Volume 89 — Georgia Reports

<p>T. A levy upon land entered on they?, fa.- in these terms, “Thave' this day levied the within fi. fa. on 422 acres of land as the property of H. P. Smith, and given the tenant in possession notice,” signed by the sheriff, is void for uncertainty, and a sale thereunder passes no title as a sheriff’s sale merely. But if the defendant in execution was present and was mentally competent to conséht to the sale, and did so consent, and got the benefit of it in the application of the proceeds to valid judgments against him, his administrator, as well as himself, would be bound thereby.</p> <p>2. If the defendant in execution was incompetent to consent, but in fact used language expressive of consent, and this was acted upon in good faith, his administrator could not in equity cancel the sheriff’s deed and recover the land without accounting for so much of the purchase money as his intestate had the benefit of, with interest thereon. And unless the profits of the land with which the purchaser is chargeable would equal the amount of such money with interest, the difference should be paid or tendered before the deed is cancelled; or if necessary, the land should be decreed to be sold to raise a fund for this purpose. Deterring bidders at a sheriff’s sale for the benefit of the defendant, and with his consent, would not vitiate the sale as between him and the purchaser.</p>

<p>Husband and wife. Wills. Legacies. Trusts. Title. Evidence. Judgments. Before Judge McWhorter. Taliaferro superior court. August term, 1890.</p> <p>Deported in the decision.</p>

<p>1. Under the evidence the damages found by the jury were grossly excessive, and for this reason a new trial should have been granted.</p> <p>2. It being uncertain whether testimony offered related to the particular transaction under investigation, or to another, it was not error to admit the testimony under instructions to the jury to the effect that it was for them to determine whether it did or did not relate to the transaction in issue, and if it did, they could give it such weight as they saw proper. It would have been better, however, to add that if it did not relate to this transaction, they should disregard it entirely.</p> <p>3. When a railroad company sells a ticket to a flag station, at which its trains do not stop unless signalled to do so for the purpose of receiving passengers, or when there are on board passengers bound for such station, it is, ordinarily, the duty of the conductor, before reaching the station, to ascertain from a passenger holding such ticket bis destination, and to stop the train there for the purpose of allowing the passenger to leave the train. This rule, under special circumstances, is subject to exceptions.</p>

Practice in Supreme Court. Attachment for contempt. Before Judge Roney. Richmond county. At chambers, January 30, 1892.

Injunction and receiver. Administration. Judgment. Before Judge Miller. Butts 'county. At chambers, November 30, 1891.

Executors and administrators. Injunction. Before Judge Miller. Bibb county. At chambers, November 9, 1892.

<p>New trial. Before Judge Martin. Talbot superior court. March term, 1892.</p> <p>It appears from the record (partly by inference, as the original bill and answer were not transmitted to this court) that Mrs. Bradshaw obtained a verdict in ejectment against Thornton for a part interest in land lot 225 in the sixteenth district of Talbot county; and that Thornton filed his bill alleging that Mrs. Adams, the mother of Mrs. Bradshaw, sold the lot to Weekes & Go. through whom he claimed, and with the proceeds purchased other land, a portion of which she conveyed to Mrs. Bradshaw who took it in payment for her interest in lot 225, and that this last mentioned fact was unknown to Weekes or Thornton until after the verdict and the adjournment of the term of court at which the trial of the ejectment case was had. Thornton prayed that Mrs. Bradshaw be perpetually enjoined from proceeding with the writ of possession and judgment for mesne profits. In her answer Mrs. Bradshaw alleged that the deed which conveyed to her an interest in lot 225 was 'on record when Weekes & Co. purchased from Adams, and they were charged with notice of the interest of Mrs. Bradshaw. She denied that any part of the money received of Weekes & Co. paid for the land deeded to her by Mrs. Adams, or that Mrs. Adams, in- consideration of the interest of Mrs. Bradshaw in lot 225, conveyed the other land mentioned, or that she accepted the land in satisfaction of her interest in lot 225, or that the deed made to her by Mrs. Adams had anything .to do with her (Mrs. Bradshaw’s) interest in lot 225, but alleged that it was in consideration of money due her by Mrs. Adams. In response to questions submitted by the court the jury found that the money of Weekes & Co. went in payment for- the land conveyed by Mrs. Adams to Mrs. Bradshaw; that Mrs. Bradshaw accepted the land conveyed to her by Mrs. Adams in lieu of and in satisfaction of the interest conveyed by Mrs. Adams to Weekes & Co.; and that Thornton, when the ejectment case was tried, did not know and could not by reasonable diligence have ascertained that the money and notes paid by Weekes & Co. to Mrs. Adams for the land purchased of her, had been invested in the land purchased from Baldwin, which was afterwards conveyed by her to Mrs. Bradshaw. Mrs. Bradshaw moved for a new trial upon the grounds that the jury answered the several questions in a manner not authorized by the evidence and contrary to the evidence; and that the evidence did not show that she agreed to take the lands (conveyed to her by Mrs. Adams) in settlement of her interest in lot 225. The motion was overruled, and she excepted.</p> <p>From the evidence it appeared that in 1848, Bobert Adams conveyed 150 acres of lot 225 to his daughter-in-law, Mrs. Sarah Adams, and her children, which deed was recorded in 1849. The person who wrote the deed from Mrs. Adams to Mrs. Bradshaw, testified : He told the parties there must be some consideration in the deed. Mrs. Adams told him that the land conveyed in the deed was taken and received by Mrs. Bradshaw in payment of her interest in lot 225. Mrs. Bradshaw was present and heard all the conversation and they “told it over. Had sold to W. J. Weekes & Company.” He did not recollect that Mrs. Bradshaw told him she had received the 150 acres of land in satisfaction of her interest in lot 225, but he thinks Mrs. Adams said she deeded the 150 acres to Mrs. Bradshaw for this purpose; and that the latter was present and did not deny it. The $500 consideration put in the deed was for nursing and attention and waiting on Mrs. Adams while sick. He understood Mrs. Adams paid for the land which she was then “leaving” and which she bought of Baldwin, in notes that she got from Weekes & Co. for the land sold them. The $500 consideration was for waiting on Mrs. Adams in her last sickness and for Mrs. Bradshaw’s interest in lot 225. This statement he claimed to make on refreshing his memory, as he had not thought of the matter in ten years. $200 of the consideration was for nursing and attention to Mrs Adams, and $300 for Mrs. Bradshaw’s interest in lot 225, and Mrs. Bradshaw went into possession of the land and is now in possession of it. He did not tell Weekes & Co. or any member of the firm about it. It further appeared for plaintiff that Baldwin sold to Mrs. Adams about 400 acres of land and received in payment two notes of Weekes & Co.; that the land deeded by Mrs. Adams to Mrs. Bradshaw was part of the land Baldwin sold to Mrs. Adams; that the notes were paid to Baldwin by "Weekes & Co., and be did not tell them, or either member of the firm, what consideration he had paid for the notes ; that Thornton made the contract for lot 225 with Mrs. Adams, and did not at the time know anything of Mrs. Bradshaw having an interest in it; that he bought about 400 acres from her, number 225 being part of the purchase; that at the time of the ejectment trial he did not know that Mrs. Bradshaw had received land in payment of her interest in lot 225, but learned it after the trial, and as soon as he learned it, filed his bill; that Weekes & Co. paid Mrs. Adams for their purchase in notes ; that Weekes at the time of the trade did not know that Mrs. Bradshaw had any interest in the land ; that the interest of Mrs. Bradshaw in 225 is not worth as much as the 150 acres conveyed to her by Mrs. Adams; and that Mrs. Adams was probably insolvent at the time of her death.</p> <p>For the defendant Mrs. Bradshaw testified: She bought, from her mother the land which her mother convoyed to her, and paid for it in money. She does not know anything about what was paid by or to Weekes & Co., or in what the payment consisted. The deed to her was not for her interest in 225, and there was no secret to be kept in reference to the transaction. Her mother was indebted to her besides the amount due for her interest in 225, and there had been no settlement for that interest, nor did her mother give her any other land, or interest in any, for such interest. When she bought the land from her mother her mother was owing her, but she does not remember the time or amount. She lived with her mother until her mother’s death. Supported herself. There were six children, but two were dead several years before Mrs. Adams’ death.</p>

Evidence. Practice. New trial. Witness. Before Judge Q-uerry. Randolph superior court. November adjourned term, 1890. Complaint on an account for a gin, feeder and condensér was brought on October 15,1887, by O. H. Miller against J. A. & J. B. Payne: The defendants pleaded not indebted, breach of warranty, and recoupment; and they prayed for a rescission of the contract of sale.

New trial. Wills. Before Judge Fort. Dooly superior court. March term, 1891. James A. Lane as executor of John A. Mayo offered the will of Mayo for probate.

Attorney and client. Arbitration and award. Be-Judge Port. Dooly superior court. March term, 1891. Mrs. Middleton sued McElreath for balance due upon an account for board, $96.68, and obtained a verdict for that amount. Defendant’s motion for new trial was overruled, and he excepted.

Injunction and receiver. Mortgage. Practice. Before Judge Miller. Schley county. At chambers, July 17, 1891.

Rule against constable. Amendment. Practice. Before Judge Bower. Decatur superior court. May adjourned term, 1891. The petition alleged that Valentine, the constable of the 1188th district G. M., had had two fi. fas..of Kwilecki and Russell against Reynolds, issued from the justices’ courts of the 513th and 635th districts G. M., in his hands long enough to have made the money due, and had not done so, and that the defendants in fi. fa. resided in the 1188th district.

Execution. Bona fide purchaser. Partnership. Before Judge Bower. Dougherty superior court. April term, 1891. Claim was interposed by Westbrook to the levy on land of an alias execution. The court directed a verdict finding the property subject, and afterwards denied a new trial, and the claimant excepted.

<p>Attachment. Garnishment. Judgment. Practice. Indorsement. Draft. Before Judge Bower. Dougherty superior court. April term, 1891.</p> <p>Attachment was sued out by Mayer against Laidley & Co. and the Fourth National Bank of Cincinnati, • Ohio, on April 18, 1890, and on the same day a summons of garnishment issued and was served on the First National Bank of Albany, and its answer was traversed. At the trial the following facts appeared: Laidley & Co., of Cincinnati, Ohio, sold and shipped to N. L. Bagan, of Albany, Ga., a car-load of meat for which he was to pay on arrival at Albany. On the same day (April 11, 1890) they drew on Ragan for the price of the meat, attaching to the draft the bill of lading issued at Cincinnati to “shippers’ order” with direction to “notify N. L. Ragan, Albany, G-a.” indorsing the bill of lading to the Fourth National Bank of Cincinnati, and indorsing the draft, “ For deposit to the credit of F. A. Laidley & Co.,” which was their regular indorsement on checks and drafts deposited. The draft was payable on demand.' It was further indorsed by the cashier of the Fourth National Bank “for collection and returns.” Three days after the date of the draft Laidley & Co. deposited it with the attached bill of lading in their current account with the Fourth National Bank, and the amount of the draft was credited to them on the books of that bank. The deposit-slip contained, among other words, “All checks credited subject to payment.” The First National Bank of Albany, as the agent of the Fourth National Bank, received for collection the draft with the bill of lading attached, and the draft was paid and the bill of lading taken up with it by Mayer who had, by purchase from Ragan, assumed his rights and liabilities. The Fourth" National Bank had no knowledge of Mayer, nor of the condition of the meat, at or before the draft and bill of lading came into its possession. On April 18,1891, the meat was received and inspected by Mayer, and found to be damaged to the extent of $250 ; and he immediately sued out the attachment and garnishment. The defendants represented were the two banks; Laidley & Co. did not appear and were not represented.</p> <p>The judge, to whom the case was submitted without a jury, rendered judgment for $250 against all the defendants. The' two banks except, and insist that so far as the judgment relates to them it is contrary to law and evidence; that the Fourth National Bank was the owner of the bill of lading and draft without knowledge of defect, damages or equities between the sellers and purchaser; and that when the draft was paid the money belonged to that bank, and no judgment should have been rendered against it or against its collection agent, the First National Bank.</p>

Landlord and tenant. Contract. Title. Before Judge Roberts. Dodge superior court. February adjourned term, 1891. Trover was brought on August 6, 1889, by Rawlins against Busli & Brother. He obtained a verdict, and the defendant's excepted to the overruling of their motion for a nonsuit, and to the denial of a new trial.

Administrator’s sale. Title. Dower. Bona fide purchaser. Before Judge Roberts. Pulaski superior court. May term, 1891. The complainants were John and E. J. Henry; the defendants were Thos. N. and Louisa Chancey. The contest was as to a tract of land of which one Wallace, the father of Mrs. Chancey, died seized.

<p>Liens. Material men. Evidence. Ratification. Religious associations. Before Judge Roberts. Pulaski superior court. May term, 1891.</p> <p>This case was before this court at the March term, 1890,' and will be found reported in 85 Ga. 587. In that report appears a sufficient statement of the pleadings of plaintiff. This court there held that the court below erred in refusing an amendment, and in sustaining the demurrer to the plaintiff’s petition. Afterwards the amendment which had been rejected was made. The defendants pleaded not indebted; that they were not liable to plaintiff'; never contracted or promised to pay the claim sued on; and the statute of frauds. Some of the defendants pleaded not indebted; that they never contracted with plaintiff to furnish lumber or material, and never authorized any one to do so for them; that they knew nothing of the contract for furnishing it'; that at the time alleged they or either of them were not trustees of the association and were not in any way responsible as trustees or individuals, for the debt; that at the time alleged in the declaration they did not represent a building committee of the association in manner and form as charged, and were not liable in any capacity. One of defendants, who had been made party1 as administrator of an original defendant, pleaded plene administravit. By amendment it was pleaded that the debt, the subject-matter of tho suit, was the individual debt of O’Brien who was the contractor to erect the building in question ; and that defendants were in no way liable for the contracts, debts or default of O’Brien, having never agreed to become responsible for the same, but it was distinctly understood that the same was his debt. He made no defence and was not represented by counsel ; all the other defendants were so represented, and filed pleas. There was a verdict for plaintiff for the sum sued for, and that the lien claimed be sustained and established “on the building and lands in dispute, and that the same be sold and so much of the proceeds as may be necessary be applied to the payment of plaintiffs said debt.” Exceptions were taken to the following rulings:</p> <p>1. Plaintiff introduced . the original claim of lien, which showed that it was recorded on April 14, 1886. Defendants objected to its introduction, on the ground that it was not recorded until April 14, .1886, and some of the items on the bill of lumber sued on and for which the lien was claimed showed that more than three months had elapsed before the recording of the lien. The court overruled the objection and allowed the lien to go in for all the items on the account.</p> <p>2-4. The court gave the following instructions in charge :</p> <p>“Now if you believe that the plaintiff furnished the material, as alleged in his declaration, to the defendant, and in doing so he complied with all the terms of the statute just read to you, then you should find a verdict sustaining the plaintiff’s lien.</p> <p>¡ “It is contended by the defendants that the New Ebenezer College, is not responsible for said debt, because they made a contract with O’Brien to build the college and that, by the terms and conditions of the said contract, said O’Brien assumed the liability of paying for all of the material necessary to build the said college, that said defendants had paid said contractor for all the said material.</p> <p>“I charge you that if you believe from the evidence, that the material was furnished to the contractor and the same was used in the construction of the college, with the knowledge and consent of the defendants who were superintending the construction of the building, then I charge you that the building would be subject to the plaintiff’s lien, provided the plaintiff had a lien under the law I have given you in charge.</p> <p>“I charge you, if O’Brien built the college, purchasing the material in controversy from plaintiff under circumstances from which the law would infer a lien, and that one of the defendant’s agents went with O’Brien and instructed the plaintiff to let him have the lumber and they, the defendants, would pay for it, and the lumber was actually furnished, then the college would be liable.</p> <p>“If you believe that one of the building committee appointed by the college, went with the contractor and told the plaintiff to let him have the lumber and they, the defendants, would see the same paid for, then I charge you that the property would still be subject, as such instructions would show notice and dispense with notice necessary to preserve the lien given by the statute, and this would be true notwithstanding the committeeman had no authority to have made such a contract, provided the contract was subsequently ratified by the use of the material in the building.</p> <p>“It does not make any difference to the existence of the lien that the defendant may have paid off the debt sued on, or that they have made a contract with O’Brien by which O’Brien may have, under his building contract, tried to release them from any liability to pay for the material furnished in the construction of the college.</p> <p>“The lien given under the law that I have read you is a right given to a favored set of creditors, and when it exists, by a full compliance with the terms of the statute, could not be defeated by the owners of the property paying the contractor for the material furnished, or by an assumed liability to pay for such material by the contractor, the material man not consenting thereto.”</p> <p>5. O’Brien was introduced as a witness, and counsel for the other defendants objected to his testifying as to what Wright, the dead defendant, said when he went with O’Brien to Gresston to see about getting the lumber, on the ground that as Wright was dead and the interest of the other defendants was antagonistic to O’Brien who, they averred by their pleas, was the real debtor to plaintiff, it being his individual debt for which no one else was responsible, he was an incompetent witness. The objection was overruled and O’Brien was permitted to testify as to what Wright had said about paying for the material and becoming responsible for the payment. Defendants also objected to Gress, the president of plaintiff, testifying as to- what O’Brien said to him about defendants paying for the lumber, on the ground that it was illegal, and because O’Brien was one of the defendants making no defence; and O’Brien’s statements to witness should not be permitted to bind the other defendants, especially as Wright, who was the only other defendant present at the time besides O’Brien, was dead. The objection was overruled.</p> <p>6. Defendants moved to rule- out the testimony of one Williams, as to the offer by Mayei’, one of the defendants, to pay fifty cents on the- dollar, on the ground that it was in the nature of a compromise and was inadmissible. The objection was. overruled. The testimony was, that some time in March, 1886, Mayer said in the presence of "Walker and Mullis, two of defendants, that if O’Brien-would pay the account of one Henley, the building committee would pay the account of the Gress Lumber Company; that witness went to see them several times after that, and after O’Brien had paid Henley, and they refused to pay the account in full, but offered to pay fifty cents on the dollar; that these parties were acting as the building committee and had charge of the building of the college ; that Walker and Mayer spoke of increasing their subscription and paying it out of their own pocket; and that Mayer, as one of the building committee, made the offer to pay fifty cents on the dollar, which was refused.</p>

<p>Injunction and receiver. Debtor and creditor. Contempt. Before Judge Roberts. Dodge county. At chambers, December 5, 1891.</p> <p>The exceptions are, (1) to the denial of an injunction and a receiver, and (2) to the dismissal of the proceedings for contempt against two of the defendants. The petition was in behalf of six parties, creditors of J. W. Lee by notes and accounts in various amounts aggregating over fifteen hundred dollars. It was presented on October 24, 1891, and showed that most of the indebtedness referred to was contracted in 1891 and became due in October. It was further alleged that for several years past Lee has been a trader or retail merchant in Eastman, and his indebtedness to petitioners, who are wholesale merchants and dealers, is for goods sold by them to him for the purpose of being sold by him to his customers at retail in the regular course of trade as a retail merchant, and the goods were placed by him in his store at Eastman for that and no other purpose, and to be disposed of in no other manner would petitioners have sold them to him on credit as shown by the notes and accounts exhibited. Instead of continuing in his business as a retail merchant and selling said goods at retail in the regular course of trade as was contemplated by the parties at the time of the purchase of the goods, Lee about the first or second of October, just as some of his indebtedness became due and before some of it was due, sold at wholesale for cash to S. Ilerrman, Bro. & Co., who also are retail merchants in Eastman, his entire stock of merchandise including the goods sold to him by petitioners, as well as the goods he had bought from other wholesale merchants and not paid for, said sale being made quietly and secretly and without knowledge of petitioners or other creditors of Lee, and being at a discount of forty per cent, from the wholesale price at which the goods were sold to him by petitioners and his other creditors; and thus he has sold and converted his entire visible property liable to the payment of his debts, into cash which he conceals and refuses to pay to petitioners and his other creditors, and has caused the title to all other real and personal property which he acquired while engaged in said mercantile business to be made to his wife in fraud of his creditors. On April 20, 1887, he purchased from Leiteh & Morgan part of a certain lot of land to which he obtained a deed from them, and built thereon the house in which he now resides. On June 30, 1887, he conveyed said premises to the Amoskeag Lumber Oo. for lumber purchased from it by him and used in the construction of the house; and on December 2, 1887, he paid the debt, but caused a deed to be made by that company to his wife in order to put the property beyond the reach of his creditors both existing and those who might afterwards become such, and thus to defraud them. On April 18,1889, he purchased from L. M. Peacock one eighth of an acre of the same lot of land, adjoining the premises above referred to and now under the same enclosure, but for the like purpose of defrauding his creditors he caused the deed to be made to his wife. All of the acts heretofore mentioned were done by him for the purpose- of avoiding the payment of. his debts to petitioners and others ; and in purchasing the stock of merchandise Herrman, Bro. & Co. knew that such was his intention, for, being themselves retail merchants, they well knew that no merchant of moderate means could sell his whole stock in trade at such discount without defrauding his creditors; and they also knew that it was upon their own recommendation that petitioners Einstein’s Sons sold their goods to Lee on credit, and thus Herrman, Bro. & Co. participated in the fraud*of Lee, for they paid only about $1,300 for the stock which was valued by them and by Lee at about $2,200, and they quickly removed the goods to their own store as soon as the sale was consummated. The stock so attempted to be sold, the money arising from said sale, and the real estate mentioned, are assets charged with the payment of debts due petitioners and 'other creditors ; and there is manifest danger of loss or material injury to petitioners and other creditors unless a receiver is appointed to take the assets and hold them subject to the direction of the court, for Lee is absolutely insolvent and has no other property and no source of revenue to meet his obligations ; and there is no adequate remedy save by injunction and receiver and the exercise of equity powers whereby the assets may be reached and applied to the payment of his debts ; and pending the delay of litigation in any other manner the money realized by him from the sale of the stock of merchandise would be disposed of by him ; and the real estate might be sold to ■innocent purchasers by Mrs. Lee under his influence; and Herrman, Bro. & Co. have already mingled the stock of merchandise with other similar goods in their store, so that it would be difficult if not impossible to identify them. The prayer is, for receiver to take possession of the stock of merchandise and the money arising from the sale of it, and hold the same subject to the direction of the court; for judgment for the amounts of petitioners’ debts ; for decree that the property be sold and applied thereto, and that the real estate be subject thereto, and that the sale to Herrman, Bro. & Co. is null and void; that they be required either to deliver the stock of merchandise to the receiver, or to pay him $880 which is the difference between the actual wholesale value of the stock and the price paid by them for. it; that Lee be required to turn over to the receiver the money so paid, and be enjoined'from otherwise disposing of it; that Mrs. Lee be enjoined from disposing of or encumbering the real estate; that, if the court deem it necessary, an attachment issue against Lee on the ground of his selling and concealing his property liable to the payment of his debts, for the purpose of avoiding such payment, and that this proceeding be used in aid of such attachment; and for general relief and process.</p> <p>Attached are copies of the accounts and notes of petitioners, with affidavits verifying the petition. A restraining order was granted, and a temporary receiver appointed to take possession of the stock of merchandise and the money arising from the sale of it.</p> <p>The defendants, Lee, Mrs. Lee and 8. Herrman, Bro. & Co., demurred on various grounds, and made answers from which the following appears: About five years ago Lee commenced business in Eastman, and during said time has been engaged in various enterprises, some conducted by himself and some with partners. In the fall of 1888 he entered into partnership with Mré. E. B. Milner, and under the firm name of J. W. Lee & Co. they conducted a mercantile business until about the first of January, 1890, when the partnership was dissolved, Lee retiring and selling his interest in the business to J. W. Taylor, with the agreement on the part of the purchasers, who assumed the name of Taylor & Milner, that they would pay all the obligations of the old firm, which defendants are informed were promptly paid. When Lee entered the partnership with Mrs. Milner he had a small capital in money, and did not owe a dollar to any man. On retiring from said business he. commenced business in his own name about January 15, 1890, buying a stock of goods for which he paid cash. He was then out of debt and owned his stock of goods so purchased. He continued to run the business thus commenced until the first or second of October, 1891, when he sold his stock of goods and fixtures to Herr-man, Bro. & Co. for $1,345.96 cash, which was paid to him at that time and was a fair price for the stock and fixtures sold, considering their condition, etc. The sale was not for the pimp ose of defrauding his creditors; nor did Herrman, Bro. & Co. know that such was his object, or that he was indebted to petitioners, or that the goods they were buying had not been paid for, or that it was his purpose to convert his visible assets into cash, or that in making the sale he was engaged in a fraudulent scheme, or that petitioners would be hurt thereby. The sale was not quietly and secretly accomplished, nor was the price paid less than the true cash value of thegoods, nor were they removed quietly as soon as the sale was consummated. The sale was made one day, stock taken and the store closed, and in the busiest part of the next day the goods were removed by Herrman, Bro. & Co. to their store where for several days they were kept separate and apart from the large stock of goods of Herrman, Bro. & Co., though since then they have been placed on the shelves and it would be impossible to identify them. Lee offered the goods to a number of different persons, making no secret of it; and he does not suppose there was a man in town, hardly, but knew of the trade, and that the stock was being taken for the purpose of closing the transaction. Herrman, Bro. & Co. had known him for many years. He went to them, as he did to several others, and offered to sell the entire stock, saying he desired to quit business. At first Herrman, Bro. & Co. did not want to purchase, and the sale was not accomplished until after considerable negotiation ; and inasmuch as there was considerable old stock on hand, they did not and could not pay him what he had paid for the goods. The purchase was in absolute good faith and without notice of the alleged indebtedness or fraudulent intention. Not all of the goods sold by petitioners to Lee were sold to Herrman, Bro. & Có.; on the contrary he sold, in the course of trade, large quantities of the goods purchased from petitioners; and it would be impossible to say how much of the purchases from petitioners were in the stock sold, or in what it consisted. Herrman, Bro. & Co. never recommended to Einstein’s Sons that they sell Lee on a credit, nor participated in any of the alleged frauds of Lee. Herrman, Bro. & Co. are solvent and amply able to respond in a suit at law to any demands which petitioners may have against them. At the time of the purchase by Lee of the realty from Leitch & Morgan he had not married. He married shortly afterwards, built the house and gave it to his wife for a home, causing the Amoskeag Lumber Co. to execute a deed to her, he having previously conveyed the land to that company to secure a debt for material with which to build the house. He fully paid the debt, and denies that he caused the deed to be made to his wife in order to place the property beyond the reach of his creditors and thus defraud them, but avers that he gave her the premises because of love and affection. He was not then indebted to petitioners or any other person or persons, and did not become indebted until long after this gift. The purchase price of the land bought of Peacock was only $15. On the first of January, 1890, he arranged for the payment of all the debts he then owed, as heretofore stated, iu the sale of his interest in the business of J. W. Lee & Co. The property aforesaid is all the property he has ever given to his wife, and was given to her when he was solvent, out of debt, and able to do so in law.</p> <p>On November 14 the petitioners presented to the iudge two other petitions in which they alleged that on the 24th of October the temporary receiver had demanded of Lee the money ($1,300) which had been paid to him by Herrman, Bro. & Co.', and of Herrman, Bro. & Co. the stock of merchandise sold to them by him, both of which demands were refused; and that on the 2d of November he had again made the same demands, which were again refused. Wherefore they prayed for an order to show cause why the defendants named .should not be punished as for contempt of court. Iii answer to the rule nisi Lee swore that he was unable to make the surrender required in said order, “owing to the fact that the money arising from the sale of the stock of goods had been paid but upon bona fide debts prior to the filing of the bill by complainants, and not for the purpose of defrauding creditors, but simply to dischai’ge valid subsisting debts, and it is not in his power, custody or control.” Herrman, Bro. & Co. answered that it was impossible for them to turn over to the receiver the stock of goods referred to, because the goods so purchased of Lee remained to themselves in their store for several days during which time a good portion of them were sold, and having placed the remainder of them in stock with other goods and placing respondents’ trademark upon them, prior to the filing of the bill by complainants, it was impossible to distinguish them from other goods in stock, there being at that time a large stock of goods in their store consisting of general merchandise, among which were a great many goods similar to the stock purchased from Lee.</p> <p>By consent the entire case made by the petition, demurrers, pleas, answers, attachment proceedings and affidavits, was heard and determined together. Evidence was introduced by both sides. Its nature and effect is indicated by the foregoing statement of the pleadings. The first head-note states the controlling facts.</p>

Criminal law. Murder. Manslaughter. Assault and battery. Charge of court. Before Judge Atkinson. Glynn superior court. December term, 1890. Boatwright was charged with the murder of Barkaloo. He was found guilty of voluntary manslaughter, and to the overruling of his motion for new trial'he excepted.

Criminal law. Murder. Charge of court. Before Judge Atkinson. Ware superior court. April term, 1891. Chavos was indicted for the murder of H. A. Culpepper. There was positive evidence as to his guilt introduced by the State ; evidence of witnesses who saw the killing, and who testified that the prisoner was the man who committed the exime. He introduced no evidence. His statement was: “ I am here arrested for the man that done the killing of Mr. Culpepper. I am not the man.

Master and servant. New trial. Before Judge Atkinson. Ware superior court. April adjourned term, 1891. Action for damages by Guy against the Waycross Lumber Co.; verdict for the plaintiff; motion of the defendant for a new trial, overruled.

<p>Equity. Fraud. Cancellation of deeds. Account. Before Judge Roney. Johnson superior court. March term, 1891.</p> <p>The petition alleged ; Petitioners are the children, of lawful age, and the only heirs-at-law of Bryant Kent, who died intestate about July 25, 1887. About September 9, 1882, Bryant Kent, being then in feeble health from which his mind and will power was so impaired as to render him incapable of safe and prudent business transactions, and susceptible to undue and fraudulent influences, was fraudulently induced by his brother, Thomas Kent, to execute and deliver to him a deed, conveying to Thomas Kent in fee simple a tract of land (describing it), and certain live-stock, personalty, notes and accounts, also described. The consideration expressed on the face of the deed was natural love and affection, and that Thomas Kent should keep, support and maintain said Bryant, as a member of his family, during the natural life of Bryant. "When it was executed Bryant was stopping at the home of his brother, and on account of his physical and mental weakness was incapable of transacting business, and relied with implicit confidence on the advice and direction of Thomas, who, taking advantage of this weakness and confidence, represented to Bryant that his afflictions were permanent, that he would never be able to transact business so as to protect bis property from ultimate loss, that he would soon be without property and be dependent in his old age and afflictions upon the charity of his friends and relatives for support, all of which he could avoid by executing to him, Thomas, said deed, who would take charge of the property and business of him, Bryant, and relieve him of further care or responsibility for its management, and provide him with a comfortable home and ample support and medical attention during his life. Bryant was led further to believe that his business and property were in a confused and complicated condition, which would result in no profit but perhaps great loss to Thomas in “closing” for the considerations expressed in the deed, but he would do so in consideration of the comfort and satisfaction of his brother, whose interest he felt it his duty to provide for in his afflictions. By these false and fraudulent means Bryant was induced to execute and deliver the deed together with the property described in it, when in fact he was comparatively out of debt and his business in no way complicated or confused. As soon as the deed was executed Thomas proceeded to take possession of the property and also all otlier property belonging to Bryant, a list of which, so far as petitioners have been able to obtain the information, is set out. He collected claims due Bryant, amounting to $126.50, and the interest of Bryant in the estate of his deceased mother, upon which he received $100, all aggregating the value of $2,800.50, besides the interest and profits thereof. As soon as possible after taking possession of the property, Thomas sold one hundred acres of the land to one Downs, for $500 cash, and Downs had notice at and before the purchase, of the fraud practiced by Thomas in procuring the deed. Thomas appropriated the proceeds of the sale of the land to his own use and proceeded to sell the balance of the property, such as he -could not otherwise appropriate to his own use, to various parties, who were, so far as petitioners know, innocent purchasers. As soon as Thomas had disposed of the property he refused to comply with the obligations assumed by him, and refused to keep, support and maintain Bryant, only so long as he could make him useful by labor imposed on him which he -was unable to perform ; and at last refused to receive Bryant at his house or provide for his comfort and medical treatment during his last illness, while Bryant was totally unable to provide for himself and required constant nursing and attention. In order to keep - their father from suffering and neglect petitioners had to take and provide for him at their homes. The property so obtained by Thomas was largely in excess of the sum necessary to be expended in the support and maintenance of Bryant, and to have provided him with such comforts and attention as he was entitled to in his last illness. Bryant never recovered his physical and mental strength sufficiently to demand and protect his rights in the property, but his afflictions increased until, for a considerable length of time before his death, he was utterly helpless. For the reason mentioned the deed is void;- and Thomas as to all the property, and Downs as to the land bought by him from Thomas, hold as trustees for Bryant and his heirs, and Thomas should be required to account to petitioners for-the full value of the property, and the deed be declared void, to which end petitioners have, since their father’s death, applied to Thomas for an accounting and settlement, with which proposition he refuses to comply. The pi*ayer is, for cancellation of both the deeds, and that Thomas be required to come to an accounting with petitioner's for all the property, etc. The deed from "Bryant to Thomas Kent is attached as an exhibit. Petitioners were allowed to amend by alleging that there were no debts against the estate of Bryant Kent, and that no administration had been taken out on his estate. The date of the filing of the petition seems to be March 3, 1890.</p> <p>The defendants demurred on the following grounds : The allegations in the declaration do not entitle plaintiffs to the relief sought or any other relief; the title to the personalty mentioned is not in plaintiffs, the right to sue being only in the administrator of Bryant Kent; and defendant Downs has a good title by prescription to the land of which he is alleged to be in possession. The demurrer was overruled, and the defendants excepted.</p>

Municipal corporations. Duress. Actions. Torts. Before Judge Maddox. G-ilmer superior court. October term, 1890.

Actions. Torts. Trials. Charge of court. Negligence. Verdict. Before Judge Meyerhardt. City court of Ployd county. December term, 1890.

Criminal law. Forgery. Evidence. Practice. Prisoner’s statement. Jurors. Verdict. Before Judge Harris. Coweta-superior court. September term, 1889.

Promissory note. Mortgage. Bona fide purchaser. Husband and -wife. Verdict. Before Judge Boynton. Henry superior court. April term, 1891.

Amendment. Partition. Equity. Homestead. Before Judge G-uerry. Randolph superior court. May term, 1891.

<p>1. Where, on a trial for murder, the prisoner’s counsel requested the court to give its charge to the j ury in writing, and after complying with the request, the court gave orally other and additional charges, it is cause for a new trial, although the additional charges were given upon a request of the jury- for further instruction.</p> <p>2. The accused being between the ages of ten and fourteen years, the court, after reading to the jury section 4294 of the code, is not, in the absence of a special request, bound to further charge that they should be satisfied he knew the distinction between right and wrong as to the particular transaction under investigation before they would be authorized to find him guilty; but it would be entirely proper and right to add this additional instruction, as explanatory of the true meaning of the section.</p>

Actions. Torts. Amendment. Railroads. Negligence. New trial. Before Judge Maddox. Floyd superior court. March term, 1891.

<p>Criminal law. Evidence. Witness. New trial. Before Judge Martin. Muscogee superior court. May term, 1891.</p> <p>Elbert Ramsey and Ed. Marion were found guilty of an assault with intent to murder William Thomas. Their motion for a new trial was overruled, and they excepted. The motion contained the general grounds that the verdict was contrary to law, evidence, etc.; an assignment of error on the court’s refusal to permit dedefendants’ counsel to ask Phillips, a witness for the State, the question quoted in the first head-note ; and a ground of newly discovered evidence.</p> <p>Upon the trial it appeared, from the range of the wound, that Thomas must have been higher than the party who did the shooting. Thomas testified: Ramsey was in his employment up to the last of January, 1891. He could not say positively that he had known Marion, but a short while before he discharged Ramsey he saw a person with Ramsey at witness’s fish-house, who, Ramsey informed him, was Marion. Witness started for home a few minutes before ten o’clock on the night of February 7, 1891. He drove up Second avenue until he got to a branch half way between 18th and 19th -streets. He lived at the southwest corner of 20th street and Third avenue. Just before reaching the branch he saw two boys on the east side of the street. He stopped his horse to drink at the branch. The two boys walked up on the bridge while the horse was drinking, and stopped and looked right down on witness. It was a dark night, but the electric light was burning. Witness. continued on his way home, and the boys went the same way he did for part of the distance. He drove to his stable, which is about fifty yards from Second avenue and about half way between Second and Third avenues on 20th street. There is an electric light at the intersection of 20th street and Second avenue. When he stopped at the stable he looked to see if he could see anything of those suspicious characters, and did see them coming around the corner of 20th street and Third avenue, in the direction of his stable. They came up to his buggy, the boy whom he learned to be Marion walking in advance of Ramsey. Witness knew Ramsey at the time, and he came bent half down behind Marion, who stood up straight. Marion walked up within three feet of the buggy and asked witness if he had any money. Witness told him he had none for him, and Marion drew his pistol and said, “Your money or your life.” Witness said, “You won’t get it,” and Marion shot. Only one of them shot and that was Marion, the taller. Ramsey knew where witness lived and had helped him hitch up his horse many times. The boys ran off. Ramsey knew witness frequently carried money on his person; witness had sent hundreds of dollars by him to men with whom he did business, and to the post-office. He was in his buggy, about four feet above the party shooting. He did not recognize the boys at the branch, the electric light on the bridge and sidewalk being obstructed by trees and houses. There were two shots fired, only the first taking effect, the second being fired when they ran off. He did not recognize the voice of Marion, and never once thought it was Marion at the time of the shooting, but knew it was a boy he had seen somewhere, and said that he could not call his name, but if he ever saw him any more, would know him; but he knew Ramsey to a certainty. The electric light is about fifty-five yards from his stable, and the corner of his residence where he saw the boys coming around is about as far from the stable. He did not say to parties who asked about the shooting, that he did not know who did it, and did not tell Miles so; nor did he tell Sturkey that he did not know who shot him, but thought he knew one of the parties, Elbert Ramsey, nor that a policeman had told him that he (the policeman) had been around and found Ramsey sick in bed just after the shooting, and therefore it could not be Ramsey. Witness’s vision is interfered with to some extent, as he has lost the sight of one eye. Ramsey looked as if trying to conceal himself behind the boy who shot, and was trying to hide his face with his hat. There was an electric light at the intersection of 18th street and Second avenue, which was burning on the night in question, and was about seventy-five or eighty yards from the branch. Witness did not tell the father of Ed. Marion that he did not know his boy. Witness could not think what boy it was, could not remember about seeing him at the fish-house, could not remember where, but if anybody had said Ed. Marion, would remember it “that quick.” The night he was shot he sent a policeman to Ramsey’s house, and was surprised when he came back without arresting him. The reason he did not send a policeman to Marion’s house was because he had no idea who he was; did not know it was Ed. Marion, only he would know that boy if he ever saw him any more. There was nothing to obstruct the light shining on the bridge where he watered his horse. The light did not illuminate the sidewalk just before he got to the branch, on account of the shade from the houses and trees.</p> <p>Laura Ramsey testified for the State: In Eebruary, 1891, she lived at the intersection of 20th street and Third avenue on the north corner, and Thomas lived on the south corner. On the night Thomas was shot she was in bed in her room, in the back room on the south side of her house, when she was disturbed by some loud talking. Heard the conversation between Tnomas and the boys, and the shot. About that time she sprang to the door, went on the porch and saw the boy shoot the second shot. She knew one of the boys, Ramsey, and recognized Thomas. After the shooting the boys ran off into Third avenue and then north. Next day the boys under arrest were brought by the gate, and she said, “I know that biggest one did the shooting; that lowest one did not shoot.” She knew they were the same boys she saw run off the night before. Hid not know Marion from any other colored boy, but recognized them and knew they were the same negro boys. Had seen Ramsey many times before the shooting while he was working for Thomas. Witness lived just across the street, on the corner just north of Thomas’s residence and just diagonally across from Thomas’s stable. She heard every word of the loud talking; did not see the first shot but saw the second.—A witness testified that he knew Elbert Ramsey, and saw him going up Second avenue that night forty or fifty minutes after ten o’clock and fifteen or twenty minutes after the shooting. Phillips and other witnesses testified to the good character and credibility of William Thomas. Phillips also testified that he went to see Thomas about five minutes after he was shot; that Thomas said he thought he knew one of the parties and had seen' the other, but could not locate him, would know if he ever saw him again ; that he was a copper-colored boy and the tallest of the boys, the smaller of whom kept behind the taller one, dodging all the time. Another witness who reached Thomas a few7 minutes after the shooting, was told by Thomas that one of the boys was one that he had in his employ, that he could not at that time locate the other, but if he ever saw him again, would know him.</p> <p>The defence rested partly upon testimony tending to establish an alibi for both defendants, and there was evidence that the first person (Miles) who got to Thomas after he was shot, was told by Thomas that one of the' boys shot him, but he did not know who it was, he suspected one of the bóys and took him to be Elbert Ramsey who did not do the shooting; that on the next day after he was shot Thomas said'in the presence of Sturkey and another that he did not know who did it, thought he knew one of the boys, but was not certain, and the boy he thought did it was lying in bed and said he was sick abed when the policeman went up there, and the policeman had his shoes brought out and they were perfectly dry, and from what the newspaper said (Thomas had been reading the newspaper) no doubt that could not be the boy; that he thought the one he knew was Elbert Ramsey, and he was the one whose house the policeman went to and found in bed sick, etc.; that on the night of the shooting Thomas said to another witness that he did not know who shot him, thought one was Elbert Ramsey, the other one he did- not know. The father of defendant Marion testified, among other things, that Thomas told him after his son was arrested: “I don’t know your boy, but I think I know one of them; I don’t know your boy but I will see if I can find out who it was. The largest one of the two boys did the shooting, but if I come down and swear against them I will try and convict them.” He did not say he knew one of the boys was Elbert Ramsey, but said he thought one of them was, and did not say that if he ever saw defendant Marion he would know him. Another witness who was present at the interview between Marion’s father and Thomas, testified that Thomas said, “I don’t know your boy, but the taller boy did the shooting, and the smaller boy seemed to be dodging behind the taller boy whom I taken to be Elbert Ramsey”; that along towards the last of the conversation Thomas said, “If I swear against him. I think I will he able to convict him, and I am going to do all I can to do so and that Thomas said he thought the smallest boy was Elbert Ramsey. The mother of Elbert Ramsey testified that Elbert was at home in bed sick when the shooting took place, and that when the policeman came Elbert was in bed, and the policeman asked him how long he had been there and whether he was sick, asked where his shoes were, went and picked them up, and went away without arresting him.</p> <p>The newly discovered evidence was shown in affidavits by three persons : (1) Deponent has in charge for rent the house situated just across the street and immediately north of Thomas’s residence, being the northwest corner of the junction of 20th street and Third avenue. Laura Ramsey did not live in that corner house on February 7, 1891, nor at any other time within the last twelve months preceding July, 1891, but on February 7, 1891, did live at the next house immediately north of said corner house on Third avenue, and the corner house is between the house she lived in and the stable of Thomas, it being impossible for any one in her house to see what occurred at the stable, from either one of the south windows of the house in which she lived, because the party would have to look through the corner house; and no one from either of these windows could see a person run around the corner house from 20th street into Third avenue. (2) Thomas told deponent in a conversation after the shooting, he thought he knew one of the boys who had worked for him, but was not positive, but he did not know or recognize the other boy; and this information was not communicated to any of defendants’ counsel until after the trial. Deponent is familiar with the surroundings of the place where the shooting is alleged to have been done, and there was nothing to obstruct the shining of the electric light at the junction of Second avenue and 18th street on the bridge across the branch, or from shining on the sidewalk on the east side of Second avenue for a distance of thirty yards south of the bridge; if one was standing on the bridge at night when the electric light was burning and was looking down on any one in a buggy or wagon, the horse of which was drinking at the branch, the electric light would shine in their faces and on their persons; and it would be impossible for any one to see the scene of the shooting from the south window of the second house on Third avenue immediately north of the corner house at the northwest corner of 20th street and Third avenue, as the corner house intervened. (3) Deponent’s residence is the northwest corner of 20th street and Third avenue; he lived there when William Thomas was shot; and Laura Ramsey did not reside in or occupy any room in the corner house at any time within the twelve months up to July 13, 1891.</p>

<p>Railroads. Damages. Eminent domain. Before Judge Martin. Muscogee county. At chambers, February 6, 1892.</p> <p>The exception in this case is to the refusal of the injunction sought by th$ Georgia Midland & Gulf Railroad Company. The petition therefor alleged: The city of Columbus is petitioner’s principal terminus, and by virtue of certain grants of land made petitioner it constructed there all of its side-tracks, freight-depots, shops, etc., expending large sums of money in so doing. The main track of its road connects with said terminals, which are located upon blocks 51, 52, 45 and 46 and part of blocks 54, 53, 42 and 43 on the east commons of Columbus, blocks 42 and 43 being bounded by 8th street. The main track, extends northward from said terminals and out of block 42 across 8th street and thence across block 40 of the commons. After petitioner had constructed its terminals and main track, the Columbus Southern Railway Company was chartered and constructed from Columbus to Albany, its main track terminating at a point east of that of petitioner and on the east commons. Thereafter grants of land were made to the Columbus Southern, all of which are located east of the main track and lands of petitioner, and upon the grants so made the Columbus Southern constructed its terminals and connected its railway therewith, and has long since constructed its railroad and laid out its depot grounds in Cplumbus and connected its main track therewith. The depot grounds and terminals of the Columbus Southern are connected with the city arid can be easily approached by the public in the city, and by persons travelling upon or doing business with that railway company, by several broad streets and avenues, all constantly open both for travellers. and freight. A corporation known as the Columbus Railroad Company, about January 20, 1888, under grant of right of way from the city, constructed a track west of petitioner’s .track and. .extended it west through 6th street and northward across 8th. This track; is used by the Columbus Railroad Company for transfer of freight and delivery of the same to the merchants in Columbus. The Columbus Southern, for the purpose of delivering its freight cars to the Columbus Railroad Company,-is about to construct a side-track from its main track, diagonally across petitioner’s main track and along 8th street, to connect with the track of the Columbus Railroad Company, and has petitioned the mayor and council of Columbus for permission to lay such side-track. On an ex parte showing this request was granted, and the Columbus Southern is now proceeding to lay such side-track. Its action is an infringement upon petitioner’s rights, is without authority of law, and the side-track is being laid as matter of convenience and economy to the Columbus Southern and regardless of petitioner’s rights. A connection with the track of the Columbus Railroad Company can be made by another route and without having to cross petitioner’s main track. Should said side-track be constructed the damage to petitioner will be irreparable;'it will be hindered and retarded in the movement of its cars and engines along its main track to and from its depot. grounds and terminals, and the risk of accidents to its property, and to travellers and freight received to be transported by petitioner, will be greatly increased, and the movement of cars and engines of thfe Columbus Southern and switching of trains by it along the proposed side-track, across petitioner’s main track, will result in. irreparable damage to petitioner. The proposed side-track is not being made for the purpose of constructing the railroad of the Columbus Southern . under its charter. Petitioner is remediless unless the Columbus Southern be restrained. Defendant demurred, upon tlie ground that complainant was not entitled to the relief prayed, nor to any relief either at law or in equity. The answer of defendant was : In pursuance of its charter it has constructed and operates a railroad from Columbus to Albany. It petitioned the mayor and council to lay a track'from its main track across 8th street,at the intersection of 9th avenue to connect its track with that of the Columbus Railroad Company, to promote the delivery of its freight, in loaded cars or otherwise, to that company, which petition has been granted, and defendant has begun laying its track. The Columbus Railroad Company is by its charter not only a street car company for transporting passengers, but also a terminal company authorized to receive freights, in loaded cars and otherwise, from the several railways converging in Columbus, and transport such freights over its line through the city streets to such points as may be most convenient to the consignees. Under defendant’s charter it has a right to cross, intersect,'join or unite its railroad with any other railroads heretofore or hereafter constructed, at any point in its route, with the necessary turnouts, sidings and switches, and in the exercise of such right it desires and proposes to connect its railroad with that of the Columbus Railroad Company, and as a matter of convenience and economy to itself. Being thus authorized and having obtained the consent of the mayor and council for the use of the streets, it has full authority to carry out this purpose without interference from petitioner, whose rights are not involved nor affected. The proposed track will not touch, cross or otherwise affect the right of way of petitioner, which has no right of way on either 8th street or 9th avenue, but occupies so much of these streets as are covered by.its tracks under a simple easement for that purpose, granted by the city. Petitioner is not a property-holder in or upon these streets, nor can its property rights in any way he affected by the construction of the track. The construction of the track will be a great convenience, not only to defendant, but to the merchants and citizens of Coiumbus and the public' at large. Every other railroad company entering the city has connection with the Columbus Railroad Company’s tracks, and to deny defendant this right would be inequitable and unjust. So far as any damage may accrue to petitioner from the crossing, of its track, it is damnum absque injuria; petitioner has no exclusive right to the use of said streets or either of them, nor any right to prevent defendant’s track or that of any railroad company lawfully authorized to cross its track; and the fact that it will be required to observe cei’tain precautions when crossing defendant’s track is a burden imposed by the general law, and is in no wise- a damage or injury done by respondent to it. Heretofore petitioner and defendant have been jointly operated, both having used the depots of petitioner, and for thiss reason defendant has never constructed a depot either frarpasrsengers or freight, but it has consummated arrangements by which it has secured a warehouse oix Front street between 10th and 11th, which will be used for a passenger and freight-depot. This warehouse is immediately upon the line of the Columbus Railroad, and defendant desires to connect with said railroad at the intersection of 8th street and 9th avenue for the purpose of reaching its depot, as well as for the other reasons above given. In so doing it will only cross the main line of petitioner, and under its charter it has the right to do so for the purpose of reaching its depot. This will, not increase the risk of accidents to petitioner’s property, for under the present arrangement petitioner’s yard, situated south of the point at which defendant desires- to cross petitioner’s main track, is mainly used for storing cars, for the passengers over petitioner’s road alight from and get on petitioner’s cars at the union depot, and the freight is received and delivered at petitioner’s freight-depot, both points being north of the point in question. Under the present traffic arrangements the terminal facilities now used by defendant, through petitioner, cost in the neighborhood of $600 a month, and when a car-load of freight is to be handled by defendant it is first delivered to the Columbus Eailroad Company, then to petitioner and by petitioner to defendant; and,if defendant is permitted to cross petitioner’s track it will be placed in direct communication with its own depot and can reach the same without petitioner’s intervention. The point at which it is seeking to. cross petitioner’s track is at grade level, and under the law it has the right to cross at such a point without interference or hindrance.</p> <p>Upon the hearing there was testimony for the petitioner as follows: Petitioner constructed its depot, round houses, etc. on the depot grounds, and has been in peaceful occupation of the same since February, 1887, and its main track extends thence northward across 8th street as described in the petition. The lands for terminals of defendant with its depot site, side-tracks, etc., lie east of petitioner’s property and were entered upon by defendant about 1889. The Columbus Eailroad Company constructed its track along 6th street about January, 1888, with permission of the city council, and under contract with petitioner. Defendant’s main track is entirely east of that of petitioner, and enters Columbus at its terminus in Columbus, the final northern terminus of defendant in Columbus. From the completion of defendant’s road until January, 1891, it was operated under a separate management and independently of petitioner, and during that time no attempt'was ever made to cross petitioner’s main track or grounds by any sidetrack extending westward, nor was any request so made. During 1891 the two roads were operated under a traffic contract under one management, but it is not true that the connection now sought to be made has never been made because petitioner operated defendant’s road. No effort has ever heretofore been made to make the proposed connection which, if constructed by defendant, will work incalculable damage to petitioner’s property. The point at which the side-track is proposed to' be constructed is just north of petitioner’s depot grounds, and the travel and entrance to petitioner’s grounds is along this point. Its traffic of every sort passes over this point, and the damage, delay, hindrance, inconvenience and risk of accidents will be greatly increased. The Columbus Railroad Company is operated as a transfer line only for freight, over that part of the line sought to be connected with, and the object of connection by defendant is not for transporting freight and passengers on its line of railroad, but simply as a matter of convenience and economy in handling freight. Defendant has long since completed its road into Columbus, and the proposed side-track is no part of the necessary construction of this railroad. Defendant’s grounds extend as far south as those of petitioner, and it is perfectly practicable for defendant to connect its line with the Columbus railroad, either south of or in some direction from petitioner’s grounds other than the route nowr sought. If the proposed side-track is built it will require stoppage of - every train and engine that has to cross it, and thereby entail great loss to petitioner by wear and tear of machinery and loss of time, and will hinder, delay and obstruct the business of petitioner. A connection can be made between defendant’s road and that of the Columbus Railroad Company by a route different from the one proposed, and in such a way as not to cross the main track or any of the tracks of petitioner, and if such connection is made all damage to petitioner and all the risk, etc. resulting from the proposed side-track will be avoided. The connection can be made by another and better route, and could be made at the lower end of the grounds, west and south of the tracks of petitioner’s road and out, into and up 6th avenue, so as to connect with the Columbus railroad track. It is about three hundred feet from the point on 8th street where the proposed side-track is sought to be made, across petitioner’s main track to where the switch tracks begin to diverge from petitioner’s main track. Most of the switching of cars about petitioner’s business is done over this three hundred feet. Almost every engine and train of cars has to enter and back out of the yard along this distance from one side-track to another, and every engine would have to stop and start at this proposed crossing, which would entail heavy money loss to petitioner, in time of employees, wear and tear of machinery and consumption of coal. Even a crossing a few hundred feet north of 8th street would greatly lessen the damage which would result from the proposed crossing. The crossing that could be made south of petitioner’s grounds would be on grade level, and a crossing above 8th street would be very nearly on grade level—about four feet embankment. It is not true that petitioner’s grounds below 8th street are used mainly for storage of cars; All the shops, turn-tables, etc. of petitioner, save an uptown freight-house, are located on said grounds, its entire freight business is done there, all trains are made up there, all shop work done there and all drilling and switching of trains. The union depot was used by both petitioner and defendent as a passenger-depot during 1891. It is not time that passenger-trains going northward leave 6th avenue. All petitioner’s business is done and all its trains are made up on its grounds and switched northward towards and across 8th street from its grounds and thence back, and any car or train to get into 6th avenue must run out of petitioner’s yard and be switched into that avenue. The track on that avenue is the only side-track of petitioner and is only used for transporting such freight as may be destined for petitioner’s uptown depot. The only main track of petitioner crosses at 8th street.</p> <p>For the defendant the following was in evidence : Defendant has no depot building in Columbus, because for quite a while it was operated jointly with petitioner, and the depot buildings of the latter were used by it. The proposed crossing would be on grade level. Its object was because it would be a great convenience for defendant to connect with the Columbus Railroad Company and thus deliver its freight on this line, and also because defendant desired terminal facilities for its road at Columbus, and to this end rented the warehouse on Front street and will use it for a freight and passenger depot. This warehouse is immediately upon the line of the Columbus Railroad Company and the latter will be used for defendant to reach its depot. The connection sought at the point selected could be made with little trouble. Most of the freight is delivered to citizens of Columbus over the Columbus railroad, and heretofore considerable portions of the freight handled by defendant had to be thus delivered, through or across the switch of petitioner and at considerable cost to defendant, because it had to pay $2 a car to the Columbus Railroad Company and the same amount to petitioner. Under the arrangement now made, defendant will save the cost of handling'the cars by petitioner as well as the cost and charges made by petitioner; defendant will save about $350 a mouth, besides the great delay and trouble. Petitioner and the other roads entering Columbus connect with the Columbus Railroad Company as a means of delivery for freight. In making the connection sought, defendant will not injure any one or incur damage to personal property, and the only loss to petitioner will be in not handling defendant’s cars. Under the present arrangement the handling of freight is unsatisfactory and inconvenient, outside of cost. If defendant can make the crossing it can transfer its own freight directly to its own freight-depot and distribute freight from there, which will be a great convenience to the public. The connection sought is the most direct and accessible defendant can select. The main tracks of the two roads are near each other where they cross 8th street, and about one hundred feet below this point there is a switch connecting the two roads. About one hundred feet south of that switch is another used mainly for switching purposes in petitioner’s yard. Eight or nine hundred feet below this petitioner taps the Columbus Railroad Company’s track. The crossing proposed at grade level will not seriously interfere with petitioner, for it will be at a point where it will not interfere with switching or anything of the kind, and the only inconvenience that will result is that it will cause petitioner’s engines, and cars to stop momentiirily as they approach the crossing. Petitioner uses the union depot for delivery and reception of passengers. In going northward the passenger-trains leave petitioner’s yard at 6th avenue and run northward beyond the union depot, thence back into that depot and thence northward out of 6th avenue on to its main line over the R. & D. tracks. In coming south the passenger-trains follow the sidetrack for its main line, cross 15th street to 6th avenue, then to the depot and are then carried empty down 6th avenue to its yards. Petitioner’s regular freight-depot is immediately north of the union depot. At this point it receives and delivers freight, and in doing this its freight-trains will only cross the intersection of 8th street and 9th avenue once, and the passenger-trains will not cross at that point at all, and after the freight-trains reach petitioner’s yard they are switched to 6th avenue and thence northward until the freight-depot is reached. In doing ' this both passenger and freight trains cross the dummy, M. & Gt. railroad and the street car line.</p>

Injunction. Railroads. Eminent domain. Constitutional law. Statutes. Before Judge Marshall J. Clarice. Eulton county. At chambers, January 30, 1892. .

Banks and depositors. Notice. Charge of court. Before Judge Martin. Muscogee superior court. May term, 1891. The suit was by Mi’s. Jennie Belcher as guardian of her minor child, Jessie Y. Belcher, to recover a sum of money deposited in the savings bank department of the defendant. She obtained a verdict, and the defendant’s motion for a new trial was overruled.

Agency. Evidence. Payment. Ratification. Promissory note. Practice in Supreme court. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1891. Action commenced March 1, 1878, on a promissory note dated January 10, 1874.

Acceptance. Debtor and creditor. Fraud. Before Judge Yan Epps. City court of Atlanta. September term, 1891. The Merchants National Bank of Rome sued the Atlanta Bridge & Axle Company upon two acceptances drawn by the Rome Rolling Mill Company by Edward B. Hill, treasurer, at Home, Georgia, on April 17, 1890, upon the bridge and axle company, one for $950, payable ninety days after date, the other for $193.87, payable five months after date, payable to the order of fi.

Contempt. Res adjudicata. Imprisonment. Practice. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1891.

Criminal law. Murder. New trial. Before Judge Boynton. Spalding superior court. February term, 1892. Conviction of murder, with recommendation of life imprisonment; exception to the denial of a new trial. The question is, whether the verdict is supported by the evidence. The persons present at the commission of the homicide were, the defendant Hattie Nelms, her twin sister Minnie (the deceased), their mother and one Woodruff.

<p>1. Service of an amendment to a declaration, whether made by a proper officer or evidenced by acknowledgment and waiver signed by counsel for defendant, is no substitute'for service of the declaration itself and of the process annexed thereto.</p> <p>2. After a sheriff or deputy-sheriff has gone out of office, he cannot, without some order of the court giving direction in the matter, amend an incomplete or defective return of service made by him while in office.</p> <p>. 3. There being on the declaration and process an incomplete return of service, the return was amendable; but no motion to amend being made, and the case being before the court for final trial, it was not error to reject a traverse of the return tendered by the plaintiff, nor to refuse a continuance in order to perfect service, nor to dismiss the action for want of service. These matters are subject to the discretion of the court, there being a want of due diligence on the part of the plaintiff in procuring service or in obtaining a proper return thereof. His remedy for an incomplete return was not by traverse, but by application to have the return amended, which, if made and supported by sufficient evidence, would have been granted as matter of right.</p>

<p>1. The process describing the defendants as “Cheshire & McCullough,” and the declaration describing them as “N. IT. Cheshire and -McCullough, partners doing business under the firm name and style of Cheshire & McCullough,” and the return of service by the sheriff being, “Served the defendant N. S. Cheshire, of the firm of Cheshire & McCullough, with a copy of the within, personally; the defendant-McCullough not to be found in Fulton county,” the middle initial S. in the return should be treated as a clerical error; and thus treating it, the legal significance of the return is that the defendant N. H. Cheshire, of the firm of Cheshire & McCullough, was served. This being so, the return, until traversed and falsified, is conclusive evidence that he was served.</p> <p>2. The suit was a valid one against the partnership of Cheshire & McCullough, the omission of the given name of McCullough being amendable, both in the declaration and in the return of non est inventus. Consequently, a valid judgment therein could be rendered against the firm and against the partner served.</p>

<p>Action. Amendment. Rescission of contract. Damage. Verdict. Before Judge Van Epps. City court of Atlanta. September term, 1891.</p> <p>Mrs. Raglan sued Snook, alleging : He was indebted to lier $406.55, for that, in and during the month of December, 1889, or about that time, ho was indebted to her for so much money had and received by him for her use, and being so indebted, in consideration thereof, afterwards on the-day of December, 1889, or thereabouts, undertook and then and there promised to pay her said above mentioned sum of money, when he should thereunto be afterwards requested. Defendant demurred to the declaration, on the ground that it stated no cause of action, and on the ground that it failed to state that any demand had been made upon defendant before the suit was instituted. The coui’t overruled the first ground of demurrer and sustained the second; whereupon plaintiff offered an amendment alleging, that after the money came into the hands of defendant, as alleged in the original declaration, she demanded the same of him on the-day of December, 1889, which demand was refused by him. To this amendment defendant objected, on the ground that there was nothing in the original declai’ation to amend by, and also because the amendment introduced a new and distinct cause of action. The objection was overruled and the amendment allowed. To the two rulings adverse to him the defendant excepted.</p> <p>The evidence showed that Snook sold Wiley Jones certain furniture to be paid for by instalments, Snook reserving title. Jones paid about $135, and in June, 1889, an arrangement was made by which his sister, Mrs. Raglan, was substituted for him in the contract. She gave her notes for the balance due (about $525), took the furniture and paid the defendant various amounts the total of which is not quite definite from the record, but it seems to be not over $200 if so much. She retained and used the furniture for six months, and then the wife of Jones sued her for it in bail-trover, and it was seized by the sheriff. Snook interposed his claim, gave bond and took possession of the furniture, and afterwards sold it, having notified Mrs. Raglan in the meantime that he was willing to turn it over to her when she paid the amount due by her. It was worth for hire $30 to $40 per month, according to various estimates. It had been badly damaged when Snook took possession of it in December, 1889. The jury found for the plaintiff $119.05 principal, besides interest. The defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence, and on the following special grounds:</p> <p>Error in charging: “One who sells personal chattels, such as household furniture, upon what is called the instalment plan, reserving title in himself until the last of the purchase money is paid, and he takes back the furniture into his own possession because the balance of the purchase money is not paid, is held in law to have rescinded the contract in toto. It is, so far as the duty on the part of the purchaser to pay any more in the future is concerned, and the right of the purchaser to have back what has been paid in the past, just as if no contract of purchase and sale had ever been entered into. The defendant in this case testifies that after the furniture came back into his custody, he sold it. This is a solemn admission injudicio, and the effect of it is to establish, in favor of the plaintiff", the proposition that the sale by Mr. Snook to her was by him rescinded; and it does not at all alter the effect of this fact that Mr. Snonk, before selling it, offered to let the plaintiff have it again if she would pay him the balance due, or that he is now willing to substitute other furniture in the place of that sold, and let her have this, on paying the balance due for the original furniture. I therefore charge you, as a matter of law arising on the undisputed evidence of the case, that the plaintiff is entitled to recover on the case made, unless the aggregate amount of the payments made by her is less than the reasonable hire for the time she had the furniture in her possession. Of course she would not be liable to account to Mr. Snook for hire of the furniture for the time her brother Jones had it in his possession, under the contract with him, between him and Snook.”</p> <p>Error in refusing to charge: “If the jury find from the evidence that the plaintiff entered into an agreement with the defendant and Wiley Jones, the first purchaser, that she would take the place of said Jones in the transaction with the defendant, in all respects, assuming his entire liability and having the advantage of what he had paid the defendant, then whatever sum, if any, the furniture was reasonably worth for hire during the time it was held by said Wiley Jones, may be set off by the defendant against the claim of the plaintiff, as well as the hire for the time it was held by the plaintiff herself; and if the sum which said furniture was reasonably worth for hire from the time it was taken back by the defendant Snook from the plaintiff', is greater than the amount paid on the furniture by Jones and Mrs. Raglan together, then the plaintiff cannot recover in this case.”</p> <p>The motion was overruled, and defendant excepted.</p>

<p>Where all the defendants sued in a justice’s court were residents of another county, and therefore non-residents of the district in which the suit was located, the court was without jurisdiction, and personal service upon them effected by the constable of the district, and their failure to appear, would not give it jurisdiction. Tlie judgment rendered against them was void, and can be treated by them as a nullity. Graham v. Hall, 68 Ga. 354. But as the subject-matter was such as the court could deal with if the defendants had been residents of the district, and as the defendants were personally served, affidavit of illegality is not available in resistance to a levy of the execution upon their property. Code, §3671; Mangham v. Feed, 11 Ga. 137 ; Harbig v. Freund, 69 Ga. 183. In Jackson v. Hitchcock, 48 Ga. 491, there was no jurisdiction over the subject-matter.</p>

<p>Criminal law. Former acquittal. Before Judge Westmoreland. Criminal court of Atlanta. September term, 1891.</p> <p>Indictment for larceny; plea of former acquittal. The evidence in support of the plea showed, that at the same term and before a legally empanelled j ury the defendant was tried and acquitted upon a sufficient accusation setting forth the same charge as that in the present case, the only difference between the two accusations being, that in the former case the ownership of the stolen property was laid in Mrs. M. A. Gussupp, while in the present case it is laid in Mrs. M. A. Gossetts. After verdict of acquittal in the first case, the State submitted the present accusation for the same theft. The issue made by the plea of former acquittal was submitted to the judge. He found against it, to which ruling the defendant excepted, having been adjudged guilty.</p>

Carriers. Negligence. Contracts. Actions and defences. Before Judge Westmoreland. City court of Atlanta. September term, 1891. Nicoll sued the East Tennessee, Virginia & Georgia Railway Company for damages, alleging : lie shipped from Franklin, Kentucky, via the Louisville & Nashville railroad as receiving and forwarding carrier, to Eastman, Georgia, a car-load of horses, mules and cattle.

Accord and satisfaction. Fraud. Before Judge Van Epps.' City court of Atlanta. September term, 1891. Hayes sued the railway company in an action'of trespass on tbe case, for fraud and deceit in procuring an accord and satisfaction, as specified in the declaration. At the hearing the defendant moved orally to dismiss the action, and after an amendment to the declaration the motion was sustained, to which ruling plaintiff’ excepted.

Fraud. • Chai’ge of court. Before Judge Van Epps. City court of Atlanta. September term, 1891. Gardner sued Chambers for the recovery of a certain .horse alleged to bo of the value of $150, to which petitioner claimed title. The jury found for Gardner $150, the proved value of the horse, and $45 one month’s hire, with costs. Defendant’s motion for new trial was overruled, and he excepted.

Street railroads. Negligence. Evideuce. Nonsuit. Before Judge Van Epps. City court of Atlanta. September term, 1891. An action was brought by Lucretia Houston and her husband against the street railroad company for damages arising from personal injuries to her. A nonsuit was granted, and upon this ruling is the main assignment of error. Exceptions were taken also to the rejection of testimony, and these will be noted further on.

Railroads. Negligence. Nonsuit. Before Judge Van Epps. City court of Atlanta. December term, 1891. Watts sued the Richmond and Danville Railroad Company, as lessee of the Georgia Pacific Railway Company, for damages from personal injuries. A nonsuit was granted, and Watts excepted.

Municipal tax sales. Evidence. Possession. Charge of court. Before Judge Marshall J. Clarke. Eulton superior court. September term, 1891. Claim was interposed by Johnson to the levy of an execution in favor of Phillips & Co. against Jennings. The property was found subject, and the claimant excepted. 1.

Will. Deed. Before Judge Marshall J. Clarke. Fulton superior coui’t. September term, 1891. Melissa Nesbit, Lula Williams and Hemy Williams by their equitable petition sought, among other things, to set aside an instrument executed by Ann Davis, of whom they were the only heirs, to one Donald. They alleged that this instrument was not a deed but was testamentary in its nature, and that it never was delivered.

<p>Two men walking together along the street of a city, one of them went through an open door into a house and brought out an overcoat, the other waiting for him or else walking on slowly; the one who took the coat rejoined the other, put on the coat, and they walked down the street together ; being pursued and the cry “You stole that coat!” heard, the coat was pulled off and thrown down in the street, and he who. had it ran, the other did not run; but in an hour afterwards the two were again seen together: Held, that this evidence, though not altogether satisfactory to the minds of the reviewing court, is sufficient to warrant the jury in finding that the one who did not enter the house was an accomplice of the other and was guilty equally with him of the larceny, the coat having been in fact stolen, and the presiding judge having approved the verdict.</p>

Criminal law. Indictment. Bailment. Witness. Before Judge Richard H. Clark. Fulton superior court. September term, 1891. Tbe indictment charged Wimbish with burglary in breaking and entering the bar-room of Marshall with intent to steal, and after breaking and entering, stealing therefrom some money, a pistol and a lot of cigars and whisky, the property oí Marshall, on August 21, 1891, ■ in Fulton county.

Injunction and receiver. Mortgage. Insolvent corporation. Debtor and creditor. Indorsement. Stockholder. Usury. * Before Judge Richard EL Clark. Fulton county. At chambers, February 18, 1892.

Criminal law. Evidence. Before Judge Richard H. Clark. DeKalb superior court. August term, 1891. Indictment against Thomas Paschal for assault with intent to rape; conviction; exception to overruling of the motion for a new trial.

<p>1. A husband making an exchange of lands with another person, having, in receiving the land for which his own was exchanged, gratuitously caused the conveyance to be made to his wife jointly with himself, and at the same time, in order to raise money to remove an incumbrance from the land which he gave in exchange and to pay the agreed difference between the two tracts, having borrowed money upon a joint note executed by himself and wife and upon an absolute deed made by them, conveying a portion of the land received to the lender to secure the loan, the lender giving a bond to reconvey to the husband alone, the facts did not make a case of suretyship by the wife for the husband, but one of borrowing for the mutual benefit of both.</p> <p>2. The note given for the borrowed money having, by consent of parties, been surrendered to the makers and the bond for titles having also been surrendered to the lender, on an understanding that the loan was cancelled and that the deed made as security might stand as a conveyance for ownership, the wife could not afterwards assert any title to the premises covered by this deed or recover any part of the same.</p> <p>3. There was no error in overruling the motion for a new trial.</p>

Divorce. Alimony. Verdict. Before Judge Boynton. Rockdale superior court. September term, 1891. H. D. George, in January, 1886, filed a libel for di- ■ voree upon the ground of desertion, alleging that his wife had deserted him in July, 1882, and that they had one child, a girl. There was no schedule of property attached to the libel.

Fraudulent conveyance. Evidence. Debtor and creditor. Charge of court. Before Judge Boynton. Newton superior court. September term, 1891. A fi. fa. in favor of Sharp against Turner was levied upon certain land known as the Oak Hill place. Hicks and his wife interposed their claim. They relied on a deed made to them jointly by Turner several years before the date of plaintiff’s judgment.

<p>Criminal law. Practice. Evidence. Concealed weapons. Before Judge Miller. Houston superior court. April term, 1892.</p> <p>The indictment was for carrying concealed weapons. The defendant was convicted, and excepted to the overruling of his motion for a new trial. At the trial Colbert testified that on a Sunday he was going in a wagon from church with the defendant, his wife, witness’s wife, and some others ; defendant and witness quarrelled, and defendant drew a pistol out of his hip-pocket with his right hand just as he jumped out of the wagon ; he had his coat on; the pistol was taken from under the coat, and was concealed and not carried in an open manner and fully exposed to view ; defendant was sitting on the side of the wagon when he drew the pistol, was getting out of the wagon when he drew it, with one hand on the side of the wagon and his feet on the step of it. Lizzie Miller testified that she saw the defendant have the pistol in his hand before he got out of the wagon; he did not get the pistol out of his pocket when he got out of the wagon, if he had she would have seen him; she did not see the pistol in the box, but he had it in his hands when he got out of the wagon. Rutherford, a witness for the defendant, testified that defendant did not get the pistol out of his pocket, but got it out of a goods box which was in the wagon and which defendant had used to carry dinner in to church ; witness saw the pistol in the box at the church, and it stayed there; when defendant got out of the wagon witness caught him and tried to keep him from having a fuss and carried him off twenty or thirty steps, and ho said, “ Turn me loose; don’t you see he is trying to kill me with the chair?” ; he jerked loose and ran back to the wagon and got the pistol out of the box, and then witness carried him off a piece from the wagon; then he went back and he and Colbert hitched.for a fight; he got the pistol out of the box before witness carried him off; he did not draw it out of his pocket; Colbert was drunk; “he went oft' from the wagon and went back and got the pistol,—no, he got the pistol before he went off from the wagon with me; he went off about twenty or thirty feet.” The defendant stated that he put the pistol iu the box when he started from home, because he intended to go to his work about nine miles off; did not go to work but went on home in the wagon ; when he got out of the wagon he got the pistol from out of the box; did not get it out of his pocket; did not carry it in his pocket; it was in the box until he got it out after he got out of the wagon.</p> <p>The grounds for new trial are, that the verdict is contrary to law and evidence, and that the court erred as follows: The solicitor-general in argument stated that when the witness was first put upon the stand, he testified that the defendant jumped out of the wagon and went off some distance and then went back and got the pistol from the box in the wagon: The defendant’s counsel objected to the making of this statement, whereupon the judge stated in the presence of the jury that he thought the witness had testified as contended by the solicitor-general, repeating the testimony.</p>

<p>1. The authority of an agent to collect need not be express, but may be implied; and where a bill for goods previously sold by him for the house he represents, together with a bill for goods sold directly by the house to the same customer, is sent to the agent, and both bills are by the latter presented to the customer, who pays both, whether under all the circumstances the sending of the bill to the agent implies authority in him to collect the money is a question of fact for the jury. That the bills had printed upon their face in small letters the words, “ bills payable at this office only,” which the debtor did not notice and of which he had no knowledge at the time he made the payment, would not necessarily negative the authority, if from the other circumstances it could be fairly implied. Code, §2864 ; Adams v. Humphreys, 54 Ga. 496; Mechem, Agency, §341; Trainor v. Morrison, 78 Me. 160, 57 Am. Rep. 790; Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682; Kinsman i>. Kershaw, 119 Mass. 140.</p> <p>2. It is discretionary with the court whether to reopen the case for the admission of more evidence at a late stage of the trial.</p> <p>3. The charge of the court on the subject of ratification was correct, and as comprehensive as the evidence warranted.</p>

Verdict. Security deed. Before Judge Martin. Screven superior court. November term, 1891. J. H. Daniel sued T. J. Wells for a certain described tract of land containing 550 acres, less 135 acres of said tract surrendered to plaintiff by defendant about October 24, 1884. The title relied on by the plaintiff was an absolute deed to him from the defendant, embracing the land sued for, dated March 6,1884, in consideration of $1,516.52.

Practice in Supreme Court. Attachment on behalf of Berry against the National Park Bank of New York, was issued on April 27,1891, and was levied by the service of garnishments, returnable to the August term of the city court of Richmond county. In July were filed in the office of the clerk of that court bonds to dissolve the garnishments, executed by the bank by Geo.

Criminal law. Manslaughter. Charge of court. Before Judge Miller. Bibb superior court. November' adjourned term, 1891. Lyman was indicted for murder. The evidence showed' that he and the deceased were employed on the same railroad coach, and were on good terms.

<p>Criminal law. Sunday. Words. Constitutional law. Before Judge Miller. Houston superior court. April term, 1892.</p> <p>Indictment for hunting partridges with gun and dogs on Sunday, February 15, 1891, under the code, section 4580. . The defendant was convicted in the county court, and on certiorari the conviction was upheld. The errors assigned in the petition for certiorari are as follows : (1) Pending the trial the defendant objected to the rendition of any judgment against him, because the statute above mentioned is unconstitutional, in that it has a tendency to interfere with and restrict the right of all men to worship God according to the dictates of their own consciences; in that it was an attempt to punish the defendant on account of his religious opinions, the act complained of not being licentious, or a practice inconsistent with the peace and safety of the State ; and in that the statute does not define what kind of game is meant to be within its provisions; it is too indefinite, and to make an offence it is necessary to go outside of the law itself to determine whether the thing or things hunted with gun or dogs or both, is.a viola-tion of-the law, whether it is birds or animals, or what kind of birds or what kind of animals. These objections were overruled. (2) There was no sufficient evidence certainly and definitely to warrant the conviction, it not appearing that the defendant did actually hunt for game on that day with gun or dogs or both, and it not appearing that anything he hunted was game in the sense and intention of the act, and it not appearing that the Sunday to which the evidence pointed as showing that he was on that day engaged in hunting with his gun and dogs, was the Sabbath day.</p> <p>The testimony showed that on a Sunday early in 1891, the defendant and two other men went in a' buggy driven by one Dales, carrying with them three guns and a pointer dog, to the house of one Newell in Houston county, and arranged with him to take care of the mules while they went to a baptizing in the neighborhood, as they said. He agreed to do so, and they drove off. In a short while Dales returned with the buggy and mules, which remained there until later in the day, when the defendant and the others returned for them, bringing guns and the dog. Newell heard shooting in the direction they went, all the day. When they returned in the evening they brought a number of birds, partridges and perhaps doves, in a bird hag. Partridges are considered game birds, Newell believes. A pointer dog is a bird dog, and is used for hunting birds. One Porter saw the defendant and two others near his house on Sunday during the early part of the year; they were shooting ; he saw a pointer dog which he knew to he defendant’s dog, running over the ground as if he were hunting; he saw them shoot, but did not know what they shot at; they were shooting at something as if it were birds flying in the air ; he did not see whether they shot birds or whether they killed any birds ; all of which occurred in Houston county.</p>

Ordinary. Administrator. Evidence. Practice. Before Judge Roney. Burke superior court. May term, 1891. To the November term, 1885, of Burke superior court Attaway et al. brought ejectment against Carswell.

Amendment. Contract. Limitation. Practice. Before Judge Eve. City court of Ricbmond county. November term, 1891.

Garnishment. Estoppel. Before Judge Roney. Richmond superior court. October adjourned term, 1891. On certiorari, judgment was rendered in favor of Fullerton, and Rutherford excepted. The facts may be thus stated : Meredith was an employee of Fullerton, and had been so employed for eighteen or more years, except about six months in 1888. In April, 1889, Fullerton sent out Meredith to hunt work, and he called upon Rutherford with whom he contracted to do a job of roofing.

Injunction. Material men and laborers. Before Judge Roney. Richmond county. At chambers, February 23,1892.

Bail-trover. Bond. Judgment. Before Judge Falligant. Effingbam superior court. November term, 1891. Maria Dobson sued Pevee in trover, obtained a verdict, and entered up a judgment against Rim and against Taylor as security on bis bail-bond. Afterwards Taylor filed bis motion to set aside tbe judgment as to bim, wbicb motion was overruled, and he excepted.

<p>Trover. Description of property. Before Judge Ealligant. Effingham superior court. November term, 1891.</p> <p>Strickland filed his petition alleging that C. K. Leitner and 0. M. Leitner, partners composing the firm of O. K. Leitner & Brother, and doing business as said firm in that county, were in possession of certain hewn timber'and round logs, for his description of which see the head-note. He further alleged that said firm and its members refused to deliver the timber and logs to him, or to pay him the value or the profits thereof (the amounts being alleged). Attached to the declaration was an affadavitto hold to bail. A demurrer was interposed by defendants, and after argument the court allowed plaintiff to amend his petition by alleging the residence of the defendants, and overruled the demurrer. Defendants excepted to the allowance of the amendment and the overruling of the demurrer. They also moved to dismiss the bail-process and to discharge them and their surety upon the bail-bond, which motion was overruled, and to this ruling also they excepted. The grounds of demurrer and motion to dismiss were: (1) It did not appear from the petition that the court had jurisdiction of defendants, the petition not alleging that defendants, or either of them, resided in Effingham county ; (2) it did not appear from the petition that plaintiff' had any cause of action against the defendants; (3) the petition did not set out plaintiff’s cause of action, if any he had, fully, plainly and distinctly; (4) the description given in the petition of the personal property sued for, was insufficient'to identify it or distinguish it from any other property of its kind; (5) there was no copy of the contract referred to in the petition as having been made between plaintiff and Beese, attached to or set out therein ; (6) there was no authority of law for the sheriff of the county to arrest the defendants or exact any bond of them, and defendants entered into the bond solely because the only alternative presented them by the plaintiff' and the sheriff was continued imprisonment in the county jail, in which, under pretence of this void process, defendant C. M. Leitner was actually incarcerated before the execution of the bond.—Only the 4th ground was insisted upon in the brief of counsel for the plaintiffs in error.</p>

Malicious arrest. Probable cause. Practice. Before Judge McWhorter. Taliaferro superior court. August term, 1891. The petition of Howard against Edwards, Elynt, Holden and Jordan was dismissed, on demurrer, and Howard excepted.

<p>Contract. Rescission. Before Judge McWhorter. Taliaferro superior court. August term, 1891.</p> <p>Bail-trover for a lot of shoes was brought by Baldwin & Company against Wright. The yerdict was in favor of the plaintiffs, and the defendant moved on the general grounds for a new trial; the motion was overruled, and he excepted. The evidence showed the following :</p> <p>Baldwin testified: Sold the defendant several bills of shoes, aggregating about $600 ; became apprehensive about the collection of the debt, and called upon him on or about January 10, 1891; he admitted his embarrassment, but said he was anxious to see that I lost nothing by him, etc.; he finally paid me $100 and agreed to turn over the balance of the shoes in payment of my claim; he then had the shoes in his store, and said there were from $450 to $500 of them, all of which he had bought of us; I started to box and ship the shoes that day, but he said that would embarrass him, and promised that he would pack them that night and ship them at once; relying upon that promise I did not have the goods attached; they were not shipped as promised, and I then brought this action; the $100 paid me by him cancelled one of his notes, and the overplus' was credited on the other note ; the shoes were sold to him on account in September, 1890, title not being retained in writing; afterwards I took his notes for the same ; the $100 paid and the shoes given back to rescind the sale about settled our claim ; we agreed to call it square; he made no condition 'about his sending the shoes, but agreed unconditionally to box and ship them to me.</p> <p>The defendant testified : I bought the shoes straight out in September, 1890; in January, 1891, Baldwin called to see me ; I was anxious to pay him, and am yet; told him of my financial embarrassment, and discussed with him the advisability of my making an assignment; Burnett was with him, and he said an assignment was a bad course to pursue, “as the Supreme Court had decided that they were dangerous things to monkey with”; I paid Baldwin $100 on my notes, and agreed that if I made an assignment, which I would determine by Monday, in that event I would ship him the shoes back, but if I continued the business I would still keep them; on Monday morning I wrote him that I had concluded to try and carry on the business, and therefore declined to ship him the goods ; they still hold the notes I gave, except a $100 note.</p> <p>Burnett testified: Was not acting as attorney for Baldwin, but was representing other claims against the defendant; he paid Baldwin $100 in .money, and turned over the shoes in settlement of the balance of the account; Baldwin wanted to box and ship them that day, but defendant said that would embarrass him, and he promised Baldwin, if he would go home, that he would box them that night and ship them; I had drawn an atT tachment, and would have levied it on the shoes but for this agreement; there was nothing conditional upon defendant’s making an assignment; he agreed straight out to rescind the sale and return the goods to Baldwin.</p>

New trial. Evidence. Before Judge McWhorter. Hart superior court. September term, 1891. The action was by Seymore against Eice to recover a portion of the price paid by the plaintiff to the defendant for land, because of an alleged shortage in the amount of it.

Contract. Charge of court. Verdict. Before Judge McWhorter. Elbert superior court. September term, 1891. Inman & Company sued the defendants for damages from a breach of two contracts dated May 2, 1889, by one of which the defendants agreed to sell to Inman & Company five hundred bales of cotton weighing 250,000 pounds, deliverable in November, 1889, and by the other to ’sell them the same amount, deliverable in December, 1889.

Usury. Principal and surety. Before Judge Well-born. Hall superior court. - January term, 1891. On. January 28, 1887, Harrington sued Lawshe as principal, and Findley and Martin as sureties, on a promissory note dated January 1, 1883, due July 15, 1883, for $350 with interest from date at 8 per cent, per annum, containing a waiver of homestead, and bearing receipts for $250 paid December 18, 1883, and for $5 interest paid August 5, 1884.

Counties. Ordinaries. Actions. Practice. Before Judge Wellborn. Lumpkin superior court. October term, 1891. A demurrer to the declaration was sustained, to which ruling the plaintiff excepted. The suit was by Lumpkin county against Williams for $600 and interest. The declaration alleged : Since April 27,1885, to the present time, Williams has been ordinary of the county.

Practice in Supreme Court. It appears from the bill of exceptions that the claim case of Jones, plaintiff in ft-fa., v. Lydia Young, defendant in ft. fa., and Thomas Young, claimant, came on to be tried at the September term, 1891, of Habersham superior court, before .Judge Wellborn and a jury empanelled for that purpose; that in the trial of said case the plaintiff offered in evidence a, ft. fa. a copy of which, with the entries thereon, is set forth ; that the claimant…

<p>1. It was not due diligence to procure the attendance of witnesses in behalf of one who stood charged by indictment with an offence, for him, on Friday before the court was to convene on Monday, to put in the hands of the sheriff of the county in which the indictment was pending writs of subpoena to be served on witnesses who resided in an adjoining county.</p> <p>2. One of three gamblers engaged together in a game of cards played for money having declared during the progress or at the close of tlie game that he had lost a certain sum, naming it, the declaration was a part of the res gestee, and is admissible in evidence on the trial of another one of the gamblers, the witness who testifies to the declaration having been present and seen the game played, with the money staked, and knowing of his own knowledge that all three participated in the transaction.</p> <p>3. The evidence-was more than sufficient to warrant the verdict.</p>

<p>1. Courts will notice judicially that money is a thing of value. In an indictment for gambling, it is not necessary to allege that the money which was bet and played for was of any value.</p> <p>2. On a trial in the county court upon an indictment transferred from the superior court, the accused is not entitled to a jury of twelve, but to a jury of six, and the panel from which the trial jury is obtained is not one of twenty-four but is one of twelve men, the accused having four challenges and the State two. Code, §? 298, 299(c).</p> <p>3. The cases of Rooks v. The State, 65 Ga. 330, and Lassiter v. The Stale, 67- Ga. 739, uphold the discretion exercised by the court in allowing witnesses to testify after they had violated an order sequestering or separating the witnesses.</p> <p>4. Where some of the persons named in the indictment as being those whom the accused played and bet with for money were present' with others not named, and where the indictment alleges that the others were not known, a witness may testify that one of the named persons, together with others not named in the indictment, whose names he mentions, played and bet with the accused ; and the evidence may take in any instance of such playing and betting which occurred within two years preceding the return of the bill o£ indictment.</p> <p>5. The uncorroborated evidence of an accomplice is sufficient to warrant a conviction on an indictment for a misdemeanor. A request to charge the jury which connects matter which ought not to be charged with other matter, should be refused.</p> <p>6. The answer of the county judge to the writ of certiorari not showing that the accused was absent when the verdict was returned, the petition, as to that ground, was unsupported by the answer.</p> <p>7. There was no error in overruling the certiorari.</p>

Criminal law. Seduction. Evidence. Practice. Before Judge McWhorter. Hancock superior court. April term, 1892. Jackson Lewis was convicted of seducing Rebecca Eraley. Elis motion for a new trial was overruled, and he excepted. The special grounds of the motion are as follows : 1.

Railroads. Negligence. Before Judge Hutchins. Clarke superior court. October term, 1891. Barnett sued the Northeastern Railroad Company for damages from personal injuries.

<p>Under the act of 1873 (Code, §1989', the only notice necessary to a defendant in a pending action of the lien of the plaintiff’s attorney on the suit and its proceeds for his fees in that case, is knowledge of the fact that the suit has been instituted and is pending. A settlement made directly with the plaintiff, though without other notice of the attorney’s lien, will leave the defendant liable in the action to a recovery for the benefit of the attorney to the extent of his fees, if there was a cause of action between the parties; and the attorney may prosecute the suit and recover accordingly. The case of Haynes v. Perry, 76 Oa. 33, was affected by there being no traverse of the sheriff’s return, and beyond thatwould be, in what was said touching actual notice, relevant only to a claim of lien for fees for services rendered in some case or cases other than the one from which the fund was realized.</p>

Damages. Waters. Life-estate. Before Judge Wellborn. Hall superior court. July term, 1891. Mrs. Woodliff sued defendants for damages to her land and loss of crops thereon, caused by the maintenance of a dam by defendants below the land, across or partly across a creek which flowed through her land. She obtained a verdict for $248. Defendants moved for a new trial, which the court held should be granted unless plaintiff would write off $148.

Practice in Supreme Court. The bill of exceptions recites that the case came on to be tried on September 8, 1890, that a verdict was rendered for the defendants, and that the plaintiff moved for a new trial, and the motion upon the hearing was-; overruled, which ruling is excepted to and assigned as; error.

Criminal law. Indictment. Statute. Before Judge Milner. Dade superior court. September term, 1891.

Criminal law. Hog-stealing. Evidence. Before Judge Miller. Bibb superior court. November term, 1891. The defendants were convicted of hog-stealing, with a recommendation to mercy, and upon the denial of a new trial they excepted, alleging that the verdict was contrary to law and evidence, and without evidence to support it.

Criminal law. Murder. Evidence. Confessions. New trial. Before Judge Maddox. Walker superior court. August term, 1891. Marable was indicted for tbe murder of Evatt. Tbe murder was alleged to bave been committed with a certain blunt instrument to tbe jurors unknown. The defendant was found guilty, and sentenced to be bung. ITis motion for a new tidal was overruled, and be excepted. 1.

Evidence. Husband and wife. Debtor and creditor. Charge of court. Opening and conclusion. Before Judge Janes. Haralson superior eoujt. July term, 1891. Executions in favor of Driver and Mason against J. H. Weaver and L. H. New were levied on a house and lot to which Mrs. L. H. New interposed her claim. The property was found subject; the claimant’s motions for new trial were overruled, and she excepted. One report suffices for both cases.

Criminal law. Assault witk intent to murder. Municipal corporations. Officers. Arrest. Before Judge Bichard H. Clark. Douglas superior court. July term, 1891. Held: with his twenty or thirty voters, when Dr. Garrett, the mayor, told him the election had been postponed until after Christmas, and in January he told him they had decided not to have an election until the next November.

<p>1. A motion to dismiss an action for insufficiency of the declaration is in the nature of a general demurrer, and its denial is matter for direct exception and not ground for a new trial.</p> <p>2. There being no complaint of the charge of the court, the presumption is that all the law applicable to the case was correctly charged. And there being some evidence to support the verdict, and the presiding judge having approved the finding by refusing to grant a new trial, thifc court, although not fully satisfied with the verdict, will decline to interfere.</p> <p>3. It is manifest from the record that the newly discovered evidence might have been discovered before the trial by the use of due diligence.</p>

Railroads. Passengers. Negligence. Before Judge Freeman. City court of Newnan. July term, 1891.

Railroads. Damages. Negligence. Nonsuit. Husband and wife. Evidence. Before Judge Jenkins. Jones superior court. October term, 1891. The plaintiff sued the railroad company for damages from the killing of two mules, and recovered a verdict for $50.

<p>Evidence. Verdict. Before Judge Jenkins. Jones superior court. October term, 1891.</p> <p>On December 6, 1889, Coleman, Ray & Company brought suit by attachment against A. S. Jones for $591.50, the ground of attachment being that Jones was about to remove without the limits of the county. The suit was based on a note for $800, signed by A. S. Jones, payable to the plaintiffs, dated January 18, 1889, and due November 15th after date; a draft of the same date for $167.50, payable on the first of November after date, drawn by A. S. Jones; and a note for $124, signed by A. S. Jones, payable to the plaintiffs., dated February 19, 1889, and due November 1st after date. Each of these instruments contains a statement that in consideration of the above advance, the maker agrees to bring his crop of cotton of 1889 to the plaintiffs for storage and sale. Each stipulates for interest at eight per cent, from maturity, and all cost of collection, including ten per cent, attorneys’ fees. The jury found for the plaintiffs $166 principal, $13.90 interest, and $18.04 attorneys’ fees. The plaintiffs moved for a new trial on the grounds that the verdict was contrary to law and evidence. The evidence is as follows:</p> <p>Bobert Coleman, one of the plaintiffs, testified: We are warehousemen, commission and grocery merchants. On December 6, 1889, defendant was indebted to us the draft and notes sued on, and an additional note for $30. The one for $124 consideration was guano sold defendant; the consideration of $300 note was supplies sold him; the draft for $167.60 was accommodation acceptance, discounted by defendant at First National Bank; we paid it at maturity without having found [funds?] in our hands of defendant. Defendant promised to send us thirty bales of cotton for our acceptance, and if he failed to do so, to pay us as commission thereon $1.00 per bale. This was the consideration of the $30 note. No cotton was sent us. On December 7th or 8th, 1889, defendant’s brother, J. W. Jones, came to our warehouse with a pair of mules and a wagon, and told us A. S. Jones had left the State and directed him to deliver us said wagon and mules; that there were some other articles at his house he was instructed to deliver, we must send for. Nothing was said as to the value of the property, or at what price it was to he credited • on defendant’s indebtedness. As soon after as possible, we had them appraised. The mules were old and in bad condition, and were appraised at $75 apiece; the wagon was nearly worn out and was appraised at $15; and defendant was given credit at this appraisement. ."We afterwards sold the wagon at $10; it was all we could get for it. Do not remember any harness. We did not work the mules at all, but tried to fatten tkem and put them in condition to work. We kept one until February, when he was sold to E. W. Mathew for $100, payable October 1, 1890. The other was sold in March or April to B. H. Ray for $100. We requested Mr. Dave Norris to get the other articles that were left at defendant’s house, and dispose of them for us. lie got an old one-horse wagon and one old two-horse wagon, both of which were sold for $16, due in October of 1890, and when paid, defendant will be given credit therefor.</p> <p>R. V. Hardeman testified: On Monday, December 6th, 1889, Birch, of plaintiffs, came down on Monday’s train about 8 a. m., and turned these papers over to me for collection, and I had attachment issued and levied that day. (December 6th, 1889, was Friday.)</p> <p>J. W. Jones testified : On Thursday, December 5th or 6th, by direction of defendant I carried and delivered to plaintiffs two mules and a wagon and harness, and told them there were two other wagons at defendant’s, all of which was the property covered by their mortgage ; that I then delivered to them; I told them that they had better get them all out of the way as quickly as possible, as Mrs. Jones was after them. I toned the mules in plaintiffs’ lot by their direction. No price was agreed on, or anything said about what price plaintiffs were to take this property upon their debt. The gray mule was eight or nine years of age, and worth $175 ; the other mule six or seven years old, and worth $150 ; the wagon and harness $50 ; the two wagons at home were worth $50. I purchased the balance of defendant’s property. It consisted of a stock of goods, merchandise, and some notes and accounts. These goods were hauled from defendant’s store at Fortville to my store at Gray’s station, Wednesday night and Thursday morning an hour by sun-up. When I reached home Friday evening, I found my store locked up by the sheriff under this attachment sued out by plaintiffs against defendant, and I have brought a damage suit against plaintiffs for that levy. I drove the mules to Macon the day I delivered them, carried a bale of cotton of my own and one of defendant’s ; but I had an interest in it, he owed me $40 out of it. I am not obliged to tell where defendant is ; have seen him at his home since I saw him in Alabama; he was here to see me also since he left.</p> <p>The testimony of four other witnesses was, in brief, that the gray mule turned over to the plaintiffs by defendant was worth $175; the other mule was worth about $150; the wagon and harness, $50; the two wagons left at defendant’s, $50. The levy of attachment was on Friday afternoon from three to four o’clock. J. W. Jones was not present. One witness testified that he was a clerk of A. S. Jones, and that he saw defendant pay plaintiffs’ agent over $100 in the fall of that year. Another witness testified that he drove the mules and wagon to Macon the day before, and when he got home that night, by direction of defendant he turned them over to Bryant to haul the goods from Hille to J. W. Jones’ store; he went along but did not help to load or unload, and-so does not know what was canned.</p>

<p>Railroads. Negligence. Before Judge Jenkins. Morgan superior court. March term, 1891.</p> <p>The plaintiff sued the railroad company for damages, and recovered a verdict. The defendant’s motion for a new trial was overruled. The plaintiff was knocked from the railroad track by the defendant’s passenger engine and train, about ten o’clock in the morning, at a point seventy-five or one hundred yards before reaching the depot at Buckhead station, and about thirty or forty yards before reaching a public crossing near the depot. The track at this point was commonly walked on by the public. The speed of the train was estimated at from twenty-five to thirty miles an hour by the plaintiff’s witnesses, and at about fifteen to sixteen miles an hour by the engineer, fireman and conductor. These three testified that the whistle was blown at the blow-post for the crossing above referred to, but that the speed was not continuously checked from the blow-post to the crossing. Three eye witnesses introduced by the plaintiff, testified that the only blowing they heard was the sharp quick blows just before the plaintiff was struck. He testified that he did not hear the roll of the train, the blowing of the whistle or ringing of the bell; and that when he got on the track, two hundred or more yards from Buckhead, he looked up and down the track for a train and saw none; he knew it was about time for the train to pass. Before this he had had a. roaring in his head, but did not know whether or not he had it at this time. The engineer testified that he rang the bell until he got pretty close to the plaintiff; kept thinking he would get off the track, but he did not look back, and when the engine was within fifty or sixty yards of him the whistle was blown; this did not attract his attention, and steam was shut off, brakes applied, and the whistle continued to blow; and when the plaintiff was scooped up by the pilot he still had not looked back. The engineer could have stopped the train at the crossing if, after leaving the blow-post, he had seen a man or anything on the crossing; could have stopped for plaintiff if he had not thought he was going to get off. The train was on" schedule time, may have been a minute late. It ran, according to some testimony, two hundred and fifty or three hundred, yards after striking the plaintiff before stopping; according to the testimony of the engineer, conductor and fireman, it stopped when the engine was just past the depot and the last ear was only a few feet past where the plaintiff' was lying. There was conflicting testimony as to whether the plaintiff' afterwards said that the reason he did not get off the track was because he thought he was on the side track.</p> <p>Two grounds for new trial are, that the verdict is contrary to the following instructions contained in the charge of the court: “ If you believe from the evidence that the defendant was negligent, but believe further that plaintiff' by ordinary care could have avoided the consequences to himself caused by defendant’s negligence, he is not entitled to recover, unless the injury was inflicted by defendant wilfully and wantonly, or unless, defendant’s negligence was so gross as to amount to or be equivalent to wantonness or recklessness. If the use of the track by pedestrians with the knowledge of the company amounts to a license at all, it must be on condition that persons so using the same shall exercise ordinary diligence themselves so as to avoid being injured by the company’s trains.”</p> <p>The other grounds are, that the court erred in refusing to give the following instructions : “ The engineer of a railroad train, seeing a grown man ahead of him on the track, and not knowing that he labored under any infirmity, has a right to assume that he will get off in time to save himself. The requirements of blowing the whistle, ringing the bell and checking the speed are not for-the protection of persons using the track as a thoroughfare in its length and not in crossing it.”</p>

<p>1. In a suit against an administrator to recover wages for annual services rendered the intestate during several successive years, evidence at the trial showing that there was a special contract between the plaintiff and deceased fixing the wages for the last year at $200 would authorize the jury to infer a like contract, not in excess of $200 per annum, for each preceding year. This being so, it was error to charge the jury that if the services for the years preceding the last were rendered and not paid for, the plaintiff would be entitled to recover their reasonable value. The instruction should have been that this would be the measure of recovery if there was no special contract applicable to those years.</p> <p>2. The general rule which puts the burden upon the party alleging payment to prove it, applies to an administrator in a suit for services rendered his intestate. Lerche v. Brasher, 104 N. Y. 157; Barbour, Law of Payment, pp. 253, 292-3.</p>

Contract. Statute of frauds. Practice. Yerdict. Before Judge Jenkins. Baldwin superior court. July term, 1891. Gobert sued the defendant in a justice’s court for $100, for services rendered for the months of February, March and April, 1891. On appeal to the superior court the jury found for the plaintiff $100 principal, and $1.75 interest. The defendant moved for a new trial on the grounds that the verdict was contrary to law and evidence.

Criminal law. Murder. Practice. Yerdict. Before Judge Jenkins. Jasper superior court. March term, 1892. Joe Thomas was convicted of murder and sentenced to death. A new trial was denied, and he excepted. The evidence makes a case of murder, and shows that the killing occurred in December, 1891, at a dancing party in Jasper county. The grounds of the motion for a new trial, besides those alleging that the verdict is contrary to law and evidence, are as follows: 1.

<p>Evidence. Telegraph company. Penalty. Damages. Before Judge Bichard H. Clark. Cobb superior court. November term, 1891.</p> <p>Lindley sued the Western Union Telegraph Company for the statutory penalty and special damages, for failure to properly transmit and deliver a telegraphic message. The message as set out in the declaration was : “Powder Springs, April 23, 1890. Mr. Thomas Grisard, Atlanta, Ga. How is cattle ? Answer at once. Care W. H. Talley.” This was signed by the plaintiff. When the case came on for trial, the defendant was in default and not represented by counsel. The plaintiff testified : On Api'il 23, 1891, he sent the message set out in the declaration over defendant’s line. He went to the office in Powder Springs, wrote the message, gave it to the operator and paid him fifty cents—half of this amount for sending the message, and half for the answer which was to be sent back to witness. "Witness went to the office several times for the answer, but did not get any. Waited a week or more, and finally went to Atlanta to see what was the matter. He was then engaged in the beef business, that is, would buy up beeves and sell to the butchers. Grisard was in the beef business in Atlanta, and witness had sold to him several times before this. Had also sent him telegrams before, as he did at this time, and had always had prompt answers before this time. Witness had on hand at that time about fifteen head of cattle that he expected to have sold to Grisard. On account of not hearing from him witness kept these cattle about a week or more, and had to bear the expense of keeping them. It cost him about thirty to forty cents apiece per day to keep them. In the meantime the prices declined, and he lost about $2 per head on them. If he had got a prompt answer to his telegram, as he expected, he could have got them off’ right away, and would not have sustained these losses. From other testimony it appeared that Grisard lived in Atlanta within a quarter of a mile of the office of defendant. He had a place of business near defendant’s office in Atlanta, where it has often delivered telegrams to him prior to the time in question. He had received telegrams from plaintiff several times prior to this over defendant’s line, defendant delivering them. He always answered them promptly, and would have answered this had he received it. He had bought cattle from plaintiff' before. He did not receive the telegram, and knew of- it first when plaintiff’ came to Atlanta and inquired about it. Talley lives within a quarter of a mile of defendant’s office in Atlanta, and defendant has often delivered telegrams to him there. He has received telegrams from plaintiff through defendant. He never received the telegram in question, and first heard of it when plaintiff came to inquire about it.</p> <p>The jury found, for plaintiff .$100 penalty, and $80 damages. The defendant brought its bill of exceptions, alleging that the court should have required plaintiff either to p ut in evidence the original telegram, or to have properly accounted for its non-production, before allowing proof of it by secondary evidence. It also assigned error upon the following instructions of the court to the jury, alleging that they were unwarranted by the evidence, and that the evidence did not entitle the plaintiff to recover : “ If you believe the evidence sustains plaintiff’s cause of action, you are authorized to find for the plaintiff the penalty claimed in the declaration, to wit $100. If you do uot so believe, you should find for defendant If you believe the evidence sustains plaintiff’s cause of action as to special damages, you should find also for plaintiff' such an amount as will compensate him for whatever loss he sustained because of the failure to deliver the telegram, as may be shown by the evidence. If you should not so believe, you should not find as to special damages.”</p>

<p>Justice’s court. Judgment. Evidence. Interrogate-. ries. Witness. Verdict. Before Judge Milner. Bartow superior court. July adjourned term, 1891.</p> <p>Certiorari to the verdict of a jury in a justice’s court against J. A. Baker, was overruled, and he excepted.</p> <p>1. It appears that on January 15, 1879, Thompson & Scott sued W. C. & J. A. Baker for $25, balance due on an account with items dated May and August, 1876. The suit was in the court of Pritchett, justice of the peace, and the summons was returnable to the 11th day of February, 1879. On February 22, 1879, Pritchett rendered judgment against J. A. Baker only, for $18.75, with interest from January 1, 1877, and cost. On Pritchett’s docket, just preceding this entry of judgment, appear the words, “ Trial 11th Feb’y,” In 1887, after notice to the defendants, Attaway, the successor in office of Pritchett, transferred the case from Pritchett’s docket to his own, it appearing that the judgment of Pritchett was rendered on a day other than a regular court day. The case was tried by Attaway, and judgment was rendered in favor of the plaintiffs ■against J. A. Baker for $25, with interest and.costs. From this judgment Baker appealed to a jury, and on the trial there was evidence that the regular day for holding Pritchett’s court was the 11th of February, 1879, that the case in question was not tried on a regular court day, but that after finishing other business the court adjourned to the 21st of February to try this and another case. It is contended in the petition for certiorari that the original judgment was binding on the parties thereto, and is conclusive until reversed or set aside in some proceeding directly for that purpose. A. W. Fite testified that Pritchett’s regular court day was held on the second Tuesday in each month, which at the date of the judgment would have been on the 12th day of the month. He did not know whether the court was running from day to day until the rendition of this judgment. After getting calendar for year 1879, said court was held on the 11th day of the month. To this testimony Baker objected on the ground that it was irrelevant, as the plaintiffs could not attack the judgment in this way. The overruling of this objection is assigned as error.</p> <p>2. The plaintiffs sued out interrogatories for J. A. Thompson, which, by agreement between parties, were executed and returned, and were read in evidence in behalf of the plaintiffs. Baker insisted upon objections he had taken in writing to the introduction of these interrogatories, which objections were, that Thompson had positively refused to answer the third and fourth cross-interrogatories. The objections were overruled, and error is assigned. The two cross-interrogatories referred to are as follows : “ Is it not a fact that as an attorney at law I was suing you and Scott for Dr. Baker and Baker & Hall: and is it not a fact that several other parties were suing Thompson & Scott; and is it not a fact that you and Scott were both in, a terrible straight for money in 1878, 1879 and Í880 ? This being a fact, why is it that you allowed this fi. fa. against me to go unsatisfied? Explain fully. Don’t you know it has been settled; and why are you now swearing a lie for the paltry sum of $25? Does any of this recovery go to you? If so, how much ? 'What part of this claim goes to the attorney, if collected ? Don’t you know that I am perfectly solvent, and why in the very beginning of this suit should you and Scott promise one half of the claim to a pretended attorney at law to help you collect it ? Explain fully. J. A. Baker.” The answer given by the witness was as follows: “ As to the other x-interrogatories I decline to make answer, as the matters of record therein referred to will speak for themselves. Our condition in 1878,1879,1880, can be better proven by the people of Cartersville, and Mr. Eite can testify as to the reference to himself. J. A. Thompson.”</p> <p>3. It is further assigned as error that Attaway, the sole presiding justice, was sworn by the plaintiffs as a witness, over objection “ that the presiding court could not be sworn by an attorney and introduced in a case,” and then testified as to what J. A. Baker had sworn in this case when it was tried by the witness.</p> <p>4. A motion was made to dismiss the case, because the summons did not show whether the defendants were partners or joint contractors. The summons was addressed to “ W. C..& J. A. Baker,” and the account sued on was made out in the same way. The court held that as the summons stood the suit was against the defendants as joint contractors. The plaintiffs then proposed to amend by adding the words- “ as partners,” after the names of the defendants, to which objection was taken on the ground that this would make new and distinct parties. The objection was overruled. The amount .was written out in the summons but not signed, and nothing further was said or done about it until the evidence was closed, when the plaintiffs’ counsel said that he declined to make the amendment. After hearing the testimony of "W. C. Baker, the plaintiffs’ counsel said that W. C. was clearly not liable and he would not ask a verdict against him. This statement was entered on the docket, and the verdict and judgment were against J. A. Baker alone. ■ He and W. C. both swore that W. C. was not liable on the account. The error assigned is the allowance of the amendment over the objection.</p> <p>5. The jury returned this verdict: “We, the jury, find for plaintiffs $25 with interest.” Before the jury dispersed the justice, over objection of Baker, directed them' to return to their room and state the time from which they found interest. They did return and added to the verdict the words, “from January 1, 1877, at seven per cent.” Thereupon judgment was entered accordingly. Error is assigned upon the overruling of the objection, and upon the entry of judgment against J. A. Baker alone, the verdict being, as he insists, as much against W. C. Baker as J. A. Baker.</p>

Will. Judgment. Sale. Cost. Practice. Before Judge Milner. Dade superior court. September term, 1891. Ejectment against the plaintiff in error was brought on the demises of Neppie Doyle (formerly Taylor), Cansaida Jeffries (formerly Taylor), and Margaret, Elizabeth and Lucy Taylor (these three alleged to be of unsound mind, and suing by their next friend), on January 13, 1890.

<p>1. Under the facts in the record, the court did not err in refusing to dismiss the motion for a new trial, the motion having originated before the end of the term of the court at which the verdict was rendered, and all acts done by the judge or the movant whilst the court was in temporary recess, having been either repeated or tacitly recognized and adopted later during the same term and whilst the court was in actual session, so as to cure all irregularities.</p> <p>2. The declaration set forth a cause of action, and there was no error in overruling the demurrer thereto.</p> <p>3. After stating facts within the knowledge of the witness tending to show that the plaintiff was seriously disabled by an injury, the witness may express his opinion that the plaintiff “ has been unable to perform any duties which required the slightest physical exertion, and during his severe attacks he was unable to do anything, and at his best cannot do anything other than jobs of very light nature.”</p> <p>4. Interrogatories which assume hurt, suffering or loss of time, where these are involved in the action, are leading.</p> <p>5. A railway company in coupling a freight-train to a passenger-car having passengers already in it to be carried by the train, is bound to exercise extraordinary diligence,—that is, such diligence as very prudent persons would use with a like train under like circumstances, and the court may instruct the jury that the rarity of an injury will furnish no excuse to the company for omitting that degree of diligence in the particular instance. That the charge given on this question was somewhat obscure will not vitiate the verdict, for when construed in the light of the whole charge it could be understood’ correctly by the jury.</p> <p>6. A passenger who has been harried on the line of a railway in a passenger-car which that company switches off upon the line of a connecting railway, sustains the relation of passenger to such connecting railway company during the time the car is stationary and he remains in it, if according to the usual course of business that company is accustomed to receive presently cars so delivered to it, couple them into its trains and carry them over its own line. This is true whether the passenger, at the time of being injured, has procured 4 ticket or paid his fare for a passage over the connecting line or not.</p> <p>7. After instructing the jury that the plaintiff was bound to use ordinary diligence to avoid being injured, it is not error to refer it to the jury whether or not, under the circumstances, he ought to have left the car or taken the seat nearest to where he stood when he discovered the danger. This being a matter for the opinion of the jury, in the light of the evidence, it could be referred to them under the phraseology “if you think,” etc.</p> <p>8. To charge the jury that the injury would be accidental if neither party was negligent, is not error.</p> <p>9. Heading the whole charge together, the instructions given as to the apportionment of damages if both parties were at fault, did not mislead the jury.</p> <p>10. In the absence of a request, there was no duty on the court to charge the jury that the defendant was not bound to produce all of the agents and employees who were connected with the running of the train.</p> <p>11. It not appearing that the court failed to do its duty by rebuking counsel who made grossly improper remarks in his argument to the jury, and by stopping him and warning the jury to disregard what he had said, the Supreme Court will not presume that the superior court omitted any duty in this respect, and therefore the misbehavior of the plaintiff’s counsel, though gross, is not, so far as appears from the record, cause for a new trial.</p> <p>12. The plaintiff having testified at the trial that he could easily have avoided being injured, and having failed to explain in his testimony why he omitted to do so, and his declaration alleging that he was injured after he discovered that the danger was imminent, a new trial should have been awarded on the general grounds of the motion, though it was not positive' error to deny the motion for a nonsuit.</p>

<p>1. The retention of title by the vendor in a written contract of sale of personal property with the condition affixed that the title is to remain in the vendor until the purchase price shall have been paid, though the instrument be not recorded within the time prescribed by law, will prevail over the lien of a subsequent mortgage on the same property, executed by the conditional vendee to a creditor who gives credit and takes the mortgage without notice of the vendor’s title, the mortgage also not being recorded in time.</p> <p>2. If the contract between the parties as expressed in the writing be substantially a contract of conditional sale, that the purchase money is denominated “ hire ” and divided into sums payable at various periods throughout the term of credit, will not render the transaction one of bailment for hire and subject it to the law of bailments instead of the law of conditional sales.</p> <p>3. Under the foregoing rulings, the question of notice to the defendant as purchaser at the sale made under a foreclosure of the mortgage is immaterial. The same is true of other questions raised in the record.</p>

<p>Slander. Pleading. Evidence. Landlord and' tenant. Before Judge Fort. Macon superior court. May-term, 1891.</p> <p>Reported in the decision.</p>

Criminal law. Murder. Relationship of juror. Conduct of trial. Charge of .court. Prisoner’s statement. Perjury. Duress. Accomplice. Before Judge Well-born. Lumpkin superior court. October adjourned term, 1890. Burns was convicted of murder. The principal witness against him was his stepmother. She was the only witness who professed to have seen the killing, and it is to her evidence that most of the grounds of the motion for new trial refer.

Husband and wife. Estoppel. Witness. Agent. Before Judge Maddox. Floyd superior court. March term, 1891. Action by Mrs. Hidell against the administrators of Dwinell. She excepted to the grant of a nonsuit, to the rejection of the testimony, and to the overruling of her motion to strike portions of the pleas of the defendants.

<p>Railroads. Master and servant. Negligence. Non-suit. Before Judge Atkinson. Pierce superior court. March term, 1891.</p> <p>Mrs. Devine sued the railway company for the homicide of her husband, one of its locomotive engineers. The court granted a nonsuit, and she excepted. Only two witnesses were introduced as to the circumstances attending the disaster, the fireman upon Devine’s engine, and a flagman of the train which that engine was drawing. The fireman testified : The train on which Devine was engineer was a regular passenger, known as second section of train number 78, going from Jacksonville towards Savannah. It was a pretty fast schedule, but I cannot say what the rate of speed was. We followed the first section of train 78 all the way from Jacksonville. In my judgment we were allowed to run five minutes between, but I cannot say whether we were under or over that time. When we got to the 73 tui’nout we ran into the first section, and I learned that Devine was killed. I was not on the engine when the collision occurred, but jumped off before we struck, Reaving Devine on the engine. It was getting dark when we left Blackshear, one of our regular stops, and where the first section also stopped. After we left Blackshear I saw that the first section was ahead of us by the light from the engine when the fireman would open the furnace door, and continued to see it by the light off' and on until they got to the bottom of the hill, when I did not see it again. We were then going over the hill at McDonough’s mills. They were between one and two miles off' at this time. There is a switch and turnout at the 73 mile post. When we were approaching the mile-post, Devine was at his place with one hand on the throttle and the other on the lever. When we got inside the mile-post, he put his brakes on and took them off. Close to the switch some one waved us down, and beyond that some one was waving us to come ahead; that is, we thought it was for us to come ahead; it was dark at the time. Devine answered the signal by blasts of the whistle. The engine was then going at a good speed. Just then some one burst a fusee on the track. When I saw tliis I put the lever as far back as I could get it, and jumped to the ground. 'When the fusee was burst Devine and I were looking ahead. There was no light behind the first section. There ought to have been a red and a white one on the rear car. The first thibg we saw was the fusee, which is about eight or ten inches long, used to make a light in case of danger, and then a sleeping-car just ahead of us about four or five car-lengths. We reversed the engine and did all we could to stop her, but were so close it was too late. Cannot say how far from the sleeping-car was the man who burst the fusee, nor how far from the car was the fusee, but when it burst we then saw the car. The man that lighted the fusee was between us and. the fusee. There was no one else there. He was on my side of the track when the fusee was burst. I do not know of any signal being given our train to stop. The fusee was the first, and he took up the engine. There was a freight-train on a side-track there, coming towards Blackshear. There was nothing in our way except this first section that we ran into. I do not know how fast the train was running when I jumped, but I judge between ten and fifteen miles an hour; it might have been more or less. We were not running as fast as we generally run, or I could not have jumped off without being killed. I think this accident happened between four and five telegraph poles from the switch, and do not know how long the switch is. Do not know how far it was from where we struck that steam was put on. We were on this side of the switch (towards Blackshear) when we saw the signal to come ahead. When he saw the signal he answered it with the whistle, jerked the engine up and put steam to it. It was some distance from where he put steam on to where we struck; I cannot say how far. The switch is a long one. I learned from the rule-book that when one section follows another, trains are to run five minutes apart. Think it is one or two miles from McDonough’s mills to the place of the collision, and we were running between twenty and twenty-five miles an hour when we passed McDonough’s mills. We were this side of the mill (towards Blackshear) when the first .section went over the hill, the last place that I saw the light from the front engine. I saw one of the tail lights at this place. It was a green light. The other was not lit, or I would have seen it. The other should have been a red light. I looked for the lights, and Devine made some remark about it. Saw the green light at Blackshear. It was then getting so dark you could not see very far on the railroad. From where I saw the light from the fire in the first engine to where the accident happened, was from one to two miles. From the time the first section went over the hill we went up grade until we got to the top of the hill; when we stalled down grade the engineer put on his brakes and kept them on until we got this side of the mile-board, one mile from 73 mile turnout. Devine put the brakes on when he saw the person waving us down. This, signal was. given by a lantern being swung across the track, and indicated to stop. ¥e did not stop because some one ahead was waving us to come on. The two signals were not given at the same time, but when the last signal was given we went by the man waving us down at the switch, and the man beyond waved us ahead; there were two signals at the ■ same time. The nearest signal was a lantern across the track, and the one ahead was swung up and down and meant come ahead. Cannot say how far^ one was from the other. Devine obeyed the first until he saw the other, and then paid no more attention to the first, but opened his engine and started ahead again. I do not know how fast we were then running, or how far we were from the switch.. Wfien he put steam to the engine she went faster. When we saw the signal to go ahead wo were about one hundred yards from and before reaching the switch. The engineer put on steam then. We were inside the switch before he reversed the engine. Our speed was increased from the time we got the second signal up to the time we got to the west switch, and we were, of course, going faster than ten or fifteen miles when we got to that switch; cannot say how much more. No’ attempt was made to stop the engine until we saw the' fusee. The signal to come ahead was given while the one to stop was given too. I do not know when the-signal to stop ceased; when we passed it was swinging ; he was standing at the switch; I do not know whether it was to stop us or not; some one just kept swinging' the signal to stop until we passed him. ¥e might have been running faster than ten or fifteen miles an-hour. When I jumped I turned a somersault and struck on my side; do not remember getting up ; they say they found me in a mud-hole. It was a hard blow, and' the-train was going pretty fast. He did not have time to-take it up until he saw the fusee. The cab was knocked off the engine; the smoke-stack of it was torn all to pieces. The indication was that it was going pretty fast when it struck the sleeper.- We had no steam ©n at all until we saw the signal to come ahead. I do not know what force is necessary to break an engine; sometimes-such things happen and tear it to pieces, and sometimes; it don’t. I could have seen those lights if they had been-burning. In approaching the switch the train was slowing up to stop and could have easily been stopped. The engine was under control at that time, but not when we passed the west switch. There was smoke coming from the engine on the side track and from the engine of the first section, but not much. I do not know how about the smoke preventing me from seeing the tail lights, for when the fusee burst I saw the end of the sleeping-car and did not see any light. I saw one light at Black-shear, a red light. I do'not know whether on account of the fusee I could not see the light on the end of car or not; I could see the lights if they were burning. The air brakes on the train, except on one car, were all right; that one was the car next to the engine, and that would not prevent our stopping. The train was in good order so far as I know. The man who was swinging the light “this way” was at the switch on the side of ithe track where the two tracks run together, on the left hand side going towards Savannah where the other train uvas. That other train was on the siding, and the siding •was on the left hand side. He was at the switch this ■side of the engine of the freight-train, which was heading towards Blackshear. I cannot tell how Devine could tell that signal was for his train or for the freight-train. It might be for any one. ¥e did not know, we could not tell; it might be for him to stop, it might be for the other train to stop. I cannot say how long the signal to come ahead was waved;’ it was waved until we saw the fusee burst; then we saw there was danger. ¥e saw the come ahead signal after we passed the switch; did not know what it meant; did not know there was any danger until we saw the fusee burst. Both the lights that were waved were white lights; the danger signals are red lights; when a red light is. waved it means danger, to stop; when a white light is waved it also means to stop. The kind of signals given for a train to stop are torpedoes and fusees; then there is danger ahead. Torpedoes are put on the track,, and fusees held in a man’s hand that lights it. The man has to go back some five or six telegraph poles, I think; the fusee we saw was only three or four car-lengths from the sleeper. Devine would not run over a red light; never ran over one while I was with him, nor a fusee, which is a red light. I cannot say a white light swung across the track means just as much as a red light. Do not know that an engineer has no right to run by a white light swung across the track; do not know what right they have to disobey it. If a man stopped whenever he sees a white light, he would not go anywhere; oftentimes on the side-track a man waves a lantern to stop; he waves down, but there is no stopping-place. A white light swung across the track means to stop; there is no question about that. He swung the light until we got up to it and was swinging it when we passed it. The headlight on the train on the side-track was showing up. We might have been five or six car-lengths from the train we collided with, when I first saw it. The headlight shows further than five or six car-lengths. Of course I could not say whether it was any further, or that far. At the same time I saw the man at the switch, I saw the freight-train behind him on the side-track; cannot say whether the man waving the light meant it for Devine. Devine put his brakes on to keep the train under control. The up and down light was six or seven ear-lengths from the other. Do not know that Devine had a right to expect to meet the freight-train at that siding. I did not know it. I expected to meet it at the regular meeting place. The lantern used by the man giving the signal to stop looked like a train hand’s lantern. The freight-train on the siding was standing still when I first saw it; do not know that the signal was not intended for that train; and it was standing still when we passed the engine and before the fusee burst'. The man was standing by the side of the main line, and swung across the main line; he was not standing on the track, but swung the light at right angles with the track, not across the track. I knew that we had to pass that freight-train. The regular passing point was about two miles from Black-shear. I knew we had not passed it but had a right to expect to pass it at any time. In answer to a question, “ "Was the signal at the switch a signal to the main line?” he- answered, “A man stood at the switch, it appeared to me to be signalling the main track; I do not know.” At that time the train on the siding was stationary. I did not know it was stationary until we got up to it. I do not know that the signal was for the main line, it was near that line. The tracks run together there. The main line is on this (Blackshear) side of it, right in front of it; he was standing on the end of the switch ties. I do not know whether his face was to the main line; he waved his light in that direction with his right hand.</p> <p>The flagman testified, in brief: There were five minutes time between the first and second sections. The first section carried a green light on each side of the engine as a signal to indicate that another train followed it, having the same schedule rights. The first section was due at 73 turnout at 5.46 p. M., the second at 5.51, and the second reached that point at 5.51. As the second section approached the west end of the switch, the engineer put on the air-brakes and the train was slowing down, but I cannot say what the speed was when we hit the other train. I knew that the next turnout was number 73, and that we would meet a freight-train there if it was on schedule time. I felt the air-brake put on and that the train was slowing down, and was going to see if we passed the freight-train there, and as I- was in the act of opening the door the crash came. I did not remember seeing or hearing any signals before or at the time of the accident. At the time of the collision I was at the rear end of the rear coach of the second section.</p>

<p>Crimnal law. Obscene and vulgar words. Before Judge Milner. Catoosa superior court. February term, 1892.</p> <p>Reported in the decision.</p>

Railroad corporations. Carriers. Judicial notice. Passengers. Before Judge Yan Epps. City court of Atlanta. September term, 1891. The court below sustained a general demurrer to the declaration of Mary Caldwell against the railroad company, and the plaintiff excepted. The declaration averred that the Richmond & Dan-ville Railroad Company, at the time in question, was operating and controlling the Georgia Pacific railway, and was responsible for the injury to her.

Railroad passenger. Police power of conductor. Damages. Before Judge Van Epps. City court of Atlanta. September term, 1891. The plaintiff' sued the railroad company for damages, and obtained a verdict for $1,000. The defendant moved for a new trial, and the motion was overruled.

<p>The evidence warranted the verdict, and the damages found were not excessive.</p>

Railroads. Damages. Negligence. Before Judge Yan Epps. City court of Atlanta. September term, 1891. Mrs. Johnston sued the Richmond & Danville company, controlling and operating under lease the Georgia Pacific railway, for the homicide of her minor son. She obtained a verdict for $5,000. Defendant moved for a new trial, and the motion was overruled.

Damages. New trial. Jurisdiction. Before Judge Van Epps. City court of Atlanta. September term, 1891. On the last trial of this ease the jury found for the plaintiff $12,000 damages.

<p>1. As respects railroad companies having no exemption, a statute is not unconstitutional which provides for taxing railroad property for county purposes at the regular rate ad valorem which is levied by the county authorities on other property, each county through which a road runs being allowed to tax at that rate all the company’s property, real and personal, located in that county, and in addition thereto, its due proportion of the rolling-stock and other floating or unlocated property of the company, that is, a proportion corresponding to the ratio between the company’s property, real and personal, located in the given county, and the aggregate of its located property in all the counties through which the road runs. Properly construed, this is the scheme and purpose of the act of October 16th, 1889, on the subject of taxing railroad property for county purposes. The act is a general, not a special law, and except as necessarily checked and qualified by irrevocable exemptions previously granted, it is uniform, equal and just. It is not wanting in uniformity because it recognizes and seeks to abide by inviolable charter rights of such railroads (if any) as can be taxed for county purposes only upon the basis of their net income, there being in fact, under existing conditions, no such railroads now in the State. Nor because it requires rolling-stock and other floating personalty to be apportioned for county taxation amongst the several counties through which the respective railroads run. Nor because it requires returns to be made to the comptroller-general of the State instead of to the tax receivers of the several counties, and designates that officer, and not the tax officers of the counties, to calculate the amount of taxes due to each county according to the returns, and to issue execution therefor. The nature of railroad property and its involved relations with the several counties interested, render the services of an officer common to all the counties appropriate for securing a correct and effective performance of these ministerial functions.</p> <p>2. The act in question neither imposes a State tax for county purposes, nor attempts to levy county taxes directly by the State. It provides for taxing railroads for county purposes by and through the action of the county authorities, the rate in each county being fixed by such authorities, and being the same for all kinds of property. That different counties fix different rates is of no consequence, one and the same rate only being applied to property located in a given county.</p> <p>3. The act refers to but one subject-matter, and contains nothing different from what is expressed in its title.</p> <p>4. The State does not by this act deny to any person or railroad corporation the equal protection of its laws, and consequently there is no conflict with the 14th amendment of the constitution of the United‘States.</p>

Jurisdiction. Practice. Demurrer. Conduct of trial. Onus. Negligence. Damages. Street railroads. Before Judge Yan Epps. City court of Atlanta. September term, 1891. Mrs. Powell sued for damages, and obtained a verdict.

Homestead. Husband and wife. Dower. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1893. Petition by Anderson, administrator, for direction, etc. The casé was tried before the judge without a jury. It was agreed that the facts were as follows : Jordan Love died in January, 1888. Plaintiff was appointed his administrator in August, 1889. Deceased’s whole estate consisted of a house and lot in Atlanta.

Jurors. Practice. Title. Husband and wife. County matters. Hoads. Before Judge Westmoreland. City court of Atlanta. September term, 1891.

Equity. Contract. Mistake. Vendor and purchaser. Before E. N. Broyles, judge pro hac vice. Eulton superior court. September term, 1891. Action by Mrs. Werner against Rawson, to recover possession of certain real estate, and for the restoration of a deed (by the establishment of a copy or by requiring the execution of one similar) which Rawson had executed and which conveyed to her the property in question.

<p>Dower. Husband and wife. Evidence. Before Judge Richard H. Clark. DeKalb superior court. August term, 1891.</p> <p>Reported in tbe decision.</p>

<p>1. The tax in question (Acts of 1890-91, vol. 1, p. 42) is a tax on the business of selling sewing-machines, irrespective of the State or country in which'the machines are manufactured; and the statute is not unconstitutional because it imposes a tax on that business without taxing other business and occupations, nor because it is not uniform with the method of returning and collecting taxes on property, nor because it prescribes a penalty for violation of its requirements. The tax is uniform upon all business of the same class..</p> <p>2. The burden was on the State of proving the allegation in the indictment that the machines dealt in by the accused, he being a merchant, were of the manufacture therein designated and that the company manufacturing the same had not paid the tax required by law to be paid into the officeof the comptroller-general, the fact of payment or non-payment of the tax by such company not resting peculiarly within the knowledge of the accused, and the means of proving the allegation being at least as accessible to the State as to him. '</p> <p>3. By ordering sewing-machines at the request of persons wishing to buy them, receiving them when sent in pursuance of the order and delivering them to the purchasers, a merchant does not engage in the business of selling sewing-machines, nor become a dealer in them or an agent to sell them, within the meaning of the 9th section of the general tax act approved December 26th, 1890.</p> <p>4. The verdict was not warranted by the evidence, and the court erred in not granting a new trial.</p>

<p>1. A father who, while non compos mentis and being moved by the fraud and undue influence of his insolvent son, a non-resident of the State, turns over to the son for collection and for management of the proceeds a promissory note, may, after suit has been brought upon the note by the son in his own name, maintain a bill or petition in the county in which the suit on the note is pending, to enjoin the son from proceeding with the suit, and for the appointment of a receiver to recover and take charge of the proceeds, the bill or petition alleging that the son intends to use the suit for the collection of the money for his own benefit, and to carry the money beyond the limits of the State and convert it to his own use in consummation of his fraudulent purpose.</p> <p>2. A lunatic, or person non compos mentis, having no legal guardian, may sue by any competent person as his next friend. And where ' the question of-sanity or insanity is involved in the subject-matter of the suit, the question may be tried irrespective of whether a commission of lunacy has been issued or not.</p> <p>3. On general demurrer a petition should not be dismissed because some of the parties are improper or unnecessary, nor because some of the facts alleged may be superfluous or afford no cause for relief, nor because some of the relief prayed for may not be appropriate, these being matters for special demurrer at the first term.</p>

New trial. Practice. Electric wires. Master and servant. Before Judge Eve. City court of Richmond county. May term, 1891. Action by Andrews against the railway company, for damages from personal injuries. He obtained a verdict; the defendant’s motion for a new trial was overruled, and it excepted. It excepted also to the overruling of its demurrer to the declaration, the material allegations of which are stated in the opinion.

<p>1. Pleading which attacks the returns made by a guardian to the court of ordinary which have been examined and allowed by the court, should point out specifically the items of the returns on which the attack is made, and as to each should disclose the cause or ground of the attack. It is not enough to allege that the return for such and such a year is unlawful as to a specific amount, without pointing out the items alleged to be unlawful, and without stating in what the unlawfulness consists.</p> <p>2. Fraud committed by the guardian upon the ordinary in procuring the allowance of his annual returns will vitiate the returns and their (approval only in so far as the fraud extended. If it went to the whole of a return, the whole would be vitiated; if only to certain items, these only would be vitiated.</p> <p>3. The guardian of the person and property of a lunatic is entitled to retain possession and control of his ward’s effects so long as he continues guardian; and to deprive him of such possession and control before the ward is restored to sanity, it is necessary that his letters be revoked and another guardian appointed. If a next</p> <p>. friend suing in behalf of the ward can maintain an action for waste committed by the guardian, or recover money in his hands, it can be done only in connection with a proceeding to remove the guardian and revoke his letters. A recovery for so much money, without, any disposition of the case in so far as relates to removal or revocar tion, is contrary to law.</p> <p>4. The court erred in not granting a new trial.</p>

Shipping. Carriage by sea. Contract.' Master and servant. Verdict. Evidence. Before Judge Harden. City court of Savannah. November term, 1891. Action by Tatner against Swift, Adams and others as owners of the schooner Leon S. Swift. The jury found $651.55 for the plaintiff generally. The defendants moved for a new trial, which was denied, and they excepted. For the other material facts see the opinion.

<p>1. A municipality desiring to incur a bonded debt, and giving published notice to the qualified voters of the purpose and amount of the bonds, and that they are “to bear interest at a rate not to exceed six per cent, per annum, and to run not exceeding thirty years from the date thereof, the interest to be paid annually on the first days of January and July of' each year, and the prin- ■ cipal of said bonds to be fully paid off within thirty years from the date of the issuance thereof,” fails to comply with the statute embodied in section 508(i) of the code, the statute requiring that the notice “ shall specify what amount of bonds are to be issued, for what purpose, what interest they are to bear, how much principal and interest to be paid annually, and when to be fully paid off.” Without passing upon other alleged defects, the omission to specify in the published notice how much principal and interest would be paid annually, rendered the notice so defective as to afford cause for enjoining the municipal authorities, at the instance of some of the tax-payers applying in their own behalf and in behalf of all others who might choose to join in the application, from issuing or selling bonds based on an election, and the result thereof, held in pursuance of such defective notice, and from levying or collecting any taxes for paying the principal or interest of the same.</p> <p>2. Under the facts of the present case, the application for injunction did not come too late; and some, at least, of the applicants in the petition as amended are not estopped from invoking protection by that means in their own behalf and in behalf of the class which they represent.</p>

Municipal corporation. Constitutional law. Contract. Taxation. Before Judge Attaway. City court of Cartersville. September term, 1891. The declaration filed by the plaintiff was demurred to, and the demurrer sustained.

Municipal corporation. Contract. Taxation. Estoppel. Injunction. Before Judge Maddox. Bartow 'county. At chambers, March 25, 1892. The petition of the Cartersville Water-Works Company against the Mayor and Aldermen of the City of Cartersville and the marshal of that city, prayed that they be enjoined from levying and collecting any city taxes from the plaintiff for the year 1891, or any other year for the first ten years after August 6, 1888.

Receiver. Before Judge Milner. Catoosa county. At chambers, March 11, 1892. The exception here is to the appointment of a receiver to take possession of land held by Patterson, the defendant, to rent out the same to the best advantage and to hold the rents subject to further order, unless the defendant would give a hundred dollar bond for the payment of accruing rents.

<p>:There was enough in the declaration to amend by. Though in suits conducted by a next friend, the minors ought regularly to sue by him, yet if the next friend sue in behalf of the minors, it Is the same in substance. Lasseter v. Simpson, 78 Ga. 61. The deifect in form is amendable by alleging that the minors sue by Itheir next friend. A declaration at the suit of children for the homicide of their father is amendable by alleging that the deceased left no widow, and that the-plaintiffs are all the children which survived him.</p>

Railroads. Contracts. Parties. Amendment. Evidence. Before Judge Maddox. Walker superior court. August term, 1891.

Amendment. Contract. Charge of court. Verdict. Before Judge Meyerhardt. City .court of Floyd county. September term, 1891. Burney commenced suit against the plaintiffs in error by attachment. His declaration alleged that they are indebted to him $500 as damages for breach of contract for services rendered them by him in the employment of salesmen for them.

Railroads. Negligence. Amendment. Before Judge Maddox. Floyd superior court. March term, 1891. Action by the wife of Barnett, against the railroad company, for damages from the homicide of her husband. The material allegations of the declaration were as follows: On March 6th, 1889, Barnett, who was. an employee of Patton, was assorting and removing lumber near a side-track of the railroad company in Rome, which side-track was situated near Patton’s shop.

<p>Railroad passenger. Damages. Before Judge Meyerhardt. City court of Floyd county. June term, 1891.</p> <p>Hyde sued the railroad company for damages, and obtained a verdict for $2,438.35. The defendant moved for a new trial, because the verdict was contrary to law and evidence and was excessive. The motion was overruled, and exception was taken.</p> <p>At the trial the plaintiff testified: I got on the train at Raines station, Alabama, to ride to Qreburg, Georgia. T got to the depot at Raines station just before the train left, and did not know whether I could get a ticket there or not. When the conductor came by, I paid him thirty-eight cents and told him I wanted to be carried to Oreburg. He said, “ All right; I will stop there for you.” The train was made of a good many freight-cars with a passenger-coach behind. It stopped in a cut about two hundred yards before reaching Oreburg. It was raining and had been raining all day; the ground was shoe-deep in mud. I did not get off there, expecting the train would stop at the platform at Oreburg. It did not do .so; when it passed,the platform it was going too fast for me safely to leave it. As we passed the station I went to the conductor and asked him to let me off'. Said the conductor, “ Ho you want to get off here ?” I answered, “ Y es, I told you I wanted to get off here.” The conductor then said, “ Why, G— damn you, why in the hell didn’t you get off’ back yonder when the train stopped; I thought you got off there.” I answered, “ Because I paid to be put off at the station.” The conductor then'said, “Well, G— damn you, get off here.” I said, “ Well, stop the train.” The conductor repeated, “ Get off' here.” The train was running ten or fifteen miles an hour. We had got to the platform. I said, “ Stop the train.” The conductor said, “ G— damn you, get off here,” and with that he grabbed me by the arm and pushed me off the train. I fell first on my head and neck and then on my right hip in the mud; as soon as I hit the ground I lost my senses; from the effect of this fall I lost eight days from my work, worth- $1 per day. I am now doing the same kind and getting the same wages I was before I was hurt. My hip was bruised, inflamed and bloodshot in a place as large as my hat.</p> <p>A witness who claimed to have been on the train at the time in question, gave testimony corroborative of that of the plaintiff' as to the conductor’s words and pushing the plaintiff off. He further testified that the trains very frequently do not stop at the platform, but just stop at the coal-chute, about two hundred yards from there, at which place the witness got aboard because he thought may be they would not stop at the platform. Another witness testified that the train was stopped in a cut about one hundred and fifty yards from the station; the coach was left in the cut, and the train was switched and a coal-car put in ; it stayed there about five minutes; then it was attached to the coach and pulled rapidly past the station; about two hundred yards below the station it was moving at the rate of about sixteen miles an hour; this was between seven and eight o’clock in the evening. The witness found the plaintiff by hearing his groans in the dark; went to him and found him in an insensible condition; he was bleeding from a- wound on the head, and his right hip so injured that witness had to carry him. He assisted him to his, witness’s, house, where he lay for eight days suffering greatly. A platform belonging to the defendant is situated at Oreburg for the use of passengers in getting on and off trains, and the train stops there for that purpose. The platform is not covered, but is near a store which would afford a shelter.</p> <p>The testimony of the defendant’s conductor and brakeman, and of another witness who was on the train, tended to show, in brief, as follows : It is the custom of the defendant’s accommodation-train, whenever there are no ladies to get off at Oreburg, to let passengers off and on at the coal-chute. On the day in question there were no lady passengers, and the train did not stop at the platform. After the train had passed it a short distance, the plaintiff went to the conductor and asked why he did not put him off at Oreburg, to which the conductor replied, he should have got off when they stopped. The plaintiff said the conductor would have to back and let him off. The conductor replied he could not do that, as they were on a heavy down grade with a heavy train and a wet track, and that it would be impossible to back up. The plaintiff said, “ By G—, I will get off’ any how,” and with that he ran to the front platform and jumped off’. The train was going about five or six miles an hour. The conductor did not leave his seat until the plaintiff jumped, but glanced through the window, and the plaintiff was heard to say, “ By G-—, I told you so,” or some other boastful expression. From the way the plaintiff acted the conductor and brakeman judged that he was drunk. The conductor did not push him off, or.even touch or make any attempt to do so. He jumped off of his own motion. They frequently carried a rough class of men from Alabama and the iron works up towards Rome.</p>

Practice. Reinstatement. Before Judge Maddox. Ployd superior court. September term, 1891. The exception is to the reinstatement of the plaintiff’s ease which had been dismissed on demurrer. The allegations of the petition were: In November, 1886, plaintiff bought of Trimble, through his agent Camp, a certain tract of land for $880, to be paid, $50 cash, $50 December 25, 1886, $140 November 1, 1887, and $140 November 1, 1888.

<p>Under the facts in evidence, there being no charge of insolvency as to Bass Bros. & Co., there was no abuse of discretion in disposing of the case touching a receiver and the interlocutory injunction.</p>

Criminal law. Evidence. Jury. • Before- Judge; Boynton. Spalding superior court. August term, 1891.. The defendant was convicted of assault with intent to> murder. A new trial was denied. His grounds were:: (1) Verdict contrary to law and evidence; (2) newly discovered testimony; (3) misconduct of jury and bailiffs. The evidence for the State showed as follows:' Gossett and Daniel were policemen in Griffin.

Criminal law. Murder. Evidence. Before Judge Boynton. Pike superior court. October term, 1891. Quick was convicted of murder and sentenced to death. He moved for a new trial on the grounds that the verdict is contrary to law and evidence, and for newly discovered testimony. The motion was overruled.

Criminal law. Charge of court. Manslaughter. Evidence. Threats. Before Judge Boynton. Pike superior court. April term, 1892. Charles T. Trice was indicted for the murder of his brother, Zack T. Trice, and was found guilty of voluntary manslaughter.

Criminal law. Charge of court. Before Judge Miller. Bibb superior court. November term, 1891. Conviction of assault and battery; new trial denied. The testimony was as follows : Jacob Becker: Is a collector. Went to Mollie Neal’s house; has been there frequently; has sold goods to all the girls, and if they did not have the money, would go back after it.

<p>A declaration in the city court of Macon against a telegraph company for the statutory penalty under the act of 1887, and for special damages, which alleges that the company is a corporation, one of whose offices is located in the city of Macon, but does not allege that the company has any line of wires wholly or partially in this State or partially in the State of Tennessee, or that it has an office or agent at Chattanooga, Tenn., sets forth no cause of action, either for penalty or damages, by alleging that a certain described telegraphic dispatch, addressed to the plaintiff at Macon, Ga., was sent to him on a specified day from Chattanooga, Tenn., by a person named, and that the defendant company failed to deliver, and never has delivered the dispatch to the plaintiff, who is a merchant tailor in said city of Macon. There being no allegation to whom the dispatch was delivered at Chattanooga, Tenn., for transmission, or by what company or line it was to be transmitted, or that it ever came into the hands of the defendant company, or that that company had any office or line in Tennessee, or that anything was paid or tendered as compensation for transmission or delivery, no breach of duty or of contract on the part of the defendant company appears ; and this being so, the judgment of the city court in dismissing the action was correct, whether the specific grounds on which the court based its judgment were sound or unsound. The general ground that the declaration set forth no cause of action was sustainable.</p>

Criminal law. Assault and battery. Evidence. Witness. Practice. Charge of court. Sentence. Before Judge Ross. City court of Macon. September term, 1891. Conviction of assault and battery; new trial denied. The special grounds are as follows: 1. The testimony showed that the defendant is a white man and that the prosecutor, Hester, the person alleged to have been assaulted and beaten, is a negro.

Criminal law. Assault and battery. Argument. Practice. Before Judge Boss. City court of Macon. December term, 1891. Clarke was convicted of assault and battery. His motion for a new trial was overruled. Tbe motion contains the following grounds : 1. The verdict was caused by deprivation of a full and fair trial.

<p>Garnishment. Practice. Judgment. Before Judge Miller. Bibb superior court. November term, 1891.</p> <p>On March 26, 1891, Freeman & Jones caused attachment to issue against S. H. Bell, a non-resident, and caused a summons of garnishment to be served upon the Exchange Bank of' Macon. The bank answered that on April 1, 1891, it had in its possession $587.51 belonging to the defendant, and that it had since paid out that amount to the defendant’s order. The declaration of the plaintiffs alleged that Bell was indebted to them $587.50 besides interest, for that during the months of February and March, 1891, they placed in his hands $787.51 for the purpose of handling grain futures for them, which money was placed by them in the Exchange Bank .of Macon to the credit of Bell; that the books of the bank show that Bell has in hand $587.50 belonging to plaintiffs, and that they demanded payment from Bell and the bank, which was refused. They prayed for judgment against Bell as principal, and the bank as garnishee.</p> <p>On the call of the case counsel for Bell struck their names, and the case was defended by the garnishee. The jury found for the plaintiffs $587.51. The garnishee moved for a new trial; the motion was overruled, and exception was taken.</p>

Lien. Practice. Before Judge Miller. Bibb superior court. November term, 1891. Certiorari was taken by Bell & Son to rulings adverse to them in the city court. On the hearing in the superior court the certiorari was dismissed, to which exception is taken. The facts are as follows : Bone & Chappell were lessees of property in Bibb county belonging to D. F. Gunn of Houston county.

Injunction. Sheriff’s sale. Before Judge Miller. Bibb county. At chambers, May 2, 1892.

Injunction. Appeal. Before Judge Miller. Bibb county. At chambers, June 4, 1892. The petition of Combs et al. prayed for the setting aside of a judgment obtained against them on the 18th of May, 1891, during the April term of Bibb superior court, aud for injunction against its enforcement, on the following facts : The judgment is for $100 principal, besides interest from July, 1888.

<p>Municipal corporation. Liquor license. Before Judge Martin. Muscogee superior court. November term, 1891.</p> <p>The action of Whaley against the Mayor & Council of the City of Columbus was dismissed on demurrer, which ruling is excepted to. The declaration alleges that on the first of January, 1890, the plaintiff obtained from the mayor'and council, in consideration of '$250, a license to sell spirituous liquors at retail in that city until the first of July, 1890; that he gave bond and security, according to the city ordinances, for his faithful compliance with the laws of the State and the ordinances of the city council in relation to retailers of spirituous liquors ; that at great expense he complied in full with all State and Federal law, and with each ordinance of the city, for the purpose of retailing spirituous liquor; that he continued to sell at retail until the 22d of April, 1890, when he was arrested by the police of said city and his license to retail was illegally, unlawfully and wrongfully revoked by the defendant; permission being given him to sell his stock of liquors until the 10th of May, 1890 ; and that he was forced to sell and dispose of'his stock at great loss and was damaged in several particulars which are set out.</p>

Railroad employee. Negligence. Evidence. Non- . suit. Before Judge Martin. Muscogee superior court. November term, 1891. An action for the homicide of Kendrick was brought by his widow against the railroad company. A non-suit was granted, to which ruling, and to the sustaining of objections to questions asked of witnesses for the plaintiff', exceptions were taken. Kendrick was a switchman of the defendant.

Criminal law. Liquor. Minor. Before Juc%a Willis. City court of Columbus. October term, 1891'..' . J. T. Dixon and D. W. Dixon each were convicted of selling and furnishing spirituous liquor to a minor without written authority of the minor’s parent or guardian. The accusation against J. T. Dixon charged that he committed the offence on the 4th of February, 1890.

<p>Criminal law. Forgery. Cheating and swindling. Before Judge Martin. Marion superior court. October term, 1891.</p> <p>Indictment for forgery, charging that the defendant made and forged a certain note (setting it out) with intent to defraud the New Home Sewing Machine Company. The note as declared on and as introduced in evidence is dated February 28, 1891, is payable to the New Home Sewing Machine Company or order, is for $50, and is signed by Lazarus Smith (with his mark) and witnessed by J. T. Griffin and by the defendant. It recites that it is given for a number 1090179 New Home sewing machine, and stipulates that this machine shall remain the property of the company until this note is fully paid. The defendant was an agent of the company. About the 1st of February, 1891, he traded to one Brown a New Home sewing machine number 1090-179, for an old Wheeler & Wilson sewing machine and $20, and afterwards sold to Lazarus Smith the Wheeler & Wilson machine at an agreed price of $25, taking from Smith, at the time of the sale, either the note above mentioned, or a note for $25. Smith could not read or wifite, and with his consent the defendant wrote the signature, Smith making his mark. Griffin was present, and defendant asked him to witness the signature, and he, being also unable to read or write, requested the defendant to write his (Griffin’s) name, which defendant did. The general agent of the company testified that the company never has the. same number on any two machines; that the defendant’s duty “was to take the first payment or the whole amount and return it to the company; his duty also was to take notes when he sold machines, and to collect the notes and return the money to the company; he could sell them for cash, or on instalments if he collected as much as ten or fifteen dollars down, and take notes for the balance; ten dollars was the smallest amount he was allowed to receive when he sold on instalments or note sale; . . he had authority to exchange New Home machines for old ones in a trade at a fixed price, but he had no authority to sell an old machine and take New Home notes.” According to the testimony of Smith and Griffin, they thought, at the time the note was signed, that it was a note for $25. The defendant told Smith that he was representing the New Home Company. In his statement the defendant says that this note is the same note he took from Lazarus Smith; that he sold Brown a New Home sewing machine, “and he paid me twenty dollars, and I was entitled to $15 on the sale; I sold to Lazarus Smith the machine that I got from Mr. Brown; . . I sold it to him to make the payment.”</p> <p>After verdict of guilty, the defendant moved for a new trial on the grounds, among others, that the verdict was contrary to law and evidence, and that the court erred in charging the jury, that if Smith authorized the defendant to sign his name to a note for $25 for a Wheeler & Wilson machine, and he signed his name to a note for $50 for a New Home machine, and received no other authority than the authority given to sign his name to a $25 note, that would be a forgery; that if one who is authorized by another to sign his name to a note for a given amount, being thus constituted his agent for that purpose, signs his name to a note of a different amount than that authorized, it is a forgery.</p>

Claim. Homestead. Estoppel. Before Judge Martin. Harris, superior court. October term, 1891. Execution against Sparks was levied, and he interposed his affidavit of illegality upon which issue was joined; and a verdict against the affidavit of illegality was rendered, and judgment was entered ordering the execution to proceed, at the April term, 1888. See the facts reported in 82 Ga. 294.

Deed. Evidence. Wild land. Execution. Minor. Before Judge Eish. Dooly superior court. September term, 1891. On January 13, 1890, H. V. McLain brought his petition against Bedgood & Boyal to recover lot of land 175 in the 13th district of Dooly county.

Certiorari. Practice. Service. Evidence. Attorney and client. Presumption. Before’ Judge Fish. Dooly superior court. September adjourned term, 1891. Certiorari was sustained, the court rendering final judgment in favor of the plaintiff; and the defendant excepted.

Criminal law. Continuance. Before Judge Fish. Macon superior court. November term, 1891. S. T. Lewis was convicted of gaming in Macon county. Ilis exception is to the overruling of bis motion for a continuance on account of the absence of witnesses G. S. Oliver and J. D. Barfield. The indictment was found at the November term, and it charged the offence to have been committed on the 4th of October, 1891.

Criminal law. Evidence. Motive. Conduct of trial. Charge of court. Before Judge Eish. Sumter superior court. November term, 1891. Sterling was indicted for assault with intent to murder Phillips, and was found guilty with a recommendation to mercy. He moved for a new trial; the motion was overruled, and he excepted.

Heir at law. Contract. • Advancement. Before Judge Boynton. Henry superior court. October term, 1891. Citation for settlement was brought on January 18, 1889, by Mrs. Mary Ann McKneely, daughter of T. T. Barham, deceased, against W. H. H. Barham, administrator of T. T. Barham. The ordinary adjudged that the plaintiff was not entitled to recover, and she appealed to the superior court. She died, and her administrator, J. 'W. McKneely, was made a party in her stead.

Carriers. Evidence. Damages. Amendment. Non-suit. Before Judge Miller. City court of Macon. Septembr term. 1891. The action was by Henry against the Central Railroad and Banking Company of Georgia, for $400 damages to a cáf-load of fresh meat. The court granted a nonsuit, and th'e. plaintiff' excepted. The evidence shows the following facts : The plaintiff purchased from the Armour-Cuddahy Packing Company a car of dressed cattle, sheep and hogs.

<p>Attachment. Attorney. Practice. Before Judge Ross. City court of Macon. September term, 1891.</p> <p>Attachment was sued out by Faulkner & Son against Russell on April 28, 1891, returnable to the. June term, 1891, of the city court of Macon. It was levied on the next day, and on April 30, the defendant made affidavit contesting the sufficiency of the attachment bond, and also replevied the property by giving bond which was attested and approved by the magistrate who issued the attachment. On May 9, an additional security executed the attachment bond in the presence of the same magistrate. On August 14, 1891, all the papers above mentioned were filed in the office of the clerk of the city court, and the attachment case was docketed to the September term, 1891, of the city court. During that term, on October 8, the defendant moved to dismiss the attachment because no declaration had been filed at the June term. The declaration was filed on October 3, after the motion to dismiss. The defendant amended his motion, alleging that the declaration “ was filed at the second term of said attachment,” and he therefore moved to dismiss the declaration and suit. As cause for not sustaining the. motion, Mr. Wimberly, of the firm of Steed & Wimberly, the plaintiffs’ counsel, made the following statement which was heard without pbjection, and was not controverted :</p> <p>According to our firm’s division of work, I had the entire preparation and management of this case; was the one our client saw and. looked to. My partner, Mr. Steed, had no acquaintance with the ease. In the latter part of May, 1891, I received unexpectedly a telegram notifying me of the dangerous illness of my -father at Lumpkin, Ga., and notifying me to come at once. It was then within a few minutes of train time ; I only had time to reach the train; had no time to see my family, carry my clothes with me, or to discuss any law matters with my partner, or to familiarize my partner with those cases I had more especially in charge. I remainecl at my father’s bedside constantly, almost without rest, till his death about the middle of June, 1891, and during this time had leave of absence. On my return to Macon two or three days afterwards, I was under the impression that the June term of court had been adjourned, the presiding judge being at the military encampment ; but afterwards I learned that the court was in- session June 26th and 27th, 0. A. Turner, Esq., judge pro hae presiding; when I learned this the term had been adjourned. By reason of the time I lost from my business, I forgot the date of this attachment and was under the impression it was returnable to the September term instead of the June term, and was confirmed in this impression by finding the case docketed and returned to the September term. At the September term I intended to file the declaration, but was delayed in doing so by reason of not being able to confer with my client and prepare it, my client being a transient railroad subcontractor who had finished his work and moved away; but I would have filed it during said term. At the time I learned that defendant had a motion to dismiss for want of such declaration, the matter of filing it had escaped me, but I was in court for the purpose of filing motions for new trial, taking judgments, and doing other things necessary to be done before the end of the September term, and would have examined the docket again and discovered that this declaration had to be filed that day, and would have filed it, even if I had not learned of defendant’s motion. I was under the impression that the September term was the term to which the attachment was returnable, and found it returned and filed to that term, and thought that I had the whole of the term within which to file the declaration ; and hence let the matter go over to the latter part of the term. If the attachment had been returned to the June term, my partner would have found it there, and would have filed the declaration at that term.</p> <p>Mr. Steed stated that he was present at the call of the docket on the first day of the June term, and would have heard and attended to this ease if it had been on the docket to be called.</p> <p>The motion to dismiss was overruled, the judge stating that his construction of the law was that the plaintiff's could file their declaration at the first term after the attachment was returned to the proper court, and that they were not required to file the declaration at the' term to which the attachment was returnable, unless it should be returned by the levying officer before or during that term. To this ruling the defendant excepted.</p>

Criminal law. Liquor. Statute. Constitution. Before Judge Ross. City court of Macon. June term, 1892. The indictment was for selling liquor within three miles of a church, under the act of August 11, 1891. Acts 1890-1, page 132. The following facts were agreed on: In the month of January, 1892, the county commissioners of Bibb county granted permission to defendant to sell liquor at the place charged in the accusation. He paid his State and county license.

Injunction. Before Judge Falligant. Chatham county. June 8, 1892. Injunction was granted on the petition of Ehrlich & Bro. against Hitt & Co., their attorney C. N. West, M. Y. & D. I. MacIntyre, and the sheriff, in which petition Enrique Pigraue joined by petition pro interesse suo. Hitt & Co. and C. N. West excepted.

Amendment. Malicious suit. Before Judge Maddox. Floyd superior court. September term, 1891. Attachment in favor of Hyfield against the Bass Furnace Company, a foreign corporation, was sued out on Februaiy 12, 1890, and was levied.

<p>1. A married woman though living with her husband may maintain in her own name, and without joining- him with her, an action for slanderous words alleged to have been used of and concerning herself. City of Atlanta v. Dorsey, 73 Ga. 479.</p> <p>2. It is no defence to an action for slander that the words were used to and not of the plaintiff, when it appears by undisputed evidence that others were present and heard the words spoken. Consequently, a charge that if the defendant spoke words admitted to be actionable to and in the presence of the plaintiff, she would have the right to recover, though not entirely correct in the abstract, is no cause for a new trial when the proof shows beyond controversy that others were present and heard the words used, especially when, in other portions of the charge, the court in substance instructed the jury there could be no recovery unless the words were heard by another or others than the plaintiff, and it is manifest that the jury so understood.</p> <p>3. The verdict was amply supported by the evidence, and, the worldly circumstances of the defendant not being shown, at does not appear to this court to have been excessive. There was no error in refiasing a new trial.</p>