Volume 85 — Georgia Reports

<p>Injunction. Railroads. Corporations. Statutes. Constitutional law. Contracts. Municipal corporations. Actions. Parties. Jurisdiction. "Waiver. Practice. Before Judge Boynton. "Upson county. At chambers, February 1, 1890.</p> <p>On January 9, 1890, John Gibson and J. S. Stamps, citizens of Thomaston, on behalf of themselves and the citizens of that town, brought their petition for injunction against the Macon and Birmingham Railroad Company, the Macon Construction Company, Julius C. Williams and E. L. McGee, alleging as follows: In 1889, the railroad company began the construction of its road under its charter. (For the charter and its amendment see the opinion.) Its officers and those of the construction company held out to the people of Thomaston,, that the road would be located through that town, and two lines were surveyed through the corporate limits in September, 1889, and officers of one company or tbe other notified the citizens that the road would not be located through or near the town. In November, the mayor of Thomaston notified the railroad company that he was ready to perform the duties required of him by the amendment to the charter. In December, he notified it that he had selected a disinterested competent civil engineer to survey, in conjunction with such civil engineer as the company might select, and to examine and estimate the cost of the two routes; that is, the route around and within five miles of Thomaston proposed by the company, and the route required to be adopted by the act of the legislature; but the company refused and still refuses to appoint an engineer for the purpose, and stated that the act would not be regarded at all. The engineer appointed by the mayor has surveyed a route from a point on the located road five miles from Thomaston and in one mile of the courthouse, as required by the act, which is between a quarter and a half of a mile longer than the route proposed by the company. On it only one bridge is to be built, while on the latter four bridges are to be built, which will make it more expensive than the former route. The railroad is located along Potato creek, where it will be subject to overflow in high freshets; and should the track be built above high-water-mark, its construction will cost several thousand dollars more per mile than will the route provided for by the legislative act. The route proposed by the railroad is not suitable for the erection of a good and safe road; but a perfectly safe and cheaper one can be located on the route by Thomaston. Petitioners and the other citizens are ready to comply with their part of the requirements of the statute by paying whatever difference there may be in the cost of the two routes, and to comply with the statute in every particular. The construction company contracted to build the railroad, with authority to locate it. Petitioners are informed and believe that this company has bought nearly 2,000 acres of land in a body, lying one and a half to four miles from Thomaston, the titles having been taken in the names of W. "W. Collins and Geo. W. Jewett, who are interested in that company, and paid for by checks on W. B. Sparks, its president; also that the officers of the railroad company are interested in the construction company; also that certain persons, who are stated by others connected with the railroad company to be associated as a manufacturing company and to claim said lands or a portion of them, are persons who compose the railroad and construction companies, or that the officers of those companies are stockholders in the manufacturing company, and are interested in said- lands. The scheme of the construction company is to build a town thereon, aud go around Thomaston only to make their private property more valuable at' the loss of the citizens of that town, which has fifteen hundred inhabitants, receives eight to ten thousand bales of cotton and sells goods to the amount of three hundred thousand dollars yearly, and whose taxable property is worth $500,000. There is no town or public to serve at the place where it is proposed to build. If the location of the road on the line proposed by the companies, and on which work is being done, be permitted, it will come not nearer than two and a half miles to Thomaston, with no depot nearer thereto than the proposed town; the scheme of the companies being to further their private interest alone, and not to subserve that of the public. The railroad company is proceeding to condemn a right of way through lands of petitioners within the five miles of Thomaston referred to in the act of the legislature, not on the line provided for by that act, but on the line being built around the town, and to and through the land above referred to. It has no right to condemn lauds at any point within said five miles, except upon a line which will go through Thoniaston or within one miie of the court-house. It has no authority to condemn petitioners’ lands, and is seeking to do so without warrant. Stamps gave it the right of way across his land on the route to Thomaston, but refused to give it upon another route on which it has no authority to build. On December 20, it filed with the ordinary a written request that some fit person be appointed as assessor for Stamps and Gibson in ascertaining the value of the right of way through and the damage to their lands; stating that it had failed to agree with them as to the same, and that they had refused to select an assessor to act with E. L. McGee, who had been selected as such by-the company. This petition does not describe any particular lands, nor specify any quantity of land sought to be taken; and is defective in other respects. The ordinary, after hearing evidence and the response of Stamps and Gibson, ordered that the request be refused, the company failing to show that it was its right to have said assessors appointed. One week afterwards, it presented to Judge Hines, of the Middle circuit, its petition for a mandamus requiring the ordinary to comply with the above stated request, upon which petition the judge ordered that the ordinary show cause on the next January 6 why the writ should not issue. The hearing has since been set for J anuary 18. The present petitioners are not parties to that application, nor can they be heard or make any objections thereto, nor can their objections be made by the ordinary, who is claimed by the railroad company to be a ministerial officer, compelled to appoint the assessor applied for. The prayer is, for injunction to prevent the taking of steps to condemn or construct the railroad on petitioners’ lands, except it be done as provided by the statute in question, the building of the road on the route proposed by the companies or on any other route except as provided by the statute, the prosecution of the petition for mandamus or the appointment by the ordinary of an assessor for, petitioners, and the entering by McGee on their lands to value the same for condemnation by the company; as well as for process, etc. Discovery is waived. By amendment, the plaintiffs alleged that said defendants have located their road on the lands of petitioners against their consent, entered on Gibson’s lands, cut his timbers, cleared what they call a right of way, and are proceeding to grade their line thus laid out -without his consent, and will do so unless enjoined; that they are proceeding to build their line on the west side and within five miles of Thomaston, and on a line which will locate the road outside of the limits prescribed by the act of November 7, 1889, and in open disregard thereof; and that if it be so constructed, Thomaston will be greatly damaged if not destroyed commercially, which will depreciate the value, of petitioners’ land sought to be taken, as well as the real estate in Thomaston, and the damage will be irreparable and the amount of loss cannot possibly be estimated. Petitioners pray that defendants be enjoined from further cutting timber or grading on petitioners’ lands.</p> <p>The railroad and construction companies answered : The main and leading purpose of the grant and acceptance of the charter was, to establish direct railroad communication between Macon and Birmingham. In order successfully to carry out and maintain the enterprise, it is necessary, in selecting a route, that economy, in laying out, building, keeping up and operating the line should be considered, in order to compete with existing lines by less direct routes between the terminal points named. On April 2, 1889, the railroad company entered into a contract with the construction company for the construction and equipment of the entire line of road. This contract does not authorize the construction company to locate the road, but re-' quires it. to cover the route adopted by the railroad company. Afterwards the railroad company caused various lines to be run, to ascertain the most direct and practicable route. Lines were examined near and through Thomaston with a view to adopting one of them should it appear to be the most direct and practicable ; but an examination and comparison of such line ■with the one finally adopted showed that no line could be run through Thomaston in any degree approximating, either in direction or practicability, the one adopted. "Whatever may have been said by officers of either company referring to the road’s going through Thomaston, was entirely conditioned upon a suitable line being found, and not upon any consideration paid or given by any of the citizens of that town. No action was ever taken by either it or them whereby any legal or equitable rights were acquired as against either company. The line finally' adopted, upon which the. road is located, and along which a right of way is sought, was adopted and the location made prior to October 21, 1889, on which day a contract was entered into by the construction company and J. S. McTighe & Co. for the clearing, grubbing, excavation, embankment, and loose and solid rock of the road from its junction with the Ga. Southern & Fla. to its junction with the Ga. Midland & Gulf road, a distance of sixty-five miles, including the work through Upson county on the line adopted and located. This contract stipulates that time shall be of its essence, and that the work therein contracted for shall be finished within six months. "Work was commenced thereunder on November 15, McTighe & Co. having sublet the work with sections of five miles covering the whole line. The construction company is interested in the Rogers prop-, erty, which, probably is that referred to in the petition ;; but it does not lie ou the line of tbe railroad, the nearest distance between them being a mile; and no manufacturing corporation bas been organized in connection with if. The construction company may at some time seek to develop and improve it; but no scheme has been entertained with an object to injure Thomaston, which is already the terminus of a railroad leading to Barnesville and crossed by respondent’s line; and this is not being built in such manner as to sub-serve any selfish interests but to subserve in the highest degree the public interest, if by the public is meant the whole of the people of the State in the sections traversed by the road and not the people of Thomaston alone. The railroad company has refused to accept the statute in question as an amendment to its charter and does not consider itself bound thereby, but says that the act is unconstitutional and of no effect. Its title is inconsistent with its body, the former requiring the railroad “ to run into and through the town of Thomaston,” while the latter provides for its going into and through the town or within one mile thereof, with many other thiugs not referred to in the title. In the application sought to be made of it, it is in violation' of paragraphs 2 and 3 of section 3 of article 1 of the constitution, being retroactive in its effect, impairing the obligation of the contracts already referred to, and seeking to revoke grants of special privileges to the railroad' company in such manner as to work injustice to both the corporators and the parties with whom they have contracted. It attempts to abrogate and set aside the contracts made prior to its passage between defendant and the construction company and MoTighe & Go, It seeks to compel a contract between the railroad company and the citizens or the town of Thomaston, the citizens having no capacity to contract of be contracted with, and the town being prohibited by the constitution from making any contract with the company involving the expenditure of money. It seeks to compel the expenditure by the railroad company of large sums of money not required by its charter nor demanded by the public interest, for which the company could receive no consideration and from which no one could receive any benefit, except citizens of Thomaston or persons owning lands through which the road would run. It does not require the town or the citizens of Thomaston to put themselves in a position to comply with its terms, until the road is built from Macon to “ the five mile limit,” thus imposing on the company an obligation to build the road in a continuous line from Macon to such limit; whereas the contracts made contemplate, and compliance therewith will require, that the work proceed upon all parts of the line at the same time, in order to have the same completed within the time required thereby. It makes the standard of comparative cost with the line sought to be forced on the company, a line through the Rogers property, which was not the line adopted and located by it prior to November 7, 1889, nor within one mile thereof. It is not true that a road could be built upon the line located-by the engineer appointed by the mayor, of Thomaston, at a lower cost than the one located by the company, nor is such line safer or more suitable ; the exact contrary is true in every particular. The actual cost of the-proposed line over that located by-the company will be, at the rate it has contracted for work, between twenty-seven and twenty-eight thousand dollars. The line adopted will require no bridge but only four trestles. In addition to the actual first cost, a fair compensation to defendants for the extra work of the proposed line and the extra continuous cost of keeping it up, could not be less than $15,000. It is not true that the town or its citizens are ready to comply with the terms of the act, to the exteut of paying such additional cost and compensation. Respondent is informed that if any amount at all has been raised or pledged for this purpose, it is very small and utterly inadequate therefor. No guaranty has ever been given or offered the company that the town of its citizens would comply with the act. The company is and has ever been ready to pay petitioners the value of their land and any damages thereto, whenever the same could be legally ascertained. It sought to acquire the right of way through them by purchase, and when unable to do so, by condemnation; and upon petitioners’ refusal to appoint an assessor, the application was made to the ordinary, Who is a ministerial officer not authorized to pass judicially upon the question of such appointment. He, however, assumed to do so, heard objection to the application and evidence and argument thereon, and entered up judgment.</p> <p>At the hearing, testimony tending to support the allegatiqns of the petition and answers was introduced. The judge enjoined the defendants as prayed for, with the modification that if they “ shall in good faith proceed to ascertain the difference in the costs of the line which defendants desire, and the one by or through Thomaston as specified and in the manner prescribed in the act approved November 7, 1889, as exhibited to the petition, and the town authorities or citizens of Thomaston fail or refuse to co-operate with defendants as prescribed in said act, then defendants may at once move to dissolve or modify this injunction; and if after the difference between the two lines shall be decided or ascertained as directed in said act, the town authorities or citizens of Thomaston fail or refuse to comply with said act by depositing the amount of difference, if any, then defendants may apply to have injunction modified or dissolved.” To this order the defendants excepted. They also say the court erred in holding that the superior court of Upson county had jurisdiction; that plaintiffs had any cause of- action as citizens of Thomaston, or any right to sue on behalf of the other citizens; and that the act in question is constitutional and does not contain matter different from what is expressed in its title, and is not retroactive in its effect upon the rights of defendants, and does not impair the obligation of the contracts between the railroad and construction companies and between the latter company and McTighe & Co., and does not revoke special privileges and immunities granted to the railroad company in such a manner as to work injustice to its creditors and corporators.</p>

Principal and agent. Evidence. Contracts. Vendor and purchaser. Fraud. Bescission. Payment. Mingling goods. Equity. Practice. Before Judge Falligant. Chatham superior court. June term, 1889.

<p>1. Whether proper notice has been given before the introduction of a local or special bill, is for decision by the legislature, and where-an act is attacked as unconstitutional for want of such notice, evidence in regard thereto outside of the journals of that body, wills not be received by the courts.</p> <p>2. The act approved October 16th, 1889, conferring upon the Mayor- and Councihof the City oE Athens power “ to construct, pave and' otherwise improve sidewalks in said city, and to assess and' collects the cost thereof out of the real estate abutting on the sidewalk so-constructed, paved or otherwise improved, ” is not in violation of. the constitutional requirement that taxation shall he ad vaKrem- and uniform, such assessments not being taxation within- the meaning of the constitution.</p> <p>8. Nor is the owner of such real estate thereby deprived of his property without due process of law, the act providing that when execution is issued for the amount of the assessment, he may file an affidavit denying the whole or any part thereof, which affidavit is made returnable to the superior court, the issue thereon to be tried and determined as in cases of illegality. At such hearing he may show fraud or mistake, error or excess in the amount of the execution, want of statutory authority to support- the assessment, or failure to comply with the provisions of the statute and the ordinances in pursuance thereof.</p> <p>(a) Benefit to the owner of the real estate assessed; so- far as necessary to be passed upon, as well as the necessity or-'reasonableness of the improvement, being for the determination of-the.legislature, is concluded by the act authorizing the assessment, .and-will not be enquired into by the courts unless in extraordinary cases presenting a manifest abuse of legislative authority. Such assessments, not being an exercise of the right' of eminent domain, do not fall within the constitutional provision that private property shall not he taken or damaged for puhlic purposes without just and adequate compensation being first,paid.</p>

<p>l. The defendant’s father and step-mother having been killed on the same occasion, and the defendant being on trial for the killing of the former, disqualification of the trial judge did not result from his having been consulted as counsel, after the homicide and before he became j udge, by a brother of the step-mother, as to the distribution of her estate; knowledge or want of knowledge of the person who did the killing not affecting the distribution, and it appearing that nothing was said between them as to who this person was, and that the judge, while a practicing attorney, had merely informed his client as to the law of distribution and advised him to take out letters of administration.</p> <p>2. Upon a motion to change the venue on the ground that an impartial jury could not be obtained in the county, and an offer to introduce evidence to this effect, the judge properly overruled the motion and held that he had no power to hear such evidence, and that the venue could be changed only by an examination of the persons liable to serve as jurors, as prescribed in section 4687 of the code.</p> <p>(a) This section of the code is not unconstitutional as impairing the right of the defendant to be tried by an impartial jury. Nor is the statute unconstitutional because the power which the constitution has vested in the judge to change the venue where he is satisfied that an impartial jury cannot be obtained in the county, is restricted by said statute, the constitution further providing that this power shall be exercised “ in such manner as has been or shall be provided by law. ”</p> <p>3. With the means afforded by law for obtaining impartial jurors, public excitement alone is not a sufficient ground for continuance, especially where nearly two years have elapsed since the commission of the crime.</p> <p>4. Compulsory process of the court to procure the attendance of a' witness residing beyond the State, would have been nugatory, and was properly refused; and there was no abuse of discretion by the trial judge in refusing a continuance on account of the absence of such witness Although the defendant stated that he expected to procure the attendance of the witness at the next term of the court, it did not appear that the witness had promised to attend or that there was any other ground for this expectation. *</p> <p>5. A challenge to the array was made under the following circumstances : A term of the court which had been ordered for the purpose of trying the defendant, began on Monday, and the j urors drawn for the term were then empanelled and put upon the defendant. A jury was partly selected, and the remaining jurors who had been drawn and empanelled but not selected, were discharged for the term. On Wednesday of the same week a mistrial was declared. The court being then without jurors, except tales-men who had been summoned to attend but had not been put upon the defendant, the judge drew from the jury-boxes the names of the proper number of jurors and directed the sheriff to summon them to attend on the following day, when the defendant would be again put on trial; and the talesmen then in attendance were ordered by the court to return at the same time. The jurors thus drawn and the talesmen appeared accordingly on the following day, and twenty-four of the jurors drawn were empanelled as the two regular panels of petit jurors for the court, and these, together with twenty-four of the talesmen, were empanelled and constituted the array first put upon the defendant for the trial now under review. One of the grounds of challenge was that the judge had* no power to draw these jurors at the time he did, and that the defendant, when again placed on trial, was entitled to have first put upon him the jurors who had been drawn before the organization of the court on Monday and had been empanelled on that day. Held, that the court did not err in overruling the challenge on this ground, the code (§3942) providing substantially for the emergency.</p> <p>6. Nor did the court err in overruling the challenge on the ground that talesmen summoned prior to the mistrial and who had not been put upon the prisoner, were ordered to return after the mistrial, and constituted a part of the array.</p> <p>7. Nor was it proper ground of challenge that the court, when additional talesmen were needed, drew the names of some of them from the grand jury-box, the code (§3935), under which these talesmen were drawn, not restricting the judge to either one of the boxes exclusively, its language being “the jury-boxes of the county. ”</p> <p>8. Requests to charge which were lengthy and argumentative and the material propositions in which were substantially covered in the charge given by the court, were properly refused.</p> <p>9. The statute (Code, §4682) which prescribes the questions to be asked the juror upon his voir dire and declares that when answered as therein prescribed he shall be adjudged a competent juror, does not impair the constitutional right of the defendant to be tried by an impartial jury. The legislature has power to prescribe the manner in which the qualifications of jurors shall be tested, and the manner prescribed in the statute for interrogating the juror and for contesting by evidence the truth of his answers, affords ample test of his impartiality</p> <p>(a) Where jurors on their voir dire had answered the statutory questions so as to qualify themselves, and it not appearing from their answers that they misunderstood the questions, the court did not err in refusing to ask or to allow counsel for the defendant to ask other questions of the jurors to ascertain whether they understood the meaning of the words “bias” and “prejudice, ” and what they meant when they answered that they were perfectly impartial between the State and the accused, and whether- they had not entertained and did not then entertain a settled and fixed opinion that the defendant was guilty. (6) It is the duty of the judge, when it appears to him from the juror’s answer that the latter does not understand the statutory questions, to explain them, it being left to his discretion to vary the form of the questions.</p> <p>10. It is within the discretion of the court to explain to the jurors, before they have answered the statutory questions on their voir dire, the meaning of the words “ bias” and “ prejudice ” and “ perfectly impartial,” as used therein; yet if he should fail to do so, it would not be error.</p> <p>11. The testimony of witnesses that certain marks and spots were the print of a hand and blood-stains, was not incompetent because their information was acquired from an inspection which they made while jurors on a former trial of the case.</p> <p>12. Testimony that the defendant while alone in his cell was overheard to say, “ Lord, have mercy upon me for what I have done; the only thing I regret is killing my father-,” was not incompetent because, the witness was the jailer in charge of the defendant, the law not disqualifying a jailer from testifying as to voluntary acts and confessions of prisoners under his charge.</p> <p>(a) That the defendant on the same occasion may have said something else in connection with this which the witness did not hear, did not render it inadmissible, the latter testifying that nothing else was said within his hearing, and it not appearing from the evidence that anything else was said.</p> <p>{b) It is not against public policy to allow a prayer which inculpates the person who made it, to be given in evidence against him.</p> <p>13. Testimony as to prayers in which the defendant declared his innocence of the crime, although offered in reply to evidence as to an inculpatory prayer, was properly rejected, the rule being to admit inculpatory declarations or confessions, and to exclude those which are exculpatory, when disconnected therewith.</p> <p>14. The admission, over the defendant’s objection, of testimony that the defendant, after the homicide, on being asked, “Who will get the property ?” (meaning the property of the deceased), replied, “It is not worth while to mention that; my sisters will get the property; when the proper time comes I will settle that question,” although the testimony was irrelevant, was not such error as would require the grant of a new trial.</p> <p>15. Testimony by a witness that he was informed by another that the latter had heard a third person give a minute account of the killing — the defendant proposing to prove this (1) with the statement repeated, and (2) without any repetition of it, — and that the informaht of the witness had become frightened and denied making the statement, was incompetent.</p> <p>16. A witness having testified that on the night of the killing and about the time it occurred, while she was at a house near the scene of the killing, a barefooted negro whom she did not recognize and did not undertake to identify, came to the house and conversed in low tones with a third person who lived there, the defendant, for the purpose of identifying this unknown negro, offered to prove by others that a certain insane negto then present in court was seen barefooted, three days after the killing, eleven miles from the place where it occurred, and that when arrested afterwards in a distant part of the State charged with being an escaped convict, he said that he was “on the Woolfolk place the night the nine were killed,” and mentioned the name of the person with whom the unknown negro was said to have conversed that night, and said that a woman named “Ann” (that being the Christian name of a woman who lived on the premises) gave him his breakfast: Held, that in the absence of other evidence to identify the negro in court as the unknown negro first mentioned, and of other evidence to connect him with the crime, the testimony offered for this purpose was irrelevant.</p> <p>17. Sayings of the defendant prior to the killing indicating animosity towards his step-mother, to wit, that she was “ the meanest woman in the world, the damnedest, meanest woman in the world,” and that he hated her, were not inadmissible on the ground that he was then on trial for the homicide of his father and not of his stepmother. Both having been killed at the same time, a motive which may have led to the killing of the one may have been connected with the killing of the other.</p> <p>18. Admissions of a third party, and his acts and declarations some time after the killing manifesting excitement and a desire to get away when interrogated on that subject, and his contradictory state, ments as to where he was on the night of the killing, in the absence of other evidence connecting him with the crime, were inadmissible. Nor would threats of such third party prior to the killing, against the family killed, be received in connection with such conduct and statements, to render the whole admissible as evidence for the defendant.</p> <p>19. Where a witness, on a very protracted and minute cross-examination by counsel for the defendant, was interrogated and had answered as to whether he was crazy and had done certain acts tend ■ ing to show that he was crazy, the purpose being to discredit his testimony-by proof that he was crazy, the refusal of the court to allow a still more extended cross-examination on the same line, if error at all, was not such error as to require the grant of a new trial, especially as the defendant was permitted to introduce other testimony for the same purpose, and covering most of the same matter.</p> <p>20. Certain socks being offered in evidence, which a witness testified were found in a well on the premises where the killing occurred, it was not error to admit them in evidence over the defendant’s objection that the testimony of the witness did not sufficiently identify them as the same which had been found in the well, this being a question for the jury.</p> <p>21. Apprehensions by the deceased of harm from third persons not connected by other evidence with the crime, were irrelevant.</p> <p>22. Two juries having found the defendant guilty, and the trial judge being satisfied with their finding, and there being sufficient evidence to uphold the verdict, this court does not feel authorized to disturb it.</p>

Actions. Liens. Title. Contracts. Waiver. Promissory notes. Practice. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1889. On September 9, 1884, Wilson & Co. sued Mrs. Eugenia O. Ford on an account for $464.20, besides interest from Feb. 9, 1884, for material furnished to her for the improvement of her real estate on Pine street in Atlanta.

Evidence. Verdict. Charge of court. Admissions. New trial. Before Judge Marshall J. Clarke. Eulton superior court. September term, 1889. Mrs. Kermode sued Hawkins on six promissory notes, five for $100 principal and one for $50, each dated Nov. 7, 1883, and payable Dec. 25,1884, and each expressing, as its consideration, real estate in the town of Bellwood.

Actions. Debtor and creditor. Garnishment. Torts. Before Judge Van Epps. City court of Atlanta. December term, 1889. Harwell sued Sharp Bros, for $2,500, on the following statement of facts : He is a laborer and, was working as such for the Western and Atlantic Bailroad Co. prior to and on April 29, 1889. He purchased drugs from defendants, and was indebted to them $9.70 on the balance of account.

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

<p>Corporations. Receivers. Parties. Actions. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1889.</p> <p>Reported in the decision.</p>

Criminal law. Charge of court. ■ Malice. Presumptions. Before Judge Richard H. Clark. Pulton superior court. September term, 1889. Indictment for assault with intent to murder,' and conviction. • The defendant’s motion for a new trial was overruled, and he excepted.

Bonds. Illegality. Actions. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1889.

<p>A declaration, alleging that the plaintiff was the owner of a lot of land in the city, a portion of which she sold, and of which portion .the city afterwards became the purchaser and opened a public street thereon adjoining the remaining land of plaintiff, rendering it unsightly and depriving it of privacy, and that she had reason to fear assessments upon all three sides of her lot for street improvements, and that thus it had become of reduced value, set forth no cause of action and was demurrable.</p>

<p>This court being unable to say, on account of the confused state of the record, whether a nonsuit was improperly granted or not, and there being no evidence of any demand upop. the defendants in trover before the bringing of the suit, the judgment must be affirmed.</p>

<p>1. In a suit upon promissory notes given for the purchase price of land, with plea of total failure of consideration, in that the defendant at the time of the purchase relied on the plaintiff’s statement that she owned the land and so gave the notes, but that in fact it did not belong to her, but to him under a former purchase by him from another, of which fact he was ignorant when he gave the notes; and the real issue being as to how far north the plaintiff’s land extended, testimony by the person from whom the defendant had previously purchased, that a former owner had pointed out to him the south line of the land he had sold to plaintiff, was hearsay and irrelevant, such pointing out having been done in the absence of the plaintiff.</p> <p>2. If the plaintiff fraudulently sold the defendant land which she did not own and received part of the purchase money, he would be entitled to recover interest on the sum so paid from the date of payment; if no fraud, interest from the date of demand for repayment of the money; and if no fraud and no demand, interest from ¡the date of the filing of the plea of set-ofF.</p>

New trial. Railroads. Before Judge Van Epps.. City court of Atlanta. December term, 1889. This was a suit by Peggy Prather, whose husband was killed by the railroad train at the time of the homicide of the husband of Jane Prather, whose case is reported in 80 Q-a. 424. In the present case there was a. verdict for $2,777.08 in the plaintiff’s favor.

<p>1. To an action for damages from falling into a cellar opening near .. the sidewalk, from planks laid across the same, it is no defence, under the circumstances, to the occupant of the premises charged with negligently leaving the opening exposed, that he let the opening above the cellar to another person for the purpose of establishing a stand to sell various articles, and that the negligence was chargeable to that other; although he also might be liable.</p> <p>2. An alleg ;d variance, in that the allegation was that the defendant placed in his show-window certain viands and other things tending to tempt a passer-by to look into the window, whereas the proof showed that the window did not contain such things as were alleged, but oyster-boxes, etc., is not material to the merits.</p> <p>3. The law was correctly charged; and the charges requested and refused contain errors.</p>

Burglary. Criminal law. Charge of court. Before Judge Richard H. Clark. Fulton superior court. September term, 1889. Indictment for burglary, and verdict of guilty. The defendant excepted to the denial of a new trial, on the grounds mentioned in the decision, among others.

Verdict. Evidence. Negligence. Burden of proof. Demurrer. Practice. Convicts. Officers. Governor. Amendment. Charge of court. Pleadings. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1889.

<p>1. Where, upon a petition against an insolvent corporation for in j unction and relief, a receiver appointed by the court applied for an order requiring the president of the corporation to show cause why he should not be attached for contempt for failing to turn over to the receiver the assets-of the corporation, in obedience to a previous order of the court directed to the corporation (of which this president and one other person, the cashier, were the only stock holders), and the president, in answer to the rule nisi served upon him, appeared as an individual and responded under oath, cross-examined the witnesses on the hearing and took part in the proceedings, the court had such jurisdiction of him as would authorize it to deal with him as for contempt in not turning over the assets of the corporation, the evidence showing that he had in his possession money of the corporation which he had failed to turn over to the receiver.</p> <p>2. Though the petition under which the injunction was granted and the receiver appointed, fails to allege the nature, character, quality or quantity of the assets of the corporation, save in certain minor particulars, and though the order of the court committing the president to jail does not show what assets were found to be in his possession or control, yet the petition shows that the corporation had some assets, and the judgment is entitled to the legal presumption that the court ascertained by proper evidence that the president, at the time the rule nisi was served upon him, had assets of the corporation which he refused to surrender, and is therefore not void but only irregular; and direction is given for its proper emendation.</p> <p>(а) The president having shown no disposition to comply with the judgment of the court, its irregularity does not entitle him to discharge from custody.</p> <p>(б) The judgment necessarily implied that he was in contempt of court; but the judgment, according to better practice, should show this.</p>

<p>Discretion, in refusing a new trial on conflicting evidence, not abused and verdict for ¡$500 damages for injury to hand in uncoupling car, not excessive.</p>

<p>1. If a husband and wife agreed that he should make to her a deed conveying an estate in the property as long as they should reside in a certain place, and she fraudulently instructed the scrivener to so draw the deed as to convey the title absolutely to her and her children, reserving to the husband only a life estate, and he was illiterate and deaf and relied on his wife’s fidelity, equity will afford him relief.</p> <p>2. The allegations do not authorize the court to decide, as matter of law, that’the plaintiff is not entitled to relief because of gross carelessness in not knowing and understanding the terms of the deed before he signed it.</p> <p>S. Nor, under the facts, is the plaintiff barred by laches, though the deed was executed in 1881 and recorded immediately, and suit was not brought until 1887, he not having discovered the mistake in the deed until 1884.</p>

<p>Parent and child. Actions. Railroads. Pleadings., Before Judge Marshall J. Clarke. Pulton superior-court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>Actions. Minors. Negligence. Evidence. Verdict.' Before Judge Van Epps. City court of Atlanta. June term, 1889.</p> <p>Reported in the decision.</p>

Negligence. Railroads. Master and servant. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1889. Roul sued for damages. The testimony tended to show the following: He was employed as a fireman on an engine of defendant. He had no particular runs to make, but the way he was to go was decided by Tracy, who was the foreman of the round-house. Tracy makes out the board and tells the different engineers and firemen to go out.

<p>Illegality. Husband and wife. Yerdict. Evidence. Debtor and creditor. Before Judge Marshall J. Clarke. Eulton superior court. September term, 1889.</p> <p>Reported in tbe decision.</p>

Nonsuit. Railroads. Negligence. Master and servant. Evidence. Practice. Before Judge Van Epps. City court of Atlanta. December term, 1889. Hudson sued for damages. On the trial the testimony offered by him tended to show the following: On June 2, 1888, he was working for 'the railway company as flagman, and had been so working about four months. He left Atlanta on the evening before, on a train of defendant bound for Birmingham.

<p>The matters set out ia the claim of the plaintiff in error having been adjudicated in the former litigation between the same parties, there was no error in granting an injunction against proceeding further with the claim. The claim case should be dismissed and the execution allowed to proceed, unless the decree on the original bill is complied with.'</p>

Jurisdiction. Boundaries. Verdict. Evidence. Before Judge Hines. Washington superior court. September term, 1889. Action of complaint for land described as lying in tbe county of Washington on the waters of Neeley’s creek, containing thirty acres, bounded by lands of Mrs. Martha Greenway, defendant, Robert Whitfield and Thomas Miller.

<p>Where a writ of error is prematurely brought, the Supreme Court will exercise its discretion in granting leave, by way of direction, to enter the exceptions pendente lile in the court below. In this case leave is not granted.</p>

<p>Arbitration and award. Before Judge Roney. . Mc-Duffie superior court. September term, 1889.</p> <p>Reported in the decision.</p>

Criminal law. Corpus delicti. Venue. Evidence. Vendor and purchaser. Title. Notice. Record. Bona fides. Charge of court. Before Judge Eve. City court of Richrfiond county. May term, 1889. Chambers was tried on an accusation of selling personal property held under conditional sale with title retained and purchase money not paid, and was convicted.

Criminal law. Charge of court. Evidence. Before Judge Honey. Columbia superior court. 'September term, 1889. Indictment for burglary. On the trial it appeared that on the night of May 15, 1889, the store of A. S. Hardin, at Sawdust in Columbia county, was broken open, apparently with a bar, and goods worth about $150 were taken from it. Among these goods were a large number of pairs of shoes of different kinds.

<p>Service. Waiver. Process. Principal and agent. Judgments. Before Judge Marshall J. Clarke. Dekalb superior court. August term, 1889.</p> <p>Affidavit of illegality to the levy of an execution. To the judgment sustaining the same the plaintiff excepted. "Por the other facts see the decision.</p>

Crim. con. Charge of court. Verdict. Damages. Before Judge Hines. Tattnall superior court. October term, 1889. Tippins sued Sikes for criminal conversation with his wife, and obtained a verdict for $1,400. Sikes moved for a new trial, which was denied, and he excepted. The first three grounds of the motion are that the verdict is contrary to law and evidence, and the fourth complains that the verdict is excessive.

<p>A petition by the legatees of a will to the court of ordinary, alleging that the executor had collected and converted to his own use $300 of the estate and was insolvent and unable to respond, and praying that he be removed, was not demurrable.</p> <p>(a) Without a motion for a new trial, this court cannot inquire into the correctness of the verdict, though it does not seem to he supported by the evidence.</p> <p>(6) It appears from the will that the executor holds the estate as trustee for the legatees, and that they are now sui juris, and that the trust stands executed. No necessity for a trustee appearing, the proceeding to remove him as executor was superfluous.</p>

<p>Certiorari. Bonds. Practice. Before Judge Roney. McDuffie superior court. September term, 1889.</p> <p>Reported in the decision.</p>

Corporations. Debtor and creditor. Pleadings. Parties. Judgments. Service. Fraud. Stockholders. Evidence. Admissions. Before Judge Roney. Richmond superior court. October term, 1889.

<p>The issuance of an attachment under §3297 of the code is not authorized by an affidavit to the petition therefor to the effect that the allegations in it are true so far as they come within the knowledge of the affiant, and so far as derived from the knowledge of others he believes them to be true, but swearing positively to the amount of the debt; nor will the dismissal of the levy of such an attachment be prevented by another affidavit that the claimant had stated to the affiant that he had bought the defendant’s stock of goods, and when he got the amount due him, he was to turn over the balance to the defendant or anybody he might direct.</p>

<p>Ejectment. Homestead. Set-off. Title. Estoppel. Presumptions. Evidence. Jurisdiction. Practice. Before Judge Jenkins. Madison superior court. September term, 1889.</p> <p>Robert G. Chambers and his wife Eliza, suing for the use of Eliza and the minor children of the two, brought suit on February 12th, 1889, against A. R. Elliott and others, for a tract of land alleged to be in Madison county, and for rents from January 1st, 1885. In addition to the general issue, the defendants pleaded that in 1884, the land was sold and conveyed by Chambers and his wife to Elliott, who paid them for it $1,000, its full value ; which sum was applied to the use and benefit of the beneficiaries of the homestead, who are now suing defendants ; by which purchase the beneficiaries have already received and had the full benefit of the full value of the homestead propei-ty; and therefore the sale should be confirmed by proper judgment of court, and in equity and good conscience plaintiffs should be decreed to pay defendants so much of the sum paid by Elliott as had been applied to their benefit, before any judgment for the land or any interest therein be entered.</p> <p>Also that the husband and wife by deed conveyed their interest in the land to Elliott, and thereby passed whatever interest the wife had as a beneficiary ; and if any recovery can be had, it is only the homestead interest of the minor children; and that if plaintiffs have any interest, it is capable of being estimated- in money, and the interest of all parties can be protected by giving the plaintiffs a certain interest in fee, the remainder to vest in defendants, who pray that a verdict and judgment he taken and molded so as to make such division of the property. These pleas, except that of the general issue, were stricken.</p> <p>Upon the trial it was shown that Chambers had a deed conveying the land to him, dated December 18th, 1869, and describing the land as lying in Madison county. The petition of Chambers for homestead and exemption of personalty under the constitution of 1868, was introduced. It set forth, among other things, that Chambers, a resident of Elbert county, was the head of a family consisting of himself, wife and three minor children, and desired to have set apart and valued a homestead of realty, out of a tract of land lying in the counties of Madison and Hart; and he prayed an order directed to the county surveyor of Madison county and also an order directed to the county surveyor of Madison (?) county, directing them to lay off:', plat and value the realty and make return of the same, etc. This petition was filed in the office of the ordinary of Elbert county October 12th, 1875, and was recorded in the office of the clerk of Elbert superior court. The plaintiffs also introduced, as part of the homestead papei-s, a plat of 179 acres of land adjoining lands of Berij. Tucker and Campbell, with an affidavit made by the county surveyor of Madison county, on October 25th, 1875, that the plat was a correct one of 179 acres of land surveyed for Chambers of Elbert county as a homestead, and was not woi’th more than $700. This also was recorded in the office of the clerk of Elbert superior court on July 6th, 1883. The “homestead was approved by the ordinary of Elbert county” on October 27th, 1875.</p> <p>Chambers testified that the land covered by the deed to him was the same laid off and . set apart as a homestead for the benefit of himself and family in 1875. He remained in possession until 1884, when he delivered the same to Elliott, who kept it until he assigned to Shannon. The deed to witness and the plat attached to homestead papers cover the land in dispute. It was worth for rent during 1884, 1885, 1886, 1887 and 1.888, $150 per annum. Witness received $200 rent for it the last year he rented it. One of the children has been born since the homestead was taken; another has reached majority; the wife and three minor children are still beneficiaries. Both she and Chambers signed the deed to Elliott to this land on February 29th, 1884, and Elliott paid for it. It is worth from $860 to $900.</p> <p>The defendant introduced a deed from Chambers and his wife to Elliott, dated February 29th, 1884, conveying the land sued for to Elliott in consideration of $1,200, the land being described as lying in Madison county. Elliott testified that he paid this sum, $1,000 for the land and $200 for mules; in 1884 he received no rent; in 1885 and 1886 he received between fifty and sixty dollars rent,'which he considers as much as the land was worth; and in 1887 and 1888 Shannon received the rents as his assignee, and had paid the amount to his creditors. The land is rented for 1889 for 1,500 pounds of lint-cotton, notes therefor being payable to Shannon, assignee.</p> <p>The jury found for the plaintiffs and their minor children a homestead interest in the premises, and found against Elliott $200 rents for 1885, 1886, 1887 and 1888, and that defendants turn over to plaintiffs the rent notes for 1889. The defendants moved for a new trial on the following grounds :</p> <p>(1-2) Error in striking the pleas.</p> <p>(3) Error in allowing the original homestead papers to go in evidence, over objection that it did not appear that any order was ever issued by the ordinary of Elbert county, to whom application was made, for an order to the county surveyor of Hart and Madison counties, in which lay the land ont of which homestead was claimed, to lay off said homestead, nor did it appear from said papers in what county the homestead lay. Further, because the homestead application did not show out of whose land the homstead was claimed; it did not appear that any county surveyor ever certified under oath that the homestead t was correctly laid out and platted, nor that the return of any surveyor was ever filed in the office of the ordinary of Elbert county before the homestead was approved; and it did appear that the homestead papers were not recorded in the clerk’s office of Elbert county for more than eight years, and were never recorded in Madison county where the land was claimed to be located.</p> <p>(4) Error in charging: A wife who is one of the</p> <p>beneficiaries of a homestead estate, cannot by deed convey her interest therein at private sale; any such deed is void, and she is not estopped from suing to recover any land conveyed by her during the continuance of the homestead in consequence of any deed of conveyance to said estate made by her at private sale.</p> <p>(5-6) Yerdict contrary to law and evidence.</p> <p>The motion was overruled, and defendants excepted.</p>

Private ways. Notice. Onus. Before Judge Lump-kin. Hancock superior court. October term, 1889. Mrs. Amoss filed her petition to the July term, 1889, of the court of ordinary of Hancock county, praying that Powell be required to remove obstructions placed by him in a private way over his land, used and owned by her.

<p>1. That a good plea is unsupported by evidence is no cause for striking it on motion.</p> <p>2. There being no evidence tendingdo show that the maker of a deed of conveyance was induced to sign it under the impression that it did not affect her title, or that any misrepresentations were made to her, or that she was overreached, misled or deceived, a charge of the court based on this hypothesis was erroneous. The fraud in which the deed originated was probably one not implying imposition upon the maker of the deed, but a purpose to defeat creditors.</p>

Hule. Bastardy. Judgments. Practice. Before Judge Lumpkin. Hart superior court. September term, 1889. William Johnson was indicted and convicted of bastardy on September 20, 1888, and was sentenced to the chain-gang, with the alternative of discharge upon paying the costs and a fine of $300, which fine should be paid over to the ordinary to be by him improved and applied from time to time, as occasion might require, for the maintenance and education of the bastard child.

<p>Conviction of murder is not sustained by evidence showing that a road overseer summoned the accused to work on the public road ; that he appeared with an axe, which he was directed by the overseer to turn over to another person also at work on the road, and to take a hoe; that he objected, stating that the axe belonged to himself, and he thought every one ought to work with his own tools, but complied when the overseer said he would send to a house for an axe; that the overseer’s brother then came up and asked what was the matter, to which the overseer replied, stating what had taken place between him and the accused, and that the accused was “swelled up” about it, and the brother said, “We will take the swelling out of him,” and drew back with a hoe in his hand in the attitude of striking the accused, who also drew back the 'hoe he had taken, in the same attitude; that the overseer said to his brother, “ Don’t hit him with the hoe,” ran up and struck the accused on the head with a stick, in one end of which was a small iron or leaden ball; and that the accused immediately struck the overseer with his hoe, inflicting a wound on the head producing death, upon which the brother with his hoe knocked the accused down, and as he started to rise knocked him down again.</p> <p>(a) Whether the homicide was justifiable, or was voluntary manslaughter, is for decision by the jury, under the charge of the court.</p>

<p>Continuance. Practice. Trials. Before Judge Jenkins. Madison superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>A petition to the court of ordinary, made in 1889, to allow an order passed by that court in 1880 to be entered on its minutes and made its judgment nunc pro tunc, setting forth the reasons therefor and the order alleged to have been passed, but failing to set forth the petition upon which it was granted and the service thereof, should have been dismissed on general demurrer. On certiorari to the overruling of such demurrer, and to the grant of the application under the evidence submitted, the superior court should have made a final disposition of. the case and directed the court of ordinary to dismiss the application; matters of fact not being the subject-matter of certiorari, but of appeal from the court of ordinary to the superior court.</p>

Banks. Forgery. Benajides. Before Judge Eve. City court of Richmond county. September term, 1889. The Love and Good Will Society, a corporation, sued the Georgia Railroad and Banking Company for $275 and interest, upon a general deposit account. The defendant pleaded that it was only indebted to plaintiff $85, which it has always been ready to pay, and which it now offers to pay.

Negligence. Evidence. Practice. Trials. Charge of court. Damages. Before Judge Roney. Richmond superior court. April term, 1889. Salles Randall and his wife sued the railroad company for • damages, and obtained a verdict for $1,000. The case' came to this court, and is reported in 79 Ga. 304.

Actions. Estates. Parties. Administration. Principal and agent. Landlord and tenant. Husband and wife. Evidence. Statute of limitations. Trusts. Practice. Before Judge Honey. Burke superior court. December term, 1889. The facts of this case are stated in this decision.

Master and servant. Negligence. Torts. Ratification. Before Judge Roney. Richmond superior court. October term, 1889. ■ Smith brought his action alleging that the Sibley Manufacturing Company had damaged him $5,000, for that prior to January 26, 1886, he had been engaged in running and operating a cotton picker or cleaner in the picker room of defendant, and was receiving therefor 90 cents per day.

<p>Criminal law. Assault with intent to murder. Verdict. Evidence. Practice. Before Judge Lumpkin. Oglethorpe superior court. October term, 1889.</p> <p>Zack Huff was charged with assault with intent to murder Nellie Young. Upon the trial M. T. Young testified that he was the father of Nellie Young, who was a young lady. Defendant had been in his employment, and six days before the shooting he and defendant had had a little difficulty, in consequence of which defendant left his place on the day of the difficulty, but defendant’s wife did not leave on that day, though she did leave before the shooting occurred. Defendant was familiar with the premises. The night the shooting occurred was clear but smoky, and the moon was not giving much light. Nellie was sitting with her sisters on the front porch of witness’s house, and witness and his son were on the back porch. Nellie had on a dress which would have made her more easily discernible than the others. Witness heard a pistol fire, and heard his daughters scuffling the chairs about and holloaing that somebody was shooting at them. The ball did not miss Nellie’s head more than eighteen or twenty inches. The sound of the pistol was in the front of the house, about twenty-one steps from where the shot took effect, and was in full view of the place where the young ladies were sitting. Witness thinks defendant could have seen and distinguished persons that distance on that night, and if they were talking could have heard them, and he could have heard witness and his son talking on the back porch. Defendant could not see Nellie as far as he could see the others. This shooting occurred in Oglethorpe county on May 6, 1889. Witness heard defendant make a statement on the committing trial. He stated that he came there and did shoot, that he was down at the big gate when he did the shooting. When he made that statement, witness said he must have had a damn crooked barrel, he shooting one direction and the bullet coming back to the house. If defendant had been down at the big gate the ball never would have come towards the house at all. Before defendant made the statement above mentioned, he begged witness to forgive him and take him back, and witness refused to do it. If he had not acknowledged.it, witness would never have known anything about it. Never knew of anybody shooting at his house before-, and that was the only shooting that was ever done about there that he knew of.</p> <p>One Maxwell testified that on the morning after defendant had been put in jail, he went to give defendant his breakfast, and asked him about the difficulty and if he did it. He said that if what Mr. Winn had told him (Winn was the person who arrested him) was true he could prove himself clear; that Winn said the shooting occurred the same night the difficulty happened between him and Young. Witness asked him if he could prove where ho was, and prove himself clear all the balance of that time up to now. Defendant said he did not know that he could. Witness told him that Winn did not know the particulars; that the shooting was not done on that night, but was about a week afterwards; that defendant’s committal trial would come off the next day, and if he had any witnesses he wished to have on that trial, to let witness know who they were and he would send and get them, and was going to notify Young and the other parties to be there. Defendant said he did not know that he had any witnesses, and witness told him he would have to go to trial anyway. He asked witness what he thought about the case, and witness told him he did not know the facts, and could not tell anything about it ; that if defendant would tell him all he knew, may be witness could tell more about it. Defendant said if he had to go to trial and had to tell the truth about it, he would tell witness what did happen. Witness told him to tell him what happened, and he would tell what he thought about the case. Defendant said he went down to’ Young’s that night to see about his wife, not having heard from her for about a week. He learned that she had gone from Young’s place, and then went on down to Young’s and went through a big gate, a little piece from the house, and pulled out his pistol and shot it olí; that he did not shoot towards the house and did not aim to shoot anybody; that after he shot he got back over the fence, went through a cotton-patch to the road and on back to Madison county that night. It is seven or eight miles from ^Oglethorpe county site to Young’s. One Atkins testified that defendant, after he was put in jail, stated in witness’s presence that he left Madison county (describing the trip and purchase of a pistol) and came to Young’s, and at the gate pulled out his pistol and shot. Witness asked him what he did that for ; and he said he did not know, that he did not aim to shoot anybody and that he wanted “old marster” to come there and take him out, he would work for him as long as he wanted him to work, or do anything. This statement was made in the presence of the sheriff, but witness does not know what the sheriff had told defendant before this conversation occurred.</p> <p>For the defendant, a witness who lived in Madison county seventeen or eighteen miles from Oglethorpe county site, testified that on the 6th of May, 1889, defendant was working at his house, and he saw defendant there at supper-time that night, and also saw him there about half an hour by sun the next morning, the usual time the hands got their breakfast, and that he was there the two following days. Witnéss did not know where defendant stayed that night, but defendant said he was going down the road. The supper-time was about dark.</p> <p>Defendant was found guilty. He moved for a new trial on the general grounds, and because of error in admitting the testimony of Young and others, as to a previous difficulty with defendant and as to an alleged confession by him. The motion was overruled, and he excepted.</p>

Homestead. Evidence. Record. Before Judge Jenkins. Madison superior court. September term, 1889. Mrs. Mabry by her petition alleged that her husband, about September 7, 1874, applied for a homestead for her and himself in certain lands described, and had them set apart as a homestead on September 23, 1874. He died intestate.

Damages. Negligence. Contracts. Carriers. Railroads. Before Judge Cobb. City court of Clarke county. September term, 1889. On September 24, 1887, the plaintiff delivered to the agent of the Missouri Pacific Railway Company, at Austin, Texas, four boxes of goods consigned to himself at Athens, Georgia.

<p>Selling mortgaged property. Normer jeopardy. Constitutional law. Criminal law. Statutes. Principal and surety. Punishment. Jurisdiction. City courts. Evidence. Practice. , Judgments. Charge of court. Verdict. Before Judge Van Epps. City court of Atlanta. December term, 1889.</p> <p>On November 7, 1888, an accusation of M. E. Maher against John L. Conley was filed in the city court of Atlanta, charging that after having executed to Maher a mortgage-deed to certain personal property (setting forth'a copy of the mortgage-deed), he did, on May 10, 1888, sell and dispose of a portion of that property to the Plowboy Company, a corporation, with intent to defraud the mortgagee, without obtaining his consent, and without paying the indebtedness the mortgage was given to secure; whereby the mortgagee sustained loss, in that in December, 1887, judgment for $5,952.22 having gone against Conley and his sureties in the case specified in the mortgage, Maher, as secuidty, on May 29,1888, paid on the same $3,074.49, and A. E. Buck, one of the other sureties named therein, on June 16, 1888, paid $2,966.57, said sureties never having been reimbursed by Conley, and being unable, without serious delay and litigation, to subject any of the property of Conley, he having no visible effects. The mortgage was between Conley of the first part, and Maher of the second part, dated August 2, 1883, and for the consideration of one dollar and others hereinafter stated, the party of the first part hereby sells and conveys to the party of the second part certain personalty consisting of printing-press and material, safe, engine, etc., upon the following condition : The party of the first part having been sued in trover for the recovery of certain personal property by M. E. Thornton, and having been required to give a bond of $20,000 in said suit, and Maher being one of the sureties thereon: if the party of the first part shall save harmless the party of the second part by reason of said suretyship, this bill of sale shall become void; but if a judgment be had against the party of the first part, then the party of the second part may take possession of the property for the benefit and security of himself and the co-sureties on the bond, and deliver the same into court, and for that purpose the party of the first part will hold the property as the agent of the party of the second part until the final hearing of said suit in trover.</p> <p>Conley was arraigned, and he pleaded and was tried upon this accusation; but during the argument of counsel, upon discovery that the accusation failed to allege the venue of the offence, it was allowed to be amended, over Conley’s objection, so as to charge that the same was committed in Fulton county. For this error the judgment of the city court denying a motion in arrest of judgment after verdict of guilty, was reversed at the last term of the Supreme Court. 83 Ga. 496.</p> <p>On November 9, 1889, another accusation to the same effect was filed, charging the offence to have been committed in Fulton county, and that the judgment entered in December, 1887, against Conley and his sureties, was for $5,714.62 and costs which were after-wards entered up as amounting to $237.60, making the total of $5,952.22 (which was the amount stated in the first accusation).</p> <p>The defendant pleaded former jeopardy, averring that by the amendment made to the first accusation, the same was withdrawn from the jury and a new one submitted to them on which they had not been sworn and to which he had not been called upon to plead, and that they have not yet passed upon the same ; wherefore he was fully acquitted and discharged, and cannot now be put on trial under another accusation for the same offence of which he was acquitted by the illegal act of the court in allowing the amendment. This plea was stricken on demurrer.</p> <p>All the evidence was introduced by the State, and it tended to show the following : Conley induced Maher to sign the bond in the trover suit, representing that it was a justice court bond; It was accepted because Maher’s name was on it. He took the mortgage from Conley to secure himself from loss, and had it recorded. On December 15, 1887, a verdict and judgment were rendered in favor of Thornton against Conley and the sureties on his bond, two of whom were Maher and Buck, for $5 714.62. Execution issued for that sum with $237.60 costs; and on May 7, 1888, the sheriff’, after making an entry thereon of no property of Conley to be found, levied it on real estate of Maher, who, on the 28th of the same month paid to Thornton’s attorneys $3,076.49, and their acknowledgment of receipt was entered on the execution. On the 16th of the following month, Buck paid $2,966.57, in satisfaction of his liability, principal, interest and costs. Maher has never been reimbursed. He saw the defendant several times and tried to get him to 'settle, but could not do so. On May 13, 1888, he received from Conley a letter stating that he would not be able to do anything; and that the only chance he saw was, to “ stand those fellows off” in some way until he could make some reasonable settlement with them; otherwise he feared Maher would suffer loss, as he- had nothing on earth to indemnify him. Maher then went again to East Point and saw Conley in the Plowboy office; and after again vainly trying to get satisfaction of him, asked where the property was that he had the mortgage on, to which Conley replied,. “It is all here,” waving his hand. He seemed to be in charge of the office. Maher asked him what he proposed to do about the bond, stating that his (Maher’s) property was advertised for sale, and that he had to pay the bond, and he wanted to know what arrangement Conley was going to make about it. Conley said he couldn’t do anything about it; that he “ didn’t have nothing.” Maher said, “Why don’t you get your wife to raise this money for you ? The difference between my wife and your wife was, that my wife told me to sell everything and pay this, and your wife won’t help you out at all.” Conley said, “ Iiush, don’t talk so loud; she is up stairs. Maher said, “ I don’t care if she is ; I want her to hear it. I will send and get the property.”, Conley said, “ All right, send and get it.” Maher said, “ Where is it at?” and Conley replied, waving his hand around the building, “ It is all here, except some press.” Subsequently Maher had the fi.fa. issued upon the foreclosure of his mortgage levied on an engine, printing material, etc., and a claim was interposed by the Plowboy Company, by its president Morris J. Conley, who, with Sarah H. Conley and one more, signed the necessary bonds as securities. The claims were in the same handwriting as Conley’s signatui'e to the letter to Maher, who testified that defendant acknowledged that they were in his handwriting; also that he said that if he did transfer the property to his wife, he did it to satisfy a prior lien. Printing material used by Thornton in publishing the Post-Appeal newspaper, and afterwards used on the Evening Journal, was carried by Conley to East Point and there used in publishing the Plowboy. It was pretty badly worn and not of much value. lie told the levying officer that the property levied on was that of the Plowboy Company, and that he had no interest in it. The Plowboy Company was chartered on April 25, 1885, upon the petition of Samuel Hape, Morris J. Conley, W. O. Charlton and John L. Conley, for the purpose of carrying on a general printing business, etc. Defendant organized the company and managed the business. Hape had no stock or interest in the company, and simply allowed his name to be used, at defendant’s request.</p> <p>In his statement the defendant said that the property he was charged with selling was the property involved in the trover suit; that part of it (a printing-press) was sold by the sheriff under a mortgage which had been given by Thornton, and was taken away in February, 1887; another part (an engine) was loaned to Maher and remained where he or his son put it and had never been touched, and the balance of the property was used on the Atlanta Journal for a long time, and in one w.ay and another it went to nothing, and what little of it was left was moved to East Point in 1884, but it never was in the building where stood the property which “was levied on under these claims”; that the property in that building was purchased from various persons (naming the articles and stating the names of the persons), and in that building there never was a particle oí property that was in the Post-Appeal office; that there was some old stuff at East Point, not in that building, which defendant told Maher he'could have if he wanted it; that he had never asked for it, but instead had “ sent down there and levied on property that never was in that building ”; and that defendant had never been asked to deliver to anybody any property, nor to point out any, was not there when either of the levies were made, and never made any representations to Maher when the bond was signed. The jury found him guilty; and he was sentenced to pay a fine of $6,152.98 or be confined in the county chain-gang for twelve months, with the privilege to pay the fine and be discharged at any time. He moved in arrest of judgment on the following grounds (which were also grounds of a demurrer to the accusation) :</p> <p>(1) The accusation chai’ges no offence known to the law; the moi'tgage-Tdeed set out therein showing on its face that it was executed to indemnify a surety against loss in an action ex delicto, and not to secure the payment of a debt; and “said accusation alleging that no debt existed between the parties to said mortgage for more than four year’s after the date thereof.” (2) The act of October 8, 1887, conferring jurisdiction on the city court of Atlanta to try offences against section 4600 of the code, and the acts amendatory thereof, are unconstitutional ; and there is in law no such offence as the accusation sets forth. (3) Section 4600 of the code, and the act of October 13, 1887, amendatory thereof, are unconstitutional-in that they impose excessive fines ; the fine imposed in this case being according to the alleged indebtedness of the defendant, and not according to his fault. (4) Said acts are unconstitutional, in that they provide for imprisonment for debt. (5) There is no law making penal the selling of personal property covered by a mortgage executed to indemnify a surety against loss, there being no debt existing between the •mortgagee and the mortgagor at the time of the execution of the mortgage.</p> <p>This motion was overruled; and the defendant after-wards moved for a new trial on the grounds stated in the opinion. Other grounds set out portions of the judge’s charge as erroneous; and others assigned error upon his refusal to charge, upon requests, as follows :</p> <p>Unless it appears from the evidence that at the time of the execution of the mortgage set out in the accu-' sation, if it was executed, the defendant was indebted to Maher, to whom it is claimed the mortgage was given, and that the mortgage was given, to secure an existing indebtedness, it would be your duty to acquit the defendant. Before you would be authorized to convict the defendaiit, it must appear "to your satisfaction, from the evidence and beyond a reasonable doubt, that a judgment was rendered against him in the trover suit mentioned in the accusation for the amount stated, and that Maher paid on said judgment the sum stated in the accusation, and that A. E. Buck also paid on said judgment the sum stated in the accusation, and that neither Maher nor Buck have been reimbursed by the defendant. It is incumbent upon the State to prove to your satisfaction and beyond a reasonable doubt the allegations of the accusation. If you believe from the evidence that the defendant disposed of the property set out in the mortgage he gave to Maher, if he did, was disposed of as charged in the accusation, the proof would have to go further and show that not only -was the property disposed.of without the consent of Maher, but also without the consent of Buck, as charged in the accusation, and with the intent to defraud said mortgagees; and unless this has been proved to your satisfaction by the State, it would be your duty to acquit the defendant.”</p> <p>The judge’s charge, after setting forth the substance of the accusation, proceeded thus :</p> <p>“ To this chai’ge, the defendant standing mute, a plea of the general issue — of not guilty — was entered by order of the court. This plea puts in issue every material allegation in the accusation. The effect of the plea is to put the burden on the State of establishing the truth of those allegations beyond a reasonable doubt. In the view which the court takes of the case, the fact that Buck was also a surety (if he was), and that judgment was against him also, and that he paid a part, has nothing to do with the guilt or innocence of Conley; Buck not having been named as one of the mortgagees in,the alleged mortgage, nor a party thereto, said instrument purporting only to be between Conley and Maher.” Here the judge read section 4600 of the code, and proceeded : “You will observe that the essential ingredients of this crime, as defined in the statute, are as follows : it must appear that the defendant executed a mortgage to personal property to secure the payment of the indebtedness, as charged; that after executing and delivering it, he sold or otherwise disposed of the mortgaged property or some part thereof; that this was with the intent to defraud the mortgagee; that this was done before paying the indebtedness for which the mortgage deed was executed; and that loss was thereby sustained by the holder of the mortgage; and finally, that this was done without the consent of the mortgagee being first obtained. All of these facts are material, and the burden of establishing each and every one of them to your satisfaction beyond a reasonable doubt is upon the State.' Whether or not the defendant executed and delivered the original of the writing set out in the accusation to M. E. Maher, is for you to find from the evidence. The duty of construing that writing is upon the court. The court charges you that said writing is a mortgage within the meaning of the law. It creates a lien upon the property mentioned in it to secure the payment of a contingent indebtedness, that is, to indemnify the surety named in it, or hold him harmless in case he sustains loss by reason of his contract of suretyship ; and as such, this instrument is as fully within the law as if given to pay an actual indebtedness then existing and ascertained between the parties. And in this case, if you believe from the evidence that the defendant executed and delivered to Maher the mortgage in question to indemnify Maher or hold him harmless from loss by reason of Maher having, as Conley’s surety, signed a bond in a trover suit of one M. E. Thornton against Conley and Maher, and that Maher sustained a loss therein by having to pay any part of this judgment, and that after this mortgage was executed in Fulton county on the 10th day of May, 1888, or on any other day within two years prior to the making of the affidavit on which the accusation is predicated, the defendant sold or otherwise disposed of the personal property specified in the mortgage, or any part of it, to the Plowboy Company with intent to defraud Maher, and that this was done before paying Maher the indebtedness for which the mortgage was executed, that is to say, the liability which Maher incurred as surety aforesaid, and without Maher’s consent being first obtained, and that loss was sustained by Maher, and you believe all these facts beyond a reasonable doubt, you-would be authorized to find the defendant guilty. If any of these material facts are not established to your satisfaction, or if you entertain a reasonable doubt as to the truth of any one of them, you would give the benefit of the doubt to the defendant and acquit him. The State is not bound to show an actual sale; and while a mere delivery of property by a debtor to another for custody or temporary use not inconsistent with the mortgage or the rights of a mortgage creditor, would not be within the statute, any other disposal of it would which was accompanied by actual delivery to a third person, and coupled with any sort of claim of right or title created in such person by the act of the mortgagor, which would make it necessary for the mortgagee to incur expense to follow the property or discover and subject it in consequeuce of a fraudulent sale or a fraudulent disposition. The law inhibits a debtor by his own voluntary act, after having mortgaged personal property, from creating a right or claim of interest in another which has the efiect to delay and hinder his creditor, and put him to expense and trouble and loss in asserting his mortgage lien in a contest with such third person. A debtor, having mortgaged personal property to secure a debt, cannot thereafter create by his own act an interest in a third person, and authorize such third person to put in a claim of ownership to such property and aid him in the assertion of such title, and thereby hinder, delay or obstruct the mortgage creditor, and subject him to trouble and expense in his effort to enforce his mortgage lien. To do so is criminal under our law. The burden is on the State to show a sale or other disposition of the mortgaged property or some part thereof, either on the date alleged, or within two years next before the date of the charge. The State may show this or any other fact in issue, if it can either by direct or circumstantial evidence; but unless the State has done so to your satisfaction and beyond a reasonable doubt, the failure must result in a verdict of not guilty. Now the weight of the evidence and the credibility of witnesses is with you. It is your province not only to find what facts have been established by the direct testimony of witnesses, but you are authorized to draw reasonable inferences and deductions' and to find conclusions going beyond the letter of the testimony of any witness, provided they are, in your opinion, rational and reasonable, and authorized by other facts and circumstances in evidence. In so far as the guilt of the defendant depends on circumstantial evidence alone, the rule is that each separate fact or link which goes to make up the chain of circumstances from which the deduction of guilt is sought to be drawn, must be clearly proved, and a fact not clearly proved should not be considered as a part of the chain of circumstances, and should be rejected by the jury ; and the circumstances proved must not only be consistent with the defendant’s guilt, but they must exclude every other reasonable hypothesis than that of his guilt. Now if any one or more of the circumstances relied on by the State are not clearly proved, and for this reason you reject one or more of the circumstances relied on, then you will inquire whether the remaining circumstances proved (if they are clearly proved) are consistent with the defendant’s guilt, and inconsistent with any other reasonable hypothesis than that of his guilt. All essential facts and circumstances necessary to show the commission of the crime, and to connect the defendant therewith as the party committing it, must be proved. In all criminal cases the defendant’s guilt must be established beyond a reasonable doubt. The doubt must be pertinent to the matter in issue. It must arise out of the evidence, or for a want of sufficient evidence. Juries in their judgment in criminal cases occupy the same position as other searchers after truth, with but one exception: the presumption is in favor of innocence, and the guilt of the defendant must not be doubtful; but the rules of belief and the grounds of confidence are the same as in other cases, and the principles of common sense are just as controlling as in other cases. If, after you have examined all the evidence in this case, your minds are unsatisfied, unsettled, wavering, and you cannot as honest men come to a conclusion beyond a reasonable doubt of the defendant’s guilt, then you ought to acquit him; but if the evidence shows beyond a reasonable doubt that the defendant is guilty, it is your duty to convict him. The defendant in this case has made a statement in the hearing of the court and the jury. The statement is not under oath ; it is entitled to just such force and efieet as you see proper to give it. The statute declares that you may, if you see proper to do so, believe the statement in preference to the sworn testimony in the ease. Yon may believe the statement in whole or in part; you may reject it in whole or in part; you may believe it in preference to the sworn testimony in the case, or you may disregard it alogether. The language of the law is, that the jury may do either the one or the other of these things; not that you must do it.”</p>

Constitutional law. Municipal corporations. Railroads. Contracts. Before Judge Hutchins. Clarke superior court. April term, 1889.

Evidence. Verdict. Nonsuit. Charge of court. Negligence. Practice. Before T. S. Mell, Esq., judge pro hac vice. City court of Clarke county. September term, 1889. The nature of the action will appear from the report of the testimony. Eor the plaintiff, in chief, it appeared that about dark he was going down Lumpkin street in the city of Athens, intending to cross the street. Three drays or cotton-wagons came rapidly down the street, and he stopped until they passed.

Criminal law. Shooting at another. Verdict. Charge of court. Prisoner’s statement. Manslaughter. Practice. Before Judge Hutchins. Clarke superior court. April term, 1889. Indictment for assault with intent to murder.

. Seduction. Criminal law. Charge of court. Before Judge Winn (motion for a new trial before Judge Gober). Cherokee superior court. September term, 1889. Albert O’Neill was indicted for seduction of Mary Hall. The evidence was as follows: Mary Hall: I am a single woman. O’Neill is an unmarried man. He visited me in 1887 and 1888; he quit coming in January, 1888; he come once or twice after that, but not to see me; he visited me ten months.

<p>1. Prohibition is the proper remedy to prevent the ordinary from proceeding further, pending an appeal from that court to the superior court.</p> <p>2. Appeals by affidavit in forma pauperis may be taken from judgments rendered by the court of ordinary since section 3623 of the code was amended by the act of 1879.</p> <p>3. The amending act of 1879 describes both the law amended and the alteration made, sufficiently to satisfy the constitutional requirement on that subject.</p> <p>4. When an executor is proceeded against under section 2447 of the code for mismanagement, he is required to show cause specifically “why he should not give bond and security for the faithful execution of his trust”; whereas, the citation contemplated by section 2511 is to “answer to such charge.” The proceeding in the present case was under the former section, not under the latter; consequently, the proviso in section 3611 requiring bond and security to be given in order for an appeal to operate as a supersedeas, does not apply.</p>

Nonsuit. Actions. Counties. Constitutional law. Damages. Before Judge Maddox. Floyd superior court. September term, 1889. To the September term, 1887, of Floyd superior court, the plaintiff brought his action against Floyd county for damages to his lot by the building of a bridge.

Notice. Telegraph companies. Damages. Demand. Waiver. Principal and agent. Before Judge Meyeriiardt. City court of Floyd county. December term, 1889. On November 2.Í, 1888, E. G. Hill obtained a judgment and decree against I. P. Harris and J. B. Little, and on December 10th execution for $412.44 was issued, and on December 21st it wasleviedon certain property by the sheriff.

<p>Garnishment. Notice to produce papers. Practice. Before Judge Wellborn. White superior court. October term, 1889.</p> <p>On August 30, 1888, Findley recovered a judgment against W. S. Mappin, and execution issued October 2, 1888. On October 11, process of garnishment was sued out and served on the Hamby Mountain Gold Mines, .Limited, a corporation of London, doing business in White county, Ga. Answer was made by its resident agent, John Mappin, denying indebtedness, and was traversed by the plaintiff, stating that the garnishee was indebted to W. S. Mappin at the time of the service of the summons of garnishment, and became indebted between the service of the same and the making of the answer, and had property in its hands belonging to W. S. Mappin at the time of the service of the summons, and had received into its hands property and effects belonging to him between the time of the service of the summons and the making of the' same. The case came on to be tried at the October term, 1889. Previously, on August 13, the plaintiff' had served the garnishee’s attorney with a notice to it to produce at the trial the stock-book, cash-book, the original book or books of entry, the journal and ledger, showing the account of W. S. Mappin with said company, and any and all books showing the relation of W. S. Mappin to said company; also the minutes of said corporation, showing the election of president, vice-president, directors and other officers of said company and the salary of each, as said books contained evidence material to the cause in behalf of plaintiff', and he desired the use of them as evidence on the trial. He called for response to the notice; and John Map-pin swore that he was the only agent of the garnishee in Georgia and had charge of the only business conducted by it in this State, and its only office and only property in this State 'were in his charge in Whi’e county and had been since before this controvei’sy arose ; that no such books or papers as are called for in the notice had ever been in said office or in his possession, power, custody or control; and that he supposed there were such books as are described in the notice, in the garnishee’s office in London, but did not know that they contained any accounts or transactions between it and W. S. Mappin. Its attorney stated that he forwarded the notice served on him to the company on August 14, 1889, and had received no reply to his letter, and that he had none of the books called for. Plaintiff stated that he was satisfied that the garnishee’s counsel did not have in their power or custody any of the books desired.</p> <p>Counsel for the garnishee moved that plaintiff’s' traverse be stricken as insufficient, and because it did ■not deny the answer, and because it did not allege that the garnishee was indebted to the defendant by reason of any contract made with it in Georgia or its agent in Georgia or on account of any transactions in Georgia, or had or ever had any effects of defendant in Georgia; and did not show or allege any such indebtedness or the possession of any such effects as the coui’ts of Georgia would have jurisdiction over. The motion was overruled. The plaintiff (who was his own counsel) then moved that the court direct a verdict against the garnishee for the amount of his claim for not producing the books called for in his notice, stating that he believed it was indebted to defendant for services rendered by him as director in this State; that he (defendant) was a resident of London, but had for a time been in this State as managing director of the garnishee; that he did not know whether the books would show any indebtedness on its paid to defendant, but expected they would and desired them to ascertain whether they would. Counsel for the garnishee objected, on the grounds that the notice was too general and vague to be complied with, and was unreasonable in its requirements, and was not limited to such books as could be material or pertinent to the case, to wit, such as would show indebtedness to the defendant arising in Georgia; that there was no traverse, allegation or pleading showing that any such indebtedness or any indebtedness existed, or that any effects were in existence or in the garnishee’s hands as would be within the jurisdiction of the courts of Georgia; that it did not appear that anything that would be pertinent to the case was called for, and the court ought to indicate what books, if any, would be pertinent, and continue the ease to the next term in order that the garnishee could comply with the notice after it was thus made more definite; that there was no issue, and the pleadings were not in shape for the jury to act on the case; and that the books called for were not and had never been within the jurisdiction of the court. The court overruled the objections and sustained the motion, and directed the jury to find a verdict for the plaintiff against the garnishee for the amount of his-judgment, which they did, the execution being introduced to them.</p> <p>The garnishee excepted to the overruling of its motion to strike the traverse, and to the sustaining of the plaintiff’s motion to direct a verdict in his favor.</p>

<p>An action for a claim alleged to be due one county by another, brought in the name of the commissioners of the former against the ordinary of the latter, will not lie. An amendment striking the name of the ordinary so as to leave the action as against the county, introduces a new party.</p>

<p>A rule nisi taken by consent of both parties at an adjourned term of the superior court, on a motion for a new trial made in the interval between the regular term when the verdict was rendered and the adjourned term, cures an omission to sign the motion, and the irregularity in the time of making it.</p>

<p>On a trial for burglary, it was error to admit the jailer’s testimony of the contents of letters written by the accused to his father and another person, and of the reply to one of them, over objection that the writings were the best evidence and their non-production was not accounted for.</p>

<p>1. Where a person is indebted by general judgments to certain of his creditors, makes a sale of and conveys by warranty deed a portion of his lands to another for a fair and valuable consideration, and after such sale and conveyance certain other of his creditors obtain general judgments against such debtor, and when all of the property of the debtor is sold by the sheriff, including the land conveyed, and the money arising from such sale is in the hands of the officer for distribution, the bona fide purchaser has a superior equity to liave so much of the fund which arose from the sale of the debtor’s property, other than from the land conveyed to him, applied to itlieolder judgment liens antedating his purchase, to the equity of the junior judgment creditors to have the older judgments be paid first out of the fund which arose from the sale of the purchaser’s land.</p> <p>2. In such a case the fund will be distributed according to equitable principles, and ratable contribution of the two funds towards satisfying the older judgment liens would be inequitable.</p> <p>3. This not being a contest between several bona fide purchasers, the rule as applicable to them is not decided.</p>

Railroads. Damages. Before Judge Meyerhardt. City court of Floyd county. September term, 1889. The Chattanooga, Rome and Columbus Railroad Company proceeded under its charter to condemn for its right of way a strip of land sixty-six feet wide through the premises of one McLendon, and on April 25, 1888, the jury summoned to assess the damages found for McLendon $450 for all damages and the right of way; and this sum was paid to McLendon.

<p>Money rule. Mortgages. Liens. Judgments. Before Judge Maddox. Floyd superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>This court is not permitted, under the act of November 11, 1889, prescribing the manner of bringing cases here, to look into a record brought up in non-compliance with that act. Were it otherwise, it would appear that the verdict was demanded by the evidence, and that the object of the defendant in moving for a continuance for the absence of his original counsel (the case having been previously continued twice for the same cause) was more for the purpose of preventing a trial than for a proper defence to be made.</p>

<p>Contracts. Actions. Verdict. Before Judge Maddox. Paulding superior court. August term, 1889.</p> <p>Reported in the decision.</p>

<p>Bonds. Principal and surety. Demand. Nonsuit. Before Judge Hutchins. Gwinnett superior court. September term, 1889.</p> <p>Reported in the decision.</p>

Illegality. Executions. Liens. Record. Principal and surety. Practice. Before Judge Wellborn. Habersham superior court. September term, 1889. On January 26, 1885, the comptroller-general issued an execution against E. Fuller, tax-collector, and his sureties, M. Fuller, J. P. Phillips, O. J. Reynolds and M. Parker, for $1,995.84 taxes collected for 1884, with twenty per cent, per annum and costs.

<p>Where one voluntarily and not under compulsion paid money to the board of commissioners of a town for a license to retail liquors, and was subsequently indicted and convicted of illegal retailing, he could not recover the money he had so paid; although he did so in good faith, believing and being assured by the commissioners that they had full power and authority to issue the license.</p>

Railroads. Master and servant. Presumptions. Damages. Negligence. Before Judge Milner. Whitfield superior court. April term, 1889. Action for injuries received by the plaintiff while working as brakeman on a freight-train of the defendant. There was switching to be done at Marietta, and the train being a little late, it had to be done in a hurry; and when plaintiff went in to couple the cars, the conductor told him to hurry up.

Bonds for title. Executions. Levy and sale. Charge of court. Verdict. Before Judge Milner. Murray superior court. August term, 1889. A fi.fa. based on a judgment of August 16, 1886, in favor of J. C. McEntire against John IT. Peeples principal, and J. W. Patrick security, was on November 30, 1886, levied upon certain land as the property of Patrick. This land was claimed by John Bryant; and Bryant having died, his executors were made parties.

<p>Where an attachment was issued in a justice’s court and levied, and subsequently an execution against the defendant was issued there, commanding levy and sale of a sufficiency of the property of the defendant and of the property described in the attachment levy to make the sum for which the attachment issued, with interest and costs, and reciting that this was adjudged against him upon the attachment, and this execution was levied upon certain personalty notincluded in the original attachment levy, and a claim thereto, was interposed, it was right to dismiss the levy because it did not appear that notice had been given as required by section 3309 of the code, nor that the defendant had given bond and security according to section 3319, nor that he appeared and made defence according to section 3328, thereby authorizing the issuance by the magistrate of , a general execution against the defendant. These things might have been shown by testimony had it been offered.</p>

<p>Garnishment. Officers. Before Judge Meybrhardt. City court of Floyd county. September adjourned term, 1889.</p> <p>The plaintiff sold to the defendant certain building material which was used by him under his contract with the board of trustees of the asylum for the deaf and dumb, in improving and constructing buildings for that asylum. After the work was completed, there was a balance due by the trustees to the defendant under his contract. ' The plaintiff brought suit against the defendant on an account for the material he had so sold, and caused process of garnishment to be served upon the trustees of the asylum, who answered admitting their indebtedness to the defendant, and stating that the asylum belongs to and is supported by the State, which furnishes all the funds expended for its maintenance, and whose agents the trustees are. The defendant moved that the court dissolve the garnishment, for the reason that the garnishees are agents for the State, and that as such they are not subject to the process. This motion was sustained, and the plaintiff excepted. A general judgment in his favor against the defendant was rendered,</p>

Damages. Railroads. Evidence. Negligence. Hes gestee. Contracts. Corporations. Charge of court. Practice. Before Judge Maddox. Eloyd superior court. September adjourned term, 1889.

<p>Damages. Railroads. Carriers. Charge of court. Evidence. Before J. I. Wright, Esq., judge pro hac vice. City court of Floyd county. December term, 1889.</p> <p>Reported in the decision.</p>

Railroads. Negligence. Before Judge Harris. Campbell superior court. August term, 1889. H. A. McLarin sued the railroad company for damages, and on the trial his evidence showed the following: On Jan. 4, 1889, he went -with his daughter and two young children to assist them in boarding defendant’s passenger-train, leaving Fairburn. He was sixty-five years old.

<p>All bills of exceptions certified since January 1st, 1890, must conform to the act of November 11th, 1889, the prior statutes on the subject having been superseded by that act. Where there-has been no compliance, nor attempt to comply, with the provisions of the act, this court will not reverse the judgment complained of.</p>

<p>Railroads. Negligence. Before F. C. Foster, Esq., judge pro hac vice. Newton superior court. September term, 1889.</p> <p>Hardwick sued the railroad company for damages. The material allegations of the declaration were as follows: On February 5, 1888, plaintiff, in company with his minor son, who was under his employment, control and oversight, boarded defendant’s night passenger-train at Madison station, having tickets purchased from defendant. The conductor collected plaintiff’s fare to Conyers station and the fare of his son to Almand station; his son at the same time telling the conductor to stop the train at Almand, where he wanted to get off. But the train ran past that station at the usual speed, fifteen to twenty miles per hour, making no effort to stop, though this was a usual place to take on and discharge passengers. Not wishing to be carried by in this manner, especially as it was dark, plaintiff’s son arose and went forward on the train in search of the conductor, in order that the train might be stopped for him to get off. About this time the conductor approached and passed plaintiff from behind, going through the rear door of the coach and leaving it open. As he passed, plaintiff asked him why he did not stop the train to let young Hardwick get off' as he had been directed to do. Receiving no reply and the door being open, plaintiff’ arose and went to the door, naturally feeling great anxiety for the safety of his son under the circumstances. Just as he reached the door, the conductor, without any notification whatever, seized a rope and gave it a strong jerk, causing the train to come to a sudden and violent stop. Plaintiff’ naturally threw his left hand against the facing of the door for support and to keep from falling, and a part of his left forefinger was caught between the door and the facing, and a portion of it was thus entirely cut off. The train was not stopped until it had passed the station about four hundred yards above where plaintiff's son got off. The defendant was negligent in not stopping the train at the proper place and in making no effort to do so, and in stopping so suddenly and recklessly at the place where it did stop; and in not propping or fastening the door back so that it would not shut while passengers were alighting; and in not replying to plaintiff’s question asked of the conductor. On account of this negligence and without fault on the part of plaintiff or his son, plaintiff has been seriously wounded and maimed for life, from which he suffered intense pain, was put to expense for doctor’s bills, etc., and has been permanently injured.</p> <p>On general demurrer the action was dismissed, and the plaintiff excepted.</p>

Assumpsit. Contracts. Brokers. Principal and agent. Yendor and purchaser. Actions. Sales. Before Judge Harris. Coweta superior court. March term, 1889.

<p>Certiorari. Appeal. Practice. Justices’ courts. Before Judge Boynton. Pike superior court. April term, .1889.</p> <p>Brooks presented Ills petition for certiorari, alleging as follows : In a certain magistrate’s court there came on to he heard the case of Baker, plaintiff in attachment, against petitioner, as claimant of certain property on-which the attachment had been levied. The plaintiff introduced four witnesses, each of whom testified that a sou of the defendant in attachment had offered to sell the property claimed, as the property of his father; and closed. Petitioner moved to dismiss the levy, on the ground that the plaintiff had not made out his ease, had not shown any indebtedness by the defendant in attachment to him (plaintiff), nor that the defendant in attachment had placed himself in any of the conditions provided by law for suing out an attachment. Plaintiff' tendered no written issue, nor any issue at all, and did not offer to petitioner or his attorney, for inspection, the affidavit nor the attachment; nor were they read or offered to the court, nor referred to in the progress of plaintiff’s making out his case in any way. The motion to dismiss was overruled; the magistrate holding that it was not necessary to tender a written issue in a justice’s court, and that the attachment papers were court papers and it was not plaintiff’s duty to offer them. Petitioner introduced no evidence; and the magistrate entered judgment finding the property subject. This finding and the overruling of the motion to dismiss are assigned as error.</p> <p>The judge refused the writ of certiorari, holding that the matters at issue and errors complained of involved questions of fact as well as of law, and that appeal was the remedy. Brooks excepted.</p>

<p>New trial. Evidence. Practice. Before Judge Boynton. Pike superior court. April term, 1889.</p> <p>Reported in the decision.</p>

Damages. Negligence. Railroads. Evidence. Charge of court. Before Judge Harris. Troup superior court. ^April term, 1889. On June 13, 1885, Mrs. Newton sued the railroad company for $15,000 damages for the homicide of her husband. On the trial the evidence was conflicting, but tended to show the following facts: Newton was sixty-three years old.

Damages. Railroads. Negligence. Evidence. Witness. Admissions. Before Judge Jenkins. Jones superior court. October adjourned term, 1889. On December 19, 1886, about half past seven o’clock at night, the plaintiff’s mare was killed by defendant’s east-going passenger-train, having four coaches. Suit for damages was brought on March 12,1888, and a verdict was rendered for the plaintiff', and was set aside on motion for a new trial.

Arson. Criminal law. Evidence. Verdict. Before Judge Jenkins. Putnam superior court. September term, 1889. Indictment against George Williams for arson. The testimony for the State tended to show that the wife of George Williams was hired by Henry Hargroves to do day-labor, and had been staying at Hargroves’ house on the land of one Armor, but on the night the house in question was burned, was staying with Amy Ward.

<p>False swearing. Criminal law. Officers. Before Judge Jenkins. Wilkinson superior court. October term, 1889.</p> <p>Reported in the decision.</p>

<p>Larceny. Criminal law. Evidence. Verdict. Landlord and tenant. Title. Before Judge Jenkins. Putnam superior court. September term, 1889.</p> <p>Reported in the decision.</p>

Evidence. Verdict. Guardian and ward. Before Judge Jenkins. Wilkinson superior court. October term, 1889. S. P. and G. P. Thompson, as administrators of James R. Thompson, who was the guardian of Rebecca McGowan at the time of his death, cited T. C. Dickens, who had been appointed successor of their intestate as guardian, to a settlement of accounts in the court of ordinary. The case was appealed by consent to the superior court, and there it was referred to an auditor.

<p>In a suit against the executor and legatees of one deceased, it was alleged that in December, 1866, by writing not dated and not under seal (setting it out) the deceased agreed, in consideration of the dis-mission of a ca. sa. sued out by the plaintiff against one of the defendants in an execution in his favor, and of $5, to pay off the execution (calling for about $4,976) if it should not be paid by the defendants therein ; that on July 8, 1872, one of these defendants made to plaintiff two promissory notes for $2,000 each, with interest, due by the first of the next January; and that on the same day the deceased and the administrator of another of the defendants in the execution, by writing under seal, set out, recited the making of the two notes and the agreement of the deceased substituting himself for the defendant against whom the ca. sa. was sued out, and making himself liable in his stead upon the judgment, and thereupon agreed to all the terms of the contract between the plaintiff and him who gave the notes, and acknowledged themselves parties thereto. Held:</p> <p>The obligor under the agreement not under .seal was hound to pay the execution within a reasonable time; his liability was in the nature of a security guarantor; and the limitation of an action on the promise was six years. The last writing under seal acknowledged the liability of the deceased to pay the execution; and it may be fairly infei'red from, the writings that he thereby promised to do so, and that the promise was founded upon a further or another consideration than that stated in the first writing. By the last writing his liability was made only $4,000 and his time was ex-' tended to January 1, 1873; the statute of limitations did not begin to run in his favor until that date, and the period of limita- ■ tion was twenty years.</p> <p>(a) The petition, which is in the nature of an equitable proceeding, though somewhat loosely drawn, is not subject to general demurrer; and it is amendable by a prayer for judgment guando acciderint against the executor, and for decree requiring the legatees to contribute ratably to the payment of the debt from the property and effects of the deceased, if his estate has been distributed to them by the executor in good faith and without knowledge of plaintiff’s claim.</p>

<p>Illegality. Bonds. Executions. Before Judge Harris. City court of Macon. December term, 1889.</p> <p>Beported in the decision.</p>

<p>Needs. Title. Estates. Before Judge Fort. Nooly superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>Where Mary Murchison tendered her resignation as executrix of K. B. Murchison, and suggested the appointment of White as administrator with the will annexed in her stead, and White was so appointed by the ordinary, and allowed until the nexttermto perfect his bond, and at the next term the bond was given and letters were issued to White, Mary Murchison being still in life and known so to be by the sureties in the bond, but in the bond White was, by mistake in writing, mentioned as administrator of Mary Murchison instead of as administrator with the will annexed of K. B. Murchison, while in the letters of administration he was recited as having been appointed administrator with the will annexed of Mary Murchison, deceased, the bond was nevertheless not invalid, the proceedings being in substantial compliance with code," §2505, and the intention of the administrator and his sureties being manifest. By proper pleadings the bond may be reformed, and the ordinary can in term correct the letters of administration.</p>

Bonds. Supersedeas. Judgments. Practice. Before Judge Willis. City court of Columbus. January term, 1890. At the July term, 1889, of the city court of Columbus, Prank Robinson was convicted of fornication, and sentenced to twelve months in the chain-gang. During that term he moved for a new trial, and the hearing of the motion was continued until August 19th.

<p>Murder. Criminal law. Continuance. Practice. Evidence. New trial. Before Judge Bower. Mitchell superior court. November term, 1889.</p> <p>Reported in the decision.</p>

<p>The action being upon a promissory note of a partnership, and no question being raised by plea or evidence as to the authority of the active partner to execute the note or make any other contract involved in the controversy, it was error to instruct the jury that lack of authority might he shown under the plea of the general issue.</p>

Service. Garnishment. Judgments. Before Washington Dessau, Esq., judge pro hae vice. Pulaski superior court. November term, 1889.

<p>That a nolle prosequi was entered without the prisoner’s consent after issue was joined and the jury were sworn, will bar a subsequent indictment for the same assault with intent to murder, where the first indictment alleged that offence and was good and sufficient for a simple assault, even if not so for the aggravated assault charged. There can be no second jeopardy as to either grade of assault, and as the major includes the minor, the second indictment comprehends the same simple assault of which the accused was acquitted on the first indictment.</p>

<p>Practice. Trials. Before Judge Fort. Sumter superior court. May term, 1889.</p> <p>Reported in the decision.</p>

<p>Where an attorney at law, under employment, obtained judgment of foreclosure of a mortgage and caused execution to be issued and levied on the land, which was sold, his client becoming the purchaser and taking the title, no money being paid, but the price of the land being entered as a credit upon the execution, the lien of the attorney for his fee attached to the land and could be foreclosed thereon.</p>

Ejectment. Evidence. Practice. Deeds. Verdict. Before Judge Bower. Decatur superior court. November term, 1889. Action of ejectment, brought October 25, 1887. One demise was from H. B. and H. M. Hooks, as administrators of Hillary Hooks, and tbe other from John Mills. The real defendant was M. Swicard, who pleaded not guilty and prescription. For the other facts now material, see the- decision.

Distress warrant. Exemptions. Before Judge Han-sell. Brooks .superior court. May term, 1889. On November 24, 1888, B. L. Williams, as agent for Mary A. Williams, made affidavit before a magistrate of Brooks county that N. B. Shiver, her tenant, of said county, was justly indebted to her $55 for rent of land and mule, which sum was then due.

<p>The plaintiff in ejectment introduced in evidence the record of an. equity cause in the United States circuit court, with the decree rendered therein finding that three named persons (a deed to whom had been introduced by the defendant) were agents of a named corporation, had bought the land mentioned in the, deed to themselves with money belonging to that corporation, and had attempted to convey the same to it by a deed which was imperfectly executed; that it had conveyed these lands to other persons, and that finally the same were conveyed to the plaintiff; and directing that the three agents of the corporation and all the defendants in the cause claiming under them execute to the plaintiff their deed to the lands; and that they be enjoined from selling or disposing of or interfering with them, either by themselves or by their agents or attorneys: Held, that the effect of this decree was to put into the plaintiff a perfect equity, and as to the heirs at law of the three agents of the- corporation his equity was complete, so that he could maintain ejectment and recover upon his equitable title.</p>

<p>The purpose of plaintiff’s petition being to recover for material furnished for and used in the erection of a college building, claim of lien having been properly recorded, and the allegations being sufficient to authorize a decree-that the building and premises were liable for the payment of the debt, there was error in disallowing the amendment offered, and in dismissing the action. Certain persons named as trustees, in whom the title to the premises was vested, could be made parties by amendment; the petition making such a case as will entitle the plaintiff to relief in equity.</p>

Nonsuit. Negligence. Master and servant. Before Judge Harden. City court of Savannah. November term, 1889.

Murder. Criminal law. Evidence. Verdict. Be-Judge Guerry. Quitman superior court. September term, 1889. Chloe Hines was indicted for the murder of Mag. Smith, and was convicted, the jury recommending her imprisonment for life. She moved for a new trial on the grounds that the verdict was. contrary to law and evidence; and to the overruling of the motion she excepted.

<p>1. In a suit on a promissory note for $300, a plea of usury alleging that it was given for a loan of $231 only, the balance being retained at the time of giving the note and making the loan, should not have been stricken.</p> <p>(a) If the $39 alleged to have been retained were paid by the defendant to his agent to procure the loan, it was not usury, and the plaintiff would be entitled to recover the same.</p> <p>2. It was error to strike a plea amendatory of the plea of usury, alleging that the contract sued on was made and executed in Georgia, and was to be performed there, and that the making of the same payable in another State was a mere device to avoid the usury laws of Georgia, and. was not known to the defendant nor consented to by him.</p> <p>3. There was no error in striking a plea that the sum sued for was not due, and that no judgment could be taken therefor, notwithstanding the agreement that the whole should become due and collectible upon defendant’s failure to pay any pai’t when due.</p>

Where the tax-receiver or collector placed upon the wild land digest improved land which had been cultivated and occupied for thirty-years, and upon which taxes had been paid by the owner every year until 1882, and every year since that time, but he having negle'cted to return it for that year, the tax-collector assessed it as wild land, and it was sold as such under execution, such sale was illegal and void, and the purchaser thereat could not recover the land from the…

<p>A bill in equity filed before the civil procedure act, alleged that the complainant made a contract of lease with M'. for five years; that he was to build her a house on the land but failed to do so, and at his request she built the house at an expense of $100, but on this account she was thrown behind in her crop and thereby damaged; that she was to have pasture for her cows; that M. died, and his father as trustee sued out a distress warrant against her husband for the rent after she had tendered it to him, and a warrant to dispossess her husband and manager, and evicted him; and that by reason of such eviction she was compelled to leave the place and rent another, whereby she was damaged. Held :</p> <p>1. Such allegations were sufficient for recovery of damages for breach of the contract.</p> <p>2. A demurrer on the ground of a common law remedy not made until after the first term, was too late.</p>

Murder. Criminal law. Verdict. Before Judge Hansell. Brooks superior court. November term,. 1889. Indictment against Patterson for tbe murder of Lucius Williams. The principal witness for the State was John C. Williams, and he testified in substance as follows : On the night of the 4th of February, witness was going to a school-house. On his way he saw four boys, defendant, McAfee, Sharpe and Johnson. Defendant and Johnson stopped at a bridge, and the others went on.

Judgments. Practice. Before Judge Boberts. Laurens superior court. January term, 1889. On February 2, 1887, upon the petition of McLendon, guardian, a rule nisi for the foreclosure of a mortgage was issued against Mrs. McDaniel. On the next November 9, and during the trial term, the rule was made absolute, and judgment in the plaintiff’s favor was entered.

<p>If the plaintiff and defendant, on April 10th, entered into a parol contract to go into a mercantile business on or about the next August or September, the defendant to put into the firm $3,000 or more and furnish the storehouse for the business, and the plaintiff to put in his labor and experience, manage and control the business, have one third of the profits, and conduct the business as long as they could make it profitable; and if on the faith of this ' contract, the plaintiff, on July 1, gave up his position asa commer- . cial traveler, which was paying him $75 per month, refused an offer of his then employers to remain with them at a higher salary, -went to the place where the business was to be carried on ■ with the defendant, and there remained for several weeks insisting upon defendant’s carrying out his part of the contract, which he finally refused to do, — the plaintiff had a cause of action.</p>

<p>Actions. Pleadings. Justices’ coui’ts. Practice. Before Judge Atkinson. Ware superior court. November adjourned term, 1889.</p> <p>Reported in the decision.</p>

<p>1. The act of 1889 touching the mode of bringing cases to the Supreme Court, being the only statute now of force on the subject, must be complied with. It confers no authority for bringing up he whole record at the instance of the plaintiff in error. He can bring up such parts only as are specified in the bill of exceptions. To designate the whole record, in general terms, as material, is no specification of the parts.</p> <p>2. Without the required specification, the bill of exceptions cannot be duly certified by the judge nor the transcript be duly authenticated by the clerk. It follows that the specification cannot be supplied or enlarged by amending the bill of exceptions in the Supreme Court.</p>

<p>New trial. Practice. Statutes. Construction. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1889.</p> <p>Deported in the decision.</p>

<p>Practice. Pleadings. Judgments. Continuance. Before Judge Maddox. Gordon superior court. August term, 1889.</p> <p>Reported in the decision.</p>

<p>Where the verdict against a railway, company for killing stock by the careless running of a train is satisfactory to the trial judge, and is also satisfactory to this court upon the substantial merits of the controversy tested by the evidence adduced by the company itself, the case will not he remanded for a new trial on account of mistakes or inaccuracies in the charge of the court to the jury.</p>

<p>New trial. Charge of court. Fraud. Practice. Before Judge Maddox. Floyd superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>New trial. Practice. Before Judge Smith. Muscogee superior court. November adjourned term, 1888.</p> <p>Reported in the decision.</p>

<p>Practice. Bill of exceptions. Before Judge Van Epps. City court of Atlanta. September term, 1889.</p> <p>Reported in the decision.</p>

<p>Homestead. Judgments. Liens. Notice. Bona jides. Evidence. Before Judge Harris. Fayette superior court. September term, 1889.</p> <p>Reported in the decision.</p>

<p>The tax called a license, imposed on “ every railroad company that pulls over its road sleeping-cars of any person or corporation, upon which taxes are not paid,” etc., “for pulling such cars in each of the years 1889 and 1890,” by an act approved November 12th, 1889, is not collectible by execution in whole or in part before the first of October next after the passage of the act, the language as to default and execution being that “ if any railroad company shall fail to pay the license herein provided for, on or before the first day of October in each year, the comptroller-general shall issue execution against such defaulting company,” etc. It follows that whether the tax be valid or invalid, there is no good reason for reversing the judgment granting an injunction to restrain the collection of such tax for the year 1889 bj' virtue of an execution issued by the comptroller-general bn the 16th of December, 1889, such execution having been issued prematurely.</p>

<p>Where a claim interposed to a levy on an engine and other property was withdrawn after joining of issue, and the execution proceeded against the property under levy and was also levied on a boiler connected with the engine, and a claim was interposed by one who was surety on the claim and forthcoming bonds of the former claimant, he could of his own motion withdraw his claim not only as to the boiler, but as to the rest of the property, although he had testified on the trial of the former claim case that he bought the property under levy from the then claimant before her claim was filed, on condition that if she gained the case he -was to pay her for it, but not otherwise. The testimony submitted, if true, would have authorized the assessment of damages under the code, §3741; and the remedy provided thereby is ample to.protect the rights of the plaintiff in execution.</p>

Negligence. Railroads. Before Judge Roney. Burke superior court. December term, 1889. Action by Paterson against the railroad company for damages; his declaration alleging, in brief as follows : On the night of May 4, 1889, plaintiff secured of defendant passage over its railroad from Augusta to Waynesboro, paying the regular charges therefor.

<p>Bonds. Claims. Administrators. Before J. B. Conyers, Esq., judge pro hac vice. City court of Cartersville. September adjourned term, 1889.</p> <p>Reported in the decision.</p>

Verdict. New trial. Before Judge Neel. City court of Cartersville. September adjourned term, 1889.

<p>An instrument of writing of even date with a promissory note to which it was attached, duly recorded, “for the better securing the payment of the above promissory note,” selling and conveying to the payees thereof certain described property, providing that the title to the same should remain in the payees until the note was paid in full, and should the maker well and truly pay said note according to the tenor and effect of the foregoing, this conveyance to be void, else of full force, and authorizing the payees to sell said property at public or private sale: Held, that whether the instrument be a mortgage or not, it conveyed such an interest to the payees as would authorize them to recover in trover from one to whom the property had been delivered.by the maker.</p>

<p>In a very close case on the facts, where the testimony adduced by the accused of arson tended to show that at the time of the alleged burning he was three fourths of a mile distant, asleep, he having been indicted as one of the principal offenders, the issue of alibi should have been given in charge to the jury, though the attention of the judge was not called thereto; and this theory not having been presented, the ends of justice require a new trial.</p>

Actions. Title. Parties. Damages. Estoppel. Trespass. Evidence. Before Judge Roberts. Laurens superior court. July adjourned term, 1889.

Assault with intent to rape. Criminal law. Evidence. Before Judge Hines. Emanuel supei’ior court. October term, 1889. Sconyers was convicted of assault with intent to commit rape, and moved for a new trial on the grounds that the verdict was contrary to law and evidence, and for newly discovered evidence. He introduced no evideuce at tlie trial.

<p>1. To a suit on promissory notes given for the price of a thrashing machine, the defendant having pleaded that he was induced to sign them by false and fraudulent representations of plaintiff that the machine was good and reasonably suited for thrashing wheat, when in fact it was worthless and unsuited for such purpose, which fact was known to plaintiff when he made the representations, and that the defects in it were latent, known to plaintiff when he made the representations, but could not be seen by defendant or detected by the use of ordinary diligence; also warranty express and implied; and recoupment for damages sustained in repairing and attempting to operate the machine; the evidence being conflicting, and the judge being satisfied with the verdict, there was no abuse of discretion in denying a new trial.</p> <p>2. Whether or not the representations testified to have been made by the plaintiff amounted to an express warranty, yet where the evidence tended to show that there might have been an implied warranty, testimony as to the items of expense incurred by defendant in repairing and trying to run the machine, and that it was worthless, was admissible.</p> <p>3. It being for the jury to decide, under conflicting evidence as to the truth of the pleas, whether the sale of the machine and the signing of the notes were procured by fraud, and whether there was a latent defect known to the plaintiff and not discoverable by the defendant, it was proper to give in charge sections 2654, 3173-5, of the code.</p> <p>4. Under such pleas and evidence, it was not erroneous to charge that if the plaintiff, in selling the machine, made the representations alleged, and they were relied upon by the defendant in buying it and giving his notes, and if it was not such a one as represented but was defective in a particular unknown to defendant, not open to his inspection and not ascertainable by the exercise of ordinary prudence and caution, and such defect rendered it wholly worthless, then there would be a total failure of consideration, and the plaintiff could not recover.</p> <p>5. Nor was it error to charge that if the machine was not wholly worthless but was of some value, the plaintiff would be entitled to recover that value, unless the defendant was entitled to recoup ■damages against him on account of expenses incurred in repairing the machine and trying to operate it; and if he incurred such damages, using all ordinary and reasonable care and skill in trying to operate the machine and not continuing his efforts and expense longer than a man of ordinary care and prudence would have done, and could not operate it, he would be entitled to recoup against the plaintiff the damages sustained on account .of such expenses ; but if before incurring such expenses he found out, or as a reasonable and prudent man ought to have found out, that it was impracticable to operate the machine, he could not charge the plaintiff with such expenses.</p> <p>8. It appearing that the seller knew the purpose for which the buyer intended to use the machine, that it was not in running order at the time of the sale on account of certain defects which the seller pointed out, stating that these could be repaired by the expenditure of twenty or twenty-five dollars, and that these repairs were made; and there being no proof that the seller expressly refused to warrant, and the nature of the transaction not showing that there could have been no implied warranty, it was not error under the code, J2651 (which differs from the common law rule), to charge on the subject of implied warranty.</p> <p>7. After charging that if there was an implied warranty and there were hidden defects in the machine, it was the duty of the defendant to have them repaired by some person competent to do it, and the measure of damages against the plaintiff would be the cost of putting the machine in such condition as he represented it to be, it was not error to add that if such repairs would have cost more than the amount of plaintiff’s debt, the defendant was not under obligation to have them made.</p> <p>8. It is the duty of the court to make the brief of evidence correct before ordering it filed as a part of the record.</p>

Claim. Homestead. Practice. Evidence. Before Judge Attaway. City court of Cartersville. September adjourned term, 1889. Baker, as transferee of a fi. fa. in favor of Waitzfolder & Co. against Kitty P. Deweese, now Kitty P. Larey, sued out summons of garnishment diroctecl, among others, to the Bartow Paint & Pulverizing Co. It answered that it was indebted to defendant $10, which sum became due to her as forfeiture for failing to work property leased from her.

<p>A plea of total failure of consideration to an action on a promissory note given for the county right to make and sell a patented cotton-planter, is not sustained where it is not shown that, the right is entirely worthless, and where the defendant, though testifying that it was worth nothing to him, does not show that it was of no value to any one or of no market value, but on the contrary testifies that the planter is a good one, and where he made no offer to surrender to the seller the right to make the planter.</p> <p>(a) In the absence of any evidence as to how much less the right was worth on account of the failure of. the plaintiff to furnish a complete model and to make arrangements for obtaining material for making the planter, no deduction could he made on account of partial failure of consideration; and it was not error to direct a verdict for the plaintiff.</p>

<p>Roads and bridges. Before Judge Roberts. Laurens superior court. January term, 1889.</p> <p>Jones and twenty-one others filed their petition to the' ordinary of Laurens county, alleging as follows: The county has issued and sold bonds for the purpose of erecting an iron bridge for wagon and foot passengers across the Oconee river at or near the town of Dublin, the same to be free to the public; and the money arising from the sale óf said bonds is now in the hands of the authorities of the county for said purpose. The Oconee is a navigable stream controlled by the general government. A law has been passed by the present Congress permitting the authorities of Laurens county to erect and maintain sueH bridge across said river at said point, under the direction and approval of the Secretary of War of the United States. A public road leads from Dublin to Savannah, Q-a., and upon it at Dublin is a public ferry owned and operated by Laurens county, and free to the citizens. Said public road crossing at said public ferry had been selected as the site upon which to construct said public bridge by said county; but on account of the bend in the river at said point and for other causes, approval of said site was wholly refused to said county to build said bridge at said point by the Secretary of War, and by the officers of said government the county authorities were directed to erect said bridge about-feet below said public road aud ferry, as being free from said objections. The town of Dublin has opened divers public streets to the river, for the use of the town and the public. Said public road running into said town does not follow (only in part) any'of said streets, but runs diagonally from near Columbia street to Gaines street, and following said street but for a short distance, enters diagonally into Jackson street, passing over a very rough and rocky bed at about half way from said river to the court-house through said town. Jackson street is convenient and eligible for travel to all the citizens of the town and the general public, to said river. The authorities of the town have granted to the county full use and control of Jackson street, both as a public road and for the purpose of erecting said bridge therein. Petitioners believe that the erection of said bi’idge at the foot of Jackson street in said town would remove all objections on the part of the Secretary of "War, and receive his unqualified approval (without which said bridge cannot be built), and at said site said bridge would be better located, its construction would be cheaper, with little or no curvature in the river, upon a safer foundation, and free from any obstruction to the navigation of the river; the entrance into the town would be placed entirely upon one of its public streets; and said location and road would be of great public utility to the citizens of the county and the general public. Petitioners pray the location and establishing and erecting said bridge on Jackson street to span said river, running straight across and landing the same at a suitable terminus, the same passing about ---feet below the warehouse erected by the "Wrightsville and Tennille Railroad Company for river uses, and across the two tracks of said railroad, and thence the best and most practicable route across and through the lands of R. II. Hightower and said railroad company in a northeasterly direction, and to intersect with said Dublin and Savannah public road about 100 or 150 yards from the track of said railroad where the same crosses said road near the ferry, and to open and establish a first-class new public road as an approach to said bridge from the present public road to the foot of said bridge and through the lands of R. II. Hightower and said railroad company, leaving said public road at or about 100 or 150 yards from where the track of said railroad crosses said public road. They further pray for an order appointing three road commissioners residing as near where said bridge is to be constructed and built, and said road is intended to pass, as possible, to make a review of said contemplated bridge-site, and if they determine that such bridge-site and such new road to approach the bridge will be of public utility, to locate said bridge-site and mark out said road as by law required, and make their report in accordance with law, .that said bridge-site may be condemned for said public bridge, and that said land may also be condemned for a first-class public road as the approach to said bridge, and be made such.</p> <p>The ordinary appointed the three road commissioners of the 52d district G-. M. to lay off and mark out the site for building the bridge and to mark out and establish a first-class new public road as an approach to the bridge, if they should find the same to be of public utility. These commissioners were sworn to well and truly perform their duties in the premises to the best of their skill and ability. They served on Hightower aud his tenant and on the railroad company notice of their appointment, reciting the purport of the samé and stating that they would proceed to the discharge of said duty on a certain day. They subsequently filed with the ordinary their sworn report that they had examined the proposed new road and bridge-site, that the same would be of great public utility, and that they had located the bridge-site and marked the new road in a manner specified. The ordinary approved this report, and ordered that the usual citation issue and be published in terms of the law, that the case be set for hearing on a certain day, and that the usual notices be served on the land-owners in terms of the law. They were served with written notice reciting the application for the bridge-site and road, and the report of the commissioners, and stating that if no cause to the contrary were shown, a final order granting said new public road would be made by the ordinary on a certain day, by which time the land-owners must put in their claim for damages or be ever afterwards estopped. Hightower appeared and demurred on the grounds (1) that said petition and proceedings do not either allege or show that the property sought to be condemned thereunder is subject to condemnation under the law of eminent domain, or that the same has not been previously, under grant special or general from the State, appropriated to a different public use inconsistent with the public use for which it is alleged the same is now sought to be condemned and appropriated; (2) that the prayer of the petition is for the appointment of three road commissioners to mark out and establish a new road and bridge-site,and not three discreet and proper persons as the law directs; (3) that the road commissioners of one of the districts where the property sought to be condemned is situate were appointed as such and acted, and report as such officially upon said application; (4) that said petition and proceedings do not allege or show that an adequate fund or any fund at all is provided, from which the owner can certainly obtain compensation for his damage, either concurrently in point of time or subsequently to tbe exercise of tbe assumed right of eminent domain over said premises; and (5) that said petition and proceedings do not allege or show any efiort, attempt or desire on the part of the applicants to condemn, to purchase or agree with the owner on the amount of compensation for the property or right of defendant sought to be condemned and appropriated or taken for said alleged public use, nor does the same allege any failure to agree thereon or refusal to agree, nor, if a failure to agree is alleged, is the reason for the inability to agree stated in the peti-' tion or proceedings. He also pleaded to the jurisdiction on the grounds (1) that there has never been any efiort on the part of the county of Laurens to acquire by purchase or agreement the property sought to be condemned, nor any failure or inability to agree upon a contract of purchase for same; (2) that said property sought to be condemned is not subject to condemnation to the additional servitude or public use, because the same has been previously, under grant from the State, appropriated to a different public use inconsistent with the public use for which it is alleged by petitioners the same is now sought to be condemned and appropriated.</p> <p>The ordinary overruled both demurrer and plea, and rendered judgment in favor of Jones et al., condemning and defining the public road and bridge-site. The judgment further directed that a warrant issue to the sheriff (Hightower having filed his petition for damages) to summon a j ustiee of the peace, the road commissioners and a jury of freeholders from the vicinage of the road and bridge-site, to assess said damages. By .petition for certiorari, Hightower alleged that the lands condemned were purchased by him chiefly for the purpose of acquiring the right to construct, under the laws of this State, a public toll-bridge thereon to span the river and appropriate to said use ; that he did erect such bridge, but it was swept away 'by an immense flood in the river; that he is under contract with the Decatur Iron Bridge and Construction Company to rebuild a substantial and durable iron bridge structure for said public uses; and that the rulings of the ordinary were error. The superior court overruled the certiorari, and Hightower excepted.</p>

<p>Possession of land under claim of ownership is prima facie evidence of title in the occupant. Hence, where a man died in the year 1829 in possession of the premises now in dispute, persons claiming under his heirs or devisees, and bringing suit in 1887, may recover on proof of his possession and of title derived from him through his heirs or devisees, as the case may be, unless a better adverse title, by possession or otherwise, appears.</p>

<p>Quo warranto. Practice. Municipal corporations. Notice. Elections. Before Judge Atkinson. Ware county. At chambers, April 12, 1890.</p> <p>Reported in the decision.</p>

Judgment. Practice. Criminal law. Trial. Indictment. Before Judge Lumpkin. Hancock superior court. October term, 1889. On October 19, 1889, during the October term of Hancock superior court, Brown made his motion to be discharged and acquitted of the often ce of embezzlement, for which he had been indicted.

<p>Murder. Criminal law. Manslaughter. Charge of court. Arrest. Before Judge Bower. Worth superior court. October term, 1889.</p> <p>Reported in the decision.</p>

<p>Though, it is doubtful whether the circuit court of the United States has jurisdiction to remove from a State court a cause involving alone the probate of a will, inasmuch as it has done so upon proper petition and affidavit, and has authority under acts of Congress to determine finally as to its jurisdiction, and as the propounder will have opportunity to move to remand the cause for want of such jurisdiction in that court, this court will not undertake to determine the question. If the want of jurisdiction were clear, or the order of removal a plain usurpation, this court would feel constrained to decide the question for itself.</p>

<p>Homestead. Year’s support. Estates. Levy and sale. Merger. Before Judge Smith. Marion superior court. October term, 1889.</p> <p>Reported in the decision.</p>

<p>1. A county commissioner could not legally demand or accept a commission or profit for selling property for the county, whether he performed his duties as commissioner with or without compensation. The purchasers of the property, having paid the commission exacted, cannot recover it; the contract for charging and paying it being illegal.</p> <p>2. The other county commissioners could not authorize one of their number to charge such commission for making the sale.</p> <p>3. If they could not so authorize, they could not ratify.</p> <p>(a) An officer is not rendered legally incompetent to discharge duties which are clearly extra-official and outside of the scope of his official duty. If employed to render service in an independent em-, ployment not germane or incidental to his official duties, he might recover for such service.</p> <p>Blanditord, J., not presiding, from disqualification.</p>

<p>Trover. Contracts. Leases. Sales. Married women. Practice. Equity. Yerdict. Before Judge Guerry. Early superior court. October term, 1889.</p> <p>Reported in tbe decision.</p>

Insurance. Evidence. Practice. Bonafides. Character. Bes gestee. Interrogatories. Eraud. Nonsuit. Witness. Trials. Damages. Before Judge G-ustin. Bibb superior court. November term, 1888. Action on a policy of accident insurance on the life of the plaintiff’s husband. The main defence was that he was not dead. The decision states the facts.

<p>1. Parol evidence is admissible to show whether the debt covered by joint promissory notos oí husband and wife was in fact the joint debt of both, or whether it was the several debt of the husband, and the wife was only his surety upon, the notes. And if the inquiry involves an explanation of another writing, such as a deed of lease executed to the husband and wife jointly, parol evidence is admissible to show the wife’s true relation to that instrument also.</p> <p>2. Husband and wife may become joint lessees of a house in which to carry on the hotel business, contract jointly to pay the rent, and execute joint promissory notes therefor. Where such is not merely the outward color but the real truth of the transaction, the debt for rent is the debt of the wife as well as of the husband, and she may pledge her separate property as security for its payment.</p>

<p>Evidence. Negligence. Railroads. Before Judge Bower. Decatur superior court. November term, 1889.</p> <p>Reported in tbe decision.</p>

Jurisdiction. County courts. Before Judge Roberts. Pulaski superior court. November term, 1889.

<p>1. A sheriff’s deed to wild land, regular upon its face, was properly admitted in evidence over objections that the party offering it did not first show that the comptroller-general had advertised the land conveyed for thirty days before issuing the fi. fa. for taxes under which it was sold, and that the recital in the deed did not show that it was ever advertised in any particular newspaper published at the capital. Recitals in such deed with respect to the conduct of the sheriff, are presumed to be correct; and the law further presumes that the comptroller-general did his duty before issuing the execution.</p> <p>2. So the law will presume that the comptroller-general did his duty in furnishing to the clerk of the superior court a list of all the wild lands in his county.</p> <p>3. The ground of objection to evidence must be specifically stated.</p> <p>4. A deed improperly admitted to record, its probate being defective, was properly excluded from evidence.</p> <p>5. If the tax-digests had been lost or mislaid so that they could not be found, testimony that the defendant had returned the land in dispute for taxes, and had paid the taxes to the proper officers for certain years in question, and that his receipts were lost, would have been admissible. It may be that if the digests, when produced, fail to show that the land was given in and the taxes were ■ paid by the defendant, the testimony would then also be admissible.</p> <p>6. The tax fi. fa. being in evidence, and having no executed transfer upon it, it was not error to exclude the testimony of a person who was the sheriff at the time of the sale of the land as wild land, by whom the defendant proposed to prove that the ft. fa. had been transferred by the comptroller-general to another, and that the witness had never received any instructions from the comptroller-general concerning the fi.fa., but that it was fully controlled by such other person.</p> <p>7. A charge that the law presumes that the comptroller-general did his duty in advertising the sale of the land for taxes, and that it is incumbent on the defendant to show that the comptroller-general did not so advertise, was free from error.</p> <p>8. A charge not warranted by the facts in evidence is erroneous.</p>

Injunction and receiver. Practice. Evidence. Before Judge Huberts. Bodge county. At chambers, July 11, 1889. On June 19, 1889, Johnson & Harris and Gibian & Company brought their petition, alleging as follows: Pendleton Bros., a firm composed of B. W. Pendleton and W. W. Pendleton, are indebted to Johnson & Harris $164.76 and interest, and to Gibian & Co. $127.10, all of which was due on May 1,1889.

<p>. Petition for injunction. Before Judge Atkinson. Appling county. At chambers, May 14, 1889.</p> <p>The railway corporation was owning and operating a railroad from Macon to Brunswick, constructed under a charter granted by the General Assembly, by which the railroad company was given the right to condemn land 75 feet in width, from the centre and on both sides of its road-bed, running parallel with its entire line, and to take possession of and use the same as its right of way for the purpose of constructing and operating a railroad. The railroad runs through lot of land No. 332 in the 2d district of Appling county, At a point on the railroad and on this lot of land the town of Baxley, a regular station on the road, is situated. In 1872, A. P. Surrency, the lawful owner of this lot, granted to the railroad company the right of way through it. The company cleared and cut out the right of way, 75 feet, on either side of the railroad, went into and remained in actual possession of the land by operating the railroad upon it, peaceably, continuously and uninterruptedly from 1872 to the present time. It is necessary for petitioner to retain possession of its right of way of 75 feet in width from the centre of its. track on either side, for the purpose of properly operating the railroad in the transportation of freight and passengers, especially that portion of the right of way in Baxley; and if. it is deprived of the possession of the right of way, it is. probable that it will suffer great inconvenience and injury, which it would be impracticable and almost impossible to estimate in damages. At present it has but one side-track in Baxley, located on the north side of its road. It may become necessary, by an increase of traffic, for this switch to be enlarged and extended, or sidings put there, for the necessary operation of the road in the transportation of passengers and freight, and in the event of such a contingency the siding and switch facilities would have to be constructed on the north side of the railroad, because the railway depot and the public street running parallel with the railroad are on the southern side. Notwithstanding its absolute right to possession and right of way, Sellers & Co. are erecting a steam saw-mill about 70 feet long, for sawing pine lumber, at a point opposite the north end of its switch or side-track and within about fifty feet of the centre of the main track on the- north side in Baxley. They are erecting the mill on the right of way without the consent of petitioner or any of its authorized agents, and without any lawful authority. Petitioner has frequently requested them to desist, but they continue to build and erect and threaten to erect upon the right of way the sawmill, in total disregard of petitioner’s rights. The mill is being erected about 120 yards north of the warehouse and depot, and if it is allowed to be erected, will be a continuous menace and nuisance to petitioner and its railroad, for the reason that petitioner will not only be deprived of- that side of its right of way for building switches and siding facilities, but the mill and fixtures and its products and sawdust and other trash and the material that would be produced by it would be very combustible and liable to be set on fire by the sparks that are necessarily thrown from the petitioner’s engines, which are constantly passing that particular point; and in the event of a conflagration of the mill, petitioner’s road-bed will be destroyed by the fire, and petitioner would be subjected to suit for damages by all persons whose property might be destroyed; and the consequent damage that would accrue to petitioner by the erection of this nuisance cannot be estimated in damages and would cause irreparable damage to petitioner. The prayer is, for injunction restraining Sellers & Co. from building the mill and fixtures; etc. Attached is a deed dated October 10,1872, from Surrency, conveying to the railroad company “and their successors in office, heirs and assigns, all right of way through lot number 332, 2d district of Appling,” reserving for Surrency and his heirs 200 feet right of way on “north side of warehouse above.” This petition was verified by one of the plaintiff’s attorneys at law, and the allegations were taken as true by the judge; but he refused to grant a temporary injunction, or an order for Sellers & Co., to show cause why the injunction should not be issued. The plaintiff excepted.</p>

Petition for mandamus, etc. Before Judge Atkinson. Glynn county. At chambers, September 16,1889. Kaiser & Bro. alleged that on July 18,1889, they sued out a dispossessory warrant against Wallace, before Lambright, a notarial magistrate. Copy of the affidavit and warrant is attached to the petition.

<p>New trial. Railroads. Damages. Negligence. Before Judge Falligant. Chatham superior court. June term, 1889.</p> <p>•On December 7, 1885,' the plaintiff, a conductor of defendant’s freight-train, had his first and second right-hand fingers mashed by a coupling-nin, while trying to uncouple two of the cars in this train. He sued for damages on December 3, 1887, and recovered a verdict for $3,000 on February 11,1889. The defendant moved for a new trial, which was granted, and the plaintiff excepted. The grounds for new trial were, that the verdict was contrary to law and evidence, and was excessive ; that the court charged, without proof to authorize , such instruction, that, “If you should think, further, that the injury has resulted in a physical disability that diminished his earning capacity, he would be entitled to compensation for that” ; and because of newly discovered testimony. The plaintiff’s evidence tended to show as follows:</p> <p>He had been in defendant’s employment since some time in 1882, and had been railroading for seven years. His train of twenty-two cars was bound for Savannah, and left Jacksonville at 6:15 or 6:30 in the evening, its regular leaving time being six o’clock. If plaintiff was not mistaken, it was raining. The conductor has no time to inspect the cars ; he checks his numbers, then goes to the office and gets his way-bills, and off he goes. The car-inspectors do not generally have time down there. There was no defect reported in the coupling of this train, which was made up in a hurry and left in a hurry. Nothing happened until they reached Callahan station, about an hour afterwards. They had eight ears of bricks to leave there; and the company’s agent at that place directed plaintiff to put these.cars on a track next to the depot platform, and to put his train on a side-track to have the main track clear for a passenger-train soon to pass. The crew of plaintiff’s train consisted of himself and two brakemen, besides the engineer and fireman. Tie ordered one of the brakemen to go back and flag down the passenger-train, and the other to manage the switch (these duties being necessary to be performed), and was himself the only one left to uncouple the cars. The whole train was too long to go upon the side-track. A freight-train conductor was expected to couple and uncouple cars whenever emergency required it. Plaintiff went to make the uncoupling because there was no one else to do it, and because he was under the agent’s instructions. It was his business to do anything that was to be done, flagging, switching, or anything else, in an emergency. All freight-train conductors did so. Plaintiff could uncouple cars; had often done so. Had the apparatus been in proper order, he would have done so without injury on the occasion in question. The engine was eight or nine cars off. Plaintiff gave the engineer the signal to come back, to give slack, and when this -was done and the cars stopped still with their bumpers together, went with lantern in between them to uncouple. But what was used as a coupling-pin was not a coupling-pin proper, but a piece of the leg of a bumper, and was bent. It bad a ridge near the top. As he was trying to pnll it out, the train moved, jerked the pin and caught his fingers between the ridge of it and the top of the bumper, inflicting the injuries complained of. . Had the pin been in good order, it would have come out without trouble, and plaintiff would not have been hurt. The plaintiff could not say whether the moving of the cars which jerked the pin was by those next to the engine or the rest of the train. There was a down-grade in the track toward the south, which might have caused the cars to roll. The mashed fingers are useless. He suffered much, and still suffers, from his hand. He was kept from work for three months, during which time the company paid his expenses and salary. He then went back to work for defendant as a conductor, but did no coupling; worked nearly two years longer, and then was discharged for going to the Atlanta Exposition when he was oil leave of absence for sickness. He then worked for other companies in different places, and is now storekeeper for the Central Iiailroad Co., at $45 per month. He was getting $70 per month when injured; afterwards his wages were raised to $80, at which he was working when discharged. The -pin complained of was probably driven iu the bumper, as it had to be driven out. An ordinary - pin could be bent; this was about the same size as an ordinary one; it looked as if it had been hammered. Jerking of the cars sometimes bends coupling-pins. Plaintiff signed the report to the company of this injury, which was introduced in evidence. He did not state therein that the coupling-pin was the leg of a bumper, out of regard for the man in Jacksonville, who might thereby be brought into a bother with the company. Had not read the rules introduced, though they were accessible to him; had knowledge of some of their requirements, none of others therein. Hid not inspect the pin on going between the ears ; there was nothing to attract attention to it.</p> <p>The evidence for the defendant tended to show that the grade of the track at the place of the accident was about level, and there was a pretty good curve there; that conductors are not required to couple or uncouple cai’S, this dangerous 'duty being part of a brakeman’s business, and the conductor having to give signals to the engineer, nor does it amount to a custom for them to couple or uncouple; that sticks are furnished to use in doing this; that the conductor was expected to know the rules, etc. The plaintiff made a report of this injury to the company, answering the -questions propounded in a blank form furnished by the company for this purpose. In it he stated that the accident was caused by intaking slack of train to cut cars loose, and fingers got caught underneath pin. Then followed these questions and answers:</p> <p>“State how accident occurred, giving full particulars; if injured in coupling cars, was he using coupling-sticks? were signals given? by whom? by whom received; and were they obeyed? was engineer handling engine? Report any defect in equipment that tended to the accident. (1) Accident occurred by intaking the slack to uucouple ears; the pin was knocked up. I caught hold of pin, but before I could pull it out, the slack was taken up and caught fingers underneath the pin. (2) Injured uncoupling cars. (3) Signals were given. (4) By conductor. (5) Received by engineer, and were obeyed. (6) Engineer was handling engine. .(7) Eor some cause the pin would not come out when slack was given.”</p> <p>The defendant introduced the following of its rules in force at the time Kane was injured, and contained in the schedule, a copy of which he had:</p> <p>“Each employee is hereby warned that, while on the tracks or grounds of these companies, or in working with or being in any manner on or with the cars, engines, machinery or tools, he must examine for his own safety the condition of all machinery, tools, tracks, cars, engines, or whatever he may undertake to work upon or with, before he makes use of, or exposes himself on or with the same, so as to ascertain as far as he reasonably can their condition and soundness; and he is required promptly to report, either to the superin ten dent or to whoever may be his most accessible superior officer, any defect in any track, machinery, tools or property of these companies afiecting the safety of any one in using or operating upon or with the same. Great care must be exercised by persons coupling cars, inasmuch as the coupling apparatus of cars or of engines cannot be uniform in style, size or strength, is liable to be broken, and various causes render it dangerous to expose the hands, arms or persons of those engaged in coupling between them. Conductors must keep as many coupling-sticks or forks in their train equipment as they have train-hands. Jumping on or oft trains or engines in motion, getting between cars in motion to uncouple them, and all similar acts, are dangerous, in violation of duty, and are prohibited. Employees are warned that if they commit any of these acts, it will be at their own peril or risk. Conductors are required to be on duty at least thirty minutes before leaving time. They will inspect the condition of their trains and report to the master of transportation upon form No. T8. They will also be on the platform of the station as much as possible.”</p> <p>The newly discovered testimony was, that the track grade towards Jacksonville from the place of the injury, was upward instead of downward; that the statement in the testimony for the defendant, that the track there was about level, was based upon an observation without taking the grade by measurement, this having been done since the trial; and the defendant’s counsel concluded, from the allegation in the declaration that the train gave a sudden lurch or movement, that the plaintiff would attempt to prove that the engine imparted such movement, and so made no attempt to get evidence to show the grade of the track, not seeing how it could be material.</p>

Petition for injunction. Before Judge Richard H. Clark. DeKalb county. At chambers, October 19, 1889. Hill et al. alleged as follows : They have for the past four years been running a public cotton-gin for toll, and until January, 1889, another public gin wasoperated for toll within a quarter to a half-mile of petitioners’ gin, with which it was run in competition and divided patronage.

Railroads. Verdict. Before Judge Van Epps. City court of Atlanta. December term, 1889. Rigden sued for damages from personal injuries received by him while attempting to couple cars of defendant in Alabama. His evidence tended to show that in March, 1888, he was engaged as train-hand on the railroad. The train with which he was working was coming back to be coupled to a stationary car, and he gave the engineer a signal to stop.

<p>Verdict. Damages. Before Judge Van Epps. City court of Atlanta. December term,' 18.89.</p> <p>Weaver sued for damages. His evidence tended to show that he went, in discharge of his duty, between the engine and the car of defendant for the purpose of uncoupling the car from the engine. The train was still when he went in; when he was endeavoring to . uncouple, it was improperly moved without a signal, and he was hurt. The bumper of the car was defective, and this contributed to the injury; and this defect was unknown to plaintiff, and he did not have time to observe it before he was hurt. His arm was badly mashed, and a small bone in it was broken. He was in bed about a month before he was allowed by the physician to get out, and then had to walk about with his arm in a sling. It was about five months before he was able to do anything with his injured hand, his right hand, and was not much “ stout” in it then, although he went back to the shop and worked four days. It still pains him some, and he has not near the strength in his right arm that he has in the other. He now does work that requires muscular power; he cannot hold anything in his right hand like he can in his left hand. He now makes $5.40 a w;eek; was making, when he was hurt, $1.00 per day, and worked seven days in a week. He went back to defendant to work about two months and a half after the accident. He can do the same work as before he was hurt, if he had the same job on the railroad. He followed the directions of the physician of the road as to the treatment of his arm. About two and a half months after he was injured, he did carry a twenty-five pound sack of flour on his left shoulder, as he was in the habit of doing before his arm was broken. There is a knot left on the bone which was broken, and a knot on the flesh. The injury was received on July 1, 1887, and the case tried November 18, 1889.</p> <p>The testimony for the defendant tended to show that the injury was caused by plaintiff going between the cars when they were in motion, contrary to the rule of the road; that the bumpers were not defective; that while the injury was painful, there were no bones broken; that he did not take proper care of the injured arm; and that a month or so after the injury, after he had returned to work for the railroad company, he carried off some meat and a sack of flour, which he put on his shoulder with his right hand.</p> <p>The jury found for the plaintiff $750. The defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence, and was excessive. The motion was overruled, and the defendant excepted.</p>

<p>Petition for injunction and mandamus. Before Judge Marshall J. Clarke. Fulton -superior court. March term, 1890.</p> <p>J. M. Bentley & Co., on February 26, 1890, presented their petition against R. B. Crenshaw, constable of the 722d district G-. M. of Fulton county. The case made by them was, in brief, as follows: On July 20, 1889, the Baxter Stove & Manufacturing Company brought two suits against petitioners in the justice court of the district above named, upon two drafts, one for $51.90, dated June 28, 1888,'at four months after date, drawn by the Baxter company upon petitioners, accepted by them, and endorsed by the Baxter company, and also by the American National Bank of Birmingham, Alabama, for collection; the other for $56.56, dated August 12, 1888, at four months after date, drawn by the Baxter company upon petitioners, accepted by them, and endorsed by the Baxter company, and also by the Birmingham Trust & Savings Company, for collection. These suits were defended on the grounds that the drafts were given for stoves, six or seven of which when delivered were broken and of no value, making a damage of $53 to petitioners ; and that upon such delivery they wrote to the Baxter company, telling them the condition of the stoves and asking what to do about it, but received no reply to this nor to a subsequent letter. Upon the rendition of judgments, petitioners appealed the cases to a jury in the justice court on August 17, 1889. On November 16, 1889, the cases came on to be tried, and counsel for both sides agreed that they be tried together before the same jury, and that the jury render a separate verdict in each case. The trial took place, but the jury returned but one verdict, which was “for the plaintiff the amount sued for and costs of suit,” and was not written upon the papers of either case but upon a separate piece of paper, and did not specify in which case it was rendered. It was written for the jury by the justice, who went into the jury-room where they were considering the cases. Finally it was returned into court, and when the justice started to enter up two judgments thereon, counsel for petitioners objected on the ground that there was no verdict in either of the cases. The justice did, however, enter up judgments in each, and on January 27, 1890, issued two executions, one for $51.90 principal and $4.15 interest to date of judgment at eight per cent, per annum, and all further interest at the same rate, with costs; and the other in like manner, bearing the same rate of interest. On February 5th, these executions were levied by Crenshaw, the constable, upon a mule, a pony and a yoke of oxen, as the property of petitioners, who thereupon, on February 12th, tendered to him their two affidavits of illegality on the following grounds : (1) The executions were issued without any verdict or judgment having been obtained from which to issue them. (2) It appears from the record that the suits were brought in the name of the plaintiff on an acceptance drawn by it on defendants, endorsed by plaintiff and received by the banks, in whom the title was vested; and the banks then endorsed the acceptance to the Atlanta National Bank for collection. It therefore appears that the banks in Birmingham held the legal title to the acceptances at the time the suits were brought and still hold it, and that plaintiff had no interest in it. (3) The acceptances specify no rate of interest, but the executions issued for eight per cent, interest, which is contrary to law and does not follow the pleadings. , These illegalities are now pending in the justice’s court, and they stand for trial on the third Saturday in March. After they were accepted and filed with the justice, petitioners tendered to Crenshaw at various times prior to and on February 24th, their two forthcoming bonds, each in the sum of $240, with T. C. Williams as security; but the constable refused to accept them and deliver to petitioners the property levied on. Williams is amply solvent, and was so found upon investigation made by the constable himself; but although, the bonds have been repeatedly tendered to him, he has as often rejected them, saying that the security is not good; and at the instance of the attorneys for the Baxter company, he has served petitioners with a notice of an order passed by the justice on February 22, for the sale of the property levied on, after advertisement for three days. It is generally known in the district that the executions are void for want of a verdict on which to base them; and if the property be so sold, it will be at a sacrifice and to the damage of petitioners. The constable is insolvent, and so are the securities on his official bond ; and the Baxter company resides in Alabama. The constable has no legal excuse for not accepting the forthcoming bonds but still refuses to do so, although he has admitted to petitioners’ counsel that he had searched the county records, and that though he had found nothing against Williams, he found that he gave in taxes to the amount of $2-,300. lie refused to state any reason why Williams was not good security, saying he would tell nothing until forced to do it and would go to jail before he would accept Williams as security. In fact, oue of petitioners gives in for taxation more than $6,000 worth of property. They pray for injunction restraining the sale of the property, and for an order requiring Crenshaw to show cause' why he should not accept the bonds, and that mandamus be granted requiring him to do so and to deliver the property to the petitioners.</p> <p>In response, Crenshaw made the following showing: "When the two cases were called to be tried'by the jury in the justice’s court, the justice asked if they should he tried separately or together. Counsel for petitioners, the Bentleys, stated that they might be tried together, and this was done; but there was no agreement or mention as to separate verdicts; the cases were substantially the same. When the justice read the verdict, counsel for petitioners asked to see it,'and then objected to it as illegal because it did not say in what case it was given. Counsel for the Baxter company said it could be easily amended; and to this petitioners’ counsel objected, saying it was too late. Williams is not a good and solvent security; all his visible assets consist of certain farm land worth not moi’e than $750. Crenshaw would rather be sued for not taking him as a bondsman than for taking him; the securities on Crenshaw’s official bond and other people so advise. Williams has various incumbrances in the way of mortgages, etc. outstanding. Crenshaw denies that he admitted that Williams was solvent or that he returned property for taxation, as stated in the testimony of petitioners. They were served with a notice to appear and show cause against the passage of the order for sale of the property levied on, but made no opposition to it. The property is live-stock and expensive to keep, and Crenshaw, in order to relieve himself of responsibility on that account, applied for the order of sale himself. The property would have brought the average price obtained at any sale under legal process. The securities on Crenshaw’s official bond are not insolvent, but are worth over $5,000. On February 14,1890, one of petitioners made affidavit that, owing to the poverty of the firm, they were unable to pay the costs and give security in carrying these two cases to the superior court by certiorari.</p> <p>The prayer for injunction was denied, and the petitioners took exceptions.</p>

Suiter sued Robinson for $1,247.49, besides interest on divers sums mentioned in the declaration, and the further sum of $150 as attorney’s fees, making the following allegations: On February 16th, 1888, Robinson mdde to him a promissory note for $689.85, and to secure it gave him a deed to certain realty under the provisions of the act of December 12th, 1871, and the acts amendatory thereof.