. Chatham superior court. December term, 1888. Indictment against Robinson for assault with intent to murder McMurray on November 29th, 1888. The testimony of McMurray was, briefly, as follows : On the day mentioned, he was on duty as a policeman in Savannah. About twelve o’clock, at the corner of Pine and Earm streets, some men were blocking the sidewalk, and he ordered them off.

<p>The Mayor and Council of Waycross can contract an annual indebtedness for supplying lights to the town without submitting to a vote of the people the question as to making such contract. If the annual payments stipulated by the contract in this case be made, and if this be (as it seems) a reasonable expense to be incurred by the town, the question whether the contract incurs such an indebtedness as must be submitted to a vote of the people, will probably not arise.</p>

<p>Injunction. Taxation. Municipal corporations. Constitutional law. Practice. Before Judge Falligant. Chatham superior court. December term, 1889.</p> <p>Reported in the decision.</p>

Nonsuit: Negligence. Railroads. Passengers. Practice. Before Judge Harden. City court of Savannah. February term, 1889. Cotchett sued for damages for personal injuries. His evidence tended to show the following: On the night of 17th of August, 1887, he was a passenger on defendant’s excursion train of eight or nine comfortably full cars. A large number of people were aboard, but all could be provided with seats.

.Ejectment. Wills. Remainders. Estates. Prescription. Before Judge Adams. Chatham superior court. March term, 1889. Ejectment. Archibald Wilkins, the common propositus, held under a deed conveying a tract of 220 acres called Pembroke, and a tract of 100 acres adjoiningand known as number 6. He fenced both tracts as one plantation, called all of it Pembroke and lived on it until his death.

Specific performance. Administrators and executors. Trusts. Wills. Sales. Before Judge Falligant. Chatham superior court. June term, 1889.

Damages. New trial. Negligence. Railroads. Practice. Before Judge Falligant. Chatham superior court. June term, 1889. On January 18, 1888, Joe Smith, nine years and eight months of age, returning from school about two o’clock in the afternoon, was run over by the defendant’s train and lost a leg. He brought suit and recovered a verdict for. $7,500 damages.

Damages. New trial. Yerdict. Evidence. Before Judge Harden. City court of Savannah. June term, 1889. On the afternoon of Sunday, December 25, 1887, about half past three o’clock, the plaintiff, a boy of seven years, obtained permission of his mother to ride his velocipede on a pavement near her house on Whitaker street-in Savannah.

<p>In an action for damages, the plaintiff’s evidence tending to sustain his allegations, to the effect that the defendant had a ladder leading into the hold of its ship, which was defective because of the absence of one of its rounds, and on which a person engaged at the same work with plaintiff attempted to descend and by reason of the defect fell, and to save himself jumped against a bale of cotton, which fell through the hatchway leading to the lower hold where plaintiff was at work, injuring him without any fault on his . own part, — the case was for consideration by the jury, and the award of a nonsuit was erroneous.</p>

New trial. Damages. Evidence. Admissions. Negligence. Before Judge Falligant. Chatham superior court. June term, 1889. Howard was in the employment of the defendant as car-inspector, and his hand was crushed while examining and feeling the wheel of a coach. He sued for damages, and a verdict in his favor was rendered. He excepted to the grant of a new trial. For the other facts see the decision.

Contracts. Principal and agent. Revocation. Before Judge Harden. City court of Savannah. July term, 1889. Action on account against Gilbert & Co.; and plea of set-off, with prayer'for judgment for the excess claimed over plaintiff’s demand. Yerdict in favor of the defendants for that excess. The decision states the facts of the case.

<p>The act of the legislature approved February 15, 1873, “to provide for the payment of certain insolvent criminal costs in the Augusta judicial circuit,” remains of feftee under the present constitution. The act points out a mode for the payment of costs of the solicitor-general, different from that prescribed in the general law, and makes insolvent criminal costs in the Augusta circuit a part of the expenses of court, when their payment is recommended in the manner prescribed.</p> <p>(a The act was not repealed by the act of 1879, which by its own terms was not to take effect until the expiration of the term of the then incumbent of the office, and was itself repealed before such expiration by the act of December 6, 1880. The title of the act of 1880 describes the title of the act of 1879, and declares that the former act is to be repealed; and the body of the act of 18S0 contains in full the title of the act of 1879; and this is sufficient under the constitution.</p> <p>(6) The act of 1879 having been repealed before it became operative, the repealing act did not affect the act of 1873, which never ceased to exist.</p> <p>(c) Nor was the act of 1873 so modified by art. 7, sec. 6, par, 2 of the constitution as to forbid payment of insolvent costs out of any funds in the county treasury raised by taxation, such costs being part of the expenses of court in the Augusta circuit, when properly recommended to be paid.</p>

<p>The act approved September 22, 1881, to establish a city court in the county of Richmond, makes the fees of the solicitor of that court which may become due him as insolvent costs a part of the expenses of the court, when there are not sufficient funds arising from fines and forfeitures. There is no general law whose uniform operation is sought to be varied by this act.</p>

Burglary. Criminal law. Verdict. Evidence. Practice. Before Judge Harris. Carroll superior court. April term, 1889. Indictment for burglary. The testimony for the State tended to show that, about the time (September 1,1888) and in the county charged, between Saturday night and Monday morning, the storehouse of Brown & Bro. was burglariously entered by means of boring holes, raising latch, and thus opening a window. Some cologne, harps and knives were taken.

<p>Where a bill of exceptions was signed on April 29, served on May 4, and filed on May 13, 1889, but the record was not certified and transmitted to this court until February 4, 1890, on account of a direction by counsel for the plaintiffs in error to the clerk not to do so until he could agree with opposing counsel as to an abbreviation of the record, and an agreement was made as to the manner of such abbreviation, with a proviso that it should not deprive counsel for the defendants in error of any right they might have to move to dismiss the case in this court “ for failure to approve the bill of exceptions in time or to have the record transmitted to the Supreme Court in time,” such motion is well-taken.</p>

Illegality. Judgments. Executions. Dormancy. Principal and surety. Assignment. Notice. Charge of court. Before Judge Falligant. Chatham superior court. June term, 1889. An established copy of an execution in favor of May against Miller, principal, and Ilone, security, lor $1,408.61 principal, issued upon a judgment of May 18, 1870, and proceeding in the name of Connery as transferee, was levied on realty as the property of Miller on March 4, 1887.

<p>Trover. Title. Usury. Bailments. Nonsuit. Negotiable instruments. Privity. Parties. Pleadings. Before Judge Boynton. Monroe superior court. February term, 1889.</p> <p>Reported in the decision.</p>

<p>Illegality. Judgments. Dormancy. Practice. Appeal. Before A. L. Hawes, Esq., judge pro hac vice. Mitchell superior court. March term, 1889.</p> <p>An execution in favor of Bower against Cox, Jones, Eloyd, Strother and Twitty, issued from a magistrate’s court on July 5, 1887. It recited a judgment in that court on March 27, 1875, and that an appeal to the superior court was taken by the defendants on April 1, 1875, which was dismissed at the March term, 1887, of that court. On August 10, 1887, this execution was levied on property of Twitty, who interposed an affidavit of illegality on the grounds (1) that the judgment was dormant, and (2) that the summons issued “in the ease was not definitely dated, being dated-day of 6th, 1875, and did not definitely designate the day on which said case was to be tried so as to give defendant proper notice of the day of trial, having required the defendants to appear on the 27th day of March without stating the year”; and deponent did not appear and plead in the suit or assent to the judgment, nor did he authorize any one to do so for him; and he had a good defence, to-wit, the plea of non est factum; and therefore the judgment and execution are void. The case thus made was submitted to the judge; and the parties agreed that after the judgment was rendered, an appeal to the superior court was taken, and on this appeal a judgment against the defendants was rendered without the intervention of a jury, and was therefore void, the defendants not appearing, but on this judgment an execution issued, an affidavit of illegality was interposed, and the judgment and execution held void by the superior court, and at the same time the case was reinstated on appeal and the appeal dismissed on motion of the plaintiff, this being more than seven years after the void judgment was rendered in the superior court; and that no execution issued on the justice’s court judgment until after the dismissal of the appeal, when the execution now in question issued. The court rendered judgment for the plaintiff, and Twitty excepted.</p>

Injunction. License. Peddlers. Constitutional law. Practice. Bill of exceptions. Before Judge Maddox. Floyd county. At chambers, February 24, 1890. The Wrought Iron Range Company, a corporation of Missouri, and Lee, a citizen and resident of Virginia, by their petition alleged as follows : The company manufactures and sells ranges, made for cooking purposes at its works in St. Louis and sold by its agents, by samples, throughout the United States.

<p>To an action on a policy of insurance, the company having pleaded that it was issued upon the condition stated in the application therefor, made by the plaintiff, that he would' keep his books, inventories and accounts in an iron safe or remove them from the insured house at night, but that he failed to do so, and in consequence of his neglect his books (showing a record of his business, including all purchases and sales), as well as a copy of his last inventory, were destroyed by fire which occurred in the night, and that the policy was thus rendered void; and the plaintiff’s replication being that this condition was not embraced in his application for the policy but was inserted therein by fraud of the company, without his consent, and without his knowledge until after the fire occurred; and the issue thus formed being the main one and having been made prominent to the jury by a fair charge, and the evidence sustaining their verdict, and the judge having refused to grant a new trial, his judgment does not appear to be erroneous.</p>

Garnishment. Counties. Public policy. Debtor and creditor. Assignment. Before Judge Adams.. Chatham superior court. March term, 1889. The plaintiffs, judgment creditors’of Bowe et al., sued', out garnishments against Chatham county, which answered, admitting indebtedness to Bowe on his contract: for building a jail, subject to demurrer because it was: not subject to garnishment.

Res adjudícala-. Stare decisis. Wild lands. Comptroller-general. The Scott case before. Judge Roberts; Wilcox superior cotirt, March term, 1889. The Mixon case before Judge Fort. Dooly superior court. September term, 1889. Actions of ejectment. In each, part of the chain of title of the losing party was a sheriff’s deed founded on a wild land tax execution of the comptroller-general, transferred by him for value received.

<p>Negligence. Railroads. Before Judge Harris. City Court of Macon. June term, 1889.</p> <p>Reported in the opinions.</p> <p>cited 2 Am. and Eng. R. Cas. 124; 4 Id. 569 ; 6 Id. 5 ; 8 Id. 217, 220 ; 10 Id. 727 ; 12 Id. 64, 77; 19 Id. 98 ; 34 Id. 37, 40 ; 37 Id. 288, 292; ’ 75 Mo. 575; 55 111. 386; 2 Thomp. Tr. 1803; 78 Ga. 694.</p> <p>cited 5 S. E. Rep. 577; 6 Id. 77; 7 Id. 515; 99 N. C. 298; 6 Am. St. Rep. 521; 4 Id. 507; 45 Ohio St. 11; 92 N. Y. 289; 85 Id. 9 ; 112 Incl. 59 ; 113 Id. 19S; 60 Ga. 339; 70 Ga. 207; 74 Ga. 857 ; 82 ffa.190,400; 83 Ga. 266.</p>

Verdict. Estates. Trusts. Married women. Levy and sale. Before Judge Adams. Chatham superior court. March term, 1889. An execution against A. Bonaud, Agnes Bonaud and Johanna Lavin in favor of E. Y. Ham, based upon a judgment of January 27th, 1888, was levied upon a five acre lot at the Isle of Hope in Chatham county, on which was situated the residence of Johanna Lavin, its boundaries being giveu, as the property of said Johanna.

<p>Negligence. Railroads. Verdict. Charge of court New trial. Before Judge Falligant. Chatham superior court. June term, 1889.</p> <p>Harrigan sued the railway company for damages. His evidence tended to show as follows: He was a carpenter and employed as such by the company about its shops, repairing and building cars, etc. It wás customary for carpenters to use the saws of the company in its mill-shop, and to use the particular saw by which he was hurt. He frequently worked on it. On the morning he was hurt he was working on a car, and in the line of his duty had to go and rip some strips at the mill. One Hayden, a tinner, was working on this car. He told plaintiff lie could not work with the hammer he had, gave him the hammer and a piece of hickory, and told him to put a handle in the hammer. Plaintiff was going to the mill to saw the strips and to grind the chisel, and took the piece of hickory with him. He went to the mill and to the saw, brushed off the sawdust and set the saw to work. He went about the work properly; had done such work before, and was working carefully when, by defect in the saw-table, his left hand was thrown against the teeth of the saw and three of the fingers cut off "When he began to saw he thought it was all right; did not inspect the table; thought it was safe; the foreman of the mill is supposed to see that the saws are fit for use; if the saw-table was not fit for use, the belt could have been thrown off in the cellar, and then a man would know there was something the matter with the saw. He did not discover the defect in the table until after his fingers were cut off. The defect was remedied by the company a short while after the injury. There was testimony tending to show that the proper system of inspection of the machinery was not kept up by the company. At the time of the injury plaintiff was earning $2.60 a day, and had been promised that his salary would be raised to $2.75 on the first of the next month. He was laid up by the injury fifteen weeks, and then sought other employment. He got other jobs for short times for less amounts. Because of the injury, he could not do any kind of heavy work which required to be held with his left hand, and could not lift anything heavy; he could not get a job until the outside work was finished and sometimes could not get a job for inside work,because after the outside work wasfinishedthe man having it in charge would have as many hands as he wanted; he has not fingers enough to hold the nail to steady it when he is setting a nail; cannot do climbing on roofs, etc. At tbe time of the last trial (December, 1888), he was twenty-five years of age. After the injury he applied to one Donovan, boss of the Central Railroad Co., who promised to give him $2.50 a day; and he carried his tools there to go to work, but Donovan came to him and told him that he was unable to do justice to the company, that he had not seen plaintiff’s hand before he gave him the job, if he had he would not have given him a job. Since the injury plaintiff has experienced difficulty in getting employment; before he was injured he experienced no difficulty. $2.50 a day are ordinary wages for a carpenter. He had not, at the time he was injured, put his hand over the saw, nor was he cut by the back of the saw. The throat of the table was broken and hung down; and one witness, who had work to do at this saw, had noticed the defect before plaintiff' was injured. It had existed for a number of days before he was hurt. “To make hammer-handles” was understood and used by him to apply to putting in or fitting handles already made, as well as to sawing them from blocks of wood. He was not certain that the foreman (LaRoche) told him to make hammer-handles, though he did tell him to put them in or fit them, but plaintiff would “prove that he kept a piece of hickory under the bench for that purpose,” not for his own use but for that of all the men. Plaintiff understood that the hammers used by the tinners liad to be made for them by the company, and had seen hundreds of them made by the shop-carpenters; “the men brought sledge-hammer handles from the storehouse to be reduced to make hammer-handles out of them.” He had reduced hundreds of hammer-handles; had made them with a piece of wood, but not on a rip-saw, though this was not his first trial to saw one in that way. LaRoche on different occasions had told him to put in a hammer-handle for men who wanted it done, and had said, “Don’t ask me for permission to do such little jobs; put it in.” He had given instructions like this to other men, and he told plaintiff that at any time a man came and wanted to have a handle reduced, to reduce it. When on one occasion plaintiff went to him and told him a man wanted him to “put in” a handle, and he (LaRoche) told him “All right; go ahead,” LaRoche did not know whether the man had the handle or whether-the plaintiff would have to cut it. Glass, who succeeded LaRoche, “was working there at the time LaRoche was foreman, was a carpenter like myself, having the same regulations down there as I have; he did not give me instructions different from those I received from LaRoche; he never gave me orders as to doing jobs — nothing different, not any different instructions at any time as regards hammer-handles.”</p> <p>A fellow-carpenter testified for the plaintiff: Does not know whether he made hammer-handles for fellow-workraen; did for himself. Thinks he did for someone; thinks LaRoche, the foreman, gave him some small handles to make. Would not do work of this kind without instructions from boss. “ That is the rule and understanding — the common understanding. I never knew of any custom by which carpenters there made hammer-handles for another. To fit hammer-handles is a different thing. I could not say that it was customary to make hammer-handles for other people; that of course is left to the man ; if he did it, it was all right, and if he wouldn’t it was all right.”</p> <p>Another fellow-carpenter testified for plaintiff: Reduced sledge-handles to hammer-handles, on instructions ; would put hammer-handles in hammer with consent of boss ; if he could not find boss to tell him, would do the work and tell him afterwards. Q. “ Did Mr. Glass, the foreman after Mr. LaRoche, give orders to make handles?” A. “Blacksmiths bring handles to Mr. ‘Glass, and tell me to put the handles in for them ; I never made handles except for myself. I have frequently made handles for blacksmiths ; I have seen other carpenters do the same thing. "Was apprentice when plaintiff got hurt.” Q. “You made a handle, or fit a handle in?” A. “Fitted handles in.” Does not know of handles being made there, nor whether or not it was against rules of the company to make hammer-handles there, nor of any custom to make handles for other men. “Mr. Glass told, me about putting in handles, not to make handles except for myself, without orders.” Q. “He generally gave you orders to make handles out of a piece of wood?” A. “No. All handles I put in were furnished, unless I made them for myself.”</p> <p>Hayden testified: “ Carpenters have always been fixing handles. Brady, foreman of tinners, did not instruct me not to apply to carpenters for hammer-handles. A person by the name of Joe Brown made hammer-handles down there in the same year.”</p> <p>LaRoche (ex-foreman) testified for plaintiff’: There was no established rule in reference to workmen making hammer-handles — merely an understanding that the workman should go to the foreman, if the latter was there, and if not, “ in preference to waiting he could make a handle to facilitate work.” It was to the interest of the company, and “ a man would do little jobs provided it was to advance the interest of the company.” It was not a matter of duty for a carpenter to make one when asked by a tinner to do so, but it was often done, and no objection was made. And when they came to witness and said they were going to put in a handle for so and so, he would make no objection. "While foreman he had made hammer-handles, and kept a piece of hickory for that purpose. Could not say positively whether he had seen men putting in handles without orders or not. “ I guess Mr. Harrigan is right when he says that the first time he made a hammer-handle he came to me or I came to him and told him to do it, and the second time I told him he could go along and make such a thing without special orders from me or to come to me for permission. I never objected for a man to make a handle for the company’s work unless I had selected the man to do certain work. I have heard Mr. Harrigan’s testimony on that point, and I believe I did give him the orders he says I gave him. I have a recollection of telling Mr. Harrigan to make hammer-handles. I directed him on special occasions to do so.” Q. “You did not give him general orders to make hammer-handles?” A. “No, sir. I think one time I was extra busy and he came to me about making a hammer-hahdle for some one, and I told him to go ahead and do such a thing without coming to me for orders.” Q. “ Only in that case ?” A. “ Yes, sir.”</p> <p>The evidence for the defendant tended to show that Hayden, did not need to do the work on which he was engaged when he requested plaintifi to make the hammer-handel; that handles other than such as were kept in stock by the defendant were furnished to its tinners, on application to the foreman of the tinners, which application it was the duty of the tinner to make; that it was not the duty of plaintifi to make the handle for Hayden, but out of the line of his duty; that he was injured because he did not use sufficient caution in using the saw and in examining its condition ; that the person whose duty it was to make inspection of the machinery in the mill had not been informed of the defective condition of this saw-tahle ; that the saw plaintifi' was using was not intended for carpenters, but that there was a saw in the mill intended for carpenters, which plaintiff had passed directly hy to reach the saw at which he was injured, but carpenters could use the saw on which plaintiff was hurt; and the person having supervision of the mill had been once asked to allow orders to be put up prohibiting carpenters using the saw and had refused. One witness worked at the saw in question on the day before plaintiff got hurt, and if it had been dangerous, would have noticed it; did not notice the depression; the only way in which plaintiff got his hand cut was by putting his hand hack behind the saw, and witness in sawing would not use the saw that way; it depends on the man who was doing the work as to whether it was dangerous to work on a table which had a defective throat as this table had. Witness considered every saw dangerous for a shop-carpenter to work on. On Saturday afternoon before work is over, there is a general cleaning up, the floors are swept and the machineries are cleaned with waste and oiled. The foreman makes a close inspection of the saws every Sunday, and if any defects are found they are repaired immediately; this is the usual custom as to inspection in that mill. It is not customary to have any more inspection than that. The defect in the saw could not have existed very long, or some one would have reported it. Whenever men report that machines are out of order, the foreman sees what the trouble is and has it repaired immediately. One witness testified that it was not unusual for carpenters to reach over to the back of the saw to hold down the piece they were sawing, and that there was nothing in what plaintiff did that was unusual, except to get cut, and he was cut hy the lack of caution, because if he had been cautious he would have seen the condition of the table, and he would not have undertaken to saw a piece on it such as he did undertake to saw.</p> <p>The foreman of the tin-shop testified for defendant: Q. “In last September, if any one of the men under you in your department wanted a hammer-handle, what was his duty?” A. “Well, it had been that he would go and get it made under Mr. LaRoche; they went there so often that Mr. LaRoche complained to me about it and said, ‘Your tinners are bothering me about hammer-handles.’ I said, ‘ Don’t make them, and let them come to me as they want them, and I will get them for them.’ I don’t think anybody else made them. I went right off' to Mr. Bennett and asked him to order out some hammer-handles. I had a handle made in the carpenter-shop and put in. I did not have to get orders to make one; I only went to Mr. LaRoche when I wanted one to put in handles. I did not give Mr. Ilayden authority to go to Mr. Harrigan or anybody else to have this hammer-handle made.”</p> <p>Glass (foreman of car-shop and immediate superior of plaintiff when hurt) testified for defendant: Did not know of custom to make hammer-handles, and did not give permission to do so to Harrigan ; he had no right to leave his work and do so. Making a handle and putting in a handle are two different things. Witness worked there as a carpenter before he was made foreman, and had made hammer-handles ; does not remember having made without orders, but if he did so, he reported to foreman afterwards ; had made handles for his own use and for other men working with the road there — very seldom. Did not remember making without orders. Had seen the carpenters make hammer-handles ; during LaRoche’s time, there had been men in the habit of putting in hammer-handles while working on other jobs; does not know that it was a custom for carpenters, without orders, to put in hammer-handles for the tinners in LaRoche’s time, but had seen it done time and again, and knew nothing of objection being made. Not in'witness’s time, but in LaRoche’s. In LaHoehe’s time it was frequent for one workman to do little favors for another at work on the same job witb bim. “ Tbey bave handles also in tbe store-room, but I bave been in tbe habit of putting them in at tbe shops.” Making a handle and putting in a handle are two different things. Was expecting Harrigan to finish up witb tbe car, and be bad no right to leave it to make hammer-handles without orders. I don’t know any rule exactly about that. Q. “ Have tbe company got any rules and regulations that are given out to tbe mentó show them howto act in these matters?” A. No-rule posted up. Must get permission from foreman.. Witness knew this to be tbe case before be got to be-foreman. Does not know where the rules come from ; “ tbey are there since I bave had charge,” written ;• could not say these rules were there at tbe time Harrigan got hurt. “ I don’t remember tbe day the rules' were put there; it was tbe general rule — has always been — when a man wants work done in another department, tbey bave to go to tbe foreman.” Tbe company never sent orders to that effect that witness knows, of; none of tbe beads gave orders to that effect.. Q. There were no rules emanating from tbe beads of tbe road, from tbe superintendent or officers, preventing anything of tbe kind ?” A. No, but one man comes-along and goes to another employe to do some work for bim; it would prevent tbe man from doing bis-work.”</p> <p>Defendant’s foreman of car department testified’ that it was not a part of carpenter’s duty to make hammer-handle. System of keeping hammer-handles was in vogue several years before plaintiff' was hurt, and be bad no right without orders from foreman to put in or make handle. When a man is employed, it is the understanding and custom that be is expected to do tbe work for which be is employed; tbe foreman assigns the work, he is the representative of the road as far as he is concerned ; whatever the foreman tells him to do it is his duty to do, and he is not to do anything else. When LaRoche was in charge down there, “ he knew that I kept material of that kind on hand for hammer-handles. He served his time down there as an apprentice. It was always a custom for shop-carpenters to go and use the saws in the mill. I refused. Mr. Hill’s request to issue orders prohibiting carpenters from using the band-saw. The carpenters do not work in the mill now; that change was made on account of Mr. Harrigan’s injury; it was made a longtime after he was injured, on account of so many coming in there to do private jobs and from the fact that they got injured.”</p> <p>On the third trial, the jury found for the plaintiff $3,300. The grounds for new trial, to the grant of which exception was taken, were as follows:</p> <p>(1) Verdict contrary to law and evidence, and excessive.</p> <p>(2) After charging, as requested by the defendant, that “if as a matter of fact it was not Harrigan’s duty to make a hammer-handle for Hayden, Harrigan’s belief that it was his duty, if such was his belief, would not justify him in making a hammer-handle for Hayden,” the court added the following: “I charge in addition to and connection with this proposition: if you find, however, that this plaintiff’s foreman directed him at one time to make hammer-handles for employes when they required them,- without going to him specially for orders, and that this direction was never countermanded, then this plaintiff had the right to act upon that direction. If you find that it was at one time customary for employes to make hammer-handles for other employés, that there was no rule to the contrary, but that afterwards a rule was made prohibiting the practice, and that this plaintiff’ had no notice of the rule, then of course such a rule would not affect him.” Error, because not warranted by the evidence.</p> <p>(3) The court charged: “If you find that Hayden was a tinner employed by the company, and that he needed a hammer-handle for use in the company’s business, and if you find that this plaintiff' was injured while making a hammer-handle for Hayden, to be used in the company’s business, and that in doing this he was not acting contrary to orders, but that it was in the line of his duty, then the fact that he was so engaged making a hammer-handle would not be a bar to his recovery.” Error, because not warranted by evidence.</p> <p>(4) Error in admitting, over objection that it was hearsay, the testimony of plaintiff' that he and Hayden were working together on the car, and Hayden said that the hammer the company furnished him was a short hammer and that the tin bracket he had to rivet on the hip of the car could not be worked well without a longer hammer.</p> <p>(5) Error in admitting, over objection that it was hearsay, the testimony of plaintiff that Donovan, an employé of the Central Railroad Company had told plaintiff' that he was not able to d-a justice to the Central railroad; that Donovan had not seen plaintiff’s hand before he gave him the job, and if he had he would not have given plaintiff the job.</p>

Fences. Constitutional law. Statutes. Before Judge Fort. Macon superior court. May term, 1889. On March 2, 1889, the plaintiff’s cow was running at large on the land of the defendant, who had no fence. Both of them resided in the 1070th district of Macon county. The defendant impounded the animal under the act of December 26,1888, at once notified the plaintiff and demanded compensation for the damages sustained, as well as pay for impounding and feeding the stock.

Fences. Constitutional law. Statutes. Before Judge Bower. Dougherty superior court. October term, 1889. Mrs. Tompkins sued Mrs. Camp for the expense of feeding and impounding cattle and Jor damages done by them to growing crops. The defendant moved to dismiss the action, because the local statute under which it was brought was unconstitutional, there being in existence at the time of its passage a general law for the same purpose.