Volume 88 — Georgia Reports

<p>1. There was no error in failing to give any of the requests for instruction, the court having covered the same by the general charge in so far as they were legal and appropriate.</p> <p>2. The charge as a whole was correct, and covered all substantial questions involved in the case.</p> <p>3. The verdict was not warranted by the evidence under the law, there being no sufficient ground for imputing to the defendant any negligence whatever in the matter of furnishing to the plaintiff an unfit instrument for the work in hand, hut the evidence showing, on the contrary, that the plaintiff did not wait to have furnished to him snch an instrument as the superintendent considered suitable and promised to furnish.</p>

<p>1. Where the employee whose business it was to place a stool used for the purpose of assisting lady passengers to enter the train was not produced or accounted for, there was no error in rejecting evidence that it was the custom and habit of the company to have the stool in its proper place up to the time of the starting of the train, there being positive evidence in behalf of the plaintiff that it was out of place when he was injured, and only negative evidence to the contrary in behalf of the defendant.</p> <p>2. It not appearing that the witness who would ordinarily know the fact in question, and who was one of the employees of the company at the time the cause of the action arose, was inaccessible, or that the defendant was ready to produce him, there was no error in calling attention to his absence or non-production in charging the jury as a fact to be considered by them in connection with the case.</p> <p>3. There was no error in denying a new trial.</p>

<p>1. Inasmuch as by the statute of the United States an application to remove a cause from a State court to the United States circuit court is in time if made “at the time, or any time before the defendant is required by the laws of the State or the rule of the State court iu which such suit is brought to answer or plead to the declaration or complaint of the plaintiff”; and inasmuch as the law of Georgia entitles the defendant to plead at any time before final judgment, where the case is one commenced by attachment, an application made to remove at any time before final judgment is not too late, where the defendant has filed no plea.</p> <p>2. A stipulation between the parties by which the plaintiff in attachment agrees to dispense with bond as a condition to dissolving the attachment, and the defendant agrees to he bound by any judgment rendered in the State court as if said company were within the jurisdiction of said court and had been personally served, will not oust the right of removal or estop the defendant from exercising such right.</p>

<p>The evidence warranted the verdict, and the damages were not so excessive as to warrant the Snprem e Court to interfere, the presiding judge having approved the finding.</p>

<p>This case turned on the credibility of the witnesses, and there was no ’abuse of discretion by the court below in not granting a new trial.</p>

<p>The evidence warranted the verdict, and the damages are not so excessive as to require the Supreme Court to interfere.</p>

<p>Where wages are garnished, and the garnishee, in discharge of a judgment against him rendered by a justice’s court, pays the money to the constable, and afterwards the laborer claims the fund as exempt and such claim is adjudicated against him in the justice’s court, he cannot maintain a rule against the constable in the superior court for the money, founded on his exemption right. The matter is res adjudicata by the result of the claim in the justice’s court.</p>

<p>Criminal law. Forgery. Before Judge Richard H. Clark. Fulton superior court. March, term, 1891.</p>

<p>1. The charge complained of in this case was no express instruction to allow damage on account of depreciation of rental value as to the other property generally, and also for rent of the part of the alley occupied by the embankment; and the amount of the verdict not appearing in the record, there is no presumption that the jury allowed such double damages.</p> <p>2. The evidence warranted a recovery.</p>

<p>1. Where the drawee of a bill of exchange writes his name across the face of the bill, the statute requiring acceptance to be in writing is complied with, the legal significance of such an act being that the bill is thereby accepted.</p> <p>2. The indorsee of a bill of exchange, in the absence of any notice on the subject, is entitled to treat the acceptor as the real debtor, and is under no duty to such acceptor to retain, or render available, collateral securities for the payment of the bill received from the payee and indorser thereof.</p> <p>3. A plea of non est factum must be sworn to, and generally the affidavit must be made by the defendant and not by an agent. The exception, if any, is stated in §3449 of the code.</p> <p>4. A plea which neither admits nor denies that the plaintiff herself, or any one as her agent, accepted the bill sued on, but sets up merely that the acceptance is not binding on her for the reason that said act was not in her legitimate business or for her benefit, but for the benefit of a third party and without authority, consent or ratification on her part, is insufficient.</p>

<p>1. An indictment for larceny from the person which charges that the defendant “ did wrongfully and fraudulently and privately take from the person of one C. A. Dunwoody, Jr., and without the knowledge of the said Dunwoody, with intent to steal the same, one watch and chain of the value of seventy-five dollars, and the property of the said Dunwoody,” is sufficiently specific in the description of the property stolen. Williams v. State, 25 Ind. 150; 2 Bishop’s Crim. Procedure, §700; Sanders v. State, 86 Ga. 717.</p> <p>2. Where the indictment charges that the property stolen from the person was of the value of seventy-five dollars, and the jury return a general verdict of guilty, the conviction, under section 4411 of the code, is one of felony and not of misdemeanor; and there being no evidence of the value of the property, the accused is entitled to a new trial.</p>

<p>1. Where the claimant admits that he paid to the defendant a considerable amount on purchasing the land in question from a third person who had purchased it at a tax sale, it was not error for the court to charge the jury that if they believed from tbe evidence that the defendant, for the purpose of defrauding his creditors, suffered the property to go to sale for taxes, and that the purchaser at that sale at the time he received his deed either knew of this fraudulent purpose or had grounds for reasonable suspicion that it existed, and if they further believed that when the deed from such purchaser to the claimant was executed the claimant also knew of such fraudulent purpose on the part of the defendant or had grounds for reasonable suspicion, the jury ought to' find that the tax title is void as against the plaintiffs in ft. fa., (these plaintiffs being mortgagees of the property by a mortgage executed prior to the tax sale, and the ft. fa. being founded on the j udgment of foreclosure.)</p> <p>2. The evidence warranted the verdict.</p>

Negligence. Master and servant. Nonsuit. Before Judge Van Epps. City court of Atlanta. March, term, 1891. Houston sued Culver, Reynolds & Company for damages from personal injuries which he alleged he received while working at a rock quarry conducted by them.

<p>Damages. Admissions. Before Judge Van Epps. City court of Atlanta. March, term, 1891.</p> <p>Reported in the decision.</p>

<p>One who, in a city, enters the backyard of another through an open gate on lawful business and is bitten by ferocious dogs running loose in the yard, of which he has no notice, has a right of action against the owner if the latter knew that the dogs were accustomed to bite and nevertheless permitted them to run loose in such yard with the gate of the same standing open.</p>

<p>. 1. A plea which alleges no special damage'is to be construed as one which claims general damages only; and where such a plea is improperly stricken, but the defendant is nevertheless allowed the benefit of it on the trial, the error of striking it is not cause for a,new trial.</p> <p>2. Unless it affirmatively appears that evidence is hearsay, it is not to be excluded as such where it is of a nature which admits of its resting on the personal knowledge of the witness.</p>

<p>1. - The prisoner’s statement, if true, making a case from which the jury might conclude that the killing was necessary in self-defence, and his counsel having at the proper time requested the court in writing to instruct the jury that if they believed that at the time of the killing the deceased was making an unjustifiable assault upon the accused with a deadly weapon, with the purpose of taking his life, that the conduct of the accused was solely in defence against that assault, and was necessary in order to save his own life, and that under these circumstances and for this purpose he shot and killed deceased, he would not be-guilty and the jury should so find, it was error, according to Hayden v. State, 69 Ga. 732, to deny such request. In Darby v. State, 79 Ga. 64, no request for any instruction based on the prisoner’s statement appeared.</p> <p>2. Taking into consideration all the rulings of the court so far as verified, and also the full charge given to the jury, it was not error to refuse a new trial upon any of the grounds of the motion save that which related to the above matter.</p>

Verdict. Charge of court. Master and servant. Partnership. Before Judge Van Epps. City court of Atlanta. June term, 1891.

Railroads. Negligence. Charge of court. Practice. Before Judge Van Epps. City court of Atlanta. June term, 1891. Mrs. Markens sued for damages and obtained a verdict, and the railroad company’s motion for a new trial was overruled.

<p>Insurance. Before Judge Marshall J. Clarice. Fulton superior court. March term, 1891.</p> <p>Reported in the decision.</p>

<p>Conversion. Verdict. New trial. Practice. Before Judge Van Epps. City court of Atlanta. June term, 1891.</p>

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

<p>The testimony of the plaintiff himself being confused and contradictory, it is not apparent to this court that there was any error in granting a nonsuit. Considered all together, the testimony, construed fairly and naturally, shows that notwithstanding the train by which the plaintiff was injured was running too fast and that the bell was not rung in approaching the crossing, the injury did not take place at the crossing but sorne distance beyond it, and did not result directly from the company’s negligence but from the sudden and unnecessary conduct of the plaintiff himself in stepping upon the track immediately in front of the train and so near to the locomotive that it was impossible to avoid striking him after he thus put himself in a position of danger.</p>

<p>1. Although the act of 1887 requires a petition for injunction and receiver to be verified, yet, where the verification is imperfect, the deficiency may be supplied by affidavits at the hearing in case the presiding judge shall think proper, in the exercise of his discretion, to proceed on the defective verification. It is best, however, to require proper verification before any action is taken on the petition.</p> <p>2. A petition by the vendors of goods against an insolvent purchaser, alleging fraud in the purchase and repudiating the contract of sale on that account, has equity on which to proceed to reclaim the goods or their proceeds in the hands of such purchaser. This equity holds equally whether the term of credit has expired or not. In such case, a receiver may be appointed to take charge of money and books of account.</p> <p>3. An order appointing a receiver is sufficiently specific in its description as to notes and books of account which specifies them thus: “ the books, notes and accounts of all kinds of the said defendant in the business of selling cigars, snuff, tobacco and other goods.”</p> <p>4. Where, in his sworn answer to a rule for contempt in not surrendering up to a receiver his money, books, notes and accounts, the defendant alleges that he cannot make the surrender because, before the filing of the petition, he paid the money and transferred the other assets to his sister in discharge of a bona fide indebtedness to her, that she now has possession of the money, books, notes and accounts, and they are not now in his power, possession or control, and where this answer is supported by the affidavit of the sister whose credibility as a witness is unimpeached, she admitting on oath that she has the assets, and it further appearing that she is solvent and able to respond to the plaintiffs or the receiver for the same and that she is a resident of the county where the suit is pending, the answer thus supported is sufficient to relieve the defendant from the imputation of willful contempt, and the rule against him should be discharged; more especially as the plaintiffs, under the facts, are not dependent upon this •harsh proceeding to realize the assets in question, but may reach the same, if the testimony above recited be false, either by making the sister a party defendant in the cause, or by a regular action against her at the suit of the receiver.</p> <p>5. Irregularities in proceedings for contempt are immaterial where the result is a sufficient purging of the contempt and a consequent discharge of the rule.</p>

Husband and wife. Title. Homestead. Before Judge Marshall J. Clarice. Pulton superior court. March term, 1891. Palmer, Stuart & Company brought complaint against Smith for a certain tract of land in Pulton county. The evidence showed that in 1860, James Jett was in possession of the land and had been for several years previously. He convoyed it to Thrasher, who conveyed it to Sells in 1865 or 1866, and Sells went into possession and conveyed to Boyd in 1868.

<p>1. Where an attorney was employed to procure a bond for one charged with a criminal offence, and did so, talcing from the person so charged a deed to indemnify him against loss on account of said bond, and afterwards the defendant in such criminal case borrowed money from another to settle the same, and the attorney, at the request of the defendant, quit-claimed the property to the lender as a security for such money: Held, that in a controversy as to the’title of the land between the estate of the lender and that of the defendant in the criminal case, both being dead, such attorney was a competent witness to prove the above recited facts, and also an admission by the lender that the money he advanced upon such quit-claim deed had all been repaid.</p> <p>2. When the question at issue is whether a deed was made as an absolute conveyance of property, or simply as a security for money advanced to the maker, evidence of the value of the property at the time the deed was made is pertinent and material.</p> <p>3. None of the questions made in the bill of exceptions furnish any cause for reversing the judgment.</p>

<p>1. Representations by a party applying for credit that he was perfectly solvent and responsible for his debts, and was good for his obligations, are representations of his respectability and wealth, and if false, are within section 4587 of the code, which declares that “ If any person by false representation of his own respectability, wealth or mercantile correspondence and connections, shall obtain a credit and thereby defraud any person or persons of any money, goods, chattels, or any other valuable thing, . . such person so offending shall be deemed a cheat and swindler.”</p> <p>2. Where the trial is had at the same time on two counts in an accusation, a verdict of guilty on one count alone is an acquittal on the other, but such acquittal does not vitiate the conviction although both counts may .relate to the same transaction.</p> <p>3. Where the goods are obtained by false representations mixed with true ones, if the false are separable from the true and are material, and had a material influence in effecting the fraud, they alone may be alleged in the indictment or accusation, and the conviction will be upheld although other representations not false constituted a material part of the inducement on which the prosecutor gave the credit and parted with his goods.</p> <p>4. Where the fruits of a criminal fraud amounted to more than nine hundred dollars, a fine of one thousand dollars is not an excessive or unusual punishment.</p> <p>5. The sentence being that the accused “ pay a fine of one thousand dollars and costs of this prosecution, or be confined in the common jail for twelve months,” is in the alternative. When in the alternative, the imprisonment is a part of the punishment and cannot exceed the limit of six months. Direction given to modify sentence as to imprisonment in jail, in accordance with section 4705 of the code.</p> <p>6. An affidavit on which an accusation is founded in the city court may charge two misdemeanors of the same class as committed by the same person, and the accusation founded thereon may consist of two counts, each charging one of the offences set forth in the affidavit, and the prosecutor will not be compelled to elect between these counts at the trial where it appears from the evidence that'both of them relate to the same transaction.</p> <p>7. Where the affidavit sets out one of the offences and adds the facts concerning the other, introducing these facts with the phrase, “the deponent further charges and accuses the said W. M. Ilathcock with misdemeanor in this,” the verification of the affidavit is not confined to these terms of accusation, but extends also to the facts as set out in the subjoined statement as to the mode of committing the misdemeanor.</p> <p>8. That the accused had unlimited credit with another house was not relevant upon the question of whether he had misrepresented his solvency to the prosecutor and thereby defrauded him.</p> <p>9. Promissory notes of the accused, executed after the misrepresentation complained of, in renewal of debts existing before, were admissible in evidence to show the amount of his liabilities at the time he represented himself as solvent.</p> <p>10. Objection to evidence generally, with no statement of the grounds on which the objection was based at the time it was made, will not be considered.</p> <p>11. Proof of good character will not hinder conviction if the guilt of the defendant is plainly proved to the satisfaction of the jury, and so to instruct the jury is not “gratuitous, unnecessary, argumentative and hurtful to the defendant.”</p> <p>12. The verdict was warranted by the evidence.</p>

Insolvent traders. Injunction and receiver. Debtor and creditor. Practice. Before Judge Huberts. Montgomery county. At chambers, June 1, 1891. The Savannah Grocery Company et al., creditors of Peacock, Peterson & Company, filed their petition in the nature of a general creditor’s bill, alleging: They are creditors of the firm named, composed of G. W. Peacock and of ~W. M. and C. H. Peterson, who are merchants and are also engaged in the saw-mill business.

<p>Mandamus. Practice in Supreme Court. Debtor and creditor. Lien. Assignment.</p> <p>Reported in tbe decision.</p>

Criminal law. Perjury. Disqualification, of judge. Evidence. Charge of court. Before Judge Richard H. Claric. Eulton superior court. September term, 1890. Heflin was convicted of perjury, and excepted to the denial of a new trial.

<p>1. Where neither the certificate of the judge nor that of the clerk is such as is prescribed by the act of November, 1889, for bringing cases to this court, and where some of the record which the judge certifies to be necessary does not appear in the transcript sent up by the clerk, the writ of error will be dismissed.</p> <p>2. The act prescribes the terms of the certificate which the judge is required to sign, and directs that, if needful, he shall change the bill of exceptions so as to make it conform to the truth and contain all the evidence, and refer to all the record, necessary to a clear understanding of the errors complained of. 'The needful changes are to be made in the bill of exceptions, but no change in the certificate is allowable.</p>

<p>A judgment of the superior court rendered bn appeal from a justice’s' court is not void so as to be attacked by affidavit of illegality on-, the ground that the justice’s court was not held “ at a court-house established according to law,” both parties having had their day in the superior court. Code, §3671. .</p>

<p>A petition against the executors of the petitioners’ deceased father and against three successive guardians of the petitioners themselves, praying an account by the defendants of their respective trusts, is multifarious, and on demurrer thereto, should be dismissed, no discovery being prayed for, but discovery being expressly waived.</p>

<p>1. A payment entered upon a promissory note by the maker operates as a new promise, and the statute of limitations runs from that time only. Code, §2935.</p> <p>2. Where the administratrix is the sole distributee and heir at law of the intestate, letters of dismission from the administration will be no bar to sustaining an action by a creditor of the intestate against her as distributee and heir at law to subject assets of the, estate still in her hands. This is certainly true since the passage of the uniformity procedure act of 1887. Code, §2531. • '</p> <p>3. A note, bearing a legal rate of conventional interest, extended by a new promise, continues to bear that rate against the maker, and after his decease, against the assets of his estate in the hands of his- solo distributee and heir at law.</p> <p>4. A judgment directing a verdict will not be reversed where the verdict directed is the necessary result of the evidence, the evideneee being sufficient and not conflicting.</p>

<p>Before Judge Honey. Burke superior court. May term, 1891.</p>

<p>New trial. Newly discovered evidence. Before Judge Boney. Burke superior court. May term, 1891.</p>

<p>1. A conveyance by a debtor to his son-in-law, made pending suit against the former by the creditor who now attacks such conveyance as fraudulent, is to be scanned closely, especially where the badges of fraud, including an express stipulation that the debtor was to retain possession for a definite period after the execution of the conveyance, are numerous.</p> <p>2. The evidence in this case warranted the verdict finding the property subject.</p>

<p>Money rule. Dormant judgment. Before Judge Roney. Burke superior court. May term, 1891.</p>

<p>Certiorari. Practice. Before Judge McWhorter. Taliaferro superior court. February term, 1891.</p>

<p>1. A return of nulla bona as to personal property made upon a fi. fa. issued from a justice’s court will sei've to keep the judgment from becoming dormant if made by a constable of the county, though not of the district, in which the judgment was rendered and the-defendant resides. Neal v. Brockhan, 87 Ga. 130. Every such- rectum will be presumed to be based on a search for property, more especially where the fact of search is stated on the face of the-return.</p> <p>2. Where the plaintiff in fi. fa. has filed a deed under sections 1969 et seq. of the code, for the purpose of having, the land levied upon: which had been conveyed to him by his debtor as security for the' debt, the sheriff, though thefi. fa. issued from a justice’s court,, may make the levy by virtue of the act of October 17, 1885, without making a search for personal property or making an entry upon thefi,. fa. that no such property can be found. The object being to enforce the A fa. against the specific land pledged to secure the debt, the general rule as to the collection of fi. fas. issued from justices’ courts does not apply.</p> <p>3. If the judgment and execution fail to show on their face that the debt was secured by a conveyance of land from the debtor to the creditor, this will not prevent a sale of the property by virtue of the judgment, as provided for under sections 1969 et seq. of the code, but the fact may be made to appear by extrinsic evidence when such sale is resisted by the debtor or Ms family. McAlpin v. Bailey, 76 Ga. 687.</p> <p>4. No ground of objection to evidence being properly stated, the objection will not be considered.</p>

<p>Practice. New trial. Railroads. Negligence. Killing of stock. Before W. M. Sessions, judge pro hac vice. Gwinnett superior court. March term, 1891.</p>

<p>1. In construing a deed made since the adoption of the code, if it be clear from the whole instrument read together that it was the intention of the parties to create a life estate in one of the vendees, with remainder as to the undivided half of the premises in certain named third persons not parties to the deed, this intention will be carried into effect notwithstanding a mere literal repugnancy in the several clauses of the conveyance, the cardinal guide to construction being the intention. Code, §2755.</p> <p>2. Applying the foregoing to the deed now in question, the persons named as heirs of Bolton Thurmond took an undivided half-interest in the premises as remaindermen after the death of James W. Thurmond, the material terms of the deed being as follows: “Witnesseth, that the said John W. Porterfield hath, for and in consideration of the sum of two thousand dollars to him in hand paid by the said Sarah F. Thurmond and James W. Thurmond, hath granted, bargained and sold, and by these presents doth grant, bargain and sell unto the said Sarah F. Thurmond and James W. Thurmond, their heirs and assigns, all that tract or parcel of land [the premises in dispute]. To have and to hold said tract or parcel of land unto the said Sarah F. Thurmond and James W. Thurmond, heirs and assigns, together with all and singular the rights, members and appurtenances thereof, to the same in any manner belonging or in any wise belonging or appertaining, to their own proper use and benefit forever, in behoof of fee simple. And the said John W. Porterfield, for himself, heirs and assigns, the said bargained premises to the said Sarah F. Thurmond and James, heirs and assigns, will warrant and forever defend the right and title thereof against himself, heirs and assigns, and against the just claim of all and every other person whomsoever. The conditions of this deed or indenture is as follows: that at the death of said James W. Thurmond, his interest or part of said tract of land shall go to the heirs of Bolton Thurmond, deceased, and belong to, and the right and title be fully vested in them, to-wit: J. W. Thurmond, B. E. Thurmond, Martha L. Thurmond and L. B. Thurmond, which is the legal heirs of Bolton Thurmond, deceased.”</p>

<p>1. “ I give and bequeath to my beloved wife, Susan Eckles, the house and lot known as the Eckles house, where I now live, embracing the stables and lot, said lot adjoining Doctor Gibbs and E. Nebbiit, together with all the household and kitchen furniture thereto belonging. I also give to my said wife Susan one thousand dollars, all of which I give and bequeath to her, my said wife, during her natural life. After her decease, it is my will that the property and money which I have here willed to her, or whatever of the same so willed that may be in her possession at the time of her decease, it is my will that it shall revert back to my estate and be equally divided among my three children, J. T. Eckles, E. M. Eckles and L. E. Shipp.” — Held, that the testator’s son, J. T. Eckles, took a vested remainder, as tenant in common with the other two children, in the specific real estate here mentioned, and that his undivided one third interest was subject to levy and sale as his property before the death'of the tenant for life. Held, also, that the testator having been dead more than ten years when the sale took place, the assent of the executrix, who was the tenant for life, may bepresumedto this devise in her own favorassuch tenant and in favor of the remaindermen. Held, also, that an administratorwith a will annexed appointed after her death,whichoceurred some time subsequent to the sale, did not have any title as against the purchaser at such sale, or any right to administer the interest of such purchaser in the premises, or to sell such interest, together with the other two undivided thirds, for distribution. Held, also, that an order of the court of ordinary granting leave to sell for distribution and the payment of debts, on a petition of the ' administrator to sell for distribution only, conferred no power on the administrator to make sale of an interest to which he had no title, and which had by the sheriff’s sale ceased to belong to the person to whom it was devised. Held, also, that the purchaser was not affected by any equities which arose amongst the original tenants in common, or between the executrix and the one whose interest he had purchased at .the sheriff’s sale, by reason of the failure of such one to repay money borrowed from the executrix or life-tenant.</p> <p>2. The merits of the whole case being controlled by the foregoing rulings, and the verdict of the jury being correct, any errors committed by the court in the progress of the trial were immaterial.</p>

<p>On the evidence in the record, the court was warranted in holding that the lien of the judgment was not defeated by the possession shown in defendant infi. fa. because the levy was not made within four years from the time the claimant acquired his title, the stress of the case being upon the application of section 3583 of the code to a possession held by the defendant in fi. fa. in three characters: first, under the homestead law; secondly, under a bond for titles from the claimant; and thirdly, under a so-called rent contract between him and the claimant. The actual holding by the defendant infi. fa. was at least as much for himself as for the claimant, and quite as much in his own right.</p>

<p>Equity. Trusts. Liens. Title. Pledges. Limitations. Before Judge Wellborn. Lumpkin superior court. April term, 1891.</p>

<p>New trial. Waters. Damages. Before Judge Well-born. White superior court. April term, 1891.</p>

<p>Contracts. Principal and surety. Consideration. Evidence. Verdict. Practice. Before Judge Milner. Gordon superior court. February term, 1891.</p>

<p>Criminal law. Murder. Evidence. Verdict. Before Judge Hutchins. Clarke superior court. April adjourned term, 1891.</p>

<p>Promissory notes. Principal and surety. Charge of court. Verdict. Before Judge Gober. Hall superior court. January term, 1891.</p>

<p>1. A justice of the peace having issued a distress warrant for rent in the year 1886, and neither the warrant nor the affidavit on which it was based disclosing that the tenant resided within the county or had property therein, the warrant was void for failure to show any jurisdictional fact on which the power of the justice to issue it depended. Code, $4082.</p> <p>2. A mere description in the affidavit and distress warrant of the rented property will not serve as a substitute for alleging the tenant’s residence in the county or the presence of his property therein as a jurisdictional fact. The description relied upon was in these terms: “That W. J. Fletcher and Sarah E. Fletcher are indebted to him in the sum of $95.00 for rent of the building on Main street now occupied by said parties and known as ‘ Fletcher’s Saloon,’ in the city of Gainesville, Hall county, Ga.”</p> <p>3. Property having been levied upon under the distress warrant and claimed, the levy should have been dismissed on motion of the claimant though the motion was not made until a second trial of the claim case, the defect not being a mere irregularity, but one which rendered the whole proceeding void.</p>

<p>Construing together all the provisions of the act of February 24th, 1875, on the subject of interest, a parol contract made in 1877 for interest at the rate of 12 per cent, per annum (the maximum allowed by the act), though not enforceable as to the excess above 7 per cent., was not usurious so as to taint an absolute deed conveying land as security for the loan and render the same void. In order for the debtor to redeem the land or resist an action brought by the creditor for its recovery, he must tender the principal of the debt together with 7 per cent, per annum interest, or the balance thereof after deducting all partial payments.</p>

<p>Negligence. Master and servant. Parent and child. Railroads. Nonsuit. Before Judge Milner. Gordon superior court. February term, 1891.</p>

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

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

<p>Distress warrant. Jurisdiction. Practice. Before Judge Harden. City court of Savannah. February term, 1891.</p>

<p>Negligence. Railroads. Nonsuit. Before Judge Harden. City court of Savannah. May term, 1891.</p>

<p>Master and servant. Railroads. Negligence. Non-suit. Before Judge Harden. City court of Savannah. May term, 1891.</p>

<p>Practice in Supreme Court. Distress warrant. Recoupment. Damages. Verdict. Before Judge Well-born. Habersham superior court. March term, 1891.</p>

<p>Damages. Live stock. Before Judge Attaway. City court of Cartersville. December term, 1890.</p>

<p>Construing the declaration in this case in the light of section 2954 of the code, the action was not for a breach of contract, but for a tort, such tort being a violation of a specific duty flowing from relations between the parties created by contract. Hence, though the recovery was less than fifty dollars, the plaintiff was entitled to full costs, and section 3678 of the code does not apply.</p>

<p>That one of the minor beneficiaries of a homestead taken by the head of a family in 1879; is, after arriving at full age, a dependent female, will not extend the duration of the homestead estate beyond the death of the head of the family and his widow, and beyond the arrival at majority of all the children. Neal v. Brockhan, 87 Ga. 130.</p>

<p>Costs. Officers. Convicts. Before Judge Milner. Gordon superior court. February term, 1891.</p>

<p>Garnishment. Parties. Practice. New trial. Before Judge Milner. "Whitfield superior court. April term, 1891.</p>

<p>Criminal law. Larceny from the house. Verdict. Before Judge Milner. Whitfield superior court. April term, 1891.</p>

<p>1. Process properly annexed to the declaration, is not void because in stating the case it misdescribes it by inserting a name as plaintiff different from the name of the plaintiff in the action as shown by the declaration. Such misdescription is amendable at any time either before or after judgment. Code, §206, par. 6; Smith v. Morris, 29 Ga. 339; Baldwin v. McMichael, 68 Ga. 828; McMichael v. Hardee, Ib. 831.</p> <p>2. The omission by accident or mistake to waive process in an acknowledgment of service is amendable. Code, §3490.</p>

<p>Executors. Residence. Before Judge Milner. Catoosa superior court. August term, 1891.</p>

<p>Debtor and creditor. Contracts. Accord and satisfaction. Charge of court. Before Judge Milner. Catoosa superior court. August term, 1891.</p>

<p>Deeds. Estates. Before Judge Falligant. McIntosh superior court. At chambers, January 27, 1891.</p>

<p>Banks. Forged indorsement. Before Judge Harden. City court of Savannah. July term, 1891.</p>

<p>1. The evidence warranted the jury in finding that the “root tonic” sold by the accused to the person mentioned in the bill of indictment was intoxicating, and that the same was sold within two years preceding the finding of the bill of indictment.</p> <p>2. Where the witness testified to numerous sales at different times but could not fix the time of any one of the sales, it was not error for the court to refuse to compel the State’s counsel to elect as to which particular sale he would demand a conviction. In such case, it would be sufficient for the jury to be satisfied beyond a reasonable doubt as to any sale whatever which took place prior to the finding of the indictment and within the statutory period of limitation.</p>

<p>Criminal law. Assault with, intent to murder. Verdict. Before Judge McWhorter. Warren superior court. April term, 1891.</p>

<p>New trial. Evidence. Charge of court. Railroads. Killing of stock. Before Judge Harden. City court of Savannah. July term, 1891.</p>

<p>Master and servant. Contracts. Nonsuit. Before Judge Harden. City court of Savannah. July term, 1891.</p>

<p>After all the evidence for the State has been, heard by the traverse jury on. a trial for felony, it is not lawful to change the constitution of the jury by discharging one of its members as incompetent because he was on the grand jury that found the bill and substituting in his place a fresh juror and then proceed with the trial, the prisoner not consenting to such substitution, but insisting that a mistrial should be declared.</p>

<p>1. One who has a contract for mining ore at seventy-five cents per ton, and who receives monthly payments at sixty-five cents per ton without objection made at the time, is not estopped from showing by parol evidence that there was no modification of the contract, and that after a certain time the work was done with the understanding that the original contract should continue in force, but that this fact should be kept secret so as not to discontent others who may have submitted to mine at the reduced rate. Though the employer gave notice to the plaintiff and all others that the contract rate was reduced, such notice, without his assent to the new rate, would not operate to modify his existing contract, if that contract, as originally made, embraced all the work after-wards done.</p> <p>2. Although the weight of the evidence seems against the verdict, this court will not control the discretion of the trial judge in refusing a new trial, there being slight evidence in favor of the verdict and enough to uphold it.</p>

<p>1. A mortgage otherwise pure is not rendered fraudulent by a provision in the same, added to a power of sale conferred upon the mortgagee, to the effect that he is to hold the residue of the proceeds in excess of the mortgage debt subject to the order of the mortgagor. Calloway v. People’s Bank, 54 Ga. 441; Lay v. Seago, 47 Ga. 82; Rowland v. Coleman, 45 Ga. 204; Banks v. Clapp, 12 Ga. 514; Carey v. Giles, 10 Ga. 10.</p> <p>2. Where, other than such a-provision in the mortgage deed as to the surplus proceeds, there is no evidence of a reservation by the debtor of any trust or benefit to himself or any person for him, and no evidence whatever of his insolvency, the first paragraph of section 1952 of the code is not applicable, and it was error to give the same in charge to the jury.</p>

<p>Railroads. Negligence. Nonsuit. Before R. T. Eouché, judge pro hac vice. City court of Eloyd county. June term, 1891.</p>

<p>1. Where a contract of subscription to the capital stock of a street railroad company provides that the subscription shall be paid “in such instalments and at such times as may be decided by a majority of the stockholders, or board of directors or trustees empowered for the purpose by a majority of the stockholders,” and suit is brought on such contract against a subscriber and no proof is offered showing that the stockholders, directors or trustees have ever provided in what instalments the subscription shall be paid, orfixed a time or times for such payment, or made any call for payment, there should be a judgment of nonsuit against the plaintiff. South Ga. R. R. Co. v. Ayres, 56 Ga. 230.</p> <p>2. There being no question of fact, but only one of law, that is, whether the nonsuit ought to have been granted, the remedy by certiorari was available, and the superior court could make a final disposition of the case. Greenwood v. Boyd, 86 Ga. 582, and cases cited.</p>

<p>One who has sold personal property and made a bill of sale conveying it to the purchaser, is a competent witness to prove that he had no title, and that it belonged to some one else.</p>

<p>Amendment. Master and servant. Negligence. Before Judge Maddox. Ployd superior court. March, term, 1891.</p>

<p>Abatement. Pleading and practice. Before Judge PIarris. Coweta superior court. March term, 1891.</p>

<p>Justice’s court. Appeal. Garnishment. Before Judge Harris. Carroll superior court. April term, 1891.</p>

<p>1. Though the verdict seems strongly against the weight of evidence, yet it being a second verdict in favor of the same party, and there being some slight evidence to support it, there was no abuse of discretion in overruling the certiorari.</p> <p>2. The judgment being rendered at the December term of the justice’s court, and the execution showing that it was rendered on the 20th of December, there was no variance between the execution and the judgment.</p>

<p>Criminal law. Murder. Manslaughter.</p> <p>The evidence showing that the prisoner and deceased, a much larger man, were in a quarrel in the field where they were at work; that after giving the deceased the “damned lie,” the prisoner went to a branch near by, took a drink of water, procured a flint stone about the size of one’s fist, put it in his pocket, and returned to the scene of the quarrel; that the deceased resumed the quarrel, and advanced upon him with a knife, threatening to kill him; that the prisoner, in resistance to this assault, struck the deceased with a stick which he had in his hand to work with; that the deceased, continuing to advance, cut the prisoner in the j aw with his knife, also cut his hat in several places, and after breaking the knife, started off looking down in a stooping position as if intending to procure a stone or something else to fight with; that another person present threw a stone at deceased and hit him in the back, and that immediately thereafter the prisoner also threw the stone which he had-concealed in his pocket, and hitting him on the back of the head, inflicted the mortal wound: Held, that the offence was not murder, but voluntary manslaughter.</p>

<p>An oral stipulation by the landlord at the time of taking an absolute promissory note for rent of mills, to the effect that if the mills should be destroyed by fire the rent should cease, and that he would not require the tenant to pay rent for the balance of the term, is no defence to an action upon the rent note, it appearing that there was no intention by either of the parties to insert the stipulation in the note, but that it was left out by mutual consent and not by fraud, accident or mistake. Dyar v. Walton, 79 Ga. 466, and cases cited.</p>

<p>New trial. Before Judge Boynton. Spalding superior court. February adjourned term, 1891.</p>

<p>The evidence showing that the principal inducement which moved the plaintiff in error to subscribe for stock was to get the company to bring its road to McDonough instead of to Locust Grove, and he not stating in his own testimony that he would not have subscribed or given his note for the stock if he had known how much stock and bonds had been or would be issued, the verdict of the jury was correct, and there was no error in not granting a new trial.</p>

<p>There being no evidence touching the solvency or insolvency of the defendant in fi. fa. at the time he made the voluntary conveyance to his wife, or that the plaintiffs debt was then 'ill existence, the court erred in charging the jury that, if he was insolvent, the deed was void as against creditors whose debts were in existence at the time.</p>

<p>Libel. Protest of acceptance. Bank officers. Notary public. Pleadings and practice. Before Judge "Van Epps. City court of Atlanta. March term, 1891.</p> <p>Reported in the decision.</p>

<p>1. A landlord who rents to an individual and stipulates to furnish him. board, but afterwards accepts a partnership, of which the first tenant is a member, as tenant in lieu of the original tenancy, has no lien upon the crop made by the partnership for the board of the original tenant, the partnership having made no stipulation as to such board, and the new partner not knowing of any contract relating thereto.</p> <p>2. Where counsel for the parties agree in open court upon the amount of the attorneys’ fees for bringing the money into court, the implication is, in the absence of something expressly to the contrary, that they consent to the payment of such fees out of the fund.</p> <p>3. Where a receiver is in possession of a crop and has a force hired to gather it, the landlord does not become liable for increased expenses resulting from discharging the hands by telling the receiver he did not want them on his place and that they should not use water out of his spring.</p> <p>4. It was error for the judge to dictate to the jury how the fund in controversy should be divided in case they found in favor of the plaintiff. • , • -</p>

<p>Contracts. Real estate brokers. Evidence. Charge of court. ■ Practice in Supreme Court. Before Judge Richard H. Clark. DeKalb superior court. February term, 1891.</p> <p>Reported in the decision.</p>

<p>Trusts. Banks. Actions. Demand. Limitations. Conversion. Payment. Before Judge Poney. Bichmond superior court. October term, 1890.</p> <p>The action was commenced April 1, 1890, by Munnerlyn as trustee for two Munnerlyns and by those two in their own right, to recover of the bank certain moneys claimed to have been deposited with it. The declaration gives the dates of the deposits as March 11, 1884, and June 30, 1885, and alleges that they were made by Munnerlyn as trustee and agent of plaintiffs, and by Munnerlyn, trustee, acting as agent for plaintiffs. It is further alleged that the bank had full knowledge at the times of deposit that the money deposited was the trust property of plaintiffs and that the sum set forth in the certificate was to be subject to the check of Munnerlyn as agent for petitioners; and that on November 19,1888, a check for the amount deposited June 30, 1885, by Munnerlyn as agent for plaintiffs, was drawn by him on the bank in favor of Lovett, and was presented by the payee to the bank and payment refused. Exhibited were two instruments alleged to have been furnished by the bank as evidence of the deposits, one dated March 11, 1884, signed by the cashier of the bank, addressed to “John D. Munnerlyn, agent,” and stating: “Your account has been credited with $595 deposited by self”; the other dated June 30, 1885, with the same signature, address and statement, except as to the amount deposited. Also exhibited were the check drawn in- favor of Lovett by “ John D. Munnerlyn, agt.”, and a draft in favor of the cashier of the bank, dated June 30, 1885, signed “John D. Munnerlyn, tr.”, and indorsed by the cashier. By amendment the terms of the trust were set forth, and it was alleged that the money sued for arose from the' income of the trust estate, etc. . ■ ' ■</p> <p>The defendant demurred generally; and especially because, according to the declaration, the moneys were received and converted more than four years before the filing of the suit, and the action is barred. It pleaded the general issue; and also that the moneys in question were received by it from Munnerlyn, and it accounted to him therefor with no notice that they belonged to plaintiffs or either of them, or to any person other than Munnerlyn; that they were paid to him in cash, or credited- to his individual account * and paid out to him on his order upon checks drawn by him, without notice of any title, claim or interest of plaintiffs or either of them, and this was done more than four years before the filing of the suit; that if they belonged to Munnerlyn as trustee, of which defendant had no notice and which it denies, they were received from him and paid out on cheeks upon his order on or before September 30, 1885, and the suit is thus barred by the statute of limitations ; and that with the knowledge of the plaintiffs the deposit of June 30, 1885, was credited to the individual account of Munnerlyn, defendant supposing and believing him to be the true owner thereof, and the same was checked out by checks drawn by him on the same and afterwards returned to him, a list of the amounts of them being attached. The plaintiffs moved to strike the pleas, on the grounds that the statute of limitations as pleaded was inapplicable; that the pleas of payment were not sufficiently definite as to how and when the money was lawfully paid out, and are bad for duplicity in that they deny notice to the hank of the trust or agency, contradicting the terms of the written evidence of deposit and stating no legal reason for going behind this evidence, and also aver notice of the payment of the money to Munnerlyn as sufficient notice to the trust estate; and that all the jileas fail to aver any legal discharge for voluntarily permitting Munnerlyn to draw, upon his own check, money collected by the bank upon his check as trustee, and credited to his account as agent.</p> <p>Thp court overruled the motion to strike the pleas, and sustained the demurrer to the declaration ; and the plaintiffs excepted.</p>

Removal of causes. Hnited States courts. Jurisdiction. Aliens. Before Judge Wellborn. Lumpkin superior court. April term, 1891.

<p>The charter of a company granted by the legislature in 1859 to construct and maintain a turnpike road, “to be constructed and laid on and over the bed” of a certain designated public highway then existing, invested the company, after the construction was completed, according to the terms of the charter, with the exclusive title and ownership of the highway on and over the bed of which the turnpike road was constructed and laid. And though, after the adoption of the constitution of 1877, the limits of a city adjacent to one of the termini of the turnpike road were extended so as to throw the toll-house and a considerable section of the road inside of the new city limits, the city authorities could not, without condemnation proceedings and making compensation, appropriate to public use such section of the road by adopting it as a street; nor could they extend across said road any of the streets, save on like terms.</p>

<p>1. One indicted as principal merely can be convicted on evidence proving him guilty as principal in the second degree, if the facts be such as that the act by which the crime was perpetrated will, on established principles of law, be imputed to him as committed by himself through the agency of another. In such case, the distinction of degrees is immaterial.</p> <p>2. Evidence that the witness heard a person jointly indicted with the prisoner on trial say that the prisoner hired him to commit the crime and agreed to give him $50, is hearsay and should have been excluded. The matter embraced in this evidence being no part of a previous conversation to which the witness had testified on direct examination, was not rendered admissible by the fact that such previous conversation had been given in evidence.</p> <p>3. The foregoing error is cause for a new trial, inasmuch as the evidence strongly indicates that the conviction rests chiefly on a self-criminating fabrication of an alleged accomplice, induced by threats and coercion, and first promulgated under the influence of fear for his life, and probably adhered to afterwards under a like influence, though any ground for reasonable fear had then ceased to exist.</p>

Waiver of exemption. Provisions. Before Judge Harris. Campbell county. At chambers, November 23, 1891. In January, 1891, Cochran applied for exemption under section 2040 of the code, and had set apart certain furniture, tools, books, seventy dollars worth of provisions, fifty bushels of corn, and one thousand pounds of fodder.

<p>Debtor and creditor. Lien. Title. Equity. Fraud. Before Judge Marshall J. Clarke. ' Fulton superior court. March term, 1891.</p> <p>Deported in the decision.</p>

<p>Practice. Supersedeas. Brief of evidence. Debtor and creditor. Insolvent trader. Contempt. Imprisonment. Constitutional law. Before Judge Gober. Fulton county. At chambers, July 28, 1891.</p> <p>Reported in the decision.</p>

Criminal law. Manslaughter. Husband and wife. Before Judge Milner. Bartow superior court. July term, 1891. Will Mays was indicted for murder, and was found guilty of voluntary manslaughter. He admitted the homicide and claimed that it was justifiable. He introduced no evidence.

Municipal corporations. Statutes. Tippling-houses. Jurisdiction. Habeas corpus. Before Judge Eve. City-court of Richmond county. August 17, 1891.

<p>Practice. Judgment. Before Judge Janes. Polk superior court. February adjourned term, 1891.</p> <p>Reported in the decision.</p>

<p>1. The official attestation of a domestic notary public to the exeeution of a deed or mortgage is not required to be under seal in order to prepare the instrument for going to record.</p> <p>2. The description in a mortgage of an engine as “ one horizontal-mounted six-horse power Farquhar engine ” is sufficient, although the engine be one of five horse power, the mortgagor having at the time only the one engine.</p> <p>3. Where a mortgage of personalty embraces various items of property, all of which are levied upon under the mortgage fi.fa., the dismissal of the levy as to some of the property and its restoration to the mortgagor by the levying officer under instruction from the plaintiff’s attorney, will not defeat the right of the mortgagee to sell the residue of the property, provided any sum would remain due on the mortgage debt after deducting the value of the property so released from the levy and returned to the mortgagor.</p> <p>4. On the trial of an ordinary claim case, the issue is whether the property'is subject or not subject, and no finding by the jury as to the amount due on the fi. fa. is requisite to a determination of the issue. There was no error in refusing a new trial.</p>

<p>1. There being evidence tending to show that the claimant was present when a prior mortgage was executed on the same property, and that she then recognized the property as belonging to the mortgagor, it was not error to admit that mortgage in evidence for the purpose of showing that it covered the property now in controversy.</p> <p>2. The only evidence of consent by a married woman to the mortgaging of the property in order to secure the debt in question, being that she consented to a mortgage dated the 21st of February, 1888, which was executed prior to the one now sought to be enforced, a request to charge the jury that a married woman cannot consent to mortgage her property to secure the debt of another person, was complied with by charging that if she consented to the execution of the mortgage of the 21st of February, 1888, that cannot be held to bind her as to the second mortgage; and there being no evidence that she consented to the second mortgage, a charge on that subject would be inapplicable to the facts.</p> <p>3. There being no request to instruct the jury as to the rules by which to test the credibility of witnesses, the omission of such instruction is not cause for a new trial.</p> <p>4. “Where during the pendency of a claim case an office paper connected with the case, such as the mortgage fi. fa., has been lost, and the loss is discovered whilst the trial is in progress, the court may suspend the trial and allow a copy to be established instanter. That the copy was called an alias makes no difference.</p> <p>5. On discovery of the original ft. fa. after the trial had terminated, it is no cause for a new trial that the copy established was not in all respects an accurate copy of the original.</p> <p>6. The evidence warranted the verdict.</p>

<p>According to Evans v. Atlanta & W. P. R. R. Co., 56 Ga. 498, the judgment of nonsuit was proper.</p>

<p>Practice. "Verification. Jurisdiction. Guardian and ward. Debtor and creditor. Before Judge Jenkins. Baldwin superior court. July term, 1891.</p>

<p>Contracts. Vendor and purchaser. Ratification. Set-off. Recoupment. Before Judge Miller. Houston superior court. April term, 1891.</p>

<p>Railroads. Negligence. Nonsuit. Before Judge .Miller. Bibb superior court. April term, 1891.</p>

<p>Trespass. Evidence. Charge of court. Before Judge Miller. Bibb superior court. November term, 1890.</p>

<p>Criminal law. Sunday tippling-house. Charge of court. Before Judge Miller. Bibb superior court. November adjourned term, 1890.</p>

<p>Railroads. Passengers. Damages. Before Judge Miller. Bibb superior court. April term, 1891.</p>

<p>There being no evidence on which to base the charge requested; to the effect that “if the wall was not built according to contract by reason of the fact that Greenwood (the plaintiff) employed Booth (defendant’s superintendent) to use material furnished to build the wall to build an additional wall for him, and for this reason Booth failed to build the wall as specified in the contract, Guernsey (the defendant) would not be liable,” it was not error to decline so to charge. The evidence warranted the verdict.</p>

<p>The contract between the parties as manifested by the evidence embraced the building of a house by the defendant, as well as the advancement of the purchase money for the lot; and the house having been built with the plaintiff’s knowledge and apparent acquiescence, after the dispute arose between the parties, he is not entitled to a conveyance of the premises without first paying or tendering the cost or value of the house, as well as the original cost of the lot. The judgment of nonsuit was correct.</p>

<p>Deeds. Attestation. Statutes. Before Judge Miller. Bibb superior court. April term, 1891.</p>

<p>A municipal corporation is not liable for personal injuries Sustained by one prisoner at the hands of another confined in the same cell or room of the city prison, notwithstanding the police officer who arrested the plaintiff and put him in prison may have been guilty of wrong or negligence in confining him with an intoxicated fellow-prisoner who was on that account violent and dangerous. Cook v. Macon, 54 Ga. 468; Harris v. Atlanta, 62 Ga. 290; McElroy v. Albany, 65 Ga. 387; Attaway v. Cartersville, 68 Ga. 740; Davis v. Mayor, etc. of Knoxville, 18 S. W. Rep. (Tenn.) 254; 2 Dillon, Munic. Corp. 4 ed. §975; Cooley, Torts, *620 et seq.; Shearman and Redf. Neg. 4 ed. §§253, 260; 15 Am. & Eng. Enc. of Law, 1141 et seq.</p>

<p>Courts. Costs. Jurisdiction. Practice. Before Judge Boss. City court of Macon. June term, 1891.</p>

<p>There being no accessories in misdemeanors, and in that grade of offences no rule of law rendering the evidence of accomplices insufficient on which to found a conviction, the finding of the trial judge was warranted by the evidence, and there was no error in refusing a new trial.</p>

<p>Criminal law. Gaming-table. Before Judge Martin. Marion superior court. October adjourned term, 1890.</p>

<p>Criminal law. Costs. Scire facias. Before S. • B. Hatcher, judge pro hac vice. Chattahoochee superior court. March term* 1891.</p>

<p>New trial. Evidence. Before Judge Martin. Chattahoochee superior court. March term, 1891.</p>

<p>Though, the evidence was conflicting it warranted the verdict, and there was no error in refusing a new trial.</p>

<p>There was evidence on which to submit the case to the jury, and the court; erred in granting a nonsuit.</p>

<p>Without a petition by the creditor as prescribed by section 3297 of the code, the judge of the superior court has no jurisdiction to grant or issue an attachment against a fraudulent debtor. A mere affidavit setting forth the facts is proof, not pleading, and is no substitute for a petition. In this case, the attachment having been issued upon affidavit and without petition, a motion made by the claimants to dismiss the levy should have been granted.</p>

<p>1. A juror who is sometimes known as W. W. Bradley and sometimes as W. M. Bradley, and who writes his name sometimes one way and sometimes the other, may be described in the jury-list by either name, it not appearing that his true name partakes more of one form than of the other, andthe're being affirmative evidence tending to show that he was the identical person referred to in the jury-list, and no evidence to the contrary.</p> <p>2. That a juror’s name was not upon the books of the tax-receiver is no cause for new trial where the objection is not made until after verdict. Osgood v. State, 63 Ga. 791.</p> <p>3. The evidence though conflicting warranted the verdict.</p>

Practice in Supreme Court. Trespass. Damages. Before Judge Eve. City court of Richmond county. Pebruary term, 1891. Oliver sued Burkhalter for damages from entering upon the land of Oliver, digging up and destroying his crop, excavating and removing the soil and causing embankments to be thrown up, thereby causing the water to be arrested in its flow off the land and to be dammed up on it. The jury found for the plaintiff $200.

Equity. Mistake. Usury. Deed. Promissory note. Tender. New trial. Before Judge Roney. Richmond superior court. April adjourned term, 1891. Held: but declined to do so or to have any connection whatever with the matter, and freely and voluntarily told Roberts to sell the property to Dotterer upon the payment of the note.

<p>Where, according to the usual course of business of a partnership which transacted a wharfage business for itself and represented a transportation company in the collection of freights, a clerk of the partnership was in the habit of delivering bills of lading to customers arid receiving from them checks in prepayment of bills for freight and wharfage; and, acting in conformity to this custom, such clerk received a check from a customer payable to the order of one of the partners (agent) or bearer, collected the money and fraudulently converted the same to his own use, he was not guilty of the statutory offence of larceny after a trust delegated upon an indictment charging that he was entrusted by the customer with the check to be applied for the customer’s use and benefit, the trust created by the transaction as a whole not being one between the customer and the clerk, but one between the partnership and the clerk. The delivery of the check and the collection of the money upon it operated as a payment of the bill against the customer, and furnished a fund for which the clerk was accountable to his employers.</p>

<p>Stoppage in transitu. Bona fide purchaser. Carriers. Before Judge Harden. City court of Savannah. May term, 1891.</p> <p>Reported in the decision.</p>

Title. Equity. Leeds. Evidence. Homestead. Bona fide purchaser. Before Judge Marshall J. Clarke. Eulton superior court. Held: in all |-|. This deed also recited the Thigpen plat, and was recorded together with the power of attorney on October 8, 1878. ' On April 1, 1878, Venable filed in Fulton superior court a petition against Jackson and others (to which petition neither the administratrix nor heirs of Latham were parties), alleging that they were tenants…

Criminal law. Evidence. Confessions. Before Judge Gober. Eannin superior court. May term, 1891. Edmund and Ansil Green and two others were indicted for the murder of Keener. Edmund and Ansil were put upon trial; both were found guilty, the jury recommending that Ansil. be imprisoned for life. Ednjund moved for a new trial; his motion was overruled, and he excepted.

Vendor and purchaser. Deed. Mortgage. Breach of warranty. Before Judge Hutchins. Clarke superior court. April term, 1891. Lusk sued Hamilton for $4,100, alleging that on February 7, 1887, Hamilton executed to him a warranty deed to certain land in Jefferson county, Alabama (describing it), that he was evicted therefrom on October 28, 1888, and that Hamilton refuses to indemnify him for his damages in that behalf.

<p>1. In an action for the recovery of personal property brought without previous demand, if the defendant was in possession of the property when the action was brought, unless he disclaims title at the first term, he is liable for costs, if cast in the suit, and the action may proceed for the recovery of costs and hire, although the plaintiff, under the law of bail-trover, has replevied the property and thus acquired possession. Code, §§3028, 3057.</p> <p>2. That the contract of conditional sale stipulates that the purchaser agrees “ to pay ten per cent, counsel fees, and all other expenses incurred in the collection of this claim,” will not entitle the seller to collect counsel fees in an action of bail-trover brought to recover the property and its hire; and where the property was tendered before suit and the tender refused, and no subsequent demand made for it, the recovery of anything for counsel fees was unwarranted.</p>

<p>Witness. Personal representative. Before Judge Jenkins. Baldwin superior court. January adjourned term, 1891.</p> <p>Reported in the decision.</p>

<p>A passenger on a railway train who refuses to accede to a wrongful demand for fare is entitled to be carried on acceding to the demand, though the train may have been stopped with a view to his expulsion; but if the demand upon him is rightful he cannot avoid expulsion by tendering the fare whilst the train is being stopped or after the stoppage. Where the failure of the passenger to have a ticket is due to the non-attendance of the agent at the ticket-office, or to other fault or default of the company, the passenger is entitled to be carried at the ticket rate of fare ; but where his failure is attributable to any other cause, he has no right to be carried without paying the higher lawful rate exacted by the rules of the company.</p>

<p>1. After a plaintiff in bail-trover is nonsuited, the defendant is entitled upon motion to judgment on the bond given by the plaintiff to acquire possession of the property under the bail process according to 23420 of the code..</p> <p>2. To a writ of error from the judgment denying such motion the security on the bond is not a necessary party, he being represented by his principal,.</p>

<p>Amendment. Debtor and creditor. Promissory note. Before Judge Miller. Bibb superior court. November adjourned term, 1890.</p> <p>Reported in the decision.</p>

<p>By the act of October 22d, 1887, telegraph companies are subject to the penalty prescribed for not transmitting dispatches with due diligence, whether the persons to whom they are addressed reside within one mile of the telegraphic station, or within the city or town in which such station is located, or not. The proviso in the second section of the act relates to the duty of delivery, and not to the duty of transmission.</p>

Injunction and receiver. Debtor and creditor. Mortgage. Assignment. Evidence. Amendment. Before Judge Miller. Crawford county. At chambers, October 20, 1891.

<p>Criminal law. Statutes. Bigamy. Evidence. Practice. Charge of court. Before Judge Maddox. Paulding superior court. January adjourned term, 1891.</p> <p>Beported in the decision.</p>

Railroads. Carriers. Storage and demurrage. Charge of court. Before Judge Eve. City court of' Richmond county. August term, 1890. The opinion states the material facts.

<p>Contracts. Statute of frauds. Evidence. Charge of court. Before Judge Harden. City court of Savannah. July term, 1891.</p>

Criminal law. Liquor-selling. Statutes. Constitutional law. Before Judge Janes. Polk superior court. February term, 1891. Jesse Crabb, agent of the Southern Express Company at Cedartown, Polk county, was indicted for liquor-selling. He excepted to the overruling of his demurrer to the indictment, and of his motion for a' new trial.

<p>1. The acts of September 19th, 1881, and October 26th, 1889, being unconstitutional, as ruled in Crabb v. The State, this term, sections 809(b) and 809(g) of the code, requiring liquor dealers to register, were in force in Polk county in December, 1890, the general local option act not having been adopted in that county until after-wards.</p> <p>2. The other points in the case are also controlled by Orabb v. The State, supra.</p>

<p>1. On the trial of a traverse of a constable’s answer to a rule for money, a verdict upholding the answer is not contrary to law, equity and evidence, or without evidence to support it, when none of the evidence produced by either party is inconsistent with the answer.</p> <p>2. It not appearing that the superior court made any ruling, or was required to make any, upon the sufficiency of the constable’s answer, taking it as true, this court cannot adjudicate that question.</p>

<p>Actions. Parties. Principal and agent. Contracts. Carriers. Before Judge Martin. Muscogee superior court. May term, 1891.</p>

Pleading and practice. Accord and satisfaction. Fraud. Before Judge Van Epps. City court of Atlanta. June term, 1891. Action for damages ; pleas of the general issue, and of payment of $18 in full settlement of all damages. On the latter plea the jury found for the defendant. The plaintiff’s motion for a new trial was overruled, and he excepted.

Municipal corporations. Bridges. Negligence. Charge of court. New trial. Before Judge Roney. Richmond superior court. October adjourned term, 1891.

Criminal law. Practice. Argument. Before Judge Roney. Richmond superior court. April adjourned term, 1891. Indictment against Johnson for perjury in making an affidavit on March 21, 1891, that one Parker, on March 20, 1891, committed the offence of larceny from the house of $80 in money the property of said Johnson, which affidavit was made for the purpose of having a warrant issue against Parker.

Landlord and tenant. Before Judge Harden. Chat-ham superior court. June term, 1891. Matters in* dispute between Clinch and Cunningham, executors of Waldburg, and Cavanaugh, were submitted to arbitration. Cavanaugh filed several exceptions to the award made. These were demurred to, on the ground that none of them showed any cause for setting-aside the award. The demurrer was sustained, and Cavanaugh excepted. The opinion states the material facts.

Dower. Year’s support. Election. Executor. Before Judge McWhorter. Wilkes superior court. May term, 1891. ..... Mrs. Hill, as the widow' of J. D. Hill, on December 15, 1888, made application for the setting apart to her of dower in a tract of land of which she alleged her husband died seized and possessed. Commissioners were appointed, and made their report to the superior court, setting apart to her a portion of the land.

<p>New trial. Practice. Before Judge Maddox. Floyd superior court. March term, 1891.</p> <p>On November 25, 1890,' during the September term of the superior court, the case between these parties was tried, and a verdict for the plaintiffs was rendered. On December 3, during the same term, the defendants filed their motion for a new trial, and took an order to show cause on January 1, 1891, why the motion should not be granted, leave being granted the defendants until that date to prepare and file their brief of evidence. On December 26, 1890, while the court was not in session, a paper purporting to be a brief of the evidence was filed in the clerk’s office. It was not agreed on by the counsel for the parties, was not approved by the court, and was not filed under the direction and supervision of the court. On January 1, 1891, during the September adjourned term, counsel for the defendants not being present, counsel for the plaintiffs moved to dismiss the motion for a new trial. The court declined to dismiss it, and ordered that it be continued until the third Monday in January, and that the defendants have until that time to make out and file a brief of the evidence. On the third Monday (the 19th) of January, the judge was holding court in another county; and there was no appearance for the defendants, and no brief of evidence was filed on that day. Two days previously, the judge of his own motion had passed an order that the court be adjourned from Monday the 19th of January to the first Monday in February, “at which time it will convene to hear the report of the committee on memorial of A. E. Boss.” This order was passed in vacation and while the court was not in session. On the first Monday (the 2d day) of February, during the September adjourned term, 1890, counsel for the defendants appeared and asked that the motion be then heard. Counsel for the plaintiffs asked that it be dismissed. Whereupon, over objection of the plaintiffs and without prejudice to their right to be heard on their motion to dismiss the motion for new trial, the court ordered that the hearing of the latter motion be continued till the next regular March term, and that the movants have until that time to complete their brief of evidence, to be heard at such time in the March term as the court might direct. During that term the motion for new trial was heard. The plaintiffs moved to dismiss it, and the overruling of their motion is the ground of exception. Their grounds for dismissal were : (1) Because during the September term, 1890, no brief of evidence was approved by the court, nor agreed upon by counsel, nor filed under the direction and supervision of the court. (2) The court having set the 1st and 19th days of January, 1891, for the hearing o’f the motion and the filing of the brief of evidence, and the defendants having failed to appear on either of those days, and having failed on both of those days to file a brief of evidence approved by tlie court or agreed on by counsel, their motion for a new trial ceased to have legal existence. (3) The judge had no legal right on the 17th of January, 1891, at chambers, during vacation, and while court was not in session, to pass an order adjourning court from January 19 to the first Monday in February ; and had such right existed, the order of adjournment specified the only business to come before the court at that time, to wit “to hear the report of the committee on memorial of A. E. Boss.” Hence no court was legally in session on the first Monday in February ; and the court had no right at that time to pass an order setting the hearing of the motion for new trial during the March term, and allowing the movants until that time to perfect their brief of evidence.</p>

Slander. Justification. Privilege. New trial. Before Judge Harris. Heard superior court. March term, 1891. Action for words, by Mrs. Etchison against her brother Robert Pergerson. In the first count it was alleged that on September 16, 1889, the defendant falsely and maliciously said of the plaintiff: “ I caught Mely (meaning the plaintiff) and Lee (meaning W. C. Lee) in the woods together.

<p>1. A self-criminating admission made to the sheriff by a prisoner in jail in response to the sheriff’s admonition in these terms: “You know you are the man; they got your cap, and you might as well own up,” is of doubtful admissibility, but the other evidence establishing the prisoner’s guilt beyond all question, a new trial ought not to be granted.</p> <p>2. While it is the better practice to show by preliminary evidence that confessions intended to be proved were made freely and voluntarily, yet where such evidence is omitted until after the confessions are received, it may then be introduced.</p>

Fraud. Contracts. Parties. Before Judge Jenkins. Laurens superior court. July term, 1891. Action for damages, by Powell against Lowry sr., Lowry jr., Cheney and Strickland.

<p>1. Prima facie a local statute wliicb prohibits the sale of spirituous liquors within 5 miles of certain specified churches applies only to sales outside of the limits of incorporated towns; villages or cities.</p> <p>2. Where the General Assembly incorporates a town in the month of August and confers express authority upon the corporate body to grant licenses to retail spirituous liquors, such act is not repealed or in any way modified by a subsequent act, passed in the following October by the same General Assembly, prohibiting sale within 5 miles of certain specified churches, it not appearing that any of the churches named are situate within the town so incorporated.</p>

Distress warrant. Claim. Evidence. Practice. Before Judge Miller. Bibb superior court. April term, 1891. A distress warrant in favor of Powell against Fleming & Johnson was levied upon certain property claimed by Horne. The warrant was issued on December 7, 1887, on an affidavit made by Powell the same day, which affidavit stated that, though the rent was not due, Fleming & Johnson were seeking to remove their goods from the premises.

<p>Under the constitution of 1877, the jury rendering the final verdict in a divorce case are invested with power to determine the rights and disabilities of the parties, and where their verdict declares that both parties shall have the right to marry again, the presiding judge has no power of revision so as to deny the right to either party.</p>

Vendor and purchaser. Pleading. Eraud. Before Judge Martin. Muscogee superior court. May term, 1891. Action was commenced October 22, 1888, by tbe Elyton Land Co. on a note for $875 given to it by Knowles & Go., dated, at Birmingham, Ala., January-14, 1887, due oue year after date, payable to the land company or order at its office in Birmingham, for lots numbers 1, 2, 3 and 4 in block number 293 in said city.

<p>Damages. Charge of court. Married women. Before Judge VAn Epps. City court of Atlanta. June term, 1891.</p> <p>Mrs. Jacobs sued for damages from personal injuries, alleging that she had a separate estate. The other material allegations of her declaration are quoted in the opinion. Before the trial defendant moved to dismiss the ease because plaintiff’s husband was not joined in the suit, it appearing from the declaration that' she was a married woman. This motion was overruled, and this ruling is one of the errors assigned. The jury found for plaintiff $3,000. Defendant’s motion for new trial was overruled, and it excepted.</p> <p>The evidence for plaintiff' was to this effect: She was quite stout, weighing 165 or 170 pounds. She had twelve children, ten of them at home. Her oldest child was 32, and her oldest child at home was 28. Otherwise her own age did not appear. Before she was hurt she had been accustomed to doing most of the sewing for the family, using a sewing-machine, and did all of the cooking; since she was hurt she has had to employ a servant, not being able to do the cooking, and she cannot use a sewing-machine. Her husband is living, and there are three children living with them, over twenty years of age. She boarded a car of defendant, paid her fare, and when she got to the place at which she wished to stop, rang the bell. The driver stopped long enough to let her get to the rear platform and get down upon the step, but as she was about to step to the ground, and before he had stopped long enough for her to get off, he started the car and she fell. Both her knees were hurt; her right knee has never got well, and probably never will. She suffered much, and still suffers from the injury. She can get about in the house by holding to the walls and chairs, but cannot get around in the yard without a crutch, etc. The evidence for defendant was, that when plaintiff rang the bell the driver stopped the car, and plaintiff went out the rear door and fell; and that the car was not started nor moved at all until the driver went to her and helped her up.</p> <p>In addition to the grounds that the verdict was contrary to law, evidence, etc., the motion for new trial alleges that the verdict was grossly excessive, and assigns error on the following parts of the charge of the court: “ This duty of exercising extraordinary care embraces the duty of allowing the passenger reasonable time to alight in safety when the car, at the passenger’s instance, stops for that purpose.” Error, because it imposes upon defendant a greater duty than that imposed by law, the utmost duty imposed by law being, that a reasonably safe place be provided for alighting, ^md a reasonable time be allowed in which' to alight; and after fully performing these duties, the defendant was discharged, though the passenger failed to alight in safety.</p> <p>“ And in this case, if you believe from the evidence that the plaintiff was a passenger of the defendant, and that she signaled the driver to stop, that she might get off", and the car did stop for that purpose, and that she went on the platform and upon the bottom step, and was in the act of stepping therefrom to the ground, the car being stationary, and that she was, by the starting of said car before she had completely left it, thrown upon the ground and injured, the law presumes in the first instance that her injuries were the result of defendant’s negligence.” Error, because the presumption of law was simply that defendant was negligent, and after this presumption arose, the burden of proof, as to her injuries, was still upon the plaintiff; the presumption required rebutting proof upon the part of defendant as to the manner of the accident, and in no way extended to its results.</p> <p>‘■‘A physical injury which destroys or impairs the power of a human being to labor is an actionable injury, and this is true though the person injured should be a married woman. ‘A physical injury which impairs the capacity of a married woman to labor is classified by the law with pain and suffering. It is not to be measured by pecuniary earnings, for such earnings, as a general rule, belong to the husband, and the right of action for their loss is in him, but the wife herself has such an interest in her working capacity as that she can recover something, in a proper case, for its impairment, and what she is allowed ought to be more or less according to the nature of the injury and the length of time during which the pain and deprivation is likely to continue. Under such circumstances there is no known rule of law by which witnesses can give you in dollars and cents the amount of injury, but this is left, as I have remarked, to the enlightened conscience of impartial jurors.” Error,' because in this case the plaintiff could only recover for pain, and in the preceding section the court charged fully upon this branch of the case. The destruction of the power of labor was not a separate item for which a recovery could be had; it was but one element of pain. By giving this section in charge the court, in effect, allowed a double recovery for the same thing, and the jury promptly took advantage of the opportunity, as shown by the amount of the verdict. The impairing of plaintiff’s working capacity was not an element of damages. If proper at all, it should have been submitted under the head of pain.</p>

<p>1. A bill filed under the insolvent traders’ act, in December, 1885, by the creditors of a firm, alleging insolvency both of the firm and the individual members thereof, and fraud in conveying the' assets of one of the members to his individual creditors, which creditors are made parties defendant, can be used to set aside such conveyances if found fraudulent, and the bill is therefore not without equity as to these defendants.</p> <p>2. When exceptions to a master’s report are demurred to on the ground that they “do not plainly and distinctly state the finding or decision complained of and the error committed,” this does not raise the objection that the exceptions are not separately classified as exceptions of law and exceptions of fact.</p> <p>3. Construing the exceptions to the master’s report in the light of the whole record, they are sufficiently plain and distinct as to the findings or decisions complained of and the errors committed.</p> <p>4. In a civil case, the defendants are not entitled to a separate trial, nor is each entitled to strike the full number of jurors, but all of the defendants must join in striking the jury. Where the regular number of strikes has been exceeded and the jury is thus reduced to eleven, the last man stricken should be restored to the list.</p> <p>5. Though the report of the master is prima facie the truth and the burden of proof is on the party excepting thereto, and a request so to charge ought to be given, yet a request to charge “that the report of the auditor is prima facie correct, and should be taken as a correct finding on the facts of the case, and the burden of showing that it is erroneous is on the plaintiffs,” is not quite accurate, and for that reason maybe declined.</p> <p>6. In view of the whole charge as given, it was not error to decline, the various requests to charge set out in the record.</p> <p>7. Where a creditor holds an absolute deed as security for a debt, with his bond to reconvey outstanding, and upon the debtor afterwards becoming insolvent, he takes the property in payment of the debt, the value being largely in excess of the amount of the debt, other creditors may have the property administered in equity as the assets of an insolvent, and the proceeds applied first to the secured debt, and the surplus to their own claims. This may be done without first tendering to the secured creditor payment of his claim.</p> <p>8. Though the property may consist of a stock of goods, it is generally rightful, and not fraudulent, for a mortgagee ko leave the same in the possession of the mortgagor who is conducting an active business ; yet this circumstance, taken in connection with others strongly tending to show that the debt was not bona fide and that the debtor was about to fail in business, might authorize an inference of fraud by the jury.</p> <p>9. The statute (Acts of 1881, p. 115) authorizes a court in all civil cases, on request of the jury, to instruct them on the form of their verdict, and such request will be presumed where the court so instructs, unless the contrary appears.</p>

<p>Administrator. Bond. Sale. Set-ofF. lies adjudicaba. Tax. Evidence. Practice. Before Judge Well-born. .Hall superior court. July term, 1891.</p>

<p>Deed. Title. Covenant. Vendor and vendee. Before Judge Harden. City court of Savannah. July term, 1890.</p> <p>Reported in the decision.</p>

<p>Landlord and tenant. Contract. Action. Before Judge Harden. City court of Savannah. July term, 1891.</p> <p>Dispossessory warrant was issued against Lindsay & Morgan on the affidavit of Weed, landlord. By counter-affidavit they alleged that their lease, or term of rent, had not expired. The verdict was in their favor; plaintiff’s motion for a new trial was overruled, and he excepted. His affidavit, dated October 15,1890, alleged that the property was rented to them, and they took possession in October, 1889, as tenants at will; that on April 8, 1890, he gave them notice that he desired the possession of the property at the expiration of two months thereafter, by which notice and the expiration of time the tenancy was terminated and the lease expired ; and that afterward they refused to deliver the possession to him. The evidence shows that the parties made the following contract:</p> <p>“Savannah, Georgia, 4th June, 1889.</p> <p>“I am to erect a four-story building, sixty feet or more front, and Messrs. Lindsay & Morgan agree to pay me four thousand dollars per annum net, if the cost of the building at six per cent., with a valuation of forty thousand dollars for the lot, viz.: Lot No. 1, Eyles Tything, Heathcote Ward, does not exceed that amount. If it does, then Lindsay & Morgan are to pay Joseph L>. Weed six per cent, on the cost, including above valuation of lot. Lindsay & Morgan are to pay all taxes, keep the building in repair, and keep building insured for its cost. Upon these conditions Joseph D. Weed agrees to give them a lease for ten years from the date the building is ready for occupation.</p> <p>(Signed) Joseph D. Weed.</p> <p>Lindsay & Morgan.”</p> <p>The defendants claimed that they had an agreement with the plaintiff' that the building would be first-class, attractive and well suited .to their business, and that he agreed with them expressly as to many details of its construction and plan. It( was thought it would be completed by September, and the plaintiff stated that his contractor was under a forfeit for every day’s delay after the 1st of October. In the latter part of September the defendants’ goods, previously ordered, began to arrive in large quantities, and they obtained plaintiff ’s consent, as shown by his letter quoted in the opinion, to store the goods in the unfinished building, only the basement then being completed. Defendants paid the contractor the amounts he was compelled to pay the plaintiff for each day’s delay after October 1st until the completion of the building on November 18th. During its erection defendants complained to the plaintiff, and to his superintendent in his absence, that it was not being constructed according to agreement. A few days after its completion the plaintiff tendered the defendants a lease for ten years, stipulating an annual rental of $4,000, which defendants refused to sign, on the ground that the building was not completed according to agreement, but was much inferior to what they were entitled to receive; that the difference in this respect should be met by a reduction of rent; that they were compelled to take and retain the building, as no other could be obtained, and to give it up would destroy their business and ruin them financially. They offered to submit to arbitration, or have determined by any fair and proper mode, what reduction of rent would compensate them in damages. They paid the taxes on the property until the tax-collectors refused to receive the same, on notice from plaintiff; and offered to pay the insurance, which plaintiff refused to allow. On December 16, 1889, plaintiff" instituted in the city court distraint and dispossessory warrant proceedings, which were met by the usual counter-affidavits, and by defendants’ equitable pleas alleging that under the contract the rent was not due until the end of the year, setting up the failure to construct the building according to agreement, and claiming that an annual reduction of $1,500 from the stipulated rent should be made on account of said failure. The two cases were tried together by consent, and in each the jury found for the defendants, further finding in the distress warrant ease, that a deduction of $500 per annum should be made from the rent stated in the contract, and that no rent was due until the expiration of the year. A new trial was granted on plaintiff’s motion; and he afterwards dismissed both the cases, and on October 15, 1890,. brought the present proceeding. On November 18, 1890, the defendants tendered him $3,500 as the first year’s rent due that day, offering to accept the verdict of the jury as an ai’bitrament of the issues, and further offering to pay the taxes and insurance, and to execute a lease on the basis of the reduced rent. On December 26, 1890, they filed in the superior court a petition to enjoin this dispossessory warrant-proceeding, to have their damages ascertained and fixed by decree, to compel execution of a lease in accordance therewith, etc. No restraining order was granted, hut the judge issued a rule to show cause ; and the plaintiff showed cause by his answer. This petition and answer were introduced in evidence on the trial of the present case.</p> <p>Among the grounds for new trial were, that the verdict was contrary to law and evidence; that the court erred in admitting testimony to establish a parol contract on the part of plaintiff to erect a building of specific character and dimensions not set out in the written contract between the parties; and that the court erred in refusing to charge certain principles as requested by the plaintiff’s counsel. Also, that the court erred in giving, among others, the following charges :</p> <p>“The view which I hold of this contract is this: The parties entered into or upon these premises under an agreement for a lease. If the agreement had never been carried out to make a lease, if the parties had occupied the building, and the building was such as they had the right to expect, and if they paid up the rent, and Mr. Weed had accepted the rent, and a lease had never been made, then this paper would have stood in the place of a lease. They would have been tenants for the length of time mentioned in this paper, and they would have had this paper as by its terms to govern the holding which they had. If, however, they failed to pay the rent which -was reserved to be paid in this paper, and failed to pay it for a reason which you find to be a good and valid reason, if you find that the amount of four thousand dollars a year was not a proper amount for them to pay because of the failure, on the part of Mr. Weed, to furnish them with such a building as they had under the circumstances the right to expect, then you must also find that they had, and I so charge you, the right to refuse to pay the entire amount of the rent, and to leave it to the courts to determine, if the parties could not agree as to what amount of rent should be paid, without their becoming tenants at will and liable to ejectment.</p> <p>“If they held the building and refused to pay the rent, being unjustified in so refusing, they are tenants at will, and you must by your verdict find for the plaintiff. If, on the other hand, they acted upon their right to occupy the building, or not to occupy it, if they were in the right in refusing to pay because the rent was not due, or because the amount of rent which was claimed was not due, and they withheld it because the building was necessary to them, and because it was not reasonably suited to their purposes, refused to pay the entire amount of rent demanded, if you find these to be facts, then it will be your duty to find for the defendants.</p> <p>“If you find from the testimony that Mr. Weed agreed to erect for Lindsay & Morgan a certain kind of a building, and that he did not comply with his contract, but erected one that was inferior to the building he contracted to furnish and less valuable, then Lindsay & Morgan would have the right to have the rent, which they agreed to pay, reduced by such an amount as would compensate them for the damages which they sustained by reason of Mr. Weed’s violation of his contract, provided, of course, Lindsay & Morgan make it appear to your satisfaction that they have sustained such damages. If, therefore, the testimony shows that Mr. Weed thus violated his contract, and if no lease was tendered to Lindsay & Morgan until after the building was completed, then they were not under any obligation to sign a lease providing for the four thousand dollars net rent, but were entitled to a lease at such a reduced rent as would compensate them, or measure the difference in the rental value between the building which Mr. Weed contracted to furnish and the building which they actually got.</p> <p>“If you find from the testimony that a lease was tendered by Mr. Weed to Lindsay & Morgan after the completion of the building, and with the rental of four thous- and dollars net provided therein, and if you further find from the testimony that Lindsay & Morgan were not liable for this amount of rent, but were entitled to an abatement of it, and if you further find from the testimony that Mr. Weed was unwilling to give a lease for any less rent, and that Lindsay & Morgan rightfully and properly refused to sign the léase, then said refusal on their part did not foi'feit their rights under their contract, and did not make them tenants at will.</p> <p>“If you find from the testimony that Lindsay & Morgan have performed, or have been ready and willing and offering to perform all their obligations under their contract with Mr. Weed, and that they are entitled to a lease of the premises for the term of ten years from the completion of the building, then it is not necessary for them to quit the possession of said premises until the courts can decree the specific performance of the contract, but they have the right to remain in possession and cannot be dispossessed as tenants at will.”</p>

Administrator’s sale. Fraud. Evidence. Before Judge Wellborn. Hall superior court. July term, 1891.

<p>1. While the act of 1877 confers authority on the city council of Madison to require registration of persons qualified to vote at any corporate election, and therefore at an election to approve the local school act of 1889, no ordinance comprehensive enough to include this latter election having been passed when the election was held, the only elective body to which the school act could then be submitted was the legally qualified voters of the city irrespective of registration. The managers of the election having rejected the votes of non-registered electors and confined the vote to the persons whose names appeared on a registration list made under the existing ordinance and with reference to a previous election of a different kind, the submission was not to the whole body of the legal electors. The existing registration ordinance applies only to elections for municipal officers..</p> <p>2. Under the language of the constitution, the school act of 1889 would have to be submitted to all the qualified voters mentioned in the act itself, and two thirds voting at the election would not be sufficient to approve the act unless they were two thirds of the whole number qualified to vote. It would be competent for the city, by passing a proper registration ordinance, to provide for ascertaining the whole number, but until this is done, the act of 1889 cannot be worked in harmony with the provisions of the constitution. For the two local acts referred to, see Acts 1877, p. 174; Acts 1889, p. 1311.</p> <p>3. Registration adds no qualification to voters, but only serves to identify them as persons qualified to vote.</p>

Principal and indorser. Debtor and creditor. Mortgage. Trust. Subrogation. Party. Before Judge Maddox. ■ Floyd superior court. March adjourned term, 1891. The Importers and Traders National. Bank of New York filed its equitable petition against McGhees & Compauy and others, to foreclose, for the benefit of the plaintiff, a mortgage which McGhees & Co. had given to James McGhee, who had indorsed to the bank certain notes given by them to him.

<p>Under the act of December 26, 1845, when a widow, at the time she became covert by a second marriage, had children living by a former husband and was then entitled to property by inheritance, although it was real estate of which she had possession, the same never having been administered or divided so as to assign to her her separate share in severalty, her share when afterwards assigned through regular administration became the common property of herself and her children. And while a marriage contract entered into with her second husband previous to the marriage held off his marital lights, it did not operate to clothe the children with a less or different estate in their shares under the statute, but they took the estate prescribed by the statute, irrespective of any provision to the contrary in the marriage settlement. This results logically from the language and object of the statute as interpreted by this court in Matthews v. Bridges, 13 Ga. 325, and Roby v. Boswell, 23 Ga. 51.</p>

<p>Where, by a'vote of the militia district, the stock law was adopted, and subsequently, but prior to the passage of the act of November 26, 1890, the district line was legally changed so as to add territory formerly belonging to an adjoining district in which the stock law had not been adopted, this added territory became subject to the operation of the stock law by virtue of the act aforesaid, which declares that: “In each and every county and district in this State, the boundary lines of each lot, tractor parcel of land in said counties and districts shall be, and the same are, hereby declared, a lawful fence: provided, that this section shall not become operative in any county or district of this State which has not heretofore abolished or removed fences either by a vote of the people or in pursuance of legal or illegal legislative action, unless by an election and in the manner provided for,” etc.</p>

Claim. Mortgage. Onus. Judgment. Before Judge Janes. Haralson superior court. January adjourned term, 1891. • A mortgage Ji.fa. in favor of Winkles against Reuben Morris was levied on the land mortgaged, and a claim was interposed by Serena Morris, his wife. The property W0.S found subject; claimant’s motion for new tidal was overruled, and she excepted.

Guardian and ward. Bond. Statute. Before Judge Gamble. Rockdale superior court. March term, 1891. The action was upon the boxxd of A. IT. Zachry as guardian of Sarah axxd Loucixxda Reed, orphans of Samuel P. Reed, dated Februaxw 4th, 1867. In evidexxce appeared the returns of the guardian up to December 8, 1879.

<p>1. The evidence showing that the plaintiff’s husband could, by the exercise of ordinary care, have avoided being killed by the engine, she is not entitled to recover for his homicide, even though the defendant’s engineer may have been in some degree negligent, and the court did not err in granting a nonsuit.</p> <p>2. The court did right, on motion of defendant’s counsel, to rule out the testimony of a witness that “the engineer had time to blow the whistle before the deceased was struck,” and in refusing to allow plaintiff’s attorney to ask the witness “if the engineer didn’t have time to signal the approach of the engine, and had he done so, would the deceased not have had time to have gotten off the track?” the court ruling: “You can show all the facts, and it is for the jury to draw conclusions from the facts.”</p>

Criminal law. Practice. Jurors. Waiver. Prisoner’s statement. Evidence. Charge of court. Before Judge Miller. Bibb superior court. November term, 1890. Vaughn was indicted.for the murder of Bowers. He was convicted of voluntary manslaughter, and was sentenced to imprisonment for twenty years at hard labor in the penitentiaiy.

<p>Pleading and practice. Partnership. Evidence. Verdict. Before Judge Ross. City court of Macon. June term, 1891.</p> <p>Reported in the decision.</p>

<p>Contract. Master and servant. Evidence. Before Judge Harris. Campbell superior court. August term, 1891.</p> <p>Reported in the decision.</p>

<p>Garnishment. Judgment. Practice. Before Judge Ross. City court of Macon. June term, 1891.</p> <p>Whitehead sued Thomas Willingham and R. W. Patterson as former copartners using the firm name of Willing-ham & Patterson, for $775, on certain notes and a due-bill, each signed Willingham &'Patterson. Patterson was served, and there was a return of non est inventus as to Willingham. A judgment was taken for plaintiff against defendants for the amount sued for, with interest and costs, in form a judgment by default. Upon the same day, by consent an agreement was ordered placed upon the minutes and made the judgment of the court. This agreement recited that the suit was pending upon notes given for the purchase money of an interest in certain lands purchased by a syndicate from Whitehead; that Patterson had been served, and there was a return of non est inventus as to Willingham who had removed beyond the limits of the State; that Patterson had that day allowed judgment to be entered up against the firm of Willingham & Patterson ; and that it was agreed that Patterson was bound only by the judgment for one half the difference between the value of the tract of land, or the amount said interest in the land should bring at public outcry, and the amount of the judgment. Afterwards Whitehead sued out summons of garnishment upon an affidavit alleging that he had obtained a judgment against Willingham & Patterson for $395.89 principal and interest, etc., and Patterson as principal and R. M. Patterson as security gave a bond to dissolve the garnishment. Afterwards Whitehead, by his attorney, receipted in full the ji. fa. in so far as any liability of Willingham might appear, and authorized the clerk of the court to enter on the docket a release in lull as to Willingham. The garnishment proceeding was returnable to the September term, 1889, of the court. Whitehead moved to enter up judgment against Patterson and the surety on his bond to dissolve the garnishment, for one half the amount due on the judgment. On the day the cause was heard Patterson and his surety filed an answer which Whitehead moved to strike, on the grounds that it was filed too late, that the execution could not be attacked in that way, and that it should have been filed at the term to which the garnishment was returnable. This motion was overruled, and Whitehead excepted.</p> <p>The answer was as follows: (1) Whitehead has no judgment against Patterson, because the judgment against Willingham & Patterson was a consent judgment founded upon a written agreement signed by Patterson upon one hand, and the attorneys of record of Whitehead upon the other, which' agreement was made in open court and was, by order of the court, entered upon the minutes simultaneously with the judgment. This agreement provided that the judgment should be levied upon land for a part of the purchase money of which the suit was brought, that the land should be sold at public outcry by due and proper advertisement, and that Patterson should only be bound for half the difference between the amount of the judgment and the price which the land should bring. The land was advertised and sold at public sale, being knocked off to W. B. Willingham. This defendant believed Willing-ham bought it in good faith. There was no agreement or arrangement between him and Willingham in reference to bidding upon the property. This defendant was present at the sale and bid upon the land himself; the bidding for W. B. Willingham was done by one Hervey; the sale took place between eleven and twelve o’clock on a regular sale day, when there was a crowd in attendance; later, about two or three o’clock in the day, the property was again put up for sale, this defendant not being present, and was bid off by Whitehead, there being at the time very'few if any persons present, besides Whitehead, his attorney and the sheriff. Wherefore, defendant says there is no judgment against him for the amount claimed by plaintiff, hut if there is a judgment against him- at all, it is for half the difference (as yet undetermined) between what the property would have brought at a public sale and the amount of the fi.fa. (2) There is no legal judgment against him, because the amount he is indebted to Whitehead has never been judicially ascertained, the difference between half what the property would have sold for and the .amount of the judgment never having been judicially determined. There is no judgment whatever against him, and in point of law never was; there was simply an agreement on his part that the partnership assets should be sold and applied to the payment of this judgment, and that he should then be liable for his half of the difference between that and the amount claimed to be due plaintiff. This was an unliquidated debt which has never been determined by any court, and therefore there is no judgment against him. The debt upon which the pretended judgment rests was certain notes and a due-bill given by Willingham & Patterson for the purchase price of a one twentieth interest in a certain tract of land. Upon the purchase price they paid Whitehead $200, and he now has the land and the $200, and is seeking by fraudulent contrivances, etc., to obtain far more than the purchase price as the value of the land. The pretended judicial sale was a sham and a device to obtain the property for less than its value. Notwithstanding Whitehead has possession of the property and the $200, he is seeking to .collect more out of this defendant, which he is not in justice or law indebted to him. (3) Whitehead has no judgment or legal claim against him whatever, for the reason that from this judgment, and from the debt on which the judgment was founded, Whitehead has released Willingham, the copartner and co-obligor of Patterson, without his knowledge or consent, which in law is an absolute release to this defendant, and this has been done subsequent to the agreement made and entered into as set out above.</p> <p>The matter was heard before the court without a jury. On the hearing documentary evidence, as above indicated, was introduced. It was admitted that the release of Willingham on the ft. fa. was made without the knowledge or consent of Patterson. There was evidence that the ft. fa. was levied and the property advertised for sale, and sold at public outcry at the courthouse door; that it was first bid off in the morning for $650 by Hervey; that the deed was tendered Hervey and he declined to take it, saying that he bid for W. B. Willingham; that the deed was then tendered Willingham and he refused to take it, saying he did not authorize Hervey to bid so much; that it was then resold, about two or three o’clock in the afternoon, for $500 to Whitehead; that Patterson bid on it in the morning but was not there when it was sold, nor were there as many people present as in the morning; that the sheriff notified Patterson and W. B. Willingham that he would resell and of the hour that he would sell, and Patterson replied that he would repudiate a second sale, that the crowd had dispersed, and insisted that the property should be regularly readvertised and resold, telling the sheriff to say as much to Whitehead and his attorney Freeman, which the sheriff did ; that in Bibb county (where the sale took place) the custom was to hold the regular sales beginning at about eleven o’clock in the morning and continuing until all property is exposed for sale ; Whitehead has sold the property with other property, putting it in at $1,000 ; and that property, especially in this locality, has advanced very much since he bought.</p> <p>The judge overruled plaintiff’s motion to enter up judgment, mainly, if not entirely, upon the ground that the release of Willingham released Patterson as joint obligor and satisfied the execution, notwithstanding the agreement, made the judgment of the court, at the time the judgment was rendered. To this also plaintiff excepted.</p>

Processioning. Practice. Jurisdiction. .Before Judge Martin. Taylor superior court. February term, 1891. In tlie office of the clerk of tlie superior court was filed a report signed by three persons as processioners, in substance as follows : The undersigned pi’ocessioners of tlie 737th district G. M., met on the northeastern part of land lot 109 in the 15th district of Taylor county.

Interest and usury. Evidence. Situs of contract. Security deed. Before Judge Boynton. Pike superior court. October term, 1890. Tlie defendant in error brought assumpsit against Jackson on a promissory note for $625, besides interest at eight per cent., and attorney’s fees, payable to Sherwood or order, at the office of the Ooi’bin Banking Co., New York, and indorsed by Sherwood to the plaintiff.

Damages. Telegraph companies. Before Judge Ross. City court of Macon. June term, 1891. Action by Chapman for failure to deliver, with due diligence, a telegraphic message addressed to him, the declaration containing a count for the statutory penalty, and counts for special damages from mental pain and anguish suffered by the plaintiff. A demurrer to the latter counts was sustained, and the plaintiff excepted. He obtained a verdict for the penalty.

<p>Telegraph comixanies. Penalties. Statutes. Before Judge Atkinson. Glynn superior court. May term,, 1891. '</p> <p>Reported in the decision.</p>

<p>The owner of a promissory note of which another fraudulently obtains possession and which he converts to his own use by suing it to judgment and collecting the amount due thereon, may, in an action of trover, recover from the latter the value of the note, notwithstanding such suit and judgment and the collection thereof, and notwithstanding the plaintiff had knowledge of these facts before bringing suit.</p>

<p>Criminal law. Indictment. Continuance. Evidence. Practice. Charge of court. Before Judge Roberts. Wilcox superior court. March adjourned term, 1891.</p> <p>Reported in the decision.</p>

<p>1. On the trial of an indictment, under section 4578 of the code' against the officer of a railroad company having in charge the transportation department thereof, which alleges that a freight-train was run on Sunday and specifies a particular day of a particular month in a given year, evidence is admissible that the train was run on a Sunday corresponding to any day of any month within two years preceding the finding of the hill of indictment; and proof of guilt on any Sunday to which the evidence applies, will warrant a conviction, though there be no evidence touching the particular Sunday designated by the letter of the indictment.</p> <p>2. If there was any legal excuse or justification for running the train on Sunday, the burden of proving the same was on the accused.</p> <p>3. If the act of February 28th, 1874 (Code, ?4578), is to be construed as allowing freight-trains not carrying live-stock to be run in any case after eight o’clock on Sunday morning, such running is lawful only when the given train has been actually started on or before the previous Saturday night. A freight-train not started on its schedule until 12: 50 a. m. of Sunday morning cannot be lawfully run either before or after eight o’clock of that day.</p> <p>4. Whether tested by the evidence adduced at the trial or that which could have been adduced according to the showing made on the motion for a new trial, the verdict of the jury was correct, and the court did not err in overruling the motion.</p>

<p>Attachment for purchase money. Promissory notes. Transfer without recourse. Before Judge Martin. Muscogee superior court. May term, 1891.</p> <p>The attachment case of Jenkins against Cade coming-on for hearing, Cade moved to quash and dismiss the attachment, upon the ground that it was sued out for the purchase money of a certain described engine and boiler, etc., purchased of the Ames Iron Works, and the notes given therefor had been transferred to Jenkins without recourse, as appeared by the attachment and declaration; and that the remedy of attachment did not exist in favor of plaintiff, he being transferee, the remedy of attachment for purchase money existing only in favor of the original vendor. This motion was overruled, and Cade excepted. It appeared that Jenkins made affidavit to obtain the attachment, that Cade owed him $600 and interest, which debt was created by the purchase by Cade of the engine and boiler, describing them, all made by the Ames Iron Works; and that the engine and boiler were in the possession of Cade. The declaration in attachment alleged that Cade was indebted to Jenkins, doing business under the name of Jenkins & Co., $200 with interest upon account for part price engine and boiler, and also $400 with interest and attorneys’ fees upon two promissory notes; that this indebtedness of $600 was created by the purchase by Cade of the engine and boiler, describing them; that petitioner had sued out attachment, etc, The copies of the notes attached to the declaration showed that they were made payable to the order of the Ames Iron Works, and were transferred, without recourse, by the Ames Iron Works to Jenkins & Company.</p>

Bailments. Banks and depositors. Diligence. Before Judge Harden.' City court of Savannah. July term, 1891.

Carriers. Negligence. Onus. Notice. Charge of court. Before Judge Eve. City court of Richmond county. August term, 1890. White & Company sued the railroad company for failure to deliver goods in good order. The jury found for plaintiff $2,659.50; defendant’s motion for a new trial was overruled, and it excepted. The motion contained the following grounds: 1.

Contract. Statute of frauds. Trust. Before Judge Boynton. Washington superior court. March term, 1891. A demurrer to the equitable petition of RaAAdings against Ronghton Avas overruled, and the defendant excepted.