Volume 86 — Georgia Reports

<p>Boundaries. Construction. Vendor and purchaser. Mistake. Evidence. Interest. . Deeds. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1889.</p> <p>Reported in the decision.</p>

Practice. Witness. New trial. Negligence. Charge of court. Railroads. Before Judge Van Epps. City court of Atlanta. December term, 1889. Action by Eliza Crawford, under the act of October 27, 1887, for the homicide of her son ; and verdict for the defendant. The plaintiff excepted to the overruling of her motion for a new trial.

<p>1. In a suit on an account, an interrogatory to the plaintiff requesting him. to “examine this account and state whether the same is just, due, correct and unpaid,” the account being exhibited, was allowable in the discretion of the trial court, over the objection that it was leading and intended to elicit a general answer- that could be nothing more than a conclusion of law.</p> <p>2. The evidence required the verdict.</p> <p>3. The evidence being that the goods in question were ordered from the plaintiff by the defendants through a broker, purchased through the broker at a stated sum, received by the defendants upon an invoice furnished by the plaintiff, and sold by the defendants, a charge that if the goods were sold and delivered by the plaintiff to the defendants, and the charges therefor were reasonable and just, the jury should consider that the account has been established, and that the plaintiff is entitled to recover, was more favorable to the defendants than the evidence warranted.</p> <p>4. An appeal is frivolous and intended for delay only when it is entirely without merit and entered merely to postpone the creditor in the collection of his debt.</p> <p>5. This court, from the whole record, being forced to the conclusion that the case was brought here for delay only, 10 per cent, damages upon the principal sum recovered are assessed.</p>

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

<p>A brakeman upon a railway who is under orders always to couple cars with a stick, and who has been in the employment of the company for a considerable time and has always heard that such was the rule of the company (as it in fact was), cannot recover of the company for an injury to his hand sustained whilst endeavoring to make a coupling directly with his hand without the use of a stick. It makes no difference that other employees frequently or customarily disregarded the rule unless the company, with knowledge of their practice, acquiesced in it in ■ a way to sanction it, or practically to abrogate the rule. Nothing less would relieve the plaintiff from abiding by his uniform orders.</p>

<p>1. Where one has brought an action in the name of another as suing for his use, without first obtaining the consent of the plaintiff in .. whom is the legal title to the cause of action, the latter may ratify at any time whilst the action is pending, and such ratification will relate back to the commencement.</p> <p>{a) The fact of ratification appearing, an amendment to the declaration making the plaintiff a party is surplusage, he being already a party.</p> <p>(6) When the bill of particulars annexed to the declaration is improperly headed, the defect is amendable and is cured by verdict.</p> <p>2. In an action for goods sold and delivered, if it appears from the evidence that the articles set out in the bill of particulars were furnished under the contract, and that the items are correct, due and unpaid, a prima facie case is made for recovery</p> <p>3. The statute for bringing cases to this court contemplates that no evidence shall bo brought up which is clearly immaterial. When this rule is violated and the material is blended and intermixed with the immaterial so that the labor of selection and separation is cast upon the court instead of being performed by counsel, the verdict will generally be treated as correct in so far as it depends upon a state of facts to support it. .</p>

Negligence. Evidence. Charge of court. Damages. Railroads. Before Judgé Van Epps. City court of Atlanta. June term, 1890. The plaintiff was thirty-eight years old at the time of the injury, and was earning about $143 per month. His left leg was broken, and he was hurt through the breast and back. It was ninety-five days from the time he was hurt until he went back to work, and then he earned $100 per month.

<p>Malicious suit. Evidence. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1890.</p> <p>Reported in the decision.</p>

<p>Injunction. Deeds. Practice. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1890.</p> <p>Reported in the decision.</p>

<p>Bonds. Landlord and tenant. Dispossessory warrant. Pleadings. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1890.</p> <p>Deported in the decision.</p>

Equity. Contracts. Vendor and purchaser. Fraud. Trusts. Evidence. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1890.

<p>Whether" the plaintiff, a hoy of thirteen years, employed by the defendant to work in a tin-shop, was of sufficient age and capacity to appreciate his hazard and provide against danger, is for the consideration of the jury; it appearing that, several times previous to the injury complained of, he had been put to work on the machine which did the injury, that it was large and heavy, that a boy of his size and age was not able successfully to operate it, that boys in the shop were allowed, when not at work for the defendant, to use it in making things they desired, and that on the occasion of the injury the plaintiff had finished his work and in the presence of the foreman of the shop was cutting out a trinket for himself on the máchine.</p>

<p>A motion to reinstate a case after the award of a nonsuit is in the • nature of a motion for a reconsideration, and is addressed to the legal discretion of the court; and for the Supreme Court to interfere with a judgment reinstating such case, it should appear that the court below abused its discretion.</p>

<p>The action being against the railroad company for injuries to the plaintiff, who was struck by the train when crossing the track, if it clearly appears from the plaintiff’s evidence that he could have avoided the injuries by the use of órdináry care, a new-trial should be granted after verdict in his favor, whether the railroad company was negligent or not.</p>

<p>Nonsuit. Partnership. Pleadings. Practice. Evidence. Before Judge Van Epps. City court of Atlanta. March term, 1890.</p> <p>Reported in the decision.</p>

.Damages. Charge of court. Evidence. Admissions. Practice. Witness. New trial. Before Judge Van Epps. City court of Atlanta. December term, 1889.

Assault with intent to murder. Criminal law. Witness. Evidence. Stabbing. Manslaughter. Charge of court. Verdict. Before Judge Richard H. Clark. Fulton superior court. March term, 1890. Patterson was indicted for assault with intent to murder.

<p>Practice. Lost papers. Service. Before Judge Van Epps. City court of Atlanta. March term, 1890.</p> <p>Reported in the decision.</p>

<p>Negligence. Verdict. Railroads. Before Judge Van Epps. City court of Atlanta. June term, 1890.</p> <p>Reported in the decision.</p>

<p>Equity. Insolvency. Receivers. Liens. Debtor and creditor. Practice. Before Judge Richard H. Clark. Eulton county. At chambers, July 30, 1890.</p> <p>Reported in the decision.</p>

<p>The terminal points oí a railroad company chartered under the general law (code, §1689 et seq.) being Macon in Bibb county and Dublin in Laurens county, and the terminal points of another railroad company subsequently chartered under the same law being Sofkee in Bibb county and Savannah, and the former.not having constructed its road-bed by about thirteen miles, it was error to enjoin the latter from constructing its railroad within ten miles of the road-bed of the former; the legislative intention in section 16S9(t) of the code being to apply the same to a new railroad chartered under this law, where there was another railroad which bad already been constructed at the time of the passage of the act; and the words “now constructed” and “already constructed" in that section meaning one and the same thing.</p>

Railroads. Negligence. Damages. Verdict. Before Judge Marshall J. Clarke. Fulton superior court.-. March term, 1890. Childress, by his next friend, sued the railroad company for damages from a personal injury.

<p>Larceny from the house. Criminal law. Corpus delicti. Presumptions. Confessions. Before Judge Yan Epps. City court of Atlanta. March term, 1889.</p> <p>Reported in the decision.</p>

Injunctions. Railroads. Statutes. Elections. Municipal corporations. Streets. Nuisances. Before Judge Smith. Muscogee county. At chambers, June 80, 1890.

<p>1. The act of 1881, Code, 23149(a), for closing up an insolvent firm of traders does not apply, the firm having been dissolved, and its business having been thereafter actually stopped by seizure of its stock in.trade under legal process to its full value, some days antecedent to the filing of the present proceeding against the firm.</p> <p>2. Creditors who have not reduced their demands to judgment, and who have no lien otherwise, cannot, as a general rule, under the general law, enjoin their debtors from selling or disposing of their property.</p> <p>3. There being no right to enjoin the debtors themselves from parting with their property, an injunction against a creditor holding real estate as security, restraining him from restoring it after his claim is satisfied, should not have been granted.</p> <p>4. In order not to interfere with that element of the case which looks to reclaiming goods, as procured by fraud in the purchase thereof, the debtors are left to stand and remain enjoined from selling or disposing of any goods purchased of these creditors.</p>

<p>Railroads. Nonsuit. Live stock.</p> <p>From Emanuel superior court, April term, 1890. Before Judge Hines.</p>

<p>Telegraph companies. Constitutional and statutory law. Penalties. Damages. Before Judge Van Epps. City court of Atlanta. June term, 1890.</p> <p>Reported in the decision.</p>

<p>Criminal law. Murder. Courts. Jurisdiction. Constitutional law. Statutes. Trials. Practice. Evidence. Charge of court. Witness. Before Judge Richard II. Clark. Eulton superior court. March term, 1890.</p> <p>On the trial of J. C. Bone, the evidence showed, among other things, as follows : On the evening of the homicide, two or three hours before it occurred, he borrowed a pistol, and said he wanted to shoot a d — d rascal, or a d — d man. On the same evening, Woodward, the deceased, went to Bone’s house between seven and eight o’clock, and into thp room of defendant’s daughter, Jessie, where he remained until nearly ten, defendant being present when he came. ■ Jessie came out of the room and said that some one was in there. Defendant asked who it was; and his Avife replied that if he was obliged to know who it was she would tell him, and that it was Mr. Woodward. Defendant ate his supper, and said there were things going on in his house that he did not like and that he was tired of, and that he was going to kill Woodward. He picked up a chop-axe; said the room-door was fastened; went out on the back porch, and said he was going in there if he had to break the door open. He was told that he had no right to kill Woodward. He called a young woman, showed her a pistol and asked if Woodward was gone. She wént in, returned and told him that he was not; and defendant went away. In a short time Woodward also left. About eleven o’clock, the defendant returned and said he had killed Woodward, that he had always said he Avas going to do it, and that if the witness mentioned it to any one, he would kill her the same way. He told her he had to leave town, asked, her for money, and again left the house; and she was asleep when' he again returned. Before coming to see Jessie, Woodward usually wrote her a note. Other young men came to see her. The first time defendant ever objected to Woodward’s coming, though hé had known of it, was after certain furniture was taken away from the house. This furniture had been selected by Jessie, who instructed the seller to carry notes for it to Woodward, who she said was to pay for it. This was done, and Woodward signed the notes and made a payment, but on subsequent default the dealer sent for and obtained the furniture. When it was delivered at the house, the defendant asked who bought it; and Mrs. Bone told him She bought it. He did not know that Woodward had anything to do with it; but when it was removed, defendant became angry and objected to his being there. He made different and conflicting statements about the killing, after it occurred, to the coroner’s jury and others. At first he denied knowledge of the shooting, but subsequently admitted having done it; and finally told the coroner’s jury that he met Woodward and asked if that was Woodward; that Woodward replied yes ; that the defendant said, “You have been coming to see my daughter, and I want you to stop that Woodward replied, “Why, it is none of your d — d business”; and that then defendant shot Woodward, who moved off, and defendant shot again. He further said that if Woodward had not made that remark, he did not think he would have shot him.</p> <p>The prisoner’s statement was, in brief, that this had been going on six or seven months; he had been .trying to find out whether or not Woodward was a married man, and a few days before the killing, had learned that he was, but never saw him until that night; went home as usual, and after supper, heard somebody walking in the house; asked who it was, and repeated the question three or four times before receiving an answer, and finally his wife told him it was Woodward; he said he was going to see Woodward, and went out and picked up a hatchet and threw it down at the gate; then went away from the house, and after asking several persons for a pistol, borrowed one; then returned, met Woodward, asked if it was he and received an affirmative answer ; then said, “I want to have a little talk with you,” and Woodward replied, “All right.” “I says, £Is you a married man?’ He says, ‘Is that any of your business ?’ I says, ‘I learn that you are a married man ; you have been coming to see Jessie, and I am going to put a stop to it’; and he said, ‘I will come to,see Jessie as much as I d — d please,’ and he grabs me. I throws my hand back right there [.indicating], and in the struggle I shot him; and after I shot him he run up the hill, and after he stopped there I went on home. That is the whole truth. I didn’t borrow the pistol, gentlemen, to kill Mr. Woodward; I borrowed it to protect myself and family. ,. . I was born in 1832 or 1833, I forget which. I never had any difficulty in my life; I never had any fight in my life. I have been living in Atlanta since 1853.”</p> <p>The grounds for new trial not, fully stated in the opinion are as follows :</p> <p>Counsel for the defendant, followed by him and his family, walked across the judge’s platform and in the rear of his seat on their way to the prisoner’s room 'for consultation ; and as they did so, the judge remarked, “This is spectacular,” upon which there was laughter in the audience. The error assigned is, that this remark was calculated to place and did place movant and his family in ridicule before the jury, and him and his counsel at a great disadvantage in securing fair and impartial consideration-by the jury; and that the efiect of it was to impress the jury that the court and the audience considered the trial as a mere farce.</p> <p>A policeman witness identified certain keys us found in the Bone house, and on cross-examination, testified that every one of them was so found, and that he recognized them. The solicitor-general tendered the keys in evidence, and the defendant’s'counsel tossed them to his associate counsel, saying, “There, Frank, take your keys from the hunch.” The solicitor-general objected to this transaction ; and the judge said, “Small potatoes, Mr. Hill.” “And few in the hill, your Honor,” replied the solicitor-general. “And stringy at that,” rejoined the judge, who.certifies that he meant that the transaction was too small to treat seriously as affecting the merits of the trial. The defendant assigned error because such remarks were an expression of opinion by the court upon the evidence, and were such as to humiliate counsel in the presence of the jury, to the detriment of defendant and his defence; it being his right to cross-examine the witness and to demonstrate before the jury that he was a mere machine, if such could be done.</p> <p>A witness testified that'he was acquainted with the handwriting of Jessie Bone, and saw a note from her that Woodward had, about certain furniture; that he never saw Jessie Bone in the act of writing, and the way by which he knew' her handwriting was the frequency of the notes that were brought to his place of business, where Woodward was employed at work for him; that the notes were all signed in the same handwriting, and the note about the furniture was in the same handwriting of the others he had seen, which were a good many; but that he did not know whether she wrote the others. He was asked by the solicitor-general what, if any, threat was made in the note about the furniture. The defendant objected, because the witness, never having seen Jessie Bone in the act of writing, knew nothing, actually, about her handwriting. The objection was overruled.</p> <p>The next ground is, that the court did not fairly and fully submit, in his charge to the jury, the issues involved in the case; the jury being confined to the simple propositions that a father may kill a man to prevent adultery with his' daughter, if there is a necessity for it, and is not justifiable in killing another who has committed adultery with his daughter, after the adultery has been committed. The defendant contended that he had knowledge of Woodward’s previous visits, hut thought they were legitimate; had just ascertained that he was a married man; went to the door to inquire if such were a fact, for the purpose of prohibiting further visits ; found the door locked and went away; met him coming away from the house; asked'him if he was a married man, and warned him to discontinue his visits; he refused, and after a struggle defendant shot him to prevent his further visits and his debauching his daughter.</p> <p>After calling attention to the evidence, the court charged : “In contrast with that, he has given you his statement not under oath. The law gives that right to every person who is tried for a crime or misdemeanor; whether it is a felony or a misdemeanor, it confers that right upon every defendant in every case ; he is allowed to give to the jury his version of it, to say to them such facts as he thinks necessary to say in his own defence ; and then the law says the jury may give that statement just such force as they may see fit.” Error, 1st,' in speaking of the statement as being “in contrast” with the evidence; and 2d, in denominating it the prisoner’s version of it.</p> <p>The court charged: “All other instances, now you see, the law has defined as specifically as it can ; and having recognized, or realized rather, that there may be some cases of self-defence that have not been specifically defined by human foresight or sagacity, it adds this other section so as to cover what it might have failed to specify; and it says, all other instances which stand upon the same footing of reason and justice as those enumerated, shall be justifiable homicide. Then you are to consider the principles of self-defence which I have read to you, and also this section, and determine in your own mind if the defendant has brought himself within any of the instances as prescribed by the code, which stand upon the same footing of reason and justice as those enumerated. Now the defendant claims before .you what he considers the same footing of reason and justice, that he killed Mr. Woodward — he fired the pistol shot which took his life — because of his criminal or proposed criminal connection with his daughter. That section, gentlemen of the jury, has undergone the review of our Supreme Court. The only guide I have for my judgment, and which I am to impart to you for your judgment, is the construction that tribunal has given to this section. Therefore, I charge you the expounding of this section by the supreme judicial tribunal of the State, establishing the following principles.” Error, because the jury must naturally have concluded that the judge did not himself believe that such a defence was good in law, and gave such charge'only because'the Supreme Court had so construed the section; and such an intimation was prejudicial to the movant, and such reference to the Supreme Court was error.</p>

<p>There being evidence from -which the jury could reasonably infer the guilt of the accused of stabbing, and the trial judge being satisfied with the verdict, this court does not feel authorized to interfere.</p>

<p>Money rule. Tax executions. Transfers. Record. Before Judge Marshall J. Clarice. Fulton superior court, September term, 1890.</p> <p>Reported in the decision.</p>

Claim. Levy. Sheriff. Cost execution. Before Judge Hici-iard H. Clark. Clayton superior court. September term, 1889.

<p>A firm may execute a mortgage upon its stock of goods or other assets to secure the payment of an individual debt of one of its members. More especially would this be so when such debt has been made, by agreement between the members of the firm, a partnership debt.</p>

<p>Whenever the legislature has provided for a registration of voters in a municipality, the number of voters registered thereunder is the true test for ascertaining whether the requisite two thirds majority of the qualified voters of such municipality has been obtained at an election for which such registration was provided, and in which the assent of such a majority was requisite to empower the municipality to incur an indebtedness under the constitution of 1877. Where the legislature has prescribed how a majority or two thirds of the qualified voters of a municipality shall be ascertained, the method prescribed by it prevails, and not the common law rule; but the rule prescribed by the legislature of this State for general use in such cases does not apply in cases where the legislature has provided for registration, but applies only where there has been no other or better means provided for ascertaining who the qualified voters are.</p>

Attorney and client. Liens. Practice. Nonsuit. Verdict. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1890.

Damages. Evidence. Railroads. Before Judge Van Epps. City court of Atlanta. June term, 1890. Action for damages. It was conceded by tbe defendant that the plaintiff was entitled to recover, and the only issue was as to the amount, > The jury found for the plaintiff $11,250, and the defendant, moved for a new trial on the ground that the verdict was excessive, and on the two grounds fully set forth in -the opinion.

<p>Partnership. Injunction and receiver. Before Judge Marshall J. Clarice. Pulton superior court. September term (September 6), 1890.</p> <p>Taylor, on August 16, 1890, by his petition made these allegations : On January 22, 1890, he and Bliley entered into a written agreement attached. Bliley had been in the business of an undertake!’, and had an outfit used in carrying on the business, which he valued at $2,594.80. He contracted to sell to petitioner a half-interest in this property for $1,267.45, the title to remain in Bliley until the purchase money was paid. Petitioner paid in cash $600, and gave his note for $667.45. The firm entered at once upon the business, which progressed very slowly, the income from it being very small, so that since the partnership was formed petitioner has received from the business only $22. Peeling that the business was dull and that there was no likelihood of a support from it, he applied to Bliley three months ago to dissolve the partnership, proposing that if Bliley would let him have back his $600 and the note, he would give him all his time and labor up to that time, but Bliley refused to entertain the proposition; the petitioner then proposed to take $350 and the note and leave the business, but this Bliley refused to do ; and so petitioner gave Bliley notice that he would in three months dissolve the partnership. The three months have elapsed, but Bliley seems more inexorable than ever, keeping the books locked up and concealed from petitioner, refusing to consult with him about the business or talk about his interest in the matter, and in every way trying to ignore him. Bliley is morose and grumand at times insulting to petitioner, and considers the business as his exclusively. If there were more profits in the business than would be indicated by the amount above stated as having been paid petitioner, he has no way of ascertaining it, as he is almost entirely excluded from any knowledge of the business. The firm has been sued for the rent of the building it occupies, and, indeed, things seem to be in such a strait that it is necessary the business should be in some way terminated. Even as late as the day before the petition was sworn to, Bliley locked up the house and went away, leaving petitioner sitting at the door. lie cannot state accurately the debts of the firm, as he has not been allowed any acquaintance with the same by Bliley, but he knows that it owes several hundred dollars. He prayed that Bliley be enjoined from further proceeding with the business; that a receiver be appointed to take charge of it to the end that it may be settled up and the partnership dissolved, and the rights of the parties adjusted; that he be paid the $600 which he put into the business, and the note which he executed be delivered up to him and cancelled, and Bliley be enjoined from selling it;' that if there are any profits in the business, he be given his part of them under the contract, etc. The contract attached as an exhibit was, that in consideration of $1,267.45, $600 of that sum cash in hand, and the balance to be paid in twelve months from-date (as evidenced by note of even date with the contract, signed by Taylor and Mrs. Taylor), Bliley conveyed conditionally to Taylor one half undivided interest in the property specified in a schedule which followed, the title to said undivided half-interest to remain in Bliley until the balance of the consideration should be fully paid, and then to vest absolutely in Taylor. It is further stated that the parties had that day formed a partnership to conduct the undertaker’s business under the name of Bliley & Taylor; the profits of said business to be equally divided between them. The schedule referred to contained a list of the articles in the undertaking outfit. By amendment petitioner charged that since he filed his petition, he had learned that Bliley had mortgaged the partnership property for $550, and had also ascertained that Bliley gave in his entire property for taxation at $1,600, which amount is much less than petitioner thought it was worth, and might be covered by a homestead; that since he filed the petition, Bliley had told him that he should not have a cent of the money that he put into the firm, nor should he have anything for his services, and that when the property was brought to sale he intended to see that it did not bring enough to pay him anything; that Bliley peremptorily and insolently orders him out of the store and tells him that he shall not come into it, so that to keep the peace he has for several days remained away, thus necessarily leaving everything in the hands of a man whom he believes to be totally unscrupulous ; that he feels warranted in this latter statement, because he is credibly informed that, in severing his connection with a firm in the same business, Bliley cut out the leaves of a book on which his individual account appeared.</p> <p>Bliley answered as follows : Some weeks before the partnership was formed, Taylor and his mother impor- ■ tuned him to take Taylor in his business as a partner, assuring him that Taylor would devote his whole time and energy to the business and would do all he could to make it a success. He finally agreed to sell Taylor a half-interest in the property and admit him as a partner upon the terms contained in the agreement referred to in the petition. Respondent has faithfully attended to the business and devoted his whole time to it, but Taylor has been a detriment rather than a help, by reason of his neglect and his actions in and around the place of business. Taylor has been almost continuously under the influence of whiskey or some other intoxicant, since the 22d of January, 1890 ; • at times he would get drunk and absent himself from the place of "business for days at a time, and respondent would not know where he was and would have the whole care of the business on himself. When Taylor was drinking, he made himself very disagreeable by using profane language in the place of business, and would often sit in front of it in a semi-stupor or sleep, and be anything but an attractive or profitable advertisement, so that respondent’s friends would call his attention to Taylor’s condition and suggest that it would be better if Taylor would retire from sight. He from time to time remonstrated with Taylor and felt constrained to ask him to please not sit in front when under the influence of liquor, and often asked him to go into the back room and lie down until he got more sober. Notwithstanding all this, as the partnership has been entered into for twelve months, he feels it his duty to carry out the agreement in good faith. It is not true- that he denies Taylor access to the books or considers the business as his exclusively; the books are kept in the place of business at a place of which Taylor is aware, and respondent does not try to conceal them from him or exercise any more dominion over them than is necessary to take proper care of them. It is untrue that he refused to talk about the business of the firm, except when Taylor was under the influence of liquor. He never intended to insult Taylor, and when he remonstrated with him he only desired that Taylor might do better, and the business should appear to be in respectable hands. The persons who have patronized the firm are almost exclusively respondent’s friends. Taylor was away from and neglected the business so much, and was under the influence of liquor so much of the time, that respondent felt it was necessary to look after the details of the business, see that accounts were collected, bills paid, etc.; and in doing so he did not attempt to prohibit Taylor from doing the same. There is a suit pending against respondent as a tenant holding over, but he has interposed his defence and is advised that it is a good one. The firm is indebted, but the amounts due it are about equal to its indebtedness. The income has not been sufficient to pay the expenses of the business, and he has paid out of his own pocket money to satisfy firm indebtedness, so that the firm is indebted to him while Taylor is indebted to the firm, and there are no profits in his hands to which Taylor is entitled. The firm is solvent, its assets being sufficient to pay all its indebtedness. If respondent ever gets the balance of the purchase money represented by Taylor’s note, it will be by sale of the property mentioned in the agreement, or out of the profits of the business, as Taylor is insolvent. He did, a few days before, lock the door of their place of business while petitioner was sitting close by, but he did this because there was a corpse lying i.n the place of business, and he felt it was not safe and,proper to leave the door open, knowing that he could not trust Taylor by reason of Taylor’s habits, but Taylor had a key to the door and could go in if he wished to. Taylor is welcome to exercise such dominion over the books and over the firm as a partner is entitled to, and respondent will not try to prevent him. The appointment of a receiver would be disastrous to respondent, because Taylor still owes the note. The agreement with Taylor was that his mother was to sign the note, and she has never done it. If the property should be sold at receiver’s sale, it would be sacrificed, and Taylor’s portion, if he were entitled to any portion of the proceeds, would not be sufficient to pay the note. "When respondent purchased his outfit to run his undertaking business, he gave a mortgage to secure the payment of the purchase money to L. H. Hall & Co., and after he gave it, continued to run an account with Hall & Cc.; and when he formed the partnership with Taylor, he owed Hall & |Co. about $550 on the account; and about three months after the partnership was formed, in a settlement with Hall & Co., he took up the mortgage and renewed it for $550. He knew his interest in the property was ample to pay the $550, and acted in perfect good faith towards Taylor. He had plenty of property to pay his debts, and the mortgage is due when Taylor’s note is due, the mortgage being given on the belief that Taylor’s note would pay the debt; and Hall & Co. were informed of respondent’s plans and assented to them. Bespondent was a member of the firm of D. G. Wylie & Co., and when he was about to sever his connection with that firm, he rendered his account; and there being dissatisfaction about the account, the books of that firm were examined by two persons, each of whom reported that the firm owed respondent more than respondent claimed at first, and on the last report a settlement was made, and he left the firm. He does not remember to have taken the leaves on which his individual account appeared, but after this settlement was made he had a perfect right to them. He is amply solvent and intends to carry out the agreement' between him and Taylor; the appointment of a receiver would be very hurtful to his business reputation, etc., etc.</p> <p>On the hearing of the application for injunction and receiver, the evidence for the petitioner tended to show that the manner of Bliley towards Taylor was frequently gruff and insulting and unpleasant; that Taylor was closely attentive to his business, sober, and at his place oí business, and always pleasant and forbearing ; that he had never been so intoxicated as to incapacitate him for business while he was a partner with Bliley; that the allegations in Bliley’s answer to the effect that he was so intoxicated, and similar allegations, were false; that Bliley represented to him that there was no incumbrance upon the property, and that the firm owed no debts; that in winding up the business of D. Gl. "Wylie & Go., the leaves containing the individual account of Bliley had been cut out from the book in which the account appeared ; that Taylor, on May 15, 1890, seiwed Bliley with a written notice to dissolve'tlie partnership ; and that at times Bliley was morose and hard to get along with, and at other times pleasant; he had been known to be absent from the place of business frequently, and to have refused to give Taylor money.</p> <p>The testimony for the defendant tended to show that he ivas always present at the place of business and attentive to the same, while Taylor was seldom present, but was frequently drunk or under the influence of liquor, and was often absent when defendant required his assistance in the preparation of coffins, etc., and was often seen sitting in front of the place of business evidently under the influence of liquor, while defendant is steady, industrious, sober and of unimpeachable character ; that the books of the firm were always ac-. cessible to Taylor; that he had been heard to refuse defendant’s request to assist him in the business, saying that he was not going to have a damned thing to do with it and was going to get out of the business any way; that he returned no property for taxation for 1889 or 1890 ; that defendant refused to let him have money on the occasion above referred to, because he was under the influence of liquor and wanted to bet on a horse-race; that defendant always treated him kindly and with extra patience and consideration; and that the defendant was the one to whom bills for carriages to attend funerals were presented, and by whom they were paid. The witness who had testified for Taylor as to the missing leaves containing Bliley’s individual account with Wylie & Co., testified that he signed the affidavit for Taylor’s couusel without sufficient consideration, and now says that when Bliley went out of the firm of Wylie & Co. he rendered his account for a certain sum, and Wylie was dissatisfied, and deponent then went over the same and rendered Bliley’s account for more than Bliley had, and then another person named ran over the books and rendered Bliley’s account for more than deponent had, and the settlement with Bliley was made on the basis of the latter report; that deponent does not pretend to say who cut- out the leaves of the book; that Bliley,like other men, is not so pleasant at sometimes as at others when not worried, aud is an average man in this respect; and that deponent regards him, from business acquaintance and experience, as a man of integrity and strictly honest.</p> <p>The judge denied the prayer for injunction and receiver, on the ground that the title to the property described in the contract was in the defendant, and that this being true, there was nothing in the facts shown in evidence to authorize the granting of an injunction and the appointment of a receiver. The plaintiff excepted.</p>

<p>Injunction and receiver. Practice.</p> <p>After the decision delivered by Justice Simmons, above reported, this case was again beard by Judge Clarke, on November 22, 1890, and the same evideuce as already reported, with the following- in addition, was introduced : The defendant testified that Taylor had taken no interest in the business, nor assisted in carrying it on since the 15th of May, 1890, and had not been about the place of business for over three months previous to the 22d of November, 1890 ; and that if the whole of the property, including the firm accounts, be sold by a receiver, the same will not sell for more than $900 or $1,000. The. estimate of another witness was about $100 less. The defendant also submitted a statement which he swore to be a true and full account of the receipts aud expenditures of the firm, taken from its books, to August 15, 1890, commencing January 22, 1890. This shows a total of charges for burial-cases, services, etc., amounting to $1,084.10, of which $646.10 had been collected and $484 remained due. Bills amounting to $660.57 had been paid to creditors, and $476.68 were due by the firm to divers creditors. Taylor is debited .to cash $38.90, and $14.47 are stated to be due Bliley. The estimated value of the business when Taylor pui-chased a half-interest, was $2,534.90 ; the increase of stock since- the 22d of January, 1890, was $74.20; and the amount of cash in bank was $51.62. The items of the amounts due to and by the firm are given.</p> <p>The judge passed an order enjoining the defendant from collecting the note, made to him by Taylor and from proceeding further with the business, and ordering that he turn over the possession of all the partnership property to W. F. Parkhurst, who is hereby appointed receiver and is authorized to proceed with the firm business, after giving a $2,500 bond. The defendant excepted to this judgment, because (1) the judge appointed a receiver, and (2) he appointed Parkhurst and not Bliley under proper bond.</p>

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

Estates. Administrators. Evidence. Title. Deeds. Redemption. Levy. Trusts. Charge of court. Husband and wife. Tax. Practice. Before Judge Roney. Richmond superior court. October adjourned term, 1889. For the previous parts of this litigation see 55 9a. 68, and 83 9a. 715.

Negligence. Verdict. Railroads. Witness. Charge of court. Before Judge Eve. City court of Richmond county. November term, 1889. Mrs. Griffin sued the railway company for damages wliicb she alleged she sustained by the burning of timber and fencing on her land, caused by a spark or sparks from the engine of defendant.

Torts. Negligence. Damages. Before Judge Van Epps. City court of Atlanta. June term, 1890.

<p>1. A sale of land by one to whom it was devised with permission' to him to use it without charge for waste so long as he should live, not subject, however, to his debts or contracts “ nor to be rented even by him, and after his death then share and share alike to his children, and should any child or children of his be dead at the time of his death, their issue to take the share such dead child or children would have taken had they been alive, in fee simple,” passed only an estate for his life; and the purchaser was not entitled, as against the remaindermen, to be paid for any permanent improvements he made upon the land, except as a set-off against mesne profits, although he was a bona fide purchaser and thought he was buying a fee simple title. Only legal and not equitable rights against him being invoked, his prayer for decree that the land be sold and the fund thereby realized be equitably distributed between the remaindermen and himself, could not be granted, although the improvements he made largely enhanced the value of the property.</p> <p>2. None of the plaintiffs having attained majority more than seven years before bringing this suit, and the life-tenant having died in January, 1888, the defendant had no title by prescription.</p> <p>3. An order passed in 1869 by the judge of the superior court for sale of the land and reinvestment of the proceeds, on the petition of the life-tenant in the character of trustee, stating that “ this land was devised to him for life with remainder over in fee to the petitioner in trust for the children of the petitioner,” was invalid as against the remaindermen for want of jurisdiction; the will showing no trust created in favor of the-life-tenant or his children, and although the life-tenant was therein appointed ene of the executors, his application not being in that capacity for leave to sell to. pay debts or far distribution.</p> <p>4. The rulings of the court on the pleas being correct, it was no.t error te direct a verdict in favor of the plaintiffs.</p>

Attachments. Fraud. Debtor and creditor. Before Judge Boney. ' Burke superior court. December term, 1889. In these cases and those of Gray and Coleman, following, the petitions were for attachments under the code, §3297 et seq., and upon them the judge issued attachments which were levied upon goods to which claims were interposed by Neill.

<p>The grounds of petitions for attachments under code, ?3297, being that the debtor had conveyed all his property to the agent of cer. tain of his creditors, with the understanding between them that, after these creditors had been paid, the agent was to reconvey the property to the debtor or any other person he might desire, and ' that this arrangement was made by the debtor for the purpose of avoiding the payment of his debts ; and such petitions being verified by the affidavit of the debtor himself, deposing that the facts stated in the petitions were substantially correct, except that the conveyance was not made for the purpose of defrauding his creditors, but ho hoped by thus hindering and delaying them to gain time, and intended eventually to pay ids creditors in whole or in part, if he could do so : Held, that the attachments were lawfully issued.</p>

Negligence. Railroads. Before Judge Roney. Burke superior court. June term, 1890.

<p>New trial. Practice. Before Judge Harden. City court of Savannah. February term, 1890.</p>

<p>If by false statements that he was the owner of a certain plantation of agiven value, upon which he lived, the accused induced the sale to himself of goods for which he failed to pay, he could not relieve himself of the charge of cheating and swindling by showing that he really owned certain other property of much less value.</p>

Sales. Mortgages. Subrogation. Equity. Before Judge Honey. Columbia superior court. March term, 1890. Eor previous parts of this litigation see 77 Ga. 504, 80 Ga. 124, and 83 Ga. 1. The present case was made by a petition filed by Hobby as trustee, suing for the use of Warren, administrator of Caswell, against several Bunches and one Butcher, the following facts appearing : Petitioner conveyed certain land to Mrs. Bunch and her children.

Appeal. Certiorari. Justices’ courts. Before Judge EalligaNt. Chatham superior court. March term, 1890. White sued for $50 damages from killing his cow. Evidence was introduced by both sides, upon which the justice rendered judgment for the plaintiff' for $50 and costs. Without appealing to a jury in the justice’s court, the defendant carried the case to the superior court by certiorari, alleging that the justice erred in finding in favor of the plaiutiff.

<p>1. Where the declaration prayed for process requiring the defendant to appear at the August term of the court, that being the next regular term, but by clerical mistake the process attached by the clerk and dated July 16th commanded the defendant to appear at the next term to be held on the first Monday in July, and the defendant by counsel appeared at the August term and moved to dismiss the case.because the process was void, the court, having jurisdiction of the case, could allow the process to be amended.</p> <p>2. Where goods were directed to be carried from Richmond, Va., to Augusta, Ga., but instead of being carried directly they were sent to Atlanta, Ga., thence to Charlotte, N. C., and thence to Augusta, and where they should have been received in Augusta on the first of September but were not received until the 8th, and on the 10th they were destroyed by a flood, and where from the 1st to the 10th the consignees sent daily to the depot of the carrier, exhibited the bill of lading and asked for and described the goods, but were informed that they had not arrived, though in fact they were then in the possession of the carrier, the agent of which afterwards admitted that they had arrived two days before the flood, and that by carelessness at headquarters the way-bill was not sent with them and was not received until after they were destroyed, the carrier was liable for their value.</p> <p>(a) That the contract of carriage exempted the carrier from liability for wrong carriage or wrong delivery of goods marked with initials or numbers or imperfectly marked, and that the goods in question were marked not with the name of the consignees but simply with a number in lieu thereof, does not excuse the carrier from liability ; it appearing that the name of the consignees, as well as the number, was on the bill of lading, and that the.carrier refused to deliver the goods to them and did not deliver them to any one.</p> <p>3. There was no error in admitting in evidence the bill of lading over the objection that there was no proof of -its execution, or of the signature thereto, or of the agency of the person purporting to have signed it.</p> <p>4. There being no evidence that the carrier acted in bad faith or was stubbornly litigious or put the plaintiffs to unnecessary expense, an instruction that the jury could add reasonable attorneys’ fees to the actual damages, was erroneous.</p>

<p>Carriers. Negligence. Railroads. Contracts. Livestock. Before Judge Eve. City court of Richmond county. November term, 1889.</p> <p>Reported in the decision.</p>

<p>1. On trial in the superior court of a case appealed from the county' court, it was not error to refuse to allow the defendant to show by the plaintiff, after she testified that her brother was wagoner for defendant and had hauled all of plaintiff’s cotton, that she had introduced this brother as a witness in the county court and that he there in her presence testified to a certain number of bales of cotton as all of her crop, it not appearing- that he was dead or inaccessible at the subsequent trial. Her acquiescence or silence at the giving of his testimony in the county court did not amount to an admission of its truth in open court, the circumstances not i equiring an answer or denial, and it appearing that she did not herself know how many bales of cotton he hauled.</p> <p>2. Where under the contract between landlord and cropper, the landlord furnished the land, stock, etc., and the cropper the labor, for making the crop of a year, which crop was to be controlled by the landlord until after the rent and advances were paid and then to be equally divided between them, the cropper was entitled, after the payment of the rent and advances, to foreclose her special laborer’s lien for the balance due her.</p> <p>8. Part of the labor furnished by her being that of her two minor children (she being a widow), she was entitled to the lien for that part as well as for the labor she did in person. And that in carrying out her contract she was compelled to employ' extra labor for a few days, would not prevent the enforcement of her lien, it appearing that the landlord advanced her the money to pay for this extra labor, and the presumption being that he was credited 'with this money in the verdict.</p>

Injunction. Taxation. Before Judge Honey. Columbia superior court. October term, 1890. Petition for injunction by the city council against the sheriff, to restrain the enforcement of executions for State and county taxes for the years 1875-1889, issued by the tax-collector of Columbia county, and levied by the sheriff upon the bulkhead and dam of the Augusta canal and other property therewith connected in that county, assessed by the collector at $40,000.

<p>Equity. Administrators. Debtor and creditor. Before Judge Ealli&ant. Chatham superior court. December term, 1889.</p> <p>Deported in the decision.</p>

<p>Contracts. Sales. Broker’s memorandum. Before Judge Falligant. Chatham superior court. June term, 1890.</p> <p>Reported in the decision.</p>

<p>The controversy being one of fact only, a third verdiet for the plaintiff not being excessive in amount, and the evidence, taking it in its utmost force, letter and spirit, in favor of the plaintiff, being-sufficient to warrant a recovery, a fourth trial should be denied.</p>

<p>. The presence of one clinker of unusual size on the margin of a railway track where switching is to be done, and on which a brakeman accidentally steps in descending from a moving engine in the due course of his duties, will not render the company liable to answer for a personal injury which the brakeman thus sustains. For outdoor premises to be reasonably safe, it is not required that the surface shall be kept clear of every object which by chance might cause accidental injury.'</p>

Verdict. Practice. New trial. Before Judge Falligant. Chatham superior court. March term, 1890. For the facts of this litigation see the former report in 82 Ga. 512. The defendant excepted to the grant of a new trial after the second trial.

<p>Parent and child. Nonsuit. Before Judge Harden. City court of Savannah. May term, 1890.</p> <p>Reported in the decision.</p>

<p>Malicious arrest. False imprisonment. Verdict. Charge of court. Malice. Probable cause. Advice of counsel. Before Judge Falligant. Chatham superior court. June tei’m, 1890.</p> <p>The evidence tended to show the following: On March 8, 1889, one Gauey, acting for the defendant,' swore out a warrant and had the plaintiff' arrested on the charge of larceny from a vessel. He was kept in jail until March 22d when, after an examination before a magistrate, he was discharged. He was earning at the time he was arrested $1.75 per day, from ¡$10 to $12 per week, and since then has only been able to earn from $3 to $6 per week. He had worked regularly with defendant for nine years; has tried to get defendant to employ him again, but it refused because it said he was implicated in this larceny. He had to pay $50 counsel fees to obtain his discharge. He testified that he was not guilty of larceny and had never been charged with any crime. The larcenies in question were committed from the defendant, aud their counsel prosecuted the case. -Eighteen men were' arrested, of whom fifteen were discharged on preliminary examination, two were convicted and one not prosecuted. Plaintiff remained in jail because the prosecutor could not be found when the case was set for hearing. Ganey was a detective, and obtained the information on which he swore out the warrant from Barcus Butler, Phillip Hargrove, and Calvin Petticooler; and Sergeant Muse told Ganey that some one had told him that larcenies were beiug committed from the steamers. Ganey learned that larcenies which were supposed to be committed 'on the line of the railroad were really done on the steamers. After Barcus was arrested, Ganey told him it would be better for him to tell the truth, and he gave Ganey the names of his gang and told of their having stolen three boxes of cigars on the- steamer; but at the time of the trial Ganey could not find out anything aboutthe cigars, though some two months afterwards a claim was made for three boxes of cigars. Barcus told Ganey that the plaintiff and the balance of Billy Green’s gang had been implicated in stealing from defendant. Ganey saw defendant’s counsel- and the solicitor-general and told them what Barcus had told him, and they advised the arrest; lie did not tell them of the promise he held out to Barcus, as he did not consider it bindiug or that it amounted to anything. Barcus afterwards made a statement when in jail, but denied it when put upon the stand to testify. Ganey believed Barcus’ statement to be true when he made it, but did not believe what Hargrove said. He did not deem Petticooler’s evidence at that • time sufficient,if Barcus Butler could not be got to testify to the truth, to make a case. The arrests were made mainly on the statement of Barcus, though they had also the statement of one Western to Muse, that cigars had been given to men on board the vessel. Western was probably not used as a witness on the commitment trial, and the prosecutiou did not have any testimony that it thought was reliable. Barcus at the time he made his statement made it so direct, and gave such a fair showing as to what was done, by stating circumstances, etc., that the prosecution, including Ganey, believed he was telling the truth ; that statement had all the appearance of truth. Ganey testified that he did not give Barcus any liquor; and the magistrate before whom the plaintiff was carried, also testified that Ganey did not give Barcus any liquor, and that Barcus was perfectly sober and made to Ganey detailed statements which he afterwards denied. Barcus testified that Ganey told him if he would give the names of his gang and implicate them in the stealing, he would send him (Barcus) to jail, but after he had gone before the grand jury he would have him discharged and give him a good' job on the wharf; that he gave him whiskey to drink, and he was tight, not drunk; that he gave him the names but did not say plaintiff had been guilty of stealing. As to the statement -which it was claimed he made in the jail, he testified that Ganey had made memoranda of it -before coming to the jail and asked him if they were true, and then had some one write them down. He denied the statement, made by Graney aud the magistrate, that he accused the other men of theft.</p> <p>The jury found for the defendant. The plaintiff moved for a new trial on the grounds stated in the opinion. The charges requested, the refusal to give which was assigned as error, were as follows: (a) If this defendant had this plaintiff arrested aud imprisoned under a warrant, and the jury find that the warrant was issued maliciously and without probable.cause, the imprisonment under the warrant would be false imprisonment and this plaintiff would be entitled to recover for such false imprisonment. (h) The good faith of the arrest must be determined bj7 all the circumstances of each case, (c) An arrest under process of law made maliciously gives a right of action. (d) Belief of probable cause does not amount to probable cause; reasonable grounds for the belief must be shown, (e) A voluntary discontinuance of the prosecution is prima facie evidence of the existence of malice. (/) If the jury find that this plaintiff was arrested at the instance of defendant or its agents, was detained in jail for a length of time, and was then discharged without an examination or trial of the charge on which he was arrested at the instance of defendant, they would be authorized to consider such discharge as prima facie evidence of malice, (g) The master is liable for the act of his servant though he did not know of the act, and it matters not whether the wrong resulted from the .servant’s mere negligence or from wanton recklessness to accomplish the business entrusted to him in an unlawful manner, (it) liVherever intention is involved as an element of aggravation, advice of counsel is pertinent though not receivable as justification. The offer to prove advice, to be available, should embrace an offer to show that the advice sought aud given was based on the actual case.</p> <p>The charges excepted to are as follows:</p> <p>(a) “This is a suit by Washington Joiner against the Ocean Steamship Company for damages. Counsel for plaintiff claim it to be, as I understood them, a suit for malicious arrest and false imprisonment. The doctrines of law with reference to recovery or non-recovery are identical, so it makes very little difference ; but I think, if it appears from the evidence that the arrest was made under a legal warrant properly sued out before a magistrate authorized to issue a warrant, that it is properly a case to be brought under the law of malicious prosecution, and to be tested by the principles of that law. As I understand the law of false imprisonment, when one seeks to make an arrest it is his duty to do so lawfully, and if he cannot immediately obtain a warrant the party should carry him as quickly as possible before a magistrate and get out a warrant. If he should remand him without a warrant, or without bringing him before a magistrate or proper officer to issue a warrant within a reasonable time, that would be what the law terms false imprisonment.</p> <p>(b) “Want of probable cause is a matter for you to determine under all the facts and circumstances of the case. For instance, if it appears from the evidence that thefts had been committed, that an investigation was going on as to who was the criminal, that one of a certain gang made a confession and named this plaintiff as one of the parties engaged in it, and that the party to whom these statements were made went to counsel and laid before him, bona fide, the information he had obtained, and was advised by counsel that that was good ground for making an arrest, and if, not satisfied with that, he further went to the prosecuting officer of the government and laid before him the facts, bona fide, and was advised by him that it was good ground for making an arrest, and under such advice swore to the affidavit necessary to obtain the warrants and arrested this party, — these are circumstances for you to consider in determining the bona fides 'of the arrest, in determining whether he acted without probable cause or with probable cause, and whether he acted from malice or without malice. It is a matter, gentlemen, for you to determine, and I charge you that while the wrong advice of counsel is not a defence — an absolute defence to a party who injures another, yet, in de-. termining the question.of probable cause and malice, it is a circumstance which the law allows to go in evidence before you, to assist your investigation in coming to a conclusion upon that subject; and even if you find, under the law as given you in charge and the facts of this case, that the defendant is liable, the advice of. counsel, his method of taking and his action under it is also a matter to be considered in mitigation of damages, and in determining whether the tort is an aggravated tort or not.</p> <p>(c) “ Yon are to look into the facts of the particular case before you,, to put yourself in the position of the party who swore out-the warrant in this case, and determine, under the law as given you in charge and the. facts, whether he had probable 'cause at that time, the time he swore out the warrant. When the agent of this company went before the magistrate, with a statement of the evidence as to the theft, and made out the affidavit, his status at that time, under all the facts and circumstances of the case; should enter into your investigation. The fact that the party upon whose testimony he relied afterwards disclaimed having ever given any such evidence or information, is not to determine his status at the time he swore out the warrant, if at that time you believe from the evidence that the information was given.”</p>

<p>Criminal law. Charge of court. Taxation. License. Constitutional law. Interstate commerce. Contracts. Futures. Principal and agent. Before Judge Eve. City court of Richmond county.' May term, 1890.</p> <p>Reported in the decision.</p>

<p>Carriers. Railroads. Contracts. Statutes. Before Judge Falligant. Chatham superior court. December term, 1889.</p> <p>Reported in the decision. For former report, see 82 Ga. 149.</p>

<p>To violate the statute (Code, 21527) forbidding the carrying of a pistol concealed on the person, it is not necessary for the weapon to be concealed in the clothing of the person; but the same result is accomplished by carrying it in a basket or bag upon the arm and not for transportation alone.</p>

<p>Larceny. Criminal law. J’ractice. Evidence. Confessions. Charge of court. Before Judge Ealligant. Chatham superior court. June term, 18n0.</p> <p>Reported in tbe decision.</p>

<p>Negligence. Railroads. Master and servant. Before Judge Harden. City court of Savannah. July term, >1890...... ■</p> <p>Reported in the decision.</p>

<p>A petition bV the defendant in judgment for injunction against its enforcement, on the ground that it was obtained by fraud in that, before it was rendered, he was prevented from appearing and defending- the action by the statement of the plaintiff’s counsel that the case would be dismissed, whereupon defendant called the attention of the justice in whose court the action was pending, who assured him that he might rely on the statement made by the plaintiff’s counsel, was good on demurrer. But where it appeared from the petitioner’s own testimony that he had not been told that the case would be dismissed, though he so thought from what the counsel said, which was, that the case would not be tried at the next term of the justice’s court because counsel had business elsewhere, the allegation was not established.</p> <p>(a) If the judgment was never entered on the docket of the justice’s court, the remedy of the petitioner would not have been by injunction or petition in the nature of a bill in equity. Whether or not the judgment could have been so entered nunc pro ,.tunc, query.</p>

<p>Criminal law. Practice. Waiver. Estoppel. Trials. Before Judge Harden. City court of Savannah. May term, 1890.</p> <p>Reported in the decision.</p>

<p>The affidavit and the summons issued thereupon by the magistrate under the code, £4085 et seg.. are sufficient if they allege that at a certain time the defendant forcibly entered upon the land described, of which the plaintiff was in possession, and forcibly detained said land from him; and need not describe the manner, means or nature of the force used.</p>

<p>Negligence. Master and servant. Before Judge Harden. City court of. Savannah. July term, 1890.</p> <p>Reported in the decision.</p>

Negligence. Master and servant. Before Judge Harden. City court of Savannah. July term, 1890.

Banks. Insolvency. Debtor and creditor. Statutes. Actions. Receivers. Officers. Assignments. Title. Bonajides. Trusts. Equity. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1890.

Master and servant. Railroads.' Evidence. Charge of court. Practice. Damages. Verdict. Negligence. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1890. Action for damages. The plaintiff was conductor of the defendant’s freight-train at the time of the injury, which wats caused by the cars leaving the track in Alabama, on account of its defective condition.- He was in his thirty-third year, was receiving wages of $70 per mouth, and was stout and healthy.

Illegality. Statutes. Municipal corporations. Streets. Assessments. ' Constitutional law. Before Judge Falligant. Chatham superior court. June term, 1890. Bacon interposed an affidavit of illegality to the levy of an execution against him issued by the city for the amount assessed against him for his proportion of the cost of paving, grading and otherwise improving Liberty street with asphalt in front of and abutting on his real estate.

<p>Railroads. Passengers. Damages. Verdict. Before Judge Harden. City court of Savannah. July term, 1890.</p> <p>Reported in the decision. •</p>

<p>1. There being but one suit, one petition, one defendant, the clerk has no power, without some direct and express order of the court, to issue more than one process. A second process issued by him of his own will, after the appearance term of the case, is void.</p> <p>2. Formal entries of continuance made by the judge on the bench-docket at and after the appearance term, do not import any leave or order to issue a second process or extend the time for service.</p> <p>S. Standing alone, a process is no legal authority to the sheriff to serve the defendant after the appearance term, and where the defendant appears at the first term after the actual service, and without pleading to the action moves to dismiss the same for want of due service, the motion should be granted. Though acquiescence in such defective service might bind the defendant, no acquiescence can be implied when the objection is made promptly by a motion to dismiss.</p>

<p>Where on the trial of an action against a railroad company for a homicide the evidence adduced by the defendant itself showed that its servants were negligent, it was error to charge the jury that “if the company did what the statute required, and was otherwise guilty of no negligence as charged in the declaration, and the plaintiffs’ father was killed notwithstanding, his children could not recover.”</p>

Negligence.' Railroads. Master and servant. Before Judge Roney. Richmond superior court. April term, 1890. The plaintiff was engaged by the defendant to work in its shops. On the day he was hurt he was put to work at a planer with five other men, two putting timber into the machine, and the others, including the plaintiff, taking it out.

<p>Where application was made to the county commissioners to have a certain way over the lands of another “declared a permanent private way,” and objections were made, and on the hearing it was not shown that the applicant had any prescriptive right to the use of the way, but on the contrary it appeared that the use which was exercised by him and those under whom he claimed was merely permissive and was not constant and uninterrupted for seven years, a certiorari to the judgment of the commissioners directing “that the private way be declared permanent,” should have been sustained. The code, §720 etseq., prescribes the manner in which private ways may be opened ; but the law does not authorize the ordinary or county commissioners to declare a private way to be permanent.</p>

Railroads. Carriers. Negligence. Before Judge Hines. Taliaferro superior court. February term, 1890. The plaintifi was a passenger on the defendant’s road. Arriving at one of its stations, her destination, about two o’clock in the afternoon, she left the train, and her trunk was put off there. She gave to the assistant agent of the defendant the check for the trunk, aud asked him to put the trunk in the depot for her until she could send for it; and he said he would do so.

<p>Criminal law. Assault. Before Judge Lumpkin. Taliaferro superior court. February term, 1890.</p> <p>On the trial, the evidence tended to show that as Saggus was riding on a public road at night, Bishop’s wife ran after him, caught his bridle and asked him not to let Bishop kill her; that Bishop, who had been cursing her, came on the opposite side of the horse, seized an oak rail eight or ten feet long, and with it uplifted cursed Saggus, asked him what he had to do with it and said he would kill him (Saggus) if he moved his foot in the stirrup; that he held the rail uplifted for a minute or more, was in striking distance, and could have hit Saggus, who told him two or three times not to do so; and that he finally put the rail down on the remonstrance of his wife. In his statement he said that he never intended to hit Saggus, and never drew the rail on him, and that they had always been good friends, etc. After conviction, he moved for a new trial on the grounds stated in the opinion, the fifth ground being that the court erred in charging: “But if he intended to unlawfully commit a violent injury on the person of the prosecutor, and did some overt physical .act towards carrying out such intention, desisting from further attempt to commit the injury, after doing said act, would not relieve him from conviction of an assault.” The motion was overruled, and exceptions were taken.</p>

<p>New trial. Newly discovered evidence. Before Judge Hutchins. Jackson superior court. February term, 1890.</p> <p>Reported in the decision.</p>

Claim. Title. Husband and wife. Attorney and client. Before Judge Hutchins. Gwinnett superior court. March adjourned term, 1890. An execution in favor of John Silvey & Company 5 issued from a judgment of March 20, 1886, against T. C. Chamblee, was levied on 140 acres of land in Gwinnett county. Chamblee interposed a claim as agent for his wife. Hpon the trial the execution was introduced, and the claimant admitted that the defendant was in possession at the date of the levy.

Arbitration and award. Practice. Before Judge Hutchins. Gwinnett superior court. March adjourned term, 1890.

<p>Evidence. Contracts. Witness. Before Judge Well-born. Hall superior court. January adjourned term, 1890.</p> <p>Puett sued Hudson for a balance on account, the bill of particulars containing credits of house-rent in certain sums. Hudson pleaded a set-off in which he charged the rent at a larger amount; and there was conflicting testimony as to what this amount should be, and as to what the property was reasonably worth for rent. The decision states the rest of the report.</p>

<p>1. First grant of a new trial not disturbed.</p> <p>2. The bill of exceptions specifies: “All of the evidence embraced in said brief is material to a clear understanding of the errors complained of, and is specifically referred to and made a part of this bill of exceptions. The petition, plea, motion for new trial, brief of evidence, and the affidavit of H. H. Huggins as to newly discovered evidence, are parts of the record material to a clear understanding of the error's complained of.” Held, a sufficient specification under the act of 1889.</p> <p>(a) The brief of evidence filed upon motion for a new trial is a part of the record, and may as a whole be specified as sugh.</p>

<p>Administrators. Actions. Limitations. Minors. Before Judge G-ober. Pickens superior court. April term, 1890.</p> <p>Reported in tlie decision.</p>

<p>"Vendor and purchaser. Sales. Title. Before Judge Milner. Catoosa superior court. February term, 1890.</p> <p>Reported in the decision.</p>

<p>1. Denial of a nonsuit was not error; and the evidence was sufficient to authorize the verdict.</p> <p>2. On the trial of a suit in a city court for damages from the killing of a cow and calf, the plaintiff having stated that he would not insist on damages for the killing of the calf, the defendant moved to dismiss the action because the plaintiff’s claim was thus reduced to an amount under the jurisdiction of the court; whereupon the plaintiff, before any judgment was rendered on the motion, said he would insist upon damages for the killing of the calf. Held, not error then to overrule the motion.</p>

Railroads. Damages. Negligence. Charge of court. Evidence. 'Before Judge Milner. Whitfield superior court. April term, 1890.

Criminal law. Evidence. Before Judge Milner. Gordon superior court. February term, 1890. The character of the evidence may be seen by the former report (84 Ga. 524). The verdict was the same on the second trial as on the first.

County matters. Militia districts. Before Judge Milner. Bartow superior court. July term, 1890. The case was made by petition for the writ of prohibition to prevent the county commissioners from laying out a new militia district. They demurred on the ground that the remedy was by certiorari and not by prohibition, and because they had jurisdiction to lay off and create new districts. The judge made the writ absolute, and exceptions were taken.

<p>Injunction and receiver. Lis pendens.</p> <p>[From Bibb superior court. Before Judge Miller, at chambers, June 10, 1890.</p>

<p>Liens. Judgments. Record. Before Judge Lump-kin. Wilkes superior court. May term, 1890.</p> <p>On February 5, 1887, Franklin obtained a common law judgment against Shepherd for $61 principal. On May 18, 1889, Shepherd gave to Green an unconditional bill of sale to Shepherd’s entire crop, then planted on certain land, which land was described in the bill of sale and the crop described as being fifteen acres in cotton and eight acres in corn, all unincumbered except for 2,000 pounds of seed-cotton for rent. This bill of sale concluded with the statement that the title to the property was fully conveyed and passed absolutely to Green, his heirs and assigns, and was at all times subject to Green’s control and disposition. It was recorded October 26, 1889. It wa's given to secure a debt for supplies furnished and to be furnished by agreement during 1889, to the amount of $89, due November 1, 1889, and to secure a balance on a note due in 1887. Shepherd remained in possession and worked and gathered the crop, and Green had not taken possession at the time of the levy of Franklin’s execution. The execution was levied on October 5, 1889, after the maturity of the crop, on the crop covered by. the bill of sale, which was corn and cotton raised by Shepherd on the land; and Green interppsed a claim.</p> <p>The judge, to whom the case was submitted on the above facts, held the property subject, and Green excepted.</p>

<p>Abusive language. Criminal law. Evidence. Before Judge Lumpkin. Taliaferro superior court. February term, 1890.</p> <p>Beported in the decision.</p>

Year’s support. Appeal. Ordinary. Bonds. Amendment. Before Judge Lumpkin. Taliaferro superior pourt. August term, I860. Rebecca Daniel, as next friend of Willie Bird, applied to the' ordinary for the setting apart of a year’s support to Willie Bird out of the estate of his mother, M. E. Bird. The ordinary appointed appraisers to set aside such support, and they reported that they had set apart $700 in money. The return was received and citation issued by the ordinary.

Wills. Married women. Evidence. Before Judge Lumpkin. Taliaferro superior court. August term, 1890 This case was submitted to the presiding judge, upon appeal from the court of ordinary, upon the following agreed statement of facts: Louisa Williams, on the first day of January, 1885, duly executed her will, devising all her property to her sister, Mrs. Kent, now Mrs. Ellis. Testatrix signed the will with her maiden name.

Criminal law. Costs. Before Judge Cobb. City court of Clarke county. March adjourned term, 1890. Brown was convicted of a misdemeanor, and was sentenced to pay a fine of $50 and all costs of prosecution. On motion to tax the bill of costs, the court ordered that the costs of such witnesses as were sworn and examined on the trial be taxed in the bill.

<p>Damages. Evidence. Verdict. Before Judge Hutchins. Jackson superior court. February term, 1890.</p> <p>Reported in the decision.</p>

Levy and sale. Tax-executions. Redemption. Fraud. Before Judge Wellborn. Lumpkin superior court-. April term, 1889.

<p>Recognizance. Criminal law. Bonds. Before Judge Gober. Cherokee superior court. February term, 1890.</p> <p>Reported in the decision.</p>

<p>Railroads. Master and servant. Negligence. Jurisdiction. Practice. Waiver. Before Judge Milner. Gordon superior court. February term, 1890.</p> <p>Reported in the decision.</p>

<p>Though declarations made out of court by a witness may be used to impeach the witness, they cannot be treated as substantive evidence to establish the facts which they affirm; and a charge of the court so treating them, whether expressly or by necessary implication, is erroneous. Such a charge is vicious as based on au assumed state of facts, where this class of declarations is the only evidence to which it could apply.</p>

Burglary. Indictment. Criminal law. Charge of court. Larceny from the house. Husband and wife. Before Judge Milner. Bartow superior court. July term, 1890. Reported in the decision.

<p>1. By the code, §4-114, larceny from the house of anything under the value of $50 is a misdemeanor only ; while, by section 4406, simple larceny, where the property stolen is a note, due-bill, bank-bill, or any paper for the payment of money or other valuable thing, is a felony. It follows that a person indicted and tried for larceny from the house on a charge of stealing in a-house ‘ one five-dollar bill of the value of five dollars,” cannot be convicted of simple larceny.</p> <p>2. The indictment and trial being for a misdemeanor, and the verdict being for a felony, judgment will be arrested on motion.</p>

<p>Practice. . Trials. Argument of counsel. Before Judge Lumpkin. Hart superior court. September adjourned term, 1889.</p> <p>Reported in tbe decision.</p>

<p>1. Where the plaintiffs were called by the captain of a ship loaded and about to leave the port of Savannah, to take charge of it, extinguish a fire which had broken out aboard, and protect the cargo, and they agreed and proceeded to do so, they were entitled to continue in the performance of their part of the contract until its completion, and if discharged without cause, they were entitled to recover for the breach of the contract.</p> <p>2. The evidence clearly shows that there was a custom to charge the custody commission and attendance fee, and that the captain knew it and contracted with reference to it; nor, considering the skill and experience required and the responsibility incurred in such employment, does the custom seem unreasonable.</p> <p>(a) The custom is not invalid because it does not fix the amount of the attendance fee for every case. If the custom is that it shall be a reasonable fee, the custom is reasonable.</p> <p>3. The evidence showing that the plaintiffs made no disbursements for the vessel, but all the disbursements were made by others, and that the captain’s attention was not called to the commission on disbursements, and it not appearing that he knew that the custom in the port required him to pay it, the finding of the same in favor of the plaintiffs was unwarranted.</p> <p>(a) Where a custom is universal or general, every person who makes a contract is presumed to know the custom, and it enters into the contract and binds him; but where it is a purely local custom, a resident of Europe who, so far as appears, has néver been to the particular locality, is not bound unless he know of the custom.</p> <p>(&) Though the witnesses gave as their opinion that the person in charge of the ship would be entitled to the commission whether he furnished the money and made the disbursements or not, there was no testimony of any instance where the agent had received these commissions when he had not furnished the money but the money was furnished by the owner. If the custom had been proved, it would not have been good and could not be enforced unless the plaintiffs further proved that they had the money and kept it for that particular purpose, or had made arrangements to procure it for that purpose and thereby incurred expense.</p> <p>4. The letters of the defendant to the plaintiffs, and the surveys made in pursuance oi the call of the British vice-consul, were not inadmissible because written and made after the revocation of the agency.</p>

<p>Damages. Verdict. Charge of court. Master and • servant. Negligence. Before Judge Harden. City court of Savannah. July term, 1890.</p> <p>Reported in the decision.</p>

<p>1. There being some evidence to show the defendant’s guilt, and the trial judge being satisfied with the verdict, his discretion in denying a new trial will not be disturbed.</p> <p>2. A defect in an indictment, in not alleging any day or month when the alleged illegal sale of liquor took place, should be taken advantage of upon arraignment. After conviction it is too late to make the point for the first time.</p> <p>3. In making up a brief of evidence, a judge is not compelled to hear evidence of others as to what was testified, when he distinctly remembers.</p>

Criminal law. Retailing liquor. Evidence. Practice. Before Judge Lumpkin. Madisou superior court. March term, 1890. The indictment charged Christian and Pass with retailing spirituous liquors without license to one Dal Cash, on February 21, 1889.

<p>The words, “ You are a God damned thief,” are actionable per se, and it is not necessary for the plaintiff to prove that they referred to any particular transaction or charged any special crime. If the defendant claim that they were intended merely as words of abuse and not to charge a crime, it is for Mm to show that such was the intention.</p>

<p>Where a passenger boarded a railroad train at a flag-station, for the purpose of going to Augusta, and there was a dispute between him and the conductor as to the proper rate to be charged, and the conductor informed him that he could ride at four cents a mile to the next office where tickets were sold and could get off the train there and board it again, and might ride the rest of the way for three cents a mile, andthe passenger agreed to this, paid the four cents a mile to the next station, got off the train for the purpose of procuring a ticket and could not do so because the ticket-office was closed, and then boarded the train again for the purpose of continuing his journey, and tendered the conductor three cents'a mile, the latter had no legal right to put him off the train because he refused to pay four cents a mile, although he had received instructions to charge four cents a mile.</p> <p>(a) A passenger is not presumed to know the private or secret rules given by a railroad company to its conductors, but lias a right to rely upon their statement as to what the rules are, in contracting with them.</p> <p>(b) The rule shown the passenger by the conductor in this case, did not put the passenger upon notice that the conductor had no right to make the agreement above mentioned.</p>

<p>1. "Where one gave to the maker of a note money to purchase the . note from the holder for the person supplying the money, but' the</p> <p>maker simply paid the money to the holder and took the note without informing ike-holder that the money had been sent by . him (the maker) to purchase the note, and it did not appear that the holder had any notice of any intention on the part of the first person named, to make a purchase, the transaction amounted in law to a payment and not a sale of the note; to make it a sale required the assent of the minds both of the maker and holder.</p> <p>2. The maker having thus paid the holder, the security on the note was thereby discharged, although, under the facts of the case, the maker is still liable to the person entrusting him with the money, by reason of the violation of his trust.</p>

<p>Contracts. Consideration. Pleadings. Before Judge Cobb-. City court of Clarke county. March term, 1890.</p> <p>Reported in the decision.</p>

Evidence. Practice. Charge of court. Notice. Verdict. Before Judge Hutchins. Gwinnett superior court. March term, 1890. This was a hill, filed on August 1, 1887, to require Richard Sharpton to account to Mrs. Johnson for the proceeds of land to which she claimed a half-interest.

Evidence. Advancements. Gifts. Before Judge Wellborn. Iiall superior court. January adjourned term, 1890.

<p>Municipal corporations. Certiorari. Practice. Before J udge G-ober. Cobb superior court. March term, 1890.</p> <p>The city marshal of Marietta made affidavit “ that Tom Alexander hath been guilty of a violation of the following special whisky section of city ordinance, secs. 77, 78 and 78a [quoting the sections in full]; said violation being within the corporate limits of said city, on the 25th day of December, 1889.” Upon this affi- ’ davit the mayor issued a warrant for the arrest of Alexander, reciting that “ complaint upon oath has been made . . that Tom Alexander did violate the special whisky section of city ordinance as specified and incorporated in the above warrants hereunto attached,” etc. In the mayor’s court Alexander moved to dismiss the case because the affidavit did not state any fact and there was no specification in the warrant. His motion was overruled, and after conviction he carried the case to the superior court by certiorari. The judge held that the mayor’s court erred in not sustaining the motion to dismiss, and that the evidence showed, if anything, a sale of whisky, to punish which the city had no right.</p>

<p>1. On rule for distribution of a fund arising from the sale of a debtor’s property, an issue tendered by mortgagees against others of equal date, that the mortgage of the latter was intended by the mortgagor to be inferior in dignity to that of the former, and that he instructed the person who drew the mortgage to make it so appear therein, relied upon his doing so and refused to make any mortgage to the creditors attacked except it should expressly be subject to the mortgage of the creditors tendering the issue, but that the scrivener, through accident, mistake or fraud, omitted to follow this direction, — was properly stricken on demurrer, because it was an effort to reform the mortgage without making the mortgagor a party.</p> <p>2. An issue alleging that the debtor had delivered to the mortgagees sought to be postponed, as collateral, solvent notes and mortgages aggregating a large sum, and that these were in the possession of said mortgagees and had been or could have been collected by the exercise of proper diligence, was properly stricken on demurrer. The mortgagees could not be charged with the collaterals unless they had collected them. If not collected, the collaterals would ' still be assets of the debtor and subject to the claims of any of his creditors after those to whom he delivered them had been paid; and there is no allegation that any of them were lost by reason of a failure to collect.</p> <p>3. That the mortgagees sought to be postponed had a defeasible deed to certain realty from the debtor, would not compel them to relinquish their lien upon the money in the hands of the sheriff to be distributed, and to proceed against the land, they having no judgment lien against it, and it not appearing that the deed to them contained a power authorizing them to sell the land for the purpose of paying their debt. Although they held a lien against the land, and certain notes and accounts as collateral, these did not constitute an ultimate fund equally as accessible to them as the money in court. And although it was, alleged against them that they were in possession and had received rent for the land since the date of the deed, the issue tendered did not set up any distinct claim to have the rent applied to their debt, nor aver that it had not been so applied, or that it was not embraced, in the payments set up in the issue which was allowed to stand.</p> <p>4> That thej’e is a variance in the amount stated in the mortgage and that stated in the affidavit for foreclosure, does not make the foreclosure void. If the amount claimed in the affidavit be too large, the defendant or an opposing creditor can contest the amount and have it reduced.</p> <p>5. The verdict not covering the issue which the jury were empanelled to try, it was the duty of the court to send them, back to their room that this issue might be passed upon by them.</p>

<p>Malicious suit. Attorneys’ fees. Charge of court. Practice. Damages. Verdict. Evidence. Before Judge Milner. “Whitfield superior court. October term, 1889.</p> <p>Reported in the decision.</p>

<p>If a husband as agent for bis wife consulted the defendant as an attorney, and employed him to purchase an outstanding interest in a certain execution against her, and in this employment disclosed to the attorney his whole scheme of compromise and his purpose to purchase another execution against her at a price which the holder of it had agreed to take, and his general purpose to compromise all of his wife’s debts, the attorney could not take advantage of the information thus derived so as to purchase the outstanding interest in the first named execution for himself, and could not rightfully purchase the other execution for other persons, although the husband did not employ him to purchase the latter execution; and if he subsequently purchased the latter execution from the persons for whom he had bought it, the trust would attach to it in his hands.</p> <p>(a) Where an agent or attorney is unfaithful to -his trust or violates his instructions, he is not entitled to any compensation.</p>

<p>1. Where the plaintiff'claims one specific form of relief, and the defendant demurs on the ground that that is not the proper relief under the facts of the case, and the plaintiff thereupon acquiesces in the defendant’s view as to the remedy and the law and amends his petition and prays for the relief pointed out by the demurrer, and a trial is had, the jury finding that the relief sought in the amended prayer be granted, and this verdict is set aside and anew trial granted, the defendant cannot then demur to the amendment which he caused to be made by his first demurrer. By demurring to the relief first prayed for and pointing out the proper relief and assenting thereto, he virtually compelled the plaintiff to elect to try the case on the amendment, and therefore ought not to complain because no formal election was made by the plaintiff, or because the court charged the jury upon the relief prayed for in the amendment and omitted to charge upon the relief prayed for in the original petition. Nor should the demurrer be sustained on the ground that the amendment had never been formally allowed by the court. When the amendment was made and acted upon by the bourt and the parties, that was sufficient.</p> <p>2. The issue being what the mill in question was worth for hire or rent, the plaintiffs were entitled to prove how much it earned while leased by the defendant to another, not as concluding the question but as illustration.</p> <p>3. Counsel fpr plaintiffs having admitted in open court that a certain written contract between the parties was not introduced as a binding contract upon the defendant, it was unnecessary for the court to construe it; and if the defendant then wished to have it construed, he should have requested the court to charge upon it.</p> <p>4. Kefusal to alio w one of the plaintiffs to answer a question of law asked him by defendant’s counsel, was not error.</p> <p>5. If the plaintiffs, while legally in possession of the property, were deprived of it by the defendant, they would be entitled to recover rents for its use while thus unlawfully in his possession.</p> <p>6. The evidence sustains the finding of the jury, the trial judge being satisfied.</p>

<p>1. Where an affidavit o£ illegality was filed to an execution issuing from a justice’s court, and when the case was called in that court the affiant failed to appear, the magistrate should have dismissed the illegality instead of trying the same ex parte.</p> <p>2. Where two persons were sued in a justice’s court, one of whom resided out of the county in which the suit was brought, the return of the constable that he had served this one with a copy of the summons, and that he waived jurisdiction, did not give the magistrate jurisdiction to enter judgment against him. Nor did the fact that he said to the constable that it was all right and he waived jurisdiction, give the magistrate jurisdiction over him.</p>

<p>Demurrer. Practice. Service. Process. Waiver. Amendment. Equity. Pleadings. Churches. Before Judge Roney. Richmond superior court. ' April term, 1890.</p> <p>Reported in the decision.</p>

<p>The return term, fixed by law for all ordinary bills of exceptions is the first term of this court which begins after the expiration of thirty days from the filing of such bills of exceptions in the clerk’s office of the court below. Consequently, a bill of exceptions filed on the 10th of September is returnable to the second term of this court thereafter, the first term having commenced on October 6th. This is so notwithstanding the transcript of the record and the bill of exceptions reached this court more than twenty days before the commencement of the first term.</p>

Wills. Estates. Title. - Construction. Before Judge Maddox. Chattooga superior court. March term, 1890. Petition of the executors of James Scott for direction, to which the children and the administrator of Dunlap Scott, son of the testator, were defendants. The testator died in 1872; Dunlap Scott died in 1874, leaving a wife and three children.

<p>Judgment. Verdict. Practice. Before Judge Gober. Floyd superior court. March, term, 1890.</p> <p>Reported in the decision.</p>

<p>An employee who is under orders to couple cars with a stick only and is injured while coupling with his hand without a stick, is himself in fault and cannot recover.</p> <p>By two Justices.</p>

<p>Levy. Charge of court. Demand. Practice. Before Judge Meyeriiardt. City court of Floyd county. June term, 1890.</p> <p>After the former decision in this case as reported in 85 G-a. 425, a trial was had, and the jury found for the plaintiff $227.40 with interest and costs. The defendant moved for a new trial, one ground of the motion being that the levy in question was void for uncertainty and want of proper description, the sale was illegal and void, and the purchaser took nothing by his bid and acquired no title; and that, this being so, the plaintiff was not damaged by the sale. The levy was “on the S. W\ portion of lot of land No. 213 in 18th district and 3d section of Polk county, G-a., as the property of J. B. Little and I. P. Harris, leased by J. B. Little in February, 1885, from J. H. Davitte for the space of five years with the privilege of keeping twenty years, for the purpose of raising lime-rock and burning lime; also one lime-kiln standing on said land; also that portion of lot No. 219 in 18th district and 3d section of said county, leased by said J. B. Little and I. P. Harris for the purpose of building houses on, and three small tenant houses standing on lot No. 219, as the property of J. B. Little and I. P. Harris; notice given parties in possession as required by law.”</p>

<p>Actions. Penalties. Limitations. Before Judge Meyerhardt. City court of Floyd county. September term, 1890.</p> <p>Reported in the decision.</p>

<p>Receiver. Ejectment. Title. Insolvency. Before Judge Maddox. Haralson county. At chambers, November 17, 1890.</p> <p>Reported in the decision.</p>

<p>Practice in Supreme Court. Jurisdiction.</p>

Contracts. Sales. Rescission. Vendor and purchaser. Before Judge Maddox. Floyd superior court. March term, 1890. Newburger & Brother,-of Cincinnati, O., sued Hoyt as surviving partner of Hoyt & Company, of Rome, Ga., upon an account for $155 for 5,000 cigars, besides interest. The defendant'pleaded not indebted.

Murder. Criminal law. Evidence. Verdict. Before Judge G-ober. Eloyd superior court. March term, 1890. Crocket Ellison, Lum Sutherland and Lee Sutherland were indicted as principals in the first degree, for the murder of Charles Moore; and in a second count Ellison was charged as principal in the first degree, and the Sutherlands as principals in the second degree.

Actions. Damages. Torts. Contracts. Evidence. Before J udge Maddox. Floyd superior court. March adjourned term, 1890. Mrs. McLendon, as executrix of S. D. McLendon, brought her action against the Rome and Carrollton Construction Company and the Chattanooga, Rome and Columbus Railroad. Company for $682.75 damages, alleging as follows: The estate of her testator consists in part of land in the 4th district and 4th section of Floyd county.

<p>Trover. Croppers. Master and servant. Landlord and tenant. Charge of court. Practice. Before Judge Meyerhardt. City court of Floyd county. June term, 1890.</p> <p>Pugh sued Bryant in trover for 4,381 pounds of seed-cotton and 31 bushels of corn, worth $150. The evidence for the plaintiff tended to show the following: He rented a farm from defendant during 1889, and was to pay defendant one third of the corn, one fourth of the cotton and all the cotton-seed grown on the place. A part of this farm was worked by Caruth and a part by Graves. Plaintiff’s contract with them was, that he would furnish the land and stock and tools, they were to work under his direction, and he was to have half the crop and they the other half. • The crop was to be his until he was paid his part and all the supplies he might furnish them. He did not agree to furnish any given amount of supplies, nor all the supplies necessary to make a crop. He did agree to furnish the guano, and did so, and also furnished them some supplies. They had arrangements with Bryant to get supplies, which plaintiff knew before he- traded with them. He knew that Bryant took a mortgage after they traded. Bryant knew that plaintiff’ had furnished supplies. The property sued for was a part of the crop made by Caruth and Graves, which was delivered by them to Bryant’s gin, where Bryant took control of it without plaintiff’s consent and said he was going to sell it and put it in his pocket. The corn was a part of Caruth’s crop which had been gathered, and plaintiff’s half was paid to plaintiff, and twenty-five bushels of Caruth’s part was levied on. The balance of Caruth’s part was turned over to Bryant without plaintiff’s consent, and this is what plaintiff’ has sued for. He made two contracts with Caruth : the first was for a crop for himself; the other was to work the crop begun by a man named Connell; the terms of the trade were the same for both crops, except that Caruth was to pay plaintiff $60 for what supplies Connell had already got. A part of the cotton sued for was made by Caruth on his first crop, and a part on the Connell crop; one bale on the Connell crop and two on the Caruth crop; one bale was raised by Graves. The bales would weigh about 500 pounds each, worth ten cents a pound; and the corn was thirty bushels, worth fifty cents a bushel. Plaintiff' claims three fourths of the Caruth cotton, one fourth of the Graves cotton, and all the corn; was not claiming the fourth he owed Bryant for rent. Caruth owes plaintiff for his part of the crop and supplies, more than his cotton and corn will come to, but Graves owes him nothing but plaintiff’s fourth of Graves’ cotton. Plaintiff gave directions as to the working of the crop, and managed and controlled it. Caruth got most of his supplies for making the crop from Bryant. The corn raised by Caruth was divided between him and plaintiff, and the thirty-one bushels, which was a portion of Caruth’s part, was taken possession of by Bryant, Caruth having told him it was there. He also told Bryant he was willing to sell the cotton and credit it on his debt to Bryant, if plaintiff was willing. The cotton, was hauled to Bryant’s gin on plaintiffs wagon, plaintiff’s son helping to haul it, and the latter told “them” at the gin to keep the Caruth and Connell crops separate.</p> <p>The testimony for the defendant tended to show: The plaintiff first rented the land to one Yarbrough who had begun to pitch a crop on it, and Caruth and Graves had begun with Yarbrough and plaintiff to make a crop. Defendant told plaintiff that defendant had agreed to furnish them supplies and would continue to do so, to which plaintiff agreed. Defendant did furnish them supplies to make their crops, and took a mortgage on the crop to secure him. They owe him more than the cotton in dispute will pay. Caruth delivered the corn to him, and he took it at fifty cents a bushel and gave Caruth credit for it on his debt. Caruth told him to sell the cotton and apply the proceeds to the debt he owed defendant, which defendant did. Defendant knew •that plaintiff was furnishing some supplies, and that he furpished guano. Graves sold defendant his cotton, and he applied the proceeds to Graves’ debt to him. The bales would weigh fully 500 pounds. "When the cotton was brought to the gin, nothing was said about keeping the Connell and Caruth crops separate. Supplies were furnished by defendant to Caruth and Graves to an amount greater than the property in dispute. Plaintiff did not agree to furnish Graves any supplies, though he did furnish him a little for which Graves paid him. Graves told defendant that defendant could place Graves’ part of the cotton on his debt to defendant. Half the cotton delivered to defendant belonged to plaintiff. The mortgages made by Caruth and Graves to defendant were introduced in evidence; they covered the crop made by Carmth and Graves during the year in question, and were for a larger sum than the value of the property in dispute. Defendant also introduced a written contract between plaintiff and Caruth as to the Connell crop, which stated that Caruth was to pay $60* for the crop, work-it and gather it at the proper time and give plaintiff' half, and that Caruth’s part should remain bound for the $60. Also, landlord’s lien sworn out by plaintiff against Caruth for $60, for supplies for the year in question. The affidavit recited that plaintiff rented land to Caruth for the year; that during the contract of renting he, as landlord, furnished supplies, and that he made the affidavit for the purpose of foreclosing his lien as landlord upon the crop raised by Caruth upon the land rented. The execution was levied on some of the corn made by Caruth during the year.</p> <p>The jury found for the plaintiff $120. The defendant moved for a new trial, which was denied, and he excepted.</p>

<p>1. A telegram from the defendant in ji. fa. to the claimants informing them of the seizure by the sheriff of the property in controversy is not admissible in behalf of the claimants on trial of the claim.</p> <p>2. But the competent and uncontradicted evidence being that the transaction in question was a bailment for sale as the property of the claimants, they retaining the ownership so long as the property remained unsold, the improper admission of the telegram is not cause for a new trial.</p> <p>S. Where the evidence shows that the consignee paid something upon a certain bill of goods, it not appearing how much was paid, the presumption is that it was only so much as ought to have been paid according to the terms of the consignment.</p> <p>By two Justices.</p>

Ejectment. Estates. Remainders. Deeds. Estop- . pel. Before Judge- Jenkins. Greene superior court. Marcia term, 1890. An action of ejectment was brought on August 17, 1889, upon the demise of T. Fleming & Company against Eva Brightwell, Nancy A. Butler, J. R. Ray, and T. M. Fambrough as trustee of the minor children of B. F. Ray, son of Nancy Ray, who died on or before December 6, 1886, testate.

<p>1. Where the evidence shows that a draw-bar supplied by a railway company to be used in coupling cars was used on two occasions, wmrldng well on the first, but failing to work on the second, though twice tried in a proper manner, a jury might, in the absence of any explanation from the company, infer that the implement was defective.</p> <p>2. A second effort on the same occasion to couple cars with a draw-bar, the first having failed because the bar had become fixed in its position and not readily movable, is not necessarily improper or inexcusable, where the bar had been shaken loose after the first effort and before the second was made, although the second failed for the same reason as the first and the plaintiff was thereby injured.</p> <p>By two Justices.</p>

Ejectment. Equity. Actions. Tenants in common. Title. Year’s support. Practice. Before W. K. Moore, Esq., judge pro hac vice. Bartow superior court. January term, 1890.

<p>1. On the trial of a man charged with adultery and fornication with an unmarried woman, after proof that the woman was married, her declaration (she being present in court), made three years previously, that she had heard her husband was dead, is not admissible to prove his death; it not appearing from whom, her information was derived.</p> <p>. 2. The evidence showing that the female was a married woman, and there being no legal testimony to show that her husband was dead at the time of the alleged criminal act, a verdict of guilty was contrary to the evidence.</p> <p>By two Justices.</p>

<p>The libel alleged in the declaration was the publication in a newspaper of the following: “Either by erroneous classification, or classification obtained by the brick company and their subcontractors, by collusion with the subordinate engineers of the construction company, or some of them, the work of the Chattahoochee Brick Company has been overestimated to the extent of at least one hundred thousand dollars, and probably one hundred and fifty thousand dollars.” The declaration alleges that thesé words were falsely and maliciously written and published by the defendant of and concerning the plaintiff, who, it was alleged, was one of the subordinate engineers of the construction company employed for and in charge of the classification and estimating of the work of the Chattahoochee Brick Company; and that these words were intended by the defendant to charge and accuse the plaintiff with falsely and fraudulently colluding with the brick company and its subcontractors to cheat, defraud and swindle his employer, the construction company; and the declaration avers extraneous facts to show that they had reference to him, and were so understood and received by those who read them and the public at large. Held, that the court erred in sustaining a demurrer to the declaration on the ground that the facts as stated therein did not make a cause of action sufficient in law to authorize a recovery against the defendant.</p> <p>(a) Even where the words used may at first sight appear only to apply to the subordinate engineers as a class, and not to be specially defamatory of any particular on© of them, still if the plaintiff can satisfy the jury that they referred especially to him, he would he authorized to maintain the action.</p> <p>(&) It was unnecessary that a specific crime should be charged to enable the plaintiff to maintain his action. Charges made on one in reference to his trade, office or profession calculated to injure him therein are actionable, and no special damage is essential to support the action. Besides, the words, if written of and concerning the plaintiff, accused him of an offence amounting at least to moral turpitude.</p> <p>(c) Nor does it make any difference that the words were put in the disjunctive, to wit, “the. subordinate engineers of the construction company, or some of them.” It may turn out on the trial that the expression “or some of them” was used because the writer did not mean that all were guilty, but that the plaintiff alone or with others was guilty.</p> <p>By two Justices.</p>

<p>The matter alleged in. the declaration was sufficient in law to entitle the plaintiff to maintain his action, the letters and cablegrams showing a complete contract*</p> <p>By two Justices,</p>

<p>1. Upon the trial of a suit in equity to rescind a sale of land, where specific questions of fact were submitted to the jury, itwas improper practice for the court to submit also, over objection of counsel, the question of whether the sale should be rescinded or not, that being for the court to decide upon the special facts found by the jury in answer to the other questions submitted. But inasmuch as the facts thus found by the jury are sufficient to authorize the decree made by the court, the judgment will not be reversed on this ground.</p> <p>2. Bolling the jury as to their verdict in a civil case is a matter of discretion with the trial judge which this court will not undertake to control; and he may grant a motion to poll them upon their answer to a specific question, as well as upon the whole verdict, but his refusal to do so is not ground for reversal.</p> <p>3. Under the contract of sale, the plaintiffs were to be paid for the land partly in money and partly in other land to be conveyed to them by the defendant. The jury, in answer to questions submitted, found that the defendant could not make a good title to the land he agreed to convey, and could not fully compensate the plaintiffs for the loss of the land; that at the time of contracting no valuation was placed upon the plaintiffs ’ land; and that the conduct of the defendant constituted a fraud upon the plaintiffs. Held, that the decree for rescission was proper.</p> <p>(a) An offer by the defendant to convey other lands of the same kind as those he had agreed to convey was not a compliance with his contract.</p> <p>4. In addition to the parts of the record specified by the plaintiff in error in his bill of exceptions as material to a clear understanding of the errors complained of, certain portions of the evidence were sent up on the petition of the defendants in error. It appearing to this court that this evidence is superfluous and immaterial, it is directed that the cost of bringing it up be taxed against the defendants in error.</p> <p>By two Justices.</p>

<p>Garnishment. Laborers. Before Judge Harris. Troup county. At chambers, February 12, 1890.</p> <p>Reported in the decision.</p>

<p>Injunction. Practice.</p> <p>From Meriwether county. Before Judge Harris, at chambers, May 9, 1890.</p>

<p>1. There being some evidence to authorize the verdict, and the trial judge being satisfied therewith, this court will not interfere with his discretion in refusing a new trial.</p> <p>2. "Where the general issue has been filed in due time, the defendant may amend by adding other pleas at any stage of the proceedings.</p> <p>3, 4, 5. A ground of the motion for a new trial which is not approved by the court will not be considered. Nor will grounds which complain of the ruling out of interrogatories or the improper admission of evidence be considered where such interrogatories and evidence are not set out therein, or in the bill of exceptions.</p> <p>6. The law does not require pleas in actions of tort to be sworn to.</p> <p>By two Justices.</p>

<p>1. The testator’s widow and step-mother of his minor children, undertaking after his death to keep together and to care for and support the minors, became the head of his family, and as such was entitled to a homestead in his realty for the benefit of herself and the minors.</p> <p>2. Whether the homestead lasts for the life of the widow as against the children on the arrival of all of them at age, and whether they are entitled to a division of the property in accordance with the will, is not now for decision. As to creditors, it has been held that the homestead does not expire until the widow’s death.</p> <p>By two Justices.</p>

<p>Certiorari. Practice. Debtor and creditor. Garnishment. Title. Before Judge Miller. Bibb superior court. November term, 1889.</p> <p>On February 29, 1888, the plaintiff sued out an attachment against M. Greenwood for an indebtedness of $81.74, and on March 1st the attachment was levied by service of a summons of garnishment upon certain insurance agents, who answered that the Fire Insurance Company of London, which they represented, owed M. Greenwood $133.05 under the terms of a policy in said company and an adjustment made by the proper authorities, and that the amount would he due on March 22, 1888. A. Greenwood claimed the' amount due upon the policy, and traversed the answer of the garnishees. The claim case was tried in a magistrate’s court. The testimony showed that the plaintiff had obtained judgment against M. Greenwood in the attachment case; that on or about January 26,1888, M. Greenwood owed claimant about $250, and executed and delivered to him a power of attorney, authorizing him, “for me and in my name, place and stead, to collect and settle with the Fire Insurance Association of London, for all and everything that may be done for my loss that I have sustained and insured in the above named association, . . giving and granting unto my said attorney full and whole power and authority in and about the premises and generally to do and perform all and every act and acts, thing and things, device and devices in the law whatsoever needful and necessary to be done in and about the premises,” etc. This power of attorney contained no provision as to what should be done with the money after it was collected. The claimant testified that when M. Greenwood turned over to him the policy of insurance, together with the power of attorney, he. told claimant to collect the money found to be due on the policy by adjustment, and when he had so collected it, to apply it as far as it would go to the debt due to claimant. The fire by which M. Greenwood’s stock of goods was injured occurred prior to January 26, and the insurance company had not paid over the money, although the loss had been adjusted at the time plaintiff sued out his attachment.</p> <p>The plaintiff admitted that the facts as testified to by claimant’s witnesses were true. The magistrate held that the power of attorney, together with the instructions given by defendant to claimant, was a valid transfer of the claim against the insurance company, and therefore the company was indebted to claimant and not to defendant in attachment. By certiorari the plaintiff alleged that the court erred in this ruling. In the superior court the claimant moved to dismiss the certiorari, upon the ground that the amount involved exceeded f 50,and there being questions of fact involved, the plaintiff’s remedy was by appeal. The motion was overruled ; and the court held that the magistrate erred in deciding as he did, and directed a final judgment in favor of the plaintiff. The claimant excepted.</p>

<p>1. Where the State mates a grant of land to a city, to be absolute upon the payment of $10,000 by the city to the State, within a given time, the original receipt of the comptroller-general, for said sum of money, was properly admitted as evidence of such payment.</p> <p>2. Where land was granted to a railroad company, so long as the same should be used “for shops, depots and other conveniences and fixtures necessary for said company,” and the only use made of the land was the building and maintenance thereon of a track, or tracks, for the purpose of conveying freights to private parties, the storage of cars, and other like uses, this would not be a compliance by the company with the terms of the grant.</p> <p>3. Where such a grant was made to the Milledgeville Railroad Company, of which the Macon & Augusta Railroad Company was the legal successor, and the latter company took possession of a portion of the land and so built and used such tracks thereon, but did no more, and the Georgia Railroad & Banking Company afterwards took possession of the same, and it appearing that the title was in the City of Macon, except so far as it might be affected by the terms of such grant, then the city was entitled to recover the land from the Georgia railroad as a mere wrong-doer, unless it showed some right to hold under the Macon & Augusta company; or, if it did show such right, then the city was entitled to recover for want of compliance with the terms of the grant, and in either event, no demand was necessary as a condition precedent to the city’s bringing its action for the land.</p> <p>4. AVhere the facts were as stated in last head-note, and a verdict in favor of the city was inevitable, a charge by the court on the law of prescription was immaterial and harmless.</p>

<p>While a married woman may not contract a debt of suretyship that , will bind her, she may, as an original undertaker, become liable for goods furnished to another from which she derives no personal benefit.</p>

Marriage and divorce. Practice. Verdict. Husband and wife. Homestead. Debtor and creditor. Trusts. Attachments. Judgments. Taxation. Title. Before Judge Marshall J. Clarke. Pulton superior court.

<p>Injunction. Elections. Schools. ' Taxation. Statutes. Publication. Constitutional law. Before Judge Port. Stewart county. At chambers, November 1, 1890.</p> <p>Reported in the decision.</p>

<p>Distress warrant. Amendment. Verdict. Practice. Landlord and tenant. Liens., Charge of court. Before Judge Miller. Houston superior court. April term, 1890.</p> <p>Reported in the decision.</p>

Claim. Levy. Evidence. Before Judge Miller. Bibb superior court. April term, 1890. An attachment /a. in favor of Freeman & Simmons against Marmon was levied upon a car-load of oats, which was claimed by the Sturgis bank.

<p>1. A declaration alleging that the plaintiff’s husband, an employee of a railroad company, was killed by an engine of the company, setting forth such a statement of the facts and circumstances connected with the killing as did not of themselves negative the existence of negligence on the part of the company, and distinctly averring that the deceased was without fault, and that the killing was caused by the negligence of the company’s servants in the running of such engine, was not demurrable.</p> <p>2. Whether or not the presumption of negligence, which §3033 of the code provides shall in all cases be against a railroad company, has been removed, is a question -of fact for the jury, and not one of láw to be determined by the court.</p> <p>3. In a suit'against a railroad company by a widow for the killing of her husband, who was an employee of the company, a request to charge, grouping together certain alleged facts tending to show negligence on the part of the deceased, and instructing the jury that if these facts be true the plaintiff cannot recover, without leaving the jury to determine whether such facts did or did not constitute negligence on his part, was properly refused.</p> <p>4. When the plaintiff’s declaration alleges that her husband was killed in a specified way by the negligent running of a particular train or engine of a railroad company, and the proof shows that he was killed by another engine of - the company, and in a manner different from that alleged, and the evidence is such that, in any view of the case, the plaintiff’s right to recover is very doubtful, a verdict in her favor should be set aside.</p>

<p>Criminal law. Larceny. Indictment. Before Judge Miller. Bibb superior court. November term, 1889.</p> <p>Reported in the decision.</p>

Contracts. Marriage. Husband and wife. Debtor and creditor. Before Judge Harris. Troup superior coui’t. April term, 1890.

<p>Criminal law. Murder. Verdict. New trial.</p> <p>From Bibb superior court, April term, 1890. Before J udge Miller.</p>

<p>Negligence. Railroads. Passengers. Damages. Evidence. Before Judge Hines. Rockdale superior court. August adjourned term, 1889.</p> <p>Reported in the decision.</p>

<p>Attachment. Notice. Demand. Judgment. 'Constitutional law. Process. Practice. Before Judge Harris. City court of Macon. June term, 1890.</p> <p>The error assigned is, that the city court overruled the motion of Edward and Emily Sutton to set aside a verdict and judgment in attachment in favor of Gunn against them, the motion being upon the grounds that the verdict was rendered by the judge of the court to which the attachment was returnable, upon a conditional contract, without a jury; that there was no verdict to support the judgment; that the attachment was sworn out March 20, 1889, and the declaration not filed until June 29, 1889; that defendants were never served with a copy of the declaration ; that there was no process to the declaration; and that the judgment should be vacated so far as it affects Emily Sutton, because she had a good defence, to wit, that she signed the note sued upon as security for her husband, Edward, and she has never had her day in court, being unable to read the notice served on her and being informed and believing that the cause would be for trial in October, at which time she appeared at court to learn when it would be for trial and was informed it had been tried, and she never appeared and pleaded to the attachment and the property attached was never replevied.</p> <p>The attachment was sued out March 20, 1889, returnable to the June term, 1889, of the city court, and was levied upon a horse in possession of Edward Sutton, which horse (defendants not having replevied it) was sold on March 30, 1889, under order of court upon Gunn’s application reciting that the defendants had been served with' notice of his intention so to apply. On June 29, 1889, Gunn filed his declaration alleging indebtedness to him by defendants upon a promissory note, and the issuing and the levy of the attachment, and praying for a judgment for the sale of the property levied upon and for general judgment. The note sued upon was given to Gunn by defendants, and by its terms defendants jointly and severally promised to pay Gunn on or before twelve months from its date, October 28, 1888, $125 with interest at a specified rate, agreeing to pay at least $10 a month on the note, “and failing either monthly payment then makes the whole note due.” No process was attached to the declaration. On August 28, 1889, defendants were each served personally with a notice that the attachment cause was pending in the city court, returnable to tbe J une term, 1889; that under the attachment the horse had been seized and sold; that at the return term plaintifi had filed his declaration on the attachment, setting forth the indebtedness of defendants on the note, a copy of which was attached to the notice; and that at the September term of the court, ten days or more from date, at such time as the cause might be set, plaintiff proposed to take a general judgment against defendants. At the September term the judge, without a jury, found in favor of plaintiff for the principal and interest of the note, to be paid out of the proceeds of the sale of the property, and to be collected out of the property of defendants, and that judgment issue in favor of plaintiff'against defendants for the full amount sued for. This finding recited that it was shown to the court that the suit was upon “an conditional (?) contract in writing and upon an attachment levied upon one medium-sized bay horse, and that the defendants have seized bay horse, and that the defendants have been duly notified of the filing of the declaration in attachment.” Upon this finding, on September 24, 1.889, general judgment was entered against defendants, and special judgment against the attached property. It yms admitted that the defendants had never appeared and pleaded, and that the property attached had not been replevied.</p>

Certiorari. Notice. Practice. Before Judge Miller. Bibb superior court. April term, 1890.

Rule against sheriff. Execution. Practice. Amendment. Before Judge Miller. Bibb superior court. April term, 1890.

<p>1. Where the same substantial facts affect equally the claims of three clients, that the attorney has settled with one to avoid being ruled, is evidence for the others on a rule brought by them. It is not excluded under §3789 of the code as an admission made by constraint or with a view to a compromise.</p> <p>2. Unless requested, the court need not charge the jury specially as to the effect of a receipt in full.</p> <p>3. The evidence being conflicting, the case is within the general rule of upholding verdicts where the trial judge is satisfied.</p> <p>By two Justices.</p>

<p>Railroads. Amendment. Parties. Practice. Evidence. Pleadings. Abatement. Judgments. Jurisdiction. Notice. Lis pendens. New trial. Before Judge Maddox. "Walker superior court. February-term, 1890.</p> <p>To the report contained in the decision it is only necessary to add that under the plea of the general issue the testimony for the plaintiff tended to show the following: While he was returning home from Chattanooga he had to cross the railroad at a public crossing, then drive along the road and cross the railroad again at another public crossing a short distance from the first. There was a private road along the side of the railroad from which he first had to cross, extending to that portion of the public road which he reached by crossing the railroad the second time, but on account of its condition it was not practicable for him to use it. The second crossing was defective in that there were no planks laid 'to facilitate the passage of vehicles over the railroad track, and because the space between the ties outside the rails, and up to the rails, had not been filled with dirt or in any other way, and because the public road and railroad did not cross at right angles but at quite an acute angle, so that the wheels of vehicles, in attempting to cross, were likely to slide along the rails. As plaintiff: was attempting to go over this second crossing with his wagon and was nearly off the track, the defendants’ train, which was behind time and running at a speed of from thirty to forty miles per hour, no signal having been given before it approached the crossing, struck the wagon. The train approached through a cut, which prevented plaintiff from seeing it earlier, and prevented him from being seen from it until he was on the crossing. When he did see it his team was right on the track and his wagon slipping along the rail, and when he saw it he whipped his team, and as they went over the l'ailroad the train came “ like a streak” and struck the hind wheel of the wagon and knocked plaintiff and his son out. If the track had been properly fixed, plaintiff' would have got across without injury. He was bruised, cut and mashed in many places; suffered great pain; was confined to the house about a month, and since the injury has continued to suffer pain and been able to do but little work; can scarcely get up a hill at all, but can plow a little on a level; cannot do more than a fourth of a day's work; before the injury he could do as much work aa anybody; his physician’s bill was $100; and probably his injuries are to some extent permanent. The speed of the train was not checked hrapproachiug the crossing, and there were no blow-posts near the crossing. When plaintiff recovered consciousness the ti'ain was standing across the wagon road. When he approached the railroad he did not stop to listen to see if the train was coming, but drove right on. His wagon was making a noise; it was in August and the wagon was dry; he was traveling on a gravelly road, and had two empty whisky barrels, a sack of flour and a quart bottle of whisky in the wagon. He had not taken over two tablespoonfuls of liquor that day, and was sober. He was sixty-five years old.</p> <p>The defendant introduced no testimony. The jury found for the plaintiff $2,000.</p>

<p>1. The main issue beiug whether or not a through contract of shipment to New York was made by the shipper and the carrier, it was error so to charge the jury as to take from them the consideration of that question; and substantially to instruct them that, whether a through contract was made or not, the carrier was liable under the common law, if it failed to ship the goods to New York within a reasonable time. If there was no such contract, the carrier’s duty was to deliver the goods in good order at either of its termini to the connecting carrier in due time, upon which delivery its liability ceased. If such contract was made, and the carrier failed to deliver the goods in New York within a reasonable time, and the goods were thereby damaged, the shipper was entitled to recover such damages as he sustained from the unreasonable delay, whether the shipment was to be made by one route or another.</p> <p>2. On the question whether the shipper made the contract with the carrier to ship the goods by a certain route, his testimony wherein he stated what experience he had in shipping such goods, and that the route indicated was a better way of shipping them, was admissible.</p> <p>8. Testimony of the shipper as to certain sayings of the carrier’s agent who represented it in the shipment, was admissible in rebuttal of the testimony of that agent as to a conversation which he had with the shipper on the night after the carrier had failed to forward the goods from the initial point. The agent’s admissions, when applied to by the shipper and upon demand being made for the reasons of the carrier’s non-compliance with the contract claimed to have been made, the transaction being still in progress, and any representations made by the agent under these circumstances, were admissible against the carrier; especially where the agent telegraphed to the shipper to come to see him in regard to the matter.</p> <p>4. A witness who had been in the business of shipping fruit to New York for fifteen or twenty years and received from dealers in that city daily quotations by telegrams and circulars, as well as accounts of sales of fruit which he shipped, could testify, from returns of sales of fruit shipped by himself at a certain time, as to the market value of such fruit in New York at that time.</p> <p>5. So the testimony of one who was a resident of New York and a dealer in fruit, and who sold the fruit in question, was admissible.</p> <p>6. It would not be a correct rule for the measure of damages to say that “the plaintiffs are entitled to recover only what they paid for the peaches, such other loss as the proof shows that they sustained in consequence of such failure incurred in and about the loading, the superintending or loading, less what they have realized from the sale; not the profits that may have been realized from the sale in New York, in case the instructions had been followed and the fruit delivered earlier in New York.”</p> <p>(a) Questions for new trial indicated.</p> <p>By two Justices.</p>

<p>Actions. Husband, and wife. Pleadings. Before Judge Gober. Houston superior court. April term, 1890.</p> <p>Por the facts see the head-note.</p>

<p>Where land was levied on and advertised for sale before an application by the defendant in execution for a homestead therein, and was sold pending the application and subject thereto, with notice given at the time and place and before the sale, the purchaser became the owner of the fee; and after the expiration of the homestead estate he was entitled to the possession, and the land could not be again sold under another execution against the same defendant.</p> <p>By two Justices.</p>

Partnership. Evidence. Title. Principal and surety. Before Judge Miller. Bibb superior court. April term, 1890. The TroAvbridge Furniture Company brought its bill against C. A. Neal and Mrs. Phillips, for the foreclosure of a mortgage alleged to have been given it by Mrs. Phillips to secure a credit for certain goods sold to Neal, it being alleged that Neal and Mrs. Phillips were partners at the time of the transactions in question.

<p>Ejectment. Title. Evidence. Before Judge Milled. Bibb superior court. April term, 1890,</p> <p>Reported in the decision.</p>

<p>Estates. Deeds. Before Judge Miller. Bibb superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>Criminal law. Larceny after trust. Indictment. Bailment. Practice. Before Judge Miller. Bibb superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>Distress warrant. Levy. Practice. Contracts. Evidence. Pleadings. Set-off. Recoupment. Before •Judge Miller. Bibb superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>Evidence. Practice. Admissions. Before Judge Gustin. Bibb superior court. November adjourned term, 1889.</p> <p>DeLoach & Brother sued Stewart for the value of certain machinery, and obtained a verdict. The defendant moved for a new trial, one ground of the motion being that the court admitted in evidence a copy of a written contract for the machinery which had been executed in duplicate, to which the defendant objected upon the ground that the original should be produced. The plaintiffs then proposed to show that the original was lost, and introduced testimony to make such showing; after which the court admitted the copy. At the conclusion of the evidence for the plaintiffs, the defendant moved for a nonsuit, and the motion having been overruled, the defendant put in evidence the original duplicate in his possession.</p> <p>The other ground of error insisted upon is, that the court erred in charging: “An admission of agents made while they are engaged in the'business of their principal and made with reference to the matters in which they are engaged, is evidence against their principals ; but admissions should he scanned with care. The jury should look to them carefully to see what they mean, and see that they are not being used to imply and to carry with them more meaning than they are justly entitled to.” The admission referred to appeared, from the testimony of the defendant, to have been made by a man sent to his mill in answer to complaints he had made to plaintiffs long after the delivery of the machinery. Defendant testified that this man stated that plaintiffs had gone a little too far in their contract, that they could never comply t with it, and that there was no turbine wheel ever made which would run with the same amount of water as an overshot wheel. As part of the defence it was insisted that plaintiffs had guaranteed that the machinery would run defendant’s mill with as small an amount of water as an overshot wheel he had been using was ever run with, and that this proved to be untrue.</p> <p>A new trial was denied, and the defendant excepted. The plaintiffs excepted by cross-bill not material to this report. i</p>

<p>A local statute which confers upon the municipal government power and authority to assess one third of the cost of grading, paving, macadamizing and otherwise improving the roadway or street proper, on real estate abutting on each side of the street improved, subjects alike all real estate owned by individuals or private corporations, without respect to the purpose or use for which the •property is held or to which it is devoted. Churches are not exempt, and after paying such assessment, the religious corporation to which a church belongs cannot recover back the money so paid into the city treasury. Trustees, etc. v. City of Atlanta, 76 Ga. 181, overruled.</p> <p>Argued at the last term; reargued at this term.</p>

<p>The plaintiff purchased at night from the agent of the railroad company a ticket.for passage over its road to Atlanta, paying for the same. When called upon, she presented this ticket to the conductor, but it appearing to be for passage to Asheville, N. C., he declined to allow her to proceed. She stated to him the circumstances under which she bought the ticket, and the fact that her trunk had been checked to Atlanta on it (which he subsequently ascertained for himself), and that she had no money with which to pay fare ; but he ejected her from the train at a station where there were no accommodations, and from which she had to walk about two and a half miles to secure a place to lodge. She was an old and infirm colored woman, in bad health, and going to Atlanta on account of her husband’s death. Held:</p> <p>1. A verdict in her favor against the company for $1,000 damages was neither contrary to law or evidence, nor excessive.</p> <p>2. The plaintiff, having applied for the proper ticket, was entitled to rely upon the one delivered to her by the agent, as the proper one, without examining it, there being no intervening circumstances requiring her to do so.</p> <p>3. A charge that “if she asked for the ticket and there was no mistake on her part in calling for it, and the wrong ticket was given her, then it was the fault of the railroad company,” was not contrary to law.</p> <p>4. The evidence was sufficient to authorize the giving in charge of sections 3066, 3067 of the code, on the subject of aggravation and vindictive damages.</p> <p>5. Bequests to charge which assumed that the plaintiff was chargeable with the consequences of the agent’s mistake in delivering to her the wrong ticket, because such mistake might have been discovered by looking at it, were properly refused.</p> <p>Simmons, J., dissenting.</p>

Criminal law. Liquor. Minors. Parent and child. Before Judge Smith. Muscogee superior court. May term, 1890. Indictment for selling liquor to a minor without written authority first obtained, and in a second count for permitting the same to be done by a clerk in his employ. The defendant admitted that he sold liquor to the minor only after the 1st of February, 1889.

<p>Criminal law. Liquor. Minors. Parent and child. Evidence. Witness. Before Judge Smith. Muscogee superior court. May term, 1890.</p> <p>Reported in the decision.</p>

<p>1. Without express statutory authority, a municipal government cannot grant to any person the right to erect and maintain in a public street a structure, such as a permanent fish-box’, for his private and exclusive use.</p> <p>2. The charter of Americus invests the city council with full power to clear the streets of all obstructions, and this power may be exercised summarily and without granting a preliminary hearing, after notice to remove and refusal.</p> <p>3. A license from the city to carry on the business of a fish dealer, etc., gives no vested right to keep a box in the street and use it in the business.</p> <p>4. Where the whole case turns upon a question of law, which is decisive of its merits, the court may direct a verdict for the defendant. Even if this be irregular, it is no cause for a new trial where a recovery would be impossible.</p> <p>Argued at the last term.</p>

<p>An affidavit of illegality may be made by an agent, and the agency need not have been created in writing.</p> <p>Argued at the last term.</p>

<p>Interest and usury.</p> <p>From Chattahoochee superior court, September term, 1889. Before Judge Smith.</p>

<p>Argued at the last term.</p>

Ejectment. Sales. Powers. Revocation. Title. Mortgages. Estoppel. Administrators and executors. Before Judge Smith. Muscogee superior court. May term, 1890. Action of ejectment on the demises of C. B. Wilkins as next friend of Georgia M. Wilkins, of C. B. Wilkins and John Flournoy as trustees of Georgia M. under the will of Julia M. Wilkins, and of Wilkins and Flournoy as executors of Julia M. Wilkins.

<p>Argued at the last term.</p>

<p>Injunction. Husband and wife. Trusts. Before Judge Bower. Dougherty county. At chambers, November 1, 1890.</p> <p>The question made is, whether the judge erred in refusing to enjoin the defendant, on the petition of his wife, from interfering with a house and lot which he holds under a deed conveying the same to him as trustee for her, she contending that this deed vested the title absolutely in her, and that he is an insolvent trespasser. The deed is dated June 20, 1881, and in consideration of $400 conveys the property to “Ed Pay-ton, trustee for Caroline Payton.” She alleges that he purchased the property with money which she earned by her own labor ; that the. house is vacant and bringing no income, and he will not rent it to any one nor allow her to do so; that she formerly had much confidence in him, but they have been living apart for several years because of cruel treatment of her by him, he doing all in his power to bring her to absolute want and make her property worthless; that she is now about fifty-five years old, and it is important to her that her property and what she can accumulate be preserved, protected and made productive; that in September, 1890, she rented two- rooms of the house to Ilenry Thomas, a good man and prompt payer of his obligations, for $4 per month, which is a reasonable price, but when he attempted to take possession, he was stopped by the defendant by menaces, and threats of prosecution, etc., and left the house vacant and will not live in it for fear of injury from the defendant, who is insolvent and cannot be made to answer in damages, and were it otherwise, his continued acts would necessitate a multiplicity of suits; that she does not need any trustee, the title to the property being absolutely in her; that the defendant has no right to interfere with it, whether she paid for it or whether he paid for it and took the deed for it to himself as trustee, she being long before its date more than twenty-one years old.</p> <p>The defendant answered that he and his wife lived together many years in happiness, but for some years past/without his fault, she has become alienated from him and refused to live with him, through the influence of Henry Thomas and others, although defendant ha,s used every means to induce her to return ; that about the date of the deed, he desired to provide a home for himself and his wife, they having no children, and he thinking it prudent when he was strong to make provision for the future, and with this desire he bought the property ; that the purchase money for it was paid by him at different' times, every dollar of it being his own money and the result of his own labor; that having perfect confidence in his wife’s fidelity, and fearing that future financial embarrassments might come upon him and sweep away their home in old age, he requested the vendor to make the deed to him as trustee for his wife; that he is now sixty-five years old, infirm and unable to do much labor or earn much money, but he and his wife could by united effort earn enough to provide for their wants; that he is using the house as his home, and she could do the same if she would; that his reasons for not allowing Thomas to take possession were, that he and Thomas had for several years lived with their families together in the house, and Thomas was the cause of the alienation of his wife, disputed his title to the lot and forced him to litigate the title with him, which he did and gained the case ; that this whole matter is á scheme concocted by Thomas and Mack Thompson, with whom his wife is now living, to get him out and sell the house to Thompson, and leave him in his old age without a shelter; that Thompson tas persuaded his wife to sell the property to him at a price greatly less than its value; and that she is a weak-minded woman and has been thus the more easily controlled by the influences of said parties. By way of cross-bill, he charges that he acted .in good faith and thought he took the surest method to provide a home for himself and wife when he purchased the lot, but as the consideration moving him to do so has failed, the deed to him as trustee is void; and he therefore prays that the vendor therein be made a party, that the deed be decreed void, and that the vendor be required to execute to him a fee simple deed to the property. He says that it would be a fraud upon him and against public policy for the trust under the deed to be enforced; and so he prays that the petitioner be enjoined from selling, mortgaging or interfering with the property except to occupy and enjoy it as his wife.</p>

Tax-executions. Practice. Before Judge Roberts. Pulaski superior court. May term, 1890. An execution for State and county taxes against Ryan was levied upon a lot of land, describing it, but the levy did not state as whose land the lot was levied upon. A claim was interposed hy Mrs. Wilson, and after the levy and claim the,/?, fa was transferred by the sheriff to one Lewis, for the amount of the taxes due, exclusive of costs.

<p>The power of a married woman to contract as a free trader, under section 1760 of the code, is restricted by the general provision of section 1783 as to ail married women, which disables them to bind their separate estate by any contract of suretyship. Hence, an accommodation acceptance by a feme covert is not rendered obligatory by her being a free trader at the time the bill was drawn and accepted.</p> <p>Argued at the last term.</p>

<p>Practice in Supreme Court.</p>

Criminal law. Burglary. Evidence. New trial. Before Judge Lumpkin. Madison superior court. March term, 1890. Joe Matthews was indicted for burglary. The testimony for the State tended to show that the store of one Phillips was broken open on March 6th, 1887, about ten or eleven o’clock at night. So far as was known nothing was stolen. Phillips heat’d a noise at the store, and went out and saw a black man about the size of defendant; could not say who it was.

<p>1. Due administration of devised realty .by the executrix under an order of the court of ordinary, to pay debts of the estate, cuts off a mortgage made by one of the devisees upon his undivided interest in such realty.</p> <p>2. The purchaser at foreclosure sale of the undivided interest of a tenant in common in certain lands, takes an undivided interest in every part of the premises. He does not become sole owner of any definite subdivision of the tract.</p> <p>3. A bona, fide mortgagee having a valid lien upon two parcels of land, cannot, at the instance of a third person, be enjoined from enforcing the mortgage to await an election by the mortgagor as to which parcel she will relinquish to such third person, either parcel being sufficient to discharge the mortgage debt. If the case is one for election, the mortgagee is entitled to exercise that privilege by exposing either to sale under his.judgment of foreclosure. He will have no right to sell both if one should prove sufficient.</p>

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

Landlord and tenant. Liens. Before Judge Boater. Mitchell superior court. March term, 1890. Motion to distribute money raised by levy and sale of crops raised in 1888 on land rented for that year of Mansfield, who' claimed the fund under his execution from the foreclosure of his landlord’s lien for supplies to the amount of $40, furnished by him to the tenant who cultivated the land.

<p>Tt was error to refuse to allow defendant to amend its plea of the general issue by filing a plea of the statute of limitations,-though the jury had been charged with the case and had retired to their room, and though plaintiff’s counsel stated he would be surprised by the amendment, that his client had been sent home before he knew of the offer to amend the plea, and that were his client present he could testify to such facts as, in his opinion, would take the case out of the bar of the statute.</p> <p>Argued at the last term.</p>

<p>Foreclosure of mortgage. Amendment. Practice. Evidence. Before Judge Bower. Worth superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>When one hires a horse to go a certain distance, he has no right, under his contract, to go beyond such distance without the consent of the bailor ; and when he does go beyond, it is at least a tech, nical conversion or violation of his contract and duty, and if the horse be injured while beyond the point to which it was hired to go, he is liable, whether the injury be caused by his own negligence or that of others, or even by accident, unless he be forced to go beyond that point by circumstances which he cannot control. But though the bailee be guilty of a technical conversion by riding the horse beyond the point to which it is hired to go, if the extra distance do not cause or contribute to the injury, and he return the horse within the limits of his original contract, he should not be held liable for an injury to the horse which occurs without his fault after he has returned it.</p> <p>(a) The question whether the extra ride did or did not cause, or ma terially contribute to the injury, is for the jury.</p> <p>Argued at the last term.</p>

<p>Lumpkin, J., disqualified and not presiding.</p>

<p>Where suit was brought against Mrs. Goolsby in a county court, by an ordinary action upon an account, and an appeal was taken to the superior court where her husband and minor son were made parties defendant, and, under an equitable amendment to the declaration, a verdict and judgment or decree were had for a sum of money and that the amount of the verdict should be a special lien on crops grown on certain lands from year to year until paid, and plaintiff in the judgment applied for an injunction and for a receiver to take charge of the lands and collect out of their proceeds the judgment, and the judge refused the application upon the ground that the minor son had an interest in the property which the judgment or decree would bind had he been properly served, and that he had not been properly served: Held, that the j udge erred in so holding, the mother, Mrs. Goolsby, being the only person having a direct interest in the land, she having a life estate therein (created by deed) during the life of her husband, with a charge thereon for his support and maintenance during his life, and after his death the minor son and such other children of Mrs. Goolsby and her husband as might be living at the death of the husband, taking the fee. But it being at least doubtful whether the superior court on appeal had the right to allow the amendments making parties and seeking equitable relief (the entire nature of the case being changed by the equitable amendment), and whether the land could not be sold under judgment against Mrs. Goolsby, the life-tenant, subject to the charge thereon for the support of her husband, the judge was not bound to appoint the receiver, it being improper to make such appointment if the superior court had no such jurisdiction, or if the land could be so levied On and sold.</p>

<p>Where the suit was upon an unconditional contract in writing, and no plea was filed nor was the name oí the counsel marked upon the docket, nor the attention of the court called to the fact that counsel w;ho was absent was employed in the case or expected to appear in the same, it was the duty of the court to award judgment without a jury. This haying been done, it was error to set' the judgment aside upon a showing that counsel had been employed by defendant, whose name defendant had requested the clerk of the court to enter upon the docket, that such counsel was a member of the legislature which was in session, and that defendant had meritorious defence.</p>

Negligence. Railroads. Before Judge Eort. Harris superior court. October term, 1889. Mrs. Seats sued the railroad company for the alleged negligent killing of her husband. The evidence for the plaintiff’, briefly stated, tended to show that Seats was killed while walking on the railroad traik. He was sixty-two years old, was quite deaf, and his eyesight was somewhat impaired. The public road ran along by the side of the railroad, and he could have conveniently used that road.

<p>1. The main issue in an action of ejectment brought by the heirs of the grantee named in a certain deed, being whether or not this deed was delivered to such grantee, she being dead when the case was tried, the defendant, who, though not by name a party to the deed, was at the time it was signed the owner of a perfect equity in the land covered thereby, and participated in negotiations relating to its being signed by one who held the legal title, and to the disposition made of it after it was signed, was not, under the evidence act of 1866, a competent witness to prove, in his own favor, facts tending to show its non-delivery.</p> <p>2. The maker of such deed, not being a party to the case, was, under said act, a competent witness to testify against his own interest as to facts connected with the delivery or non-delivery of the deed.</p> <p>Argued at the last term.</p>