Volume 87 — Georgia Reports

<p>Where a noto, executed in this State, is made payable in the State of New York, and is secured by a mortgage which stipulates “that the contract .embodied in this mortgage, and the note secured hereby, shall, in all respects, be construed according to the laws' of Georgia,” and the note on its face bears interest at the rate of 8 per cent, per annum, the same being legal in Georgia, the entire amount of such interest is collectible in this State, notwithstanding the maximum legal rate of interest in the State of New York may be less than 8 per cent.</p>

<p>Railroads. Negligence. Charge of court. Before Judge Port. Dooly superior court. March term, 1890.</p> <p>Reported in the decision.</p>

<p>Criminal law. Arson. Charge of court. Practice. Before Judge Bower. Dougherty superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>1. Where a petition for injunction and the evidence offered to sustain it failed entirely to make a case entitling the plaintiff to the relief sought (as fully appears from the record in this case), the judge rightly refused to grant the same.</p> <p>2. Where a petition for certiorari had been sanctioned by the judge and filed with the clerk of the superior court, hut no bond as required by law was filed therewith, and consequently no writ of certiorari was issued, it was too late, after the expiration of the time allowed by law for obtaining the writ of certiorari, to file such bond, and under such circumstances no error was committed in dismissing the case in the absence of plaintiff’s attorney, to whom the judge had granted leave of absence for the balance of the term. This was the only legal disposition that could have been made of the case, even if the attorney had been present.</p>

<p>Where a school tax was levied by town authorities, the law providing that the money so raised should he used only for establishing and maintaining public schools in said town, and making it the duty of the treasurer of the town to recover all said money from the mayor and council; and where by authority of law said mayor and council had appointed a collector of all taxes imposed by them, and provided that he should receive a certain per cent, thereof as compensation for his services, such collector had the right to retain from the school fund his commissions for collecting the same.</p>

<p>The refusal by a judge of the superior court to hear and determine a petition for injunction and the appointment of a receiver, before the same has been verified as required by law, was not error.</p>

<p>1. Under the act of February 28th, 1877, providing that the State of Georgia will not consent to foreign corporations owning 5,000 or more acres of land in this State unless they shall become incorporated under the laws of Georgia, the State alone can make the question as to the right of such corporations to hold said land.</p> <p>2. A motion to dismiss an affidavit of illegality was rightly denied when at least one of the grounds thereof presented a legal defence against the further progress of the execution.</p>

<p>From Chatham county. Before Judge Falligant, at chambers, January 31, 1891.</p>

Liens. Judgments. Contracts. Evidence. Charge of court. Verdict. Practice. Before Judge Maddox. Eloyd superior court. March term, 1890.

<p>1. Generally, the payee of a bill of exchange, by indorsing it (otherwise in blank) “ For deposit to the credit of ” himself, retains ownership not only of the bill, but of its proceeds until they are so deposited. The money realized by collecting the bill is, in the hands of a disinterested bank through whose agency the collection was made, subject to garnishment as assets belonging to such indorser.</p> <p>2. Expert testimony is not admissible to aid in the interpretation of an indorsement having a definite legal import and being expressed in terms free from ambiguity.</p> <p>3. It is settled law that the presiding justice is not bound to charge the jury trying an appeal in a justice’s court. .</p>

<p>Criminal law. Murder. Arrest. Before Judge Lumpkin. Randolph, superior court. Special term, J uly, 1890.</p> <p>Reported in the decision.</p>

<p>Debtor and creditor. Principal and agent. Title. Notice. Practice. New trial. Before Judge Boney. Biclimond superior court. April term, 1890.</p>

Certiorari. Municipal corporations. License. Pawnbrokers. Punishment. Practice. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1890.

Judgment. Practice. Attorney and client. Before Judge Van Epps. City court of Atlanta. September term, 1890. The plaintiffs in error moved to set aside a judgment which had been rendered against them by default in a suit upon an account, which was personally served. It appears that upon being served, they employed counsel who entered his name on the bar-docket of the court at the appearance term, and they relied upon him to notify them when to appear.

<p>Continuance. Amendment. Allegata et probata. Witness. Damages. Charge of court. Verdict. Before Judge Van Epps. City court of Atlanta. September term, 1890.</p> <p>On September 24, 1889, Jordan sued for damages because of the falling of a telephone pole upon him, alleged to have been so decayed as to have become exceedingly dangerous, which condition was known to the defendant or should have been known. The declaration farther alleged that the pole struck the plaintiff on the left shoulder and collar-bone, breaking the bones thereof and throwing him upon a rock pavement, his right temple and eheek striking the pavement with such force as to produce contusion of the skin and raise a large knot on the temple; that he suffered; still suffers and will as long as he lives suffer great pain from the injury; that he is unable to use his left arm as he could previously, and that in cloudy weather his shoulder pains him all the while. The amendment referred to in the opinion alleged that his right eye continually inflames and gives him more or less trouble and pain, and that by degrees he is losing the sight of it as a result of the blow he received; and claimed additional damages. The jury, on October 30, 1890,- found for him $2,000. See the opinion for the other facts.</p>

Guardian’s sale. Title. Equity. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1890. Thomas Gannon, the owner of certain realty, died intestate, and there was no administration on his estate. He left a widow and two children. Thrasher was appointed guardian of the three, but the appointment was made in vacation and without legal notice.

<p>Actions. Libel. Abatement. Before Judge Yan Epps. City court of Atlanta. September term, 1890.</p> <p>Reported m the decision.</p>

Service. Constitutional law. Deeds. Practice. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1890.

<p>Verdict. New trial. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1890.</p>

<p>A judgment allowing garnishees to file their answer after default for not answering, is not final but leaves the garnishment still pending. The same is true of a failure or refusal of the court to sustain a motion by the plaintiff to dismiss a written statement filed by the garnishees setting forth grounds of attack on the affidavit, bond and summons of garnishment. Complaints like these being matters for exception pendente Hie only, a writ of error based on them alone, and not assigning error upon any judgment or decision final in its nature, will not be entertained. Code, 24250.</p>

Garnishment. Debtor and creditor. Fraud. Parties. Principal and surety. Practice. Before Judge Van Epps. City court of Atlanta. September term, 1890. Upon indebtedness claimed against Max Franklin garnishments issued and were served upon an insurance company, which answered denying indebtedness to Franklin.

<p>Bonds. Receivers. Practice. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1890.</p> <p>Reported in the decision.</p>

<p>Contracts. Carriers. Delivery. Practice. New trial. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1890.</p> <p>Reported in the decision.</p>

<p>Under the facts of this case, as disclosed by the record, it was error to grant a nonsuit.</p>

<p>Exemptions. Judgments. Title. Before Judge Richard H. Clark. DeKalb superior court. August term, 1890.</p> <p>Reported in the decision.</p>

Practice. Judgments. Jurisdiction. Before Judge Richard H. Clark. Clayton superior court. September term, 1890. The error alleged is, that the court below refused to vacate a verdict and judgment in favor of the defendants in the case of T. W. Parker and wife against EL. C. Belcher and J. L. Blalock.

Fraud. Assignments. Mortgages. Debtor and creditor. Before Judge Hines. Emanuel superior court. April term, 1890. Epstein & Brother and Rosenheim & Company, creditors of J. R. Howell, filed, their bill to set aside a mortgage made by Howell to Kea and an assignment made by Howell to Dawson and Williams & Brannen.

<p>Municipal corporations. Liquor licenses. Powers. Notice. Judgments. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1890.</p> <p>Reported in the decision.</p>

Homestead. Levy and sale. Judgments. Executions. Constables. Interest and usury. Before Hon. John L. Hopkins, Judge pro hac vice. Fulton superior court. September term, 1890. Reported in the decision.

<p>1. Where to a petition in the nature of a creditor’s bill, praying for a receiver of the assets of debtors alleged to be insolvent, a corporation holding mortgages against the same'debtors was made a party plaintiff on its own application, it thereby recognized the necessity for the petition and ratified the filing of it. If the mortgages were sufficient in amount to cover the whole assets of the debtors, there was no necessity for the appointment of a receiver; but when, instead of showing this fact and objecting to such appointment, the corporation joined as a plaintiff in the proceeding, it became chargeable with its proportion of the expenses up to the time when it was made a party, and a like proportion to the end of the litigation. In case it recovered the whole fund brought into court, it would be for the court or the jury to determine, under all the facts, what amount of fees the attorneys of the receiver should receive therefrom. (R.)</p> <p>2. The first grant of a new trial was not error. (R.)</p>

Ejectment. Title. Charge of court. Boundaries. Before Judge Kichard H. Clark. DeKalb superior court. August term, 1890. Thomas S. Powell as the sole heir of his wife, Julia L., brought complaint for land against Adams and Strong (real defendant) for twenty and a fraction acres of land lot 200 in the 18th district of DeKalb county. A verdict was rendered for the plaintiff for the premises in dispute.

<p>Wills. Estates. Words and phrases. Before Judge Hines. Washington superior court. September term, 1890.</p> <p>Reported in the decision.</p>

<p>Justices’ courts. Appeal. Certiorari. Before Judge Richard H. Clark. DeKalb superior court. August term, 1890.</p>

Criminal law. Shooting at another. Reasonable fears. Charge of court. Punishment. Practice. Verdict. Before Judge Gober. Douglas superior court. July term, 1890. Brantley was indicted for assault with intent to murder, alleged to have been committed upon Duke by shooting him.

<p>Husband and wife. Fraud. Title. Nonsuit.</p>

<p>Ejectment. Evidence. Title. Before Judge Hines. Emanuel superior court. October term, 1890.</p> <p>Reported in the decision.</p>

<p>1. Church property is private property, and is subject to condemnation according to law for railway purposes.</p> <p>2. A deed from certain members of a church, who had no authority to make the same, purporting to convey to a railway company a right of way over land belonging to the church, does not authorize the company to take such land for the purpose designated in said deed.</p>

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

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

Damages. Negligence. Railroads. Contracts. Master and servant. Nuisance. Evidence. Before Judge Richard H. Clark. Clayton superior court. September term, 1890. To the report contained in the decision the following is supplemental: It appeared from the evidence that the railroad was built by the Chattahoochee Brick Co. and James, under contract with the defendant company.

Criminal law. Murder. Jurors. Practice. Charge of court. Manslaughter. Witness. Argument of counsel. Prisoner’s statement. Before Judge Richard H. Clark. Pulton superior court. September term, 1890. Ozburn was indicted for murdering Bradley by shooting him with a pistol, and was found guilty. To the refusal of a new trial he excepted. His grounds for new trial are sufficiently stated in the opinion.

<p>1. The constitution confers no jurisdiction upon the Supreme Court, save for the trial and determination of writs of error from the superior and city courts. The writ of error provided for by statute prior to the act of 1889 was abolished by that act, and a new and different one prescribed, an essential part of which is a clause in the judge’s certificate showing that the.bill of exceptions specifies all of the record material to a clear understanding of the errors complained of, or else that none of the record is material.</p> <p>2. Though the sole error complained of be the denial of a motion in arrest of judgment, a legal writ of error is requisite to bring up any part of the record below, and to give this court jurisdiction to entertain the case.</p> <p>3. It is not the duty of the judges of the superior or city courts to prepare or correct certificates to bills of exceptions, but only to sign such, as are presented to them when they are in the form prescribed by statute. The remedy to have the certificate signed when it is both true and in proper form is by mandamus. Any . other certificate may be treated as none at all.</p>

<p>1. In an action against a railroad company for lulling mules the whole of the amount awarded by the verdict is damages, although it may include interest added by the j ury to the value of the mules. And if the amount thus found is in excess of the amount claimed in the declaration, there being no. amendment to cover the excess, the verdict is illegal and should he set aside, unless the court, being otherwise satisfied with the verdict, order the excess to be written off. (E.)</p> <p>2. The evidence upon the last trial was not materially different from what it was when the case was formerly before this court (82 Oa. 190), when it was held that a verdict against the defendant was contrary to the evidence. (E.) '</p>

<p>Auditors. Practice. "Waiver. Jurisdiction. Demurrer. Evidence. Nonsuit. Before Judge Boynton. Pickens superior court. September term, 1890.</p> <p>Reported in tbe decision.</p>

<p>The testimony for the plaintiff as to the negligence of the defendant railroad company, and as to which company was his employer, was sufficient to require the case to be submitted to the jury, and a nonsuit should not have been granted. (E.)</p>

<p>Verdict. Actions and defences. Set-off. Practice</p>

<p>Though goods saved by a common carrier from the perils of a freshet were damaged by passing through the freshet, yet if some not saved are unaccounted for, and it is not shown that the freshet caused their loss, or what their condition was when they disappeared, a recovery for their value may be had against the carrier without deducting anything for conjectural damage which they may have sustained by reason of the freshet before the loss' occurred.</p>

<p>From McDuffie superior court, March term, 1890. Before Judge Roney.</p>

<p>1. Where to levy on land .of an execution against husband and wife, issued from a justice’s court, the husband interposed an affidavit of illegality on the ground that the land had been set apart to him as a homestead, the affidavit should have been returned for trial to the justice’s court whence the execution issued. The title to the land not being involved, the superior court had no jurisdiction; Therefore, the affidavit having been returned to the superior court, and the trial having resulted in a verdict in favor of the plaintiff m execution and a judgment ordering that the same proceed, and to a fresh levy the wife having interposed her claim on the ground that the land had been set apart to her husband as a homestead for the benefit of herself and of her minor children, she was not bound by the judgment rendered, on the trial of the illegality. (E.)</p> <p>2. The jurisdiction was not waived by the participation of the husband in the trial of the illegality, so as to estop the wife, as claimant, from making the question. (E.)</p>

<p>1. The evidence was sufficient to sustain the verdict of voluntary manslaughter. (R.)</p> <p>2. A ground for new trial complaining of the admission of evidence but not setting out what objection was made to the evidence at the time it was introduced, or that any objection was then made, cannot be considered. (R.)</p>

<p>An action by the payee against the makers of a promissory note which states on its face that it was given for rent, is in order for judgment at the first term of the court. And in declaring upon such a note, it is not essential to the validity of the action that the declaration should expressly aver the relation of landlord and tenant, more especially where no motion to set aside the judgment was made until after the lapse of more than seven years.</p>

<p>Debtor and creditor. Husband and wife. Notice. Deeds. New trial. Before Judge Roney. Richmond superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>Contracts. Vendor and purchaser. Before Judge Eve. City court of Richmond county. November term, 1889.</p> <p>Reported in the decision.</p>

Partnership. Sales. Debtor and creditor. Before Judge Hutchins. Clarke superior court. October term, 1890. Ellison & Sons; creditors of the firm of Lucas & Mc-Duffie, sued out an attachment alleging that Lucas & McDuffie had transferred their property without consideration to Julius Cohen.

<p>1. In an action of trover, where no plea was filed save that of the general issue, and on the trial there was no evidence as to the value of the property, and the plaintiff, who was the seller, elected finder section 3564 of the code to take a verdict for the property and its hire, defendants were entitled to no deduction from the amount of hire on account of partial payments made to the plaintiff by them or by their predecessor in the purchase, the plaintiff having retained title in himself as security for the payment of the purchase money.</p> <p>2. Although notes embracing a contract of conditional sale may not have been legally recorded, yet if the defendants, before they became interested in the property by purchase from one who bought from the plaintiff, had actual notice of the retention of the title by the plaintiff, and that some of the notes were unpaid, the defective recording is of no consequence as to them.</p> <p>3. When personal property has been sold for $375, and $250 thereof has been paid to the seller, who, having retained the title to the property to secure the purchase money, recovers in an action of trover the property itself and $100 for hire, this court will direct that the judgment in favor of the plaintiff may be discharged by defendants paying the plaintiff the balance of the purchase money and the interest thereon, towit, $125 with interest at the rate of 8 per cent, per annum from January 13th, 1887, as well as all costs of the case, within ten days from the time the remittitur from this court is made the judgment of the court below; and if not so paid, then the original judgment in favor of the plaintiff to stand of full force.</p>

<p>Criminal law. Liquor. Indictment. Evidence. Before Judge Lumpkin. Elbert superior court. September term, 1890.</p> <p>Reported in the decision.</p>

<p>Deeds. Title. Evidence. Consideration. Trusts. Ejectment. Before Judge Hutchins. Jackson superior court. August term, 1890.</p> <p>Mrs. Sailors petitioned for the recovery from Hawks et al. of two fifths of the land conveyed by the deed of Jesse "White to C. C. Sailors (mentioned in the decision), and subsequently conveyed by Sailors to one of the defendants. The jury found in her favor, and a motion for a new trial was overruled. The motion alleged that the verdict was contrary to law and evidence, and that the court erred in admitting the following testimony of Jesse White: “The deed was made in pursuance of the fact that I had given all my other children $200 as an advancement, and desired to give a like amount in land to Mrs. Sailors. Sometime before the deed was made, I told my son-in-law I would sell him the land at $500, but would only require him to pay $300 as I wanted to' give $200 of it to his wife. My daughter had told me she had rather have $200 in that land than money. I thought the effect of the deed was to secure to her the $200 I intended to give her in the land. The gift was to her, not to her husband.” The objections to this testimony were .that it was a conversation prior to the execution of the deed, not in the presence of the defendants, was hearsay, and was an effort to create by parol a trust which had not been created in writing.</p>

Wills. Estates. Title. Before Judge Hutchins. Clarke county. At chambers, March 30, 1891. Petition of Archer et al. for injunction to restrain the railway company from entering and building upon land of which the petitioners were m possession and claimed ownership, without payment or tender of compensation and without condemnation proceedings or other legal means to secure the right of way.

Wills. Estates. Words. Before Judge Hutchins. Gwinnett superior court. September term, 1890. Wiley H. Baxter, as the, husband and heir-at-law of Moriah Morrow (who died intestate in March, 1890, leaving no children), petitioned to recover her share in the property bequeathed by the will set out in the decision. On demurrer his petition was dismissed, and he excepted.

<p>Liens. Railroads. Verdicts. Judgments. Before Hon. Gr. H. Prior, judge pro hac vice. Hall superior court. July adjourned term, 1890.</p> <p>Reported in tbe decision.</p>

<p>Practice. Claim. Burden of proof. Evidence. Verdict. Before Judge Wellborn. Hall superior court. July term, 1890.</p> <p>After the .decision in this case as reported in 84 Ga. 91, another trial was had, resulting in a verdict finding the property subject. The claimant moved for a new trial on the grounds indicated in the head-notes, and her motion was overruled. The nature of the evidence may be seen by reference to the former report. There was testimony for the plaintiffs that the defendant in execution was very much in debt, was insolvent, and made the deed to the claimant (his sister) for the purpose of holding off' his creditors (including the plaintiffs) until he could get his matters into better shape, which purpose was known to- the claimant, who admitted that such was the pitrpose and said he did not owe her but $100; etc. The claimant testified that the deed was made to secure money her brother had borrowed of her from time to time, that she let him have some money, then refused to let him have more until he made the deed, and then let him have $600, but she could not tell the amounts or times she let him have it, except $80 once, and again enough to make about $100, that she did not know he was in debt when he made the deed, he did not tell her that he was doing it to keep off his creditors, and she never told any one that ho made the deed for that purpose nor that he owed her only $100 ; and there was testimony that she had been seen to have money and had been known to let him have money, and that he had b.een heard to say that he made the deed to secure her money that he owed her, that she owned the property and had the deed to it, etc. The newly discovered testimony was to the effect that while the defendant in execution held the property under bond for titles from affiant, he stated that he had already borrowed money from his sister, or could do so if he had a deed to the place, and he did get a deed from affiant; also that another affiant was once hired by defendant in execution to dig a well on the premises, and after working for a time, asked for an increase of wages, and the defendant replied that he could not raise them, for that, was all his sister would pay, and. that the work was being done for her ; etc.</p>

<p>Water and watercourses. Damages. Before Judge Miller. Bibb superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>Injunction. Practice. Evidence.</p>

<p>Criminal law. Murder. Evidence. Before Judge Gober. Cberokee superior court. September term, 1890</p> <p>Beported in the decision.</p>

<p>Corporations. Railroads. Actions. Before Judge Milner. Bade superior court. September term, 1890.</p>

<p>Prom Henry superior court. September term, 1890. Before Judge Boynton.</p>

<p>Evidence. Yerdict. Before Judge Boynton. Newton superior court. October term, 1890.</p>

<p>Equity. Actions. Limitations. Erand. Prescription. Practice. Amendment. Before Judge Hines. Emanuel superior court. October term, 1890.</p> <p>Reported in the decision.</p>

<p>Nonsuit. Negligence. Railroads. Before Judge Milner. Gordon superior court. August term, 1890.</p>

<p>Forfeiture of recognizance. Criminal law. Larceny. Indictment. Before Judge Milner. Whitfield superior court. October term, 1890.</p> <p>Reported in the decision.</p>

<p>Illegality. Practice. Exceptions. New trial. Before Judge Maddox. Floyd superior court. September adjourned term, 1890.</p> <p>Reported in the decision.</p>

<p>Practice. County commissioners. Militia districts. Before Judge Maddox. Floyd superior court. March term, 1891.</p>

<p>Judgments. Jurisdiction. Justices’ courts. Debtor and creditor. Before Judge Harris. Coweta superior court. March term, 1890.</p> <p>Reported in the decision.</p>

<p>Conflict of evidence. Practice. Jury.</p>

Actions. Abatement., Constitutional law. Railroads. Before Judge Falligant. Chatham superior court. December term, 1890. A suit for the recovery of damages from injuries to the person was instituted on October 25, 1889. Pending the action the death of the plaintiff was duly suggested of record on December 1, 1890. His administrator moved to be made a party in lieu of the intestate.

Equity. Debtor and creditor. Fraud. Contracts. Levy and sale. Before Judge Milner. Bartow superior court. January term, 1890.

<p>1. Though a lane established by two coterminous proprietors, and embracing an equal strip from the land of each, was originally intended only as a way for cattle, yet, if used for more than seven years as a general way by both proprietors and those to whom they conveyed the land, the successors of neither could close up the lane, or the part taken from liis own land, as against the successors of the other.</p> <p>2. In such case the ordinary has jurisdiction, under section 738 of the code, to remove the obstruction.</p>

<p>Under the facts of this case, it was error'to grant a nonsuit.</p>

<p>Evidence. Verdict. New trial. Charge of court. Fraud. Before Judge Maddox. Floyd superior court. September term, 1890.</p>

<p>Attorney and client. Receiver’s sale. Before Judge Maddox. Floyd superior court. September adjourned term, 1890.</p> <p>Reported in the decision.</p>

<p>1. When, under section 4203 of the code, the superior court in term has passed an order fixing the time within which exceptions to a master’s report may be filed, the judge of that court has no authority of law to pass at chambers an ex parte order extending the time for filing such exceptions.</p> <p>2. When exceptions to a master’s report have not been filed within the time allowed by the court for that purpose, it is within the discretion of the court to allow them to be filed thereafter upon proper cause shown.</p>

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

<p>Criminal law. Liquor. Evidence. New trial. Before Judge Hines. Rockdale superior court. September adjourned term, 1890.</p>

<p>1. The evidence introduced by the defendant himself showing that the contract and the terms of it were in writing, by means of correspondence, the defence that the contract was void for the want of writing is overcome by the proof.</p> <p>2. A contract for the sale of five car-loads of oats at a stipulated price per bushel, f. o. b. cars at a given point, does not contemplate that delivery on the cars to the carrier at that point should be a delivery to the purchaser, where the seller takes the bill of lading to his own order and attaches it to a draft drawn on the buyer, transmitting the draft and bill of lading to a banker of the city of the buyer’s residence. Under such circumstances, the fair inference would be that both parties contemplated delivery at such city and payment of the price upon delivery.</p> <p>3. The sale being made by sample, the buyer was entitled to inspect the oats before paying the draft drawn for the price. And where the shipment embraced two car-loads only, and the buyer refused t.o pay the draft covering the price of these upon the ground that the cars had not arrived and he had no opportunity to inspect, and thereupon the banker caused the draft to be protested for non-pay- ' ment, this did not justify the seller in not sending forward the other three cars according to contract. ■ •</p> <p>4. A subsequent purchase of the same two car-loads of oats by the same purchaser from the broker of the seller, after the seller had declined to forward the other three car-loads, was no waiver of the right of action for a breach of contract in failing or refusing to forward them.</p> <p>5. The contract contemplating delivery by the seller to the buyer at the city of the latter’s residence, the measure of damages for failing to deliver the three car-loads was the difference between the stipulated price and the market price at that city when the delivery ought to have been made less the freight.</p>

<p>Amendment. Evidence. Nonsuit. Partnership. Title. Charge of e'ourt. Verdict. Practice. Before Judge Miller. Houston superior court. April term, 1890.</p> <p>Reported in the decision.</p>

<p>After receiving a telegram for transmission and accepting payment for the same, the company cannot defend an action for the statutory penalty incurred by failure to deliver it with due promptness, on the ground that the contents of the telegram related to a sale of futures, and consequently to an illegal transaction.</p>

<p>Eminent domain. Tender. Railroads. Evidence. Before Judge Miller. Bibb superior court. April term, 1890.</p> <p>Reported in tbe decision.</p>

Evidence. Witness. Production of books and papers. Discovery. Pleadings. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1890.

<p>Practice. Building and Loan Associations. Corporations. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1890.</p> <p>After the decision in this case as reported in 79 Ga. 439, the defendant amended his pleas by alleging, in brief, that in 1888 the plaintiff wound up its business predicated on a series of stock issued and to be determined and ended during that year, of which series the fifteen shares held by defendant were a part;,and that since 1882 to the end of 1888, the plaintiff had accumulated a large amount of assets belonging to it for the benefit of the stockholders in. that series, consisting of lands and money, and defendant was entitled to his share of the same in proportion to the amount paid in on his stock; and he prayed for an accounting on equitable principles, and that the amount paid on his stock and for interest, etc., together with his share of the assets, be credited on the plaintiff’s claim against him.</p> <p>The case was referred to an auditor, who filed a report to which the defendant excepted. On demurrer the exceptions were dismissed and the report approved, March 25, 1890. On the 1st of April the case came on for trial, and the defendant amended his pleas, in substance, as follows : The nominal value of each share in the plaintiff is $200, but it fixed a minimum premium of forty per cent., which reduced the actual value of each share to $120 or $124. As an association it was to run until each share had an accumulation of $124; and on or before the 26th of November, 1888, all of the stock held by its members reached that value and was cancelled, by reason of which the life of the association expired and was dissolved, leaving no stockholders on the date named. At that time the plaintiff u declared, by vote of its stockholders at a regular meeting held for that purpose, that all of the said stock so issued had reached its ultimate value, and that all of the members of the said plaintiff, on and before the said day and year, on the stock held by each have reached its ultimate value of their stock,” by reason of which and in pursuance of a section of the constitution and by-laws of the plaintiff the stock was and is cancelled, a copy of which section is as follows : “ When each stockholder, for each share of stock by him or her held, shall have received the sum of two hundred dollars, or his unsatisfied obligations to that amount, his or her stock shall be cancelled: provided always, that any stockholder having obtained an advance or advances in the manner prescribed under article X shall be debited in his account with the premium thereon.” By reason of which the plaintiff was dissolved, and in said dissolution it closed and wound up all the business pei’taining to the series of stock and stockholders ; and as a part of the business of the plaintiff it sold and transferred in writing, on that day, the claim against defendant with others of like character, and on which this suit is instituted, to A. L. Waldo, H. C. Stoekdell and Joel Hurt, without recourse, for $750, which sum with the proceeds of the sale of other claims of like character, before the final winding up and closing out of the series of stock, was paid into the treasury of the plaiutiff and by its proper officers equally distributed and paid out to each member as part of the assets of plaintiff; and in addition to the assets thus derived, the stockholders or members all received in money the full or ultimate value of their stock, for which the proper officer of plaintiff' takes from each and all of said members receipts; by reason of which all of said stock became and was can-celled. The plaintiff since the 26th day of November, 1888, and before, has issued no other stock or series of stock, and the stock so issued, wound up and closed out was all the stock and the last that was issued by the said plaintiff, by reason of which there are now, and since the said 26th of November, 1888, no stockholder’s or members of plaintiff, and no officers since and none existing in plaintiff Wherefore defendant says .the said plaiutiff is dissolved, and has no legal existence and cannot appear in court by its agents or attorneys, in its own right against the defendant, or for the use of said Waldo, Stockdell and Hurt, in said claim. These pleas were demurred to, and the demurrer was sustained. The defendant excepted to this ruling and to the dismissal of his exceptions to the auditor’s report. The judge directed a verdict in accordance with the auditor’s report, on which a verdict judgment was entered, and the defendant excepted.</p>

<p>Witness. Agent. Negligence. Evidence. Non-suit. Before Judge Boynton. Spalding superior court. August term, 1890.</p> <p>Reported in the decision.</p>

Wills. Witness. Before Judge Miller. Bibb superior court. April term, 1890. Caveat to tbe probate of a will in solemn form.

<p>1. In an action against surviving partners brought by the beneficiaries of a trust fund, the trustee is prima facie incompetent as a witness for the plaintiffs to affect the partnership with notice of the trust, by means of a transaction or communication between himself and a member of the partnership now deceased, the evidence act of 1889 declaring that “ where a person not a party, but a person interested in the result of the suit, is offered as a witness, he shall not be competent to testify if, as a party to the cause, he would for any cause be incompetent.”</p> <p>2. There was no error in grafting a nonsuit.</p>

<p>Railroads. Negligence. Actions. Notice. Munich pal corporations. Before Judge Bower. Dougherty superior court. April term, 1890.</p> <p>Reported in the decision.</p>

Officers. Notice. Weights and measures. Consideration. Married women. Witness. Before Judge Roberts. Twiggs superior court. October term, 1889. A suit on a note by Barclay against Mrs. Finch, and a proceeding by him to foreclose a mortgage given by her to secure the note, were consolidated.

Injunction. Taxation. Municipal corporations. Title. • Before Judge Falligant. Chatham superior court. December term, 1890.

<p>1. A railroad company which has performed the duty of inspecting and keeping in safe condition its tracks and road-bed with that degree of diligence which the law requires of it, is not liable in damages to one of its engineers for injuries occasioned by running his engine into a washout or chasm caused by a sudden, most violent and unprecedented rainfall, such, as the oldest inhabitants of the neighborhood had never before witnessed, the calamity being directly attributable to the act of God, for which no individual or corporation is ever held responsible.</p> <p>2. After a jury has been stricken to try a cause, it is not error to refuse to allow a restriking because counsel for one of the parties simply states in his place that he had by oversight left on the jury a man who, for reasons alleged, would, in his opinion be partial and prejudiced against his client, it not appearing that even if these things were true, any diligence had been shown to ascertain the same, or that they might not easily have been known by proper and timely enquiry.</p> <p>3. Upon the trial of an action for personal injuries against a railroad company by one of its engineers, after admitting evidence tending to show that such engineer was experienced and reliable, it was error to charge that, as throwing, light on the question whether or not he was to blame, the jury might consider his character as an experienced and reliable engineer, if such character had been shown by the testimony, the evidence mentioned not being relevant upon this particular issue.</p> <p>4. Whether or not an engineer exercised proper diligence in looking out for defects in the track, is a question for the jury, in determining which they should take into consideration the various other duties which he was required to perform in managing and running his engine.</p> <p>5. When, in its charge, the court mentions and emphasizes a certain issue, and informs the jury that the pressure of the case is upon that issue, it should be careful not to use in this connection language which may confine the jury, in the determination of this important issue, toa portion only of the facts and circumstances pertinent thereto, but on the contrary, should so frame its instructions that they may, in arriving at the truth, have in m.ind and give proper weight to the theories of both sides, and the proof offered in support thereof. Hence, where the court, in charging upon a vital question, as above set forth, calls attention in detail to particular facts favorable to one side, it would be better to call attention in like manner to the facts favorable to the other side, instead of using, as to them, general terms which, however intelligible to a trained legal mind, may not impress, as intended, the minds of jurors, who are non-professional men.</p> <p>Bleckley, C. J., dissenting.</p>

<p>Actions. Statute of limitations. Before Judge Miller. Bibb superior court. November term, 1890.</p> <p>Reported in the decision.</p>

Practice. Brief of evidence, Continuance. Railroads. Negligence. New trial. Before Judge Miller. Houston superior court. October term, 1890.

<p>Insurance. Forfeiture. Before J udge Miller. Bibb superior court. N ovember term, 1890.</p> <p>Reported in the decision.</p>

Criminal law. Forgery. Before Judge Miller. Houston superior court. October term, 1890.

<p>Criminal law. Interfering with religious worship. Indictment. Evidence. Before Judge Gober. Houston superior court. October term, 1890.</p> <p>Jackson, Lane, Pattishall, and Haywood and Cameron. Glenn were jointly accused of disturbing a congregation of persons lawfully assembled for divine service at Green Grove Baptist church, Houston county, “by cursing or using profane or obscene language, or by being intoxicated, or otherwise indecently acting.” The case was tried in the county court, and all of the defendants pleaded not guilty. The two Glenns were granted a severance; the other defendants were put on trial. Jackson and Pattishall were found guilty, and Lane not guilty: Jackson by certiorari alleged as follows : The evidence failed to show that the congregation assembled ' for divine service at Green Grove Baptist church were disturbed and interrupted as set out in the accusation, or that Jackson so interrupted and disturbed the congregation ; Jackson was accused jointly with the others, and the evidence failed to show that in any manner in connection with or jointly with any or all of the others, was any of the things charged in the accusation against them done by the defendant, but the evidence showed that if he did anything that interrupted and disturbed the congregation, it was done by himself alone, not jointly or in connection with either or all of the other defendants, but at a different time and place from any act or deed proved or charged against either, any or all of the defendants ; the evidence showed that if he did any act to disturb the congregation, it was an act separate and distinct from that charged against him in the accusation, and for which he cannot be legally adjudged guilty under the accusation ; and the verdict and judgment are contrary to law, evidence, etc. The certiorari was overruled, and Jackson excepted. The evidence introduced by the State in the county court was, in substance, as follows: A great many people were assembled at divine services at Green Grove Baptist-church ; the church was crowded, many being outside of the church standing near it and near the windows of the church to hear the sermon, and others were scattered around. About twelve o’clock, while preaching •was going on, Jackson was standing about fifty-six steps from the church and a big crowd was- around' him. One Parker, who was not in the church but outside, having been appointed to keep order among those on the grounds, heard him cursing. Parker was near the church and did not see or hear Jackson until Parker’s wife, who had been to the spring and had come back by Jackson, came to Parker and told him to go down and quiet Jackson. Parker went down where Jackson was, and heard him cursing terribly. Parker did not know whom he was cursing. The people were trying to get him off home. lie cursed loud enough to be heard twice as far as the church, and disturbed the people in the church. Some of the people came out of the church and came down there. The people were going in and out of the church all the time. No one was then making any disturbance but Jackson. One of the deacons, who was sitting on the bench near the pulpit, heard Jackson cursing, and he testified that it disturbed the congregation and some of them went out. About one o’clock and before the close of the services, this deacon heard Pattishall cursing. Pattishall was about ten steps from the door of the church, and as Haywood Glenn passed by with a plate, put his hand in the plate to take some of the provisions; Haywood spoke to him about it, and Pattishall cursed him. This cursing disturbed the congregation, several getting up and coming to the door and. looking out to see what was the matter. "What Jackson was cursing about was, that he had ridden one of Alfred Lane’s mules from the spring to the church, and while he was sitting on the mule Alfred told him to go and tie it; he did not go right off, and Alfred untied one side of the bridle rein, which made Jackson mad and he cursed and told Alfred to show him where he wanted the mule tied and he would tie it; Alfred tied the rein again and went off, and Jackson rode the mule a few yards and tied it, got off the mule and went to cursing; he was not cursing any one, but was just mad and cursing. Alfred Lane was not present and made no disturbance. One of the State’s witnesses testified that he was in the church on the seats near the pulpit and did not hear any disturbance.</p>

<p>Assignment. Garnishment. Attachment. Title. Debtor and creditor, Before Judge Smith. Muscogee superior court. May term, 1890.</p> <p>Reported in the decision.</p>

<p>On the facts in the record, there was no abuse of discretion in refusing an injunction.</p>

<p>Constitutional law. County courts. Before Judge Guerry. ' Early superior court. October term, 1890.</p> <p>Reported in tbe decision.</p>

<p>Promissory notes. Principal and surety. Practice. Before Judge Port. Macon superior court. November term, 1889.</p> <p>Reported in the decision.</p>

<p>1. According to the cases of Sorrell v. Ham, 9 Ga. 55, and Mays v. Killen, 56 Ga. 527, an executor cannot recover in ejectment without introducing the will.</p> <p>2. As to the question relating to the transfer of a tax-execution by the comptroller-general, this case is controlled by Scott v. Stewart, 84 Ga. 772.</p>

<p>1. It is not the office of the bill of exceptions to verify and bring up a transcript of the record. The transcript is to be certified and sent up by the clerk. The bill of exceptions should deal with the record no further than to specify such parts thereof as are material.</p> <p>2. Although the bill of exceptions sets out what purport to be copies of the various parts of the record, and the judge certifies in the usual form, this does not verify the record or dispense with a certified transcript by the clerk, the judge not certifying that no transcript is necessary.</p> <p>3. Where no transcript is sent up by the clerk, and no steps are taken by plaintiff in error to cause this to be done on the call of the case for argument or before, the writ of error will be dismissed.</p>

<p>Injunction. Practice. Before Judge Gueury. Sumter county At chambers, March 23, 1891.</p>

<p>Injunction. Practice. Before Judge Port. Sumter county. At chambers, May 16,1891.</p>

<p>1. Under the facts of this case, the defendant Odom was not a trader at the time the suit praying for injunction and receiver was brought. Comer v. Coates, 69 Ga. 491 ; Blanchard v. Van Syckle, 70 Ga. 278 ; Coates v. Allen, 71 Ga. 787 ; Scott v. Jones, 74 Ga. 762 ; Kimbrell v. Walters, 86 Ga. 99, 12 S. E. Rep. 305.</p> <p>2. The judgment enjoining the mortgage fi. fas. and appointing a receiver as to the property levied upon and advertised for sale is reversed, with direction that in case the proceeds of sale should yield to Hobbs and Tucker more than $4,200.00, with interest'and attorney’s fees thereon, the excess be held' up to await the result of this litigation; and the judgment appointing a receiver as to the other effects in controversy is affirmed.</p>

<p>Title by prescription. Possession. Before .Judge Bower. Worth superior court. October term, 1890.</p>

<p>1. The shipper of live stock by railway, under a special contract in which he agrees that “in case of accidents to or delays of time from any cause whatever ” he “ is to feed, water and take proper care of the stock at his own expense,” cannot recover damages resulting from his own failure to perform his part of the contract, although the company may have consumed more time than necessary in effecting the transportation. There might be damage from such delay by increasing the expense of the shipper or by some loss to him in consequence of the change of market value, but the deterioration in the condition of the animals from lack of food, water and attention, would not result from the delay, but from the negligence of the shipper.</p> <p>2. Where there is a special contract varying the liability of the carrier, the action is properly brought on the special contract and not on the general liability.</p>

<p>Res adjudicata. Principal and surety. Before Judge Bower. Dougherty superior court. October term, 1890.</p> <p>Reported in the decision.</p>

<p>Auditors. Practice. Interest. Before Judge Bower. Calhoun Superior court. December term, 1890.</p> <p>Neported in the decision.</p>

<p>1. Where one gives another permission to occupy a house until a tenant is obtained for the year, the occupant is entitled to reasonable notice that a tenant has been obtained.</p> <p>2. Where the suit is against the tenant for holding over after the expiration of a definite term, a sufficient reply to it is that the landlord consented for him to hold over. If the real cause of action be damages resulting from the violation of the terms of this consent, that cause should be alleged in the declaration.</p>

<p>Where one has a statutory lien for supplies upon personal property belonging to a firm, which property is sold to another firm composed in part of the same members, and thereupon the purchasing firm, to prevent a foreclosure and sale under the lien, agree with the creditor to pay the debt if he will grant certain indulgence and furnish other like supplies to them for their use, and the creditor complies with his undertaking, the case is not within the statute of frauds, and he may recover of the second firm upon their contract to pay the debt of the first firm.</p>

<p>The question involved in this case respecting the time of filing objections to the allowance of a year’s support to a widow is decided in Parks v. Johnson, 79 Ga. 567.</p>

<p>Practice. Judgments. Jurisdiction. Before Judge Roberts. Montgomery superior court. October term, 1890.</p> <p>Reported in the decision.</p>

<p>A contract of sale made on Sunday, with no delivery of the property then or afterwards, is void, although the parties intended to waive delivery. Ratification by the vendee alone, made by allowing a credit on the vendor’s account, it not appearing that the vendor ever took or claimed the benefit of such credit, will not suffice to validate the sale,</p>

<p>In strict law, where a plaintiff has a suit pending against the defendant in the character of executor, all proceedings in other courts intended to create evidence to be used in such suit should be against him in the same character, and not in the character of administrator, inasmuch as an executor represents primarily the devisees and legatees, and the administrator represents the heirs at law. This court will not reverse the judgment of nonsuit, it not appearing that the plaintiff would be remediless by bringing another action.</p>

<p>Taxation. Railroads. Constitutional law. Before. Judge Marshall J. Clarke. Fulton superior court. March term, 1890.</p> <p>Reported in the decision.</p>

<p>Evidence. Negligence. Infancy. Charge of court. Railroads. Before Judge Van Epps. City court of Atlanta. September term, 1890.</p> <p>Reported in the decision.</p>

<p>If both, parties engage willingly in a personal rencounter, it is a mutual combat or fight, and death resulting therefrom is not included in a policy of accident insurance which excepts from the risk death or injury which may have been caused by fighting. It makes no difference, in such case, whether the slayer was sane or insane.</p>

<p>There was no abuse of discretion in denying the injunction.</p>

<p>Injunction. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1891.</p>

<p>1. The special acts of September 5th, 1885, and October 1st, 1887, empowering the Mayor and Aldermen of Savannah to improve the. streets and levy local assessments therefor, are not unconstitu- • tional as special laws, or for any other reason brought to the attention of this court.</p> <p>2. There was no abuse of discretion in denying the temporary injuner. tion prayed for.</p>

Criminal law. Robbery. Indictment. Statutes; Evidence. Jurors. Practice. Before Judge Hutchins. Clarke superior court. October term, 1890. The indictment against Lampkin and Reaves contained but one count, and charged robbery “by force and intimidation” of one Kelley. Lampkin was found guilty of robbery by intimidation.

<p>Criminal law. Evidence. Charge of court. Manslaughter. New trial. Before Judge Hutchins. Oconee superior court. July term, 1890.</p>

Criminal law. Murder. Practice. Verdict. Charge of court. Evidence. Manslaughter. Before Jndge Wellborn. Hall superior court. July term, 1890. Jesse Pool, having been convicted of murder, excepted to the refusal of a new trial. The grounds of his motion sufficiently appear in the decision.

<p>1. When not checked by contract, the legislature may vary by a special law any of the privileges, powers, rights, duties or obligar tions of a particular corporation except such as by an existing general law are common to all corporations. But provisions applicable alike to all must remain applicable to each until they are changed by a general law. Hence, with section 1679 of the code in full force, which declares that all corporations have the right to sue and be sued, to have and use a common seal, to make bylaws, to receive donations, to purchase and hold property necessary for the purpose of their organization, and to do all acts necessary for the legitimate execution, of this purpose, the legislature cannot hinder the charter of a business corporation from expiring and the corporation from being dissolved, by enacting a special law declaring that the charter be continued in force for the purpose of terminating suits and litigation pending against the corporation at the time of the expiration of its charter, and forbidding that the corporate existence should be construed as extended for any other purpose. A legal entity with no right or power but that of defending itself against pending actions is not a living corporation.</p> <p>2. By an existing general law (Code, §1684), every corporation is dissolved by expiration of its charter. As the constitution declares that laws general in their nature shall have uniform operation throughout the State, the Western and Atlantic Railroad Company was dissolved when its charter expired.</p> <p>8. Existing general laws provide for enforcing the rights of creditors against corporations both before and after dissolution; and the constitution inhibits the enactment of any special law in a case provided for by an existing general law.</p> <p>4. A writ of error pending in the Supreme Court against a corporation when its charter expires will be dismissed on motion.</p>

<p>Vendor and purchaser. Before Judge Attaway. City court of Cartersville. September term, 1890.</p> <p>Action on notes given for an engine and fixtures; pleas of the general issue, failure of consideration, breach of warranty, and recoupment; verdict for the defendants. For the other facts here material, see the decision.</p>

Bes adjudicata. Damages. Waters. Contracts. Before Judge Milner. Whitfield superior court. October term, 1890. Action by Stafford against Mrs. Maddox for damages alleged to have been sustained from the backing of water upon his land by a mill-dam erected and maintained by her across a creek which ran through his land. Verdict for the defendant; motion for a new trial overruled.

<p>1. Construing all the charge together, there was no material error committed by the judge in the trial of this case.</p> <p>2. The verdict was warranted by the evidence.</p>

<p>1. When an order is drawn by the surviving member of a firm of contractors for a specific sum, with direction to “ charge the same to firm on account of work dono and to be done on your building now-in process of erection.” and the same is accepted in these terms, ‘‘I agree to pay the within order when the building is finished and received by Messrs. Bruce & Morgan,” the acceptance is conditional upon the completion of the building by the drawer; and if, without fault of the acceptor, he fails to complete it, and the acceptor has it completed by others at his own expense, there can be no recovery in an action on the acceptance.</p> <p>2. With or without the parol evidence brought out from the plaintiffs’ witness on cross-examination, the. judgment of nonsuit was. correct.</p>

<p>Judgments. Attorney's fees. Contracts. Practice. Before Judge Maddox. Polk superior court. August term, 1890.</p>

Criminal law. Burglary. Verdict. Practice. Be\fore Judge Harris. Troup superior court. April term, 1890. Maugham was found guilty of burglary, and his motion for new trial was overruled.

Debtor and creditor. Gifts. Title. Actions. Estoppel. Evidence. Practice. Before Judge Harris. Payette superior court. March term, 1890. A fi. fa. in favor of M. P. Harvey against 8!. I.\ West, based upon a judgment of ¡September 19, 1887, was levied upon certain land, which was claimed by W. HAVest. It was found uot subject, and the plaintiff’s motion for a new trial was overruled, to which he excepted.

<p>Estates. Marriage settlements. Before Judge Boynton. Pike superior court. October term, 1890.</p> <p>Reported in the decision.</p>

<p>A conveyance to a trustee by a husband forever in fee simple for the use of his wife and her children by him, born and to be born, with a condition in the habendum that if he should survive her the whole property should revert to him free from the trust, conveyed to the trustee a fee defeasible upon the contingency specified ; and on the happening of that contingency, the title revested in the husband, and thenceforth the property was his absolutely.</p>

<p>While the municipal authorities of a city or town may, on complaint of a citizen, cause an.obstruction to be removed from any public street in actual use by the public, yet where a street exists only in the plan of such city or town, and has not been actually opened, worked by the municipal authorities and used by the public, but on the contrary, has been in private occupation for thirty or forty years, this mode of procedure is not available. Parsons et al. v. Trustees Atlanta University, 44 Ga. 529.</p>

<p>Forthcoming bond. Actions. Levy. Claim. Interest. Practice. Before Judge Boynton. Rockdale superior court. September term, 1890.</p> <p>Reported in the decision.</p>

<p>Criminal law. Riot. Witness. Evidence. Practice. Yerdict. Before Judge Hines. Rockdale superior court. September adjourned term, 1890.</p>

<p>Where husband and wife paid their joint money for land conveyed to the wife alone, and it turned out there was an overpayment, the sum so overpaid may be recovered back in a joint action by them as money had and received for their use. So much of the payment as was due for the land was applied for the wife’s use, but the excess was held for the use of the owners of the fund, and not for that of the wife alone.</p>

<p>1. A deed saying nothing of delivery in the attestation clause is nevertheless prepared for record if attested by two witnesses, one of whom was the clerk of the superior court who signed the attestation in his official character.</p> <p>2. In order for the heir of a deceased donee to set up a deed of gift made to her by her father, it is not necessary that it should appear that the donee or her heir ever had possession of the premises, or that either of them ever had actual custody of the deed.</p> <p>3. When it appears that an original deed of gift by a father to his daughter was never in the actual custody of the daughter, that the father is dead and that the deed was not amongst the papers left by him, the loss of the original is sufficiently accounted for to admit a copy taken from the record.</p> <p>4. The donor, after making a deed of gift, having sold and conveyed the premises to other persons, there is no presumption that the deed of gift, which was adverse to their title, ever went into their possession; and consequently, whether a notice to one of them was properly directed, or a subpoena duces tecum to the other was properly served, is immaterial, there being no diligence to inquire of them incumbent upon the party now claiming under the deed of gift.</p> <p>5. Declarations of a vendor now deceased, made at the time of conveying to his vendee, that a previous deed of gift executed by the vendor to his daughter had never been delivered and that he had destroyed the same, are not admissible in evidence in favor of the vendee against the heir of the daughter claiming under the deed of gift; nor are declarations of a third person now deceased, that he knew the deed had not been delivered, and that the donor destroyed it.</p> <p>O. A written declaration made by the donor and recorded in the record of deeds, to the effect that he had not delivered to his daughter the deed of gift, and that he revoked and annulled the deed, is not admissible in evidence in favor of his vendee of the premises, the same being made several years after the deed of gift was executed and reeorded.</p> <p>7. It is not incumbent upon the court to specify in his charge to the jury what facts and circumstances would negative the presumption that a duly recorded deed was delivered, or to go over the various facts and circumstances in the evidence tending to negative that presumption, there being no request to do so, andthe court referring the jury in general terms to the evidence on the subject.</p> <p>8. The evidence warranted the verdict.</p>

<p>Two lessors alleging a joint title, and the title proved, if any, being several in one, there can be no recovery. De Vaughn et al. v. McLeroy et al., 82 Ga. 713, and cases cited.</p>

<p>1. No ground of objection to evidence being stated, the alleged error in admitting it is not examinable.</p> <p>2. The evidence as to the identity of the accused was sufficient, notwithstanding it was possible for the prosecutrix to have been mistaken.</p> <p>3. As the evidence showed the consummation of the offence of rape it was not incumbent upon the court to charge the jury on the minor offence of an.assault with intent to rape.</p> <p>4. The so-called newly discovered evidence was not newly discovered ; and that the accused did not know of its materiality, and his counsel were ignorant of it as a fact, is not cause for a new trial.'</p>

<p>On a trial for murder, it is the right of the accused to he present at all stages of the proceeding, and it is the duty of the court to see that he is present when any charge is delivered to the jury. If the judge recharges the jury without verifying for himself the prisoner’s presence, and it afterwards appears that the prisoner was not present but was in an adjoining room in custody of an officer, and did not know that the jury was being recharged and knowledge did not come to him until after such recharge was concluded, it is cause for a new trial.</p>

Homestead. Husband and wife. Possession. Title. Notice. Before Judge Lumpkin. Greene superior court. September term, 1889. On February 26, 1870, a homestead was duly set apart under the constitution of 1868, to L. C. Broome as head of a family consisting of his wife and three minor children. The homestead consisted of one hundred and sixty-seven acres of land in Greene county.

<p>On the facts alleged in the petition, a cause of action was set forth, and the court erred in dismissing the case on demurrer.</p>

<p>1. A widow as the head of a family consisting of herself and a minor child, having had a homestead set apart to her in 1.872 out of the lands of her deceased husband’s estate, and the adult heirs having acquiesced in the same, and the lands so set apart having been subsequently sold by order of the judge in conformity to section 2025 of the code, the purchaser at such sale acquired, not only the title of the beneficiaries, but that of the estate, so as to bar the rights of the adult heirs and all persons claiming under them, their rights being transferred to the property in which the proceeds of the sale were invested.</p> <p>2. The homestead not having been taken by the widow in her own individual share of the realty belonging to her husband’s estate, the indebtedness of the estate, the value of its assets, etc. was inadmissible for the purpose of showing that the homestead was not more than her own interest in the lands would have amounted to.</p>

Municipal corporations. Streets. Nonsuit. Verdict. Before Judge Jenkins. Baldwin superior court. January term, 1890. Action for damages, by Miss Lucy M. Brown against the Mayor and Aldermen of the City of Milledgeville.

<p>Defendant in a.fi. fa. issued upon a revived judgment, after litigating the legality of a levy, and after final judgment that the levy proceed, cannot raise the question, by a subsequent affidavit of illegality, of proper service upon him in the proceedings to revive the judgment before the fi. fa. issued.</p>

<p>1. In condemnation proceedings to subject trust property to public use in the exercise of the right of eminent domain, the trustee is the proper party to represent the trust estate,"and it is not necessary that the beneficiaries should be parties to the proceeding.</p> <p>2. Under the charter of the Ga. So. & Fla. Railroad Go. and the amendments thereto, including the act of 1888, the company may condemn private property in the city of Macon for depot grounds and other necessary terminal facilities.</p> <p>3. There was no error committed by the court on the trial, and the verdict was warranted by the evidence under the law.</p>

<p>Railroads. Streets. Damages. Set-off. Evidence. Before Judge Miller. Bibb superior court. April adjourned term, 1890.</p> <p>Ellen Davis sued for damages, alleging that she was the owner of certain wharf lots fronting on a street in Macon and running back to the river, and was entitled to the free and unobstructed use of the street, which was the-only mode of approach to her lot and was laid out by legal authority, especially with the view to giving such approach ; that in her purchase of the lot she relied upon the free and unobstructed use of it as one of the elements of value, and such use was one of the appurtenances granted to her in the purchase; that so relying she had caused to be placed on the property valuable improvements for manufacturing purposes for which it was especially valuable and available; that the railroad company had wrongfully and utterly deprived her of the use of the lot, haviug laid two tracks on the side of the street nearest her property, one of them within four feet of the sidewalk, which are constantly in use and render approach to the property by any vehicle difficult, dangerous, and at times impossible; and that by such wrongful and illegal acts the annual value of the property is decreased $200 and its actual cash value $1,^00. , The verdict was for the defendant, and the plaintiff.excepted to the denial of a new trial.</p>

Telegraph messages. Penalties. Before Judge Miller. Crawford superior court. October term, 1890. Moore sued the telegraph company for $100 damages for failure to deliver to him at Knoxville, Crawford county, Georgia, where he ivas temporarily, a message sent to him from Macón, Georgia. By another count he alleged that he had been damaged $125 by such failure to deliver, by being deprived of certain business. Upon the trial he introduced the telegraphic dispatch.

<p>Evidence. Verdict. Charge of court. Ratification. Partnership. Before Judge Miller. Crawford superior court. October term, 1890.</p>

Wills. Advancements. Before Judge Miller. Bibb superior court. November term, 1890. Viola McNeil and Irene Petty filed their equitable petition for the proper construction of the sixteenth item of the will of D. W. Hammond, and for an account and settlement from the executors to the petitioners.

<p>Assignment. Charge of court. License. Before Judge Miller. Crawford superior court. October term, 1890.</p> <p>Reported in the decision.</p>

Negligence. Stock law. Railroads. Charge of court. Verdict. Before Judge Fort. Lee superior court. November term, 1890. Summerford obtained a verdict against the railroad company for damages from the killing of his horse by the runuing of its train ; and a motion for a new trial on the grounds indicated in the decision was denied. The horse was struck by the engine and killed on the 14th of February, 1889. A local stock law was in operation all over the county.

<p>Though attempting to couple cars when the engine is running at a speed of fifteen miles an hour 'is apparently not only dangerous but reckless, yet if it be true in the experience of engineérs and railroad men that it is safe provided the engine is properly managed, and if the failure in question resulted solely from the fault of the engineer in manipulating the engine, the high speed will be no obstacle to a recovery by the car coupler for a personal injury sustained by him in making the attempt. Though to non-experts its truth would seem in a high degree improbable, if not impossible, yet there being direct and positive evidence tending to support the theory of safety, the court erred in granting a non-suit.</p> <p>Simmoxs, J., concurring dubitante.</p>

Claim. Pleadings. Practice. Evidence. Amendment. Deeds. Record. Interest. Charge of court. Ratification. Notice. Principal and agent. Estoppel. Husband and wife. Before Judge Hines. Screven superior court. November'term, 1890. Claim was interposed by Mrs. Hadden to the levy of an execution against her husband and in favor of Darned. The property was found subject, and her motion for a new trial was overruled.

<p>Practice. Amendment. Before Judge Roney. Burke superior court. December term, 1890.</p> <p>Reported in the decision.</p>

<p>Practice. Exceptions. Parent and child. Negligence. Damages. Before Judge Roney. Richmond superior court. October term,.1890.</p> <p>Reported in the decision.</p>

Indorsement. Partnership. Ratification. Notice. Charge of court. Evidence. Before Judge Eve. City court of Richmond county. May term, 1890. Action on a promissory note, by the bank against the construction company as maker, aud R. P. Sibley et al. as endorsers. The note was signed by the construction company by R. P. Sibley president, and was endorsed by Penland, the payee, and three others, and after them by R. P. Sibley and R. P. & G. T. Sibley.

<p>1. Where the suit was against tw'o sureties upon an administrator’s bond, and both of them excepted to the first report made by an auditor, and only one excepted to the second report, the other surety could be allowed to join him in these latter exceptions, it not affirmatively appearing that the time fixed by the court for excepting had expired.</p> <p>2. According to the transcript of the record, there was no authority for the auditor to investigate, at his second sitting, the question of the administrator’s solvency-or insolvency, or of the time when he became insolvent.</p> <p>¡5. The duty of administering the estate of an intestate is devolved by law upon the administrator, not on the heirs and distributees, who have a right to act for the protection of their own interests, and in doing so to in voice and accept the co-operation of the administrator in resisting creditors by all lawful means; and if creditors are thus defeated and the estate is saved to the heirs and distributees, though in the meantime wasted by the administrator, and he becomes insolvent, the sureties on his administration bond are not discharged.</p>

<p>Wills. Deeds. Title. Before Judge Maddox. Floyd superior court. September adjourned term, 1890.</p> <p>Reported in tlie decision.</p>

<p>1. It is no cause for quashing an indictment that the prosecutor in a former indictment was not the same as the prosecutor in the pending indictment.</p> <p>2. A question to a witness which is not necessarily leading will not be held by a reviewing court to be objectionable as a leading question.</p> <p>3. It is not admissible evidence to discredit the prosecutrix as a witness, that some one else induced her to commence the prosecution.</p> <p>4. Small variances in the spelling of some of the words used in the forged instrument will not vitiate an indictment for the forgery, nor prevent the introduction of the instrument in evidence.</p> <p>5. The making of the forged deed by the accused is established by proof that the signatures of the maker and witnesses were in his handwriting, that he deposited the deed in the clerk’s office to be recorded, and that the maker and witnesses did not authorize the signing of their names.</p> <p>6. A deed purporting to be executed in one county cannot be legally recorded upon the attestation of a notary public of another county together with that of an unofficial witness. A certified copy taken from a record so made is no evidence of the execution of an original deed corresponding with it, and is not admissible in evidence in lieu of such original without further proof.</p> <p>7. Though a deed may be without formal words of conveyance, yet if a valuable consideration and the names of a vendor and a vendee appear in the instrument, and there is a warranty of title, the legal effect would be to pass title if the instrument were genuine ; and consequently, if spurious, it may be a subject of prosecution for forgery. .</p>

<p>1. Under our code, negligence of a railroad company being presumed when injury by the. running of its train, is shown, it is not necessary for a father, suing for loss of the services of his minor son, not an employee of the company, who was killed on a public crossing to allege in his declaration either that he or the son was in the exercise of due care, or was without fault.</p> <p>2. Ordinary care for his own saféty is not necessarily the measure of diligence incumbent upon a child under fourteen years of age; nor is such child bound, as matter of law, to anticipate negligence by others. The evidence showing that the boy in question was under fourteen years of age, a request to charge the jury which assumed him to be of the age of fourteen was properly declined.</p> <p>3. A locomotive engineer is not entitled to assume in all cases that persons on a public crossing will get off in time to save themselves. In running a train at a public crossing in a city, he is bound to observe reasonable diligence before he discovers peril as well as after-wards, and the company is responsible for his negligent errors of judgment.</p> <p>4. A request to charge in terms not applicable to the facts in evidence, or which in laying down a proposition omits some of the material elements to be considered, is properly refused.</p> <p>5 The deceased not having been killed while jumping on or off cars, his previous habit of doing so at the public crossing where he was killed is not relevant evidence.</p> <p>6. It is improper for counsel, on a motion to reopen the case for more evidence made while the argument is in progress, to give the names of witnesses and state what their evidence would be without first requesting the court to cause the jury to retire. But the impropriety will not necessarily work a new' trial, it not appearing that counsel acted in bad faith or with any purpose to get facts before the jury by artful practice.</p> <p>7. The evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>Contracts. Parent and child. Administrators. Witness. Evidence. New trial. Before Judge Boynton. Rockdale superior court. August term, 1889.</p> <p>Reported in the decision.</p>

<p>1. Pertinent declarations made by a person whilst on his way to procure the execution of a mortgage to secure an antecedent debt or liability, the expedition having resulted in its procurement, are admissible in evidence against the mortgagee on the question whether the mortgage was procured by fraud or duress. They are a part of the res ges'm of the transaction, and"consequently are admissible in evidence irrespective of the relation of agency between the mortgagee and the person who procured for him the execution of the mortgage.</p> <p>2. The sayings of an alleged agent dumfervet opus, whilst not evidence to prove his agency, may be looked to on the question whether he was acting as agent, there being other sufficient evidence to establish the agency.</p> <p>3. If the matter of a lengthy extract from the charge of the court is sound in part, any unsound part should be specifically pointed out in the motion for a new trial.</p> <p>4. If declarations which require some answer or contradiction are made in one’s hearing and he remains silent, his silence may be treated as signifying his assent to the truth or correctness of the statement.</p> <p>5. A note and mortgage given in whole or in part upon an agreement, express or implied, to settle or prevent a criminal prosecution, are void, unless the case falls within some express statute authorizing settlement. The alternative of a legal proposition favorable to one party, if fairly given in charge, need not be in immediate connection with the alternative in favor of the other party.</p> <p>6. No request being made to charge as to the burden of proof or the preponderance of evidence, mere failure to charge on these topics will not require a new trial. The evidence warranted the verdict.</p>

<p>Criminal law. Liquor. Statutes. Indictment. Before Judge Roberts. Wilcox superior court. September term, 1890.</p> <p>Reported in the decision.</p>

Stare decisis. Amendment. Railroads. Negligence1. Parent and child. Master and servant. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1890.

<p>Attachment. Fraud. Burden of proof. Before Judge Marshall J. Clarice. Fulton county. At chambers, February 11, 1891.</p>

<p>Boundaries. Mistake. Fraud. Title. Evidence. Before Judge Van Epps. City court of Atlanta. December term, 1890. ,</p> <p>Deported in the decision.</p>

<p>Practice. Process. Service. Before Judge Van Epps. City court of Atlanta. December term, 1890.</p> <p>Reported in the decisiou.</p>

Railroads. Carriers. Actions. Practice. Contracts. Torts. Jurisdiction. Misnomer. Live-stock. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1890.

<p>Contracts. Practice. Amendment. Before Judge Van Epps. City court of Atlanta. December term, 1890.</p> <p>Reported in the decision.</p>

<p>.Evidence. Practice. Husband and wife. Lis pen-dens. Charge of court. Levy. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1891.</p> <p>Reported in the decision.</p>

<p>1. A declaration sounding in tort, against a railroad company for violation of its duty as a common carrier, is not amendable by converting it in whole or in part into an action upon contract to carry.</p> <p>2. Where the declaration sets forth a cause of action and lays damages in general terms, it is not vitiated by a clause which sets up that “the entire injury is to her peace, happiness and feelings,” although, this theory of the injury be incorrect. The action is maintainable for the real injury embraced in the facts set out in the declaration.</p>

<p>Judgments. Jurisdiction. Actions. Practice. Mortgages. Waiver. Ratification. Attorneys’ fees. Coi’porations. Before Judge Marshall J. Clarke. Fulton superior court. March term, 189 L.</p> <p>Reported in the decision.</p>

<p>Street railroads. Independent contractors. Negligence. Verdict. .Before Judge Van Epps. City court of Atlanta. March term, 1891.</p> <p>Reported in the decision.</p>

<p>1. Iiisui action of complaint for land, wlievo both parties claim under the same person, any error of the court in admitting evidence to show title in such person is immaterial.</p> <p>A Where the question is whether a person has ceased to be a resident of Georgia and become a citizen of Alabama, his declarations made in a certain city in Alabama, to the effect that he had made that place his home and never expected to return to the county of his former residence in Georgia to live, are admissible in evidence in a controversy between his tenant and a third person respecting the cessation of his right of homestead in Georgia.</p> <p>A Where, after a levy upon land, an application is made for homestead, and pending the application the'land is sold by the sheriff</p> <p>under the levy with notice to the purchaser oí the pendency of the application, he acquires the whole interest of the defendant in execution subject to the encumbrance of the homestead afterwards assigned, and on the expiration of that homestead interest, is entitled to the possession of the premises. The case of Grace v. Kezar, 86 Ga. 697, approved and adhered to. (Clark, J., dissenting.)</p> <p>4. The homestead interest is terminated by removal from the State. This is a sound proposition in itself, and is supported by the reasoning in City Bank of Macon v. Smisson, 78 Ga. 422.</p>

<p>Negligence; Railroads. Master and servant. Amendment. Before Judge Hines. Rockdale superior court. September adjourned term, 1890.</p>