Volume 90 — Georgia Reports

<p>2. In an action for the recovery of 10 acres of land a verdict havingbeen rendered for the plaintiff for “the premises in dispute,” oni evidence showing that only a portion of the land claimed in the declaration was actually in dispute between the parties, but judgment having been entered up for the whole 10 acres, it was not error, on a motion for a new trial, made by the defendant, to allow the plaintiff to write off from the judgment the excess above the land actually contended for, and reduce the recovery accordingly by proper terms of description. Altering the judgment by leave qf the court so as to embrace only the less quantity, is equivalent to writing off from the verdict.</p>

Negligence. Railroads. Fire from locomotives. Evidence. Practice. Before Judge Eve. City court of Richmond county.

Railroads. Negligence. Eire from locomotives. Evidence. Practice. Before Judge Atkinson. Appling superior court. October adjourned term, 1891.

<p>Before Judge Atkinson. Appling superior court. October adjourned term, 1891.</p> <p>The legal questions made by this record are similar to those in the Hesters case, just preceding. In this case the bill of exceptions states that on motion of the defendant the claim for damages for fighting fire, feeding stock, and for medicine and; doctors-’ bills, was stricken from the declaration. -The jury found for the plaintiff $228. The testimony admitted in this case over objection of the defendant, was as follows: I). A. Carter testified that he had seen a heap of the engines and smokestacks of defendant throwing off sparks, that the engines frequently threw outfire along about that period. O. L. .■Wells testified that, a short time before the 28th off January, 1890, defendant’s engines had thrown out sparks in his field and thereby, set the woods afire, and he put it out; that an immense quantity of sparks fell from the smoke-stack and set the broom-sedge afire. L. W. Baxley testified that he ha'd seen the trains of defendant throw out fire and set the woods afire, had seen it come out of smoke-stack and out of engine; that little sparks would come out of the smoke-stack, that looked like fire-coals; and that fire had beeu set- out between Prentiss and Pine Grove, but he .did not know .what set it out. L. A. Johnson testified that he had frequently seen defendant’s engines throwing out sparks, that there had been fire about his place several times, that on one occasion he was standing in the door of the cab of a freight-train, and just after it passed Prentiss about the creek, it threw fire which kindled up, that a short time further down it caught again, and soon after caught again, that it was just kindling up just after the train passed two or three miles from Prentiss, and caught three different- times while he was coining from Prentiss to Baxley, but he did not know the engine set it out. —All this testimony was objected'to on the ground that it was irrelevant, illegal, and immaterial to this case, in point of time or place.</p> <p>The defendant moved to rule out all the evidence as to the alleged setting out of fire by its -engines, and in reference to the alleged burning of or damage to plaintiff’s property, upon the ground that it was irrelevant and incompetent, the evidence disclosing that plaintiff’s property was two or three miles from defendant’s right of way. The grounds for -nonsuit were : that the damages sought to be recovered are too remote and uncertain; that the timber which has died and for which damages are claimed has nearly or quite all died since the bringing of the suit; that the alleged damages to the timber have taken place since the suit was filed; that the evidence fails to make out a case for recovery, or with sufficient certainty for the jury to render a verdict upon it; that the evidence as to the quantity of timber destroyed- and the value of it is too vague, indefinite and uncertain to authorize -any finding for the plaintiff; and that the suit was prematurely brought. (It was brought on February 17, 189'0, the date on which the Hesters suit was filed.) In this case the court overruled a motion of the defendant to strike everything from the declaration and rule out all the evidence as to everything except the fencing and fence-rails, which ruling is assigned as error.</p> <p>The court charged: “ The plaintiff claims damages for certain fencing alleged to have been destroyed. Inquire whether or not that was destroyed by fire originating as laid in the declaration ; if so, you will find for the plaintiff the value of that fencing.” This is assigned as error.</p> <p>The deeds admitted in this ease over objection, are as follows : (1) A deed dated January 23,, 1871, from G-. W. Carter to Instant Hall Jr., conveying the west half of land lot 348 in the second district of Appling county. The objection was, that this deed was irrelevant, it not being made to the plaintiff'- Instance G-. Hall, and there being no evidence tliat the land conveyed by it is involved in this suit. (2) A deed dated January 23, 1871, from.. G. W. Carter to Instant Hall Jr., conveying one hundred acres, “commencing at the southeast corner and is to run so as to. include the said Instant Hall Jr’s premises and buildings, being a part of lot number 349, originally granted to James Scott.” The objections were the same as those taken above, and further, that the description of the property sought to be conveyed is indefinite and insufficient.</p> <p>The other grounds for new trial are covered by the report of the Hesters case.</p>

Municipal corporation. Tort. Ultra vires. Before Judge Martin. Muscogee superior court. November term, 1891. . The action of Loyd against the Mayor and Council of the City of Columbus, for damages from a tort alleged to have been committed on September 10, 1887, was dismissed on demurrer, and the plaintiff excepted. The head-note states the material part of the declaration.

Replevy bond. Cost. Sheriff. Before Judge Martin. Taylor superior court. ' November adjourned term, 1891. An affidavit of illegality was interposed by the plaintiff’ to the levy of an execution for costs including a charge for feeding stock which had been levied upon under afi. fa. in the plaintiff's favor and adjudged not subject to the same. The facts showing how the case arose are reported in 84 Ga. 601.

Railroad passenger. Damages. Evidence. Continr uance. Argument. Before Judge Roberts. Pulaski superior court. November term, 1891. Fleetwood sued the railway company for damages, and obtained a verdict for $4,375. A new trial , was denied, and tlie defendant excepted.

<p>Contract. Action. Limitation. Before Judge Meyeriiardt. City court of Floyd county.</p> <p>Wagner sued Rounsaville & Brother on April 23, 1891, on an account dated January 1, 1888, for services rendered, putting in fire protection in warehouse, $100 principal, and interest for three years. The defendants pleaded not indebted, and the statute of limitations. The jury found for the plaintiff $65 with interest from January 1, 1888. The defendants moved for a new trial; the motion was overruled, and they excepted. The grounds of the motion are, that the verdict is contrary to law and evidence; that it is unsupported by the pleadings or the evidence, in that the action was for $100 with interest from January 1,1888, and all the evidence was that the services were worthless orwoi'th $100, and the jury were required, under the pleadings and proof, to find for the defendants unless they rendered a verdict for the amount sued for; and that the right of action was barred by the statute of limitations, more than -four years having elapsed from the date of accrual of right of action, if any, until the commencement of this suit.</p> <p>The plaintiff’s testimony was, in brief: He was employed by defendants to superintend the putting in of fire protection in their cotton warehouse, in the fall of 1886. It was understood that he was not to do any manual labor, but was merely to get up plans and superintend. The contract was that when the work, the whole job, was completed, they would pay him what was right, and if they could not agree on a price, to leave it to disinterested parties to say what the work was worth. He got up the plans for the first division of the warehouse (there being three divisions, all alike) and gave his personal supervision to the work, visited the warehouse frequently while it was in progress, sat up several nights until midnight, calculating on the plans, amount of pressure and adjustment of pipes, etc. The fire protection in one division was to be duplicated in the other two ; after the completion of the first the personal supervision was not necessary in the other two. The work was worth $100, none of which has ever been paid. It was not completed until the fall of 1887;' did not know the exact time but thought it was in September; was present and turned the water on when the first division was completed; spoke to Rounsaville several times about pay, but could never get him to any settlement; finally proposed to submit the matter to arbitrators, which Rounsaville refused. Plaintiff;'employed Spencer & Company to do the work. They began the job but did not complete it, as there was some disagreement about the amount of wages defendants were willing to pay. Plaintiff had nothing whatever to do with the paying of the hands or the actual performance of the work, his duty under the agreement being to get up the plans and see that the fire protection was properly put in. He was a member of the firm of Spencer & Company, plumbers, but his employment by Rounsaville had nothing to do with his connection with that firm; they were employed and paid independently of his employment. After Spencer gave up the job Rounsaville employed McGuire to do the work, who was a practical plumber, as good or better than plaintiff/Swho still continued to give his supervision to' the work, -and McGuire carried out his plans, though it was not necessary for plaintiff' to give so much attention to the work after the completion of the first room, as the balance was just a duplication of the first. He was not sure that the job as originally planned had ever been entirely completed, but he was sure that work had been done there as late as September, 1887. He refreshed his memory as to this by an entry made in McGuire’s book, showing a charge of $4.00 against defendants for putting sprinklers in warehouse on September 22, 1887, which was a part of this fire protection. At the time of doing this work plaintiff' was superintendent of the Rome water-works, and drew a salary as such. Rounsaville knew this, and said he wanted plaintiff to take charge of the job, because he was a practical plumber and had experience with water-works and fire protection. Another witness testified that he worked on the job in question in the fall of 1886, and perhaps as late as January, 1887; plaintiff superintended it when it was first begun, was there frequently and gave direction as to it; witness did not know when it was completed, as he quit before it was done.</p> <p>Rounsaville testified: Called in plaintiff and stated purpose and plan to him; told him we wanted him to order the pipe for us, and occasionally pass through the warehouse and see that the work was done right; and that we should have the benefits of best discounts given, and he agreed we should have them; knew he was in the employ of the city; told him when he had copapleted the work, would pay him for his trouble; if we failed to agree, would leave it to other parties. He ordered only part of the pipe, and employed Spencer & Company to do the work of putting it in. When the bills for the pipe came, we found the discounts were not equal to those we could and did get ourselves, and that the hands, especially Spencer, were not doing their duty; and complained to plaintiff of his failure to get us discounts and of the manner in which the hands were working. This was just before dinner-time. In the afternoon neither Wagner nor his hands came back, nor did they come back after that time. They abandoned the job of their own free will and accord. Afterwards learned that plaintiff was a partner in Spencer & Company, which firm we paid about $132 for what work they did. I never saw any plans. No pipe was put up under plaintiff’s superintendence. McGuire ordered two thirds of the pipes and put all the pipe up; plaintiff only had put down ten mains, and connections at the, rear of warehouse, for which his firm was fully paid. The putting in of the pipes was completed by McGuire im February, 1887. I think plaintiff’ asked me to give him $25 over three years after the job was completed, which I refused; this was all he claimed. I employed him.’ to superintend the work. I did not employ Spenoeit & Company. Plaintiff made no demand for arbitration before he brought suit; he never did make a demand for $100 on me. I did not pay the $25, because I did not consider I owed him anything. The testimony of two other witnesses was: On November 16th and 20th, 1886, defendants paid Spencer & Company amounts aggregating $52, and on December 14, 1886, settled with them in full by paying them $80. Wagner gave up the job in the fall of 1886, and witnesses never saw him at the warehouse any more, after the first compartment was fitted up, except when he came to collect water-rent for the city. McGuire finished the work in February, 1887, and was then paid $109.58 by the defendants, which was the balance due him for fitting and putting up the fire protections. The item of $4.00 in McGuire’s book, September 22,1887, was for payment on some repairs done in the third compartment of warehouse. The water was turned on to test the workings of the sprinklers about February 19, 1887, in- first compartment. Wagner was about the warehouse several times when the work was progressing in the1 first compartment, in the fall of 1886. The work of putting in the sprinklers in the second and third compartments was done by McGuire. The water in the first compartment was turned on in February, 1887; witness does not remember who turned it on, as the machinery for turning it on was out of sight.</p>

Title. Possession. Wild land. Evidence. Befoi’e Judge Roberts. Wilcox superior court. September term, 1891. Complaint for land lot 130 m the 1st district of originally Irwin, now Wilcox county, was brought by E. M. Scott against A. B. Cain. A nonsuit was granted, and the plaintiff excepted.

Municipal corporation. Statute. Before Judge Sweat. Ware county. At chambers. Injunction was prayed for by Murphy, a citizen and tax-payer, to restrain the sale of bonds issued by the Mayor and Council of the City of Waycross, for the purpose of building a system of water-works, sewers, etc., for that city, under an election held on December 21, 1889, at which more than two thirds of the votes cast were in favor of the issuance.

Garnishment. Practice. Service. Before Judge Maddox. Floyd superior court. September term, 1891. In a suit of Pratt against Keating a judgment was rendered against Young as garnishee.

<p>Garnishment. Service. Corporation. Agent. Before Judge Turnbull. City court of Floyd county. September term, 1891.</p> <p>Hargis sued Phelps, andobtained judgment for $261.92 principal, with interest and costs. Two summonses of garnishment in the cause were served upon the East Tenn., Ya. & Ga., Railway Company, one by serving Lawrence, agent, on July 14, 1891, and the other by serving Graves, agent, on July 15, 1891. Graves answered that he was the agent of the E. T., Y. & Ga. Ry. Co., garnishees, and was the same agent of the garnishees who was served with process of garnishment in the case; that at the time of the service the garnishees had no property, money or effects of Phelps in their hands, nor had any come into their hands at any time from the date of the service to the date of this answer, nor did the garnishees owe Phelps anything at the date of the service, nor had they become indebted to Phelps at any time between the date of the service and the date of the answer; and that on July 22, 1891, Phelps dissolved the garnishment by filing proper bond, etc. This answer was made December 16, 1891. No answer was made-by Lawrence to the summons served upon him as agent. There being a judgment against Phelps, plaintiff moved the court for a judgment against the garnishees because of the failure to answer the summons served upon Lawrence, which motion was refused by the court, and the plaintiff' excepted.</p>

Mortgage. Amendment. Continuance. Pleading. Judgment. Before Judge- Maddox. Floyd superior court. September term, 1891. On October 28, 1891, the case of W. T. and O. H. McWilliams v. A. W. Ledbetter came onto be lieard in tbe court belów. A rule nisi bad been granted upon tbe petition of plaintiffs to foreclose a mortgage against defendant, and when tbe case was taken up for trial a demurrer filed by tbe defendant was presented.

Railroads. Evidence. Negligence. Chai’ge of court. Before Judge Maddox. Floyd superior court. March term, 1891.

Railroads. Damages. Evidence. Onus. Argument. Before Judge Miller. Bibb superior court. November adjourned term, 1890. A special jury summoned by the sheriff to assess the damages to property of Streyer, caused by the contruc- • tion and operation of the railroad along Fifth or Elbert street in Macon, found for Streyer $1,000. The railroad company appealed to the superior court, and in that court the verdict was that the property would not be damaged.

Railroads. Damages. Nuisance. Before Judge Miller. Bibb superior court. November adjourned, term, 1890. The petition of ITarvey et al., owners of a store and dwelling-houses at the corner of Fourth street and a twenty-foot alley, prayed for injunction against the obstruction by the defendant corporations of the alley where it divides two city lots owned by them, these two lots being between Fifth street and the lot in which is situated the property of the plaintiffs.

<p>On the facts in evidence, the court did not err in granting a non-suit.</p>

<p>1. A policy of insurance upon a dwelling-house, with a vacancy clause in it of thirty days, having been renewed from year to year for several years under a general request made by the insured of the agent of the insurance company, and each renewal having been by the mere delivery of a receipt for the premium without the issuance of a new policy, and the agent, acting on the same general request, having in the last transaction discontinued this mode of renewal, the company in the meantime having adopted a new form of policy with a vacancy clause limited to ten days, it was not a fraud upon the insured against which equity will relieve, that the agent, without giving any notice to the insured, delivered to him a policy in the new form, this policy having been thereafter retained by the insured for four months without reading it, and he never having read it until after the destruction of the premises by fire at or about the expiration of that period. The discontinuance of the ordinary mode of renewal and the issuance of a new policy ought to have suggested to the insured either the reading of the policy or the making of some inquiry of the agent as to the terms and conditions which it contained. The means of preventing any false inference from the mere silence of the agent were in the hands of the insured, and he ought to have used them. By reasonable diligence he might have had knowledge of the truth. Code, §3126.</p> <p>2. The evidence left no doubt on the question that the premises had been vacant more than ten days when the fire occurred, and the court did not err in granting a nonsuit.</p>

Carriers. Negligence. Evidence. 'Before Judge Miller. Bibb superior court. November term, 1891.

<p>Criminal law. Murder. Charge of court. Evidence. Before Judge Miller. Bibb superior court. November term, 1891.</p> <p>Lewis was charged with the murder of his wife, and ■was found guilty. His motion for new trial was overruled, and lie excepted. Besides the general grounds, the motion alleges the following :</p> <p>"When the defendant’s counsel was questioning Mrs. Billon, one of the witnesses for the State, in regard to her home, and endeavoring to show the character of the testimony before the jury, and asked her if she were at home wherever her hat was, and she replied, “ No sir, I do not think that is the case at all,” the court remarked, “I do not think that is a proper examination.” Befendant contends that this remark had a bad effect, and went to prejudice the jury against him, that the answer of the witness as to her home had been of a character such as to suggest the question asked by his counsel, and the implied rebuke of the judge necessarily went to the prejudice of defendant.</p> <p>Errors in charging: “ A rule of law applicable to this case is this: that where the State shows by evidence that the defendant has committed an unauthorized homicide, and stops there, the evidence showing no more than that, then the legal presumption arises that the homicide was murder, and that the burden is then shifted to the defendant to show that either it was justifiable, or accidental, as claimed in this case,-or that it was some of the lower grades of homicide. You will see that the proposition stated differently is this: that if the evidence on the part of the State simply 'shows the homicide, and that evidence itself does not show that it was justifiable or of a lower grade than murder, then the State can stop without proving more; and the law presumes that the killing was murder, that it was done with malice, and denominates it murder. The defendant must remove that presumption by showing to the jury that the killing was either justifiable, accidental, or that it falls within some of the lower grades of homicide than murder.</p> <p>“ In trying this case you pass upon the law and facts both; that is to say, you take the evidence and defendant’s statement and determine from that what is proven in the case, what facts are established. The principles of law that control the case you take from the court; you are responsible, it is your duty and yours alone, to find what is the truth from the evidence. I am responsible for instructing you properly as to the principles of law controlling the case. You take the facts as you find them established by the proof, applying the law to> the evidence, and determine what is the proper verdict-under both the law and the evidence in the case. The-verdict ought always to speak the truth, not only of evidence, but the law; it is compounded of the two, and it ought to be the truth under the law and the evidence.</p> <p>“Malice in law, the jury will see, is not what the term popularly implies; it does not necessarily mean there should be personal hatred or personal ill-will, or anything' of the sort, between the defendant and person killed; it means in law the deliberate intention to take human life under the circumstances which the law neither justifies nor excuses. If that intention is established by the proof, then the legal malice would be established, and you would be authoi'ized to find that it existed, if the evidence showed that unlawful intention to take human life.</p> <p>“All these questions, that are raised in so many cases of homicide tried by a jury, of voluntary manslaughter, involuntary manslaughter, and justifiable homicide, all these are out of this case, and you have not to consider them at all, nor will I instruct you as to the law in reference to those classes or grades of homicide. The simple issue submitted to the jury on this trial is this : does the evidence make against this man a case of murder ; or is it, on the other hand, a case of misadventure or accident?” Defendant insists, that this latter charge was error, because the law of involuntary manslaughter should have been given in charge, the evidence disclosing the fact that the defendant was in the commission of an unlawful act in carrying a concealed weapon, and in taking it from his person it was discharged and killed his wife; and if this issue had been submitted to the jury the verdict would doubtless have been for that offence, in view of the fact of a former mistrial of this ease; and the restriction of the jury to issues as involved in this charge was error.</p> <p>Error in charging: “You ought to examine all the proof as to their relations previous and up to the time of the homicide, especially what passed between them at the time, their location in the room, their respective situations, where he was standing, where his wife was, ffdiere these witnesses were, what passed between them all; examine carefully and patiently each fact attending the actual homicide; also all the other facts, all the other testimony in the case, seeking to discover the truth from it, what this man’s condition was at the time, what his mental condition was, what his motive was, what actuated him, whether it was accidental and, as he claims, without any intention to kill his wife, or whether he in fact, as contended by the State, deliberately aimed the pistol at her and intentionally shot her; those are matters that you must determine from the evidence; this is a case distinctly for the jury to decide from the evidence submitted to you. If you believe from the evidence in the case that the transaction occurred in this way, that this man on trial and his wife were in the room together, and that he said to her that he had won a dollar on Sunday morning, and he hoped he wouldn’t have another dollar, if he did it wouldn’t do her any good, and that she thereupon replied, ‘If yours don’t there is others that will,’ and that he thereupon said, ‘If you repeat those words I will kill you,’ and then, without more, shot her and killed, her, you would be authorized to find him guilty of murder. If you believe that is the truth of the transaction, and that it occurred in that way, no mere words will justify the homicide; it wouldn’t matter what he said or what she replied, how much it might have irritated him; if it was mere words, if they were engaged in a quarrel or difference, however slight or however great, and it went not beyond words, if there was no act done by her, no provocation given beyond words, and he shot her and killed her for the reason that he was irritated by what she said, that would authorize you to find him guilty of murder as charged in the indictment. 'Look to the proof, as I have said, and see if that is true. If the recital of facts that I have just submitted to you are the true facts of the case, if the homicide occurred in that way, the jury would be authorized to convict him of murder.” Defendant insists that the charge contained in this paragraph is error, because it was liable to impress the jury with this statement as being the truth of the evidence, and lends an air of argument to the charge of the judge, that is liable to prejudice the jury against the defendant.</p> <p>Error in charging : “ The defendant in this case avails himself of this statute: In all criminal trials in this State the prisoner shall have the light to make to the court and jury such statement in the case as he or she may deem proper in his or her defence, such statement not to be under oath, and to have such force only as the jury may think right to give it; and the jury may believe such statement in preference to the sworn testimony in the case; provided, the prisoner shall not be compelled to answer any question or cross-question should he or she think proper to decline to answer .such questions.</p> <p>“ If you find in examining this case there is a conflict between these witnesses, you ought to reconcile it if you can, harmonizing it all so that it will make each witness speak the truth. If you cannot do that, then you must determine where the credit shall be given, looking to the manner of the witness upon the stand, the connection the witness has with the case, whether for the prosecution or defence, and whether they exhibit any leaning one way or the other; whether the testimony of the witness is consistent throughout, or conflicts with itself or other facts that you think the evidence otherwise establishes. All those things you ought to consider in determining which witness you shall select as worthy of belief, and which reject.” Defendant insists that this charge is error, because it does not give the jury any instruction as to the effect of the prisoner’s statement; confining the jury to reconcile the testimony of witnesses, and not taking into consideration the prisoner’s statement, in making up the balance sheet as to the weight of the evidence of any particular witness.</p> <p>Error in charging: “You ought to be satisfied of this man's guilt beyond a reasonable doubt before you convict him; that does not mean anything more than this: that as reasonable men seeking after the truth, you ought to be satisfied beyond a doubt which as reasonable men you would entertain in matters of the highest moment to yourselves. It does not mean the doubt of a man of eccentric mind, or a crank, or a man with an oversensitive conscience; it means the doubt of ordinary men, sworn jurors who try eases. It means also that the doubt should arise out of the case, not outside of.it; not some outside suggestion or reflection of a juror, that a juror might create in his mind ; but it means a doubt that ought to arise from an examination of the case itself, seeking to determine the truth, either from the evidence, statement of the defendant, the conflict in the evidence, or some deficiency or lack of testimony. If such a doubt exists in the case and consequently arises in your mi ncl, you are to give the defendant the benefit of it and acquit him ; that is, if you are not satisfied of his guilt beyond a reasonable doubt. If on the other hand you are so satisfied, and have no reasonable doubt but that he is guilty as charged, then you ought to convict him.” Defendant insists that this was error, because it would lead the jury to believe that a reasonable doubt was but a small thing.</p> <p>Error in charging: “ The form of your verdict in the case, if you find the defendant guilty, and think under the evidence it is not a case for commuting the death penalty, then you say, £ We, the jury, find the defendant guilty.’ If, on the other hand, you think he is guilty and see proper to commute the punishment from the death penalty to life imprisonment, then you add these words, £ and recommend that he be imprisoned in the penitentiary for life.’ Now, that recommendation which reduces the punishment from death to life imprisonment is a matter solely within your gift; if you find the defendant guilty, it is for you to determine in your own discretion; that is a matter for you. There is no rule of law or advice that I am authorized to give you, and nothing that I should say to you upon that, except to say that it is a matter absolutely within your control, to do or not to do as you see fit.”</p> <p>Error in not charging the jury on involuntary manslaughter. In a note to this ground the court states that no request for such charge was made, nor, in the opinion of the court, was that question in the case.</p>

Debtor and creditor. Mortgage. Fraud. Title. Before Judge Miller. Bibb county. Potts &' Potts, Altmayer & Flateau and others brought their equitable petition against C. S. Smith, their debtor, and Ira L. Smith and L. J. Dinkier, holders of mortgages given by O. S. Smith.

«Claim. Practice. Levy and sale. Administrator. Deed. Estoppel. Ratification. Creditor. Before R. M. Willis, judge pro Jiao vice. Harris superior court. April term, 1891.

<p>1. It is not error for the presiding judge to make no reply to a communication in writing sent to him by a jury engaged in deliberating on their verdict, inquiring whether or not it would be legal for them to return a verdict for voluntary manslaughter. Nor is it error afterwards to have the jury brought into court and then to recharge them by repeating the original charge and adding thereto appropriate instructions as to the law of voluntary manslaughter. Although there may be no basis in the letter of the evidence for a charge on the subject of voluntary manslaughter, yet if in view of the suddenness of the rencounter and of conflict amongst the witnesses the homicide could by any possible just inference from the evidence have been in truth and in fact neither murder nor justifiable, but voluntary manslaughter, the giving in charge of that grade of manslaughter is not reversible error, although the court may not have been bound so to charge.</p> <p>2. It was not error to admit evidence of dying declarations on the preliminary showing made in this case, nor was it to the prejudice of the accused to instruct the jury that the evidence would not be for their consideration if they believed the declarations were made at a time when the declarant was not in the article of death, or in extremis, or at a time when he had hope or expectation of living.</p> <p>3. A part of the newly discovered evidence being a threat to take the life of the accused made by the deceased immediately before the fatal rencounter, and a part being a somewhat ambiguous declaration of the deceased made whilst he was in a dying condition from, the effects of the mortal wound, and the decided weight of the evidence which was before the jury being against the verdict for voluntary manslaughter, the case fairly considered being one of murder or justifiable homicide, the court erred in not granting a new trial.</p>

<p>Amendment. Damages. Evidence. Railroads. Before Judge Martin. Harris superior court. October term, 1891.</p> <p>1. Eor the former report of this case see 79 Ga. 460. A demurrer had been sustained, and that decision was reversed. "When the case came on for trial, plaintiff proposed to amend her declaration by striking therefrom the words “ mental incapacity and insanity ” (of Dixon, the agent of defendant, by whom it was alleged plaintiff’s husband had been killed), and inserting in lieu thereof the words, “his unfortunate physical and mental temperament,” so that the clause after such amendment would read, “ who was wholly unfitted for said position of agent, by reason of his unfortunate physical and mental temperament.” Also, to strike from the declaration the following words, “at times partially and at others wholly insane and afflicted with homicidal mania,” and in lieu thereof insert, “being a dangerous man and wholly unfit to come in contact with the public and the customers of the company,” so that the clause after amendment would read, “and as a result of the aforesaid affliction being a dangerous man and wholly unfit to come in contact with the public and the customers of the company.” To the amendments defendant objected, upon the ground that it would be adding to the declaration a new and distinct cause of action. The objection was overruled and the amendments allowed. After the amendments had been made, defendant demurred specially to the following allegations in the declaration as amended: “who was wholly unfitted for said position of agent, he, the said Dixon, bemg a dangerous man by reason of prolonged disease, a confirmed dyspeptic, afflicted with hypochondria and melancholy, irascible, peevish, petulant, passionate,” upon the grounds that these words and allegations were immaterial and surplusage, and because it was not alleged that the death of plaintiff's husband was caused or produced by reason of said allegations. It was alleged in the declaration that plaintiff’s husband, while engaged in the peaceable and lawful pursuit of his business, entered the depot of defendant in a quiet, inoffensive and peaceable manner, to settle for and receive from defendant certain freight contained therein and consigned to him, and that Dixon, being the agent of defendant and then and there engaged with plaintiff’s husband in the transaction of the business of defendant with her husband, such business being within the scope of Dixon’s employment as agent of defendant, without reason or provocation, etc., shot and killed plaintiff’s husband; and these allegations follow in the declaration the allegations above mentioned. The demurrer was overruled, and the defendant excepted to each of the foregoing rulings.</p> <p>2. The plaintiff obtained a verdict for $12,999.94. Defendant moved for a new trial on various grounds in-eluding those alleging that the verdict was contrary to law and evidence. Among the special grounds was one numbered seven. The court held that if plaintiff’ would write off from the verdict an amount equal to the interest at the rate of seven per cent., from the death of her husband to the trial of the case, then the motion would be granted upon the seventh ground; and that on failure so to write off, the motion would be granted on all the grounds. Whereupon plaintiff’s attorneys wrote off from the verdict $4,314.94, being an amount equal to the interest contained in the verdict from the death of plaintiff’s husband to the time of the trial, and the court grauted a new trial solely upon the seventh ground. Plaintiff' excepted to the granting of the motion upon that ground, and the defendant excepted to the overruling of the other grounds of the motion. The seventh ground was, because the court, after charging these words: “ Now, in the event that you find that the company is liable to the plaintiff, then what is she entitled to recover ? She will be entitled to recover the value of Mr. Christian’s life reduced to dollars and cents, to a present cash valuation,” charged as follows: “ To do this you will ascertain -what was the yearly value of Mr. Christian’s services to his family in money. To find this you are to -consider his capacity to earn money, and what he did produce from his own labor, skill or management, or all combined, per annum. Prom whatever you find that he could earn deduct what it cost him to produce this sum annually, including his personal expenses. The amount remaining you would multiply by the number of years he would probably have lived, and this you can find out from the tables which have been introduced, and from the testimony in the case as to what his age was at the time of his death. The table shows that a person of a given age would probably live so many years longer. That you can find out from tlio Carlisle table. Now, as I said before, after you find out what lie could earn, deduct from it wliat it cost him to produce this sum annually, including his personal expenses; the amount remaining you would multiply by the number of years he would probably have lived.' When you have ascertained this sum, then in order to find the present cash value of the life of Mr. Christian, you would calculate the interest at seven per cent, upon one dollar for the number of years he would probably live, and to the interest thus found you would add the one dollar. You add the principal and intei-est together of one dollar. You would then divide the first amount, that is his yearly earnings, with his expenses and what it cost to produce it deducted from it, multiplied by the number of years that he would probably have lived. Find out that amount. Then you would divide that amount by this last amount which is the interest upon one dollar and the dollar added to it for the number of years he would be likely to live. That is, you would divide his annual earnings less his personal expenses, and what it cost to produce it, multiplied by the number of years he would probably have lived, by the sum of one dollar and the interest on the same for the number of years he would probably have lived, and the result would be the cash value of his life. I will let you take this paper out with you. Now tables have been introduced here which you can take out with you. You first find out, from the testimony that has been introduced, what the age of Mr. Christian was at the time of his death. The table shows then how long a person would probably live at a given age. You ascertain then, with the rules I have given yon here on this piece of paper, how to ■make the calculation, provided you find the plaintiff is entitled to recover. And if she is entitled to recover, she would be entitled to have interest upon that amount from the time of Mr. Christian’s death. You would find the amount with interest upon it, calculated up to the present time, added to it, and bring in your verdict a certain given sum, not so much principal and so much interest, but as one round sum.”</p> <p>3. Defendant moved to rule out all the testimony showing the'earnings of plaintiff’s husband as a schoolteacher, upon the ground that it appeared from the testimony that he had ceased to be a school-teacher for six or eight years before his death, was not engaged in that business at all, and therefore what he would earn ■in a business he was not pursuing and not engaged in at all, was not proper testimony for the consideration of the jury; which motion the court overruled. Defendant also moved to rule out all the testimony showing the earnings of Christian as a tax-collector, upon the grounds that the office of tax-collector was not an annuity but an office dependent upon the will of the people, and it could not be presumed that it would continue year after year to Christian. Defendant further moved to rule out all the testimony as to the earnings of Christian as postmaster, upon the grounds that the office of postmaster was not an annuity, but was held at the will of the President and might he revoked at any time, and the same was not the earnings of a man in contemplation of law. These motions also were overruled.</p> <p>4. Plaintiff read a cross-interrogatory to E. M. Gray (who was at the time in question superintendent of defendant) as follows : “Don’t you remember on the same day that Dixon killed Christian, and after you had given Mr. Tigner the order on Dixon for the engine and Tigner had started home, that you sent a negro requesting Mr. Tigner to drive by your camp; and don’t you remember meeting Mr. Tigner as he drove by and telling him that the report was out that Dixon had killed Christian, that Dixon had written or sent you word to that effect and wanted you to come to Chipley at once; and didn’t you ask Tigner to take supper with you and carry you in his buggy to the springs; and didn’t Mr. Tigner carry you to Mike DeLacy’s hotel at the springs where you got a horse or conveyance on to Chipley that night; and didn’t you, while at supper with Mr. Tigner or while riding with him in the buggy to the springs .that night and talking of Dixon’s killing Christian, say to Mr. Tigner that you were not surprised at it, for that ;you were uneasy or afraid all the time you were about .Dixon, or words to that effect ? Don’t you remember 'making this statement, or one of similar import to Mr. Tigner at that time;. and was not the statement true ? Would you have made it if it had not expressed your feelings and been the truth?” And the answer to said interrogatory, as follows: “I remember the day that Mr. Christian was killed, and of asking Mr. Tigner to carry me to White Sulphur Springs where I could get a conveyance to carry. me to Chipley. I remember to have remarked to Mr. Tigner while in his buggy, that it was no more than I expected. This remark was made because of what I knew to have been Mr. Christian’s feeling toward Mr. Dixon, and from what I had heard his reputation to be for quarrelsomeness. I did not mean that I expected that Mr. Dixon would kill Mr. Christian or any other person, but that Mr. Christian-would be killed by some one.” Plaintiff' also read another cross-interrogatory to Grray, as follows : “ In view of Mr. Dixon’s health and the nature of his disease, and in consequence of his variable temper and the ease with which he could be thrown off his balance and lose his mental equipoise, and his known ill feeling towards Christian, were you surprised when you heard he had killed Christian ? Didn’t you think at the time, and don’t you think now, that it was just such a catastrophe as might have been, under the circumstances just stated, reasonably expected ? And isn’t it a fact that you were always, or frequently when in his presence, uneasy as to yotir own safety or the safety of others, or apprehensive of some difficulty or misunderstanding or serious trouble of some kind with him, or on his account, and did not the same cloud of apprehension and fear follow you and hover over you as to Dixon’s conduct towards others when you were absent from him? Mr. Gray, please ponder these questions; refresh your recollection as to your feelings and thoughts and fears on this subject, and state the real facts and truth of the matter. Have you done so? if not, why not?” And the answer of Gray to said interrogatory,'as follows: “Yes, I was surprised and shocked to hear that Mr. Dixon had killed Mr. Christian. Knowing Dixon as I did, I did not expect that he would have killed Mr. Christian. I never had the slightest uneasiness as to my own safety or as to the safety of any other person, nor did I apprehend any difficulty, misunderstanding or serious trouble between him and the patrons of the road. The foregoing answers contain the real facts.” Plaintiff then offered to read an interrogatory of JB. P. Tigner, as follows: “You will please state, Mr. Tigner, where you were on or about the 9th day of September, 1884, when you first heard that Mr. James O. Christian had been killed by Mr. M. Dixon at Chipley; and state who else was present when the announcement was made, and especially if any officer of the defendant company was present at that time, and if so, who he was; and state what said officer said and how he acted when the announcement was made that Dixon had killed Christian, and state who it was that brought the news or made the announcement. Put the whole scene before us just as it occurred, the exact date, the time of day, who were present, the place, what was said, who said it, and the effect it had or what exclamations it occasioned, and who gave utterance to them. State everything exactly and fully.” To this interrogatory defendant had objected in writing, and plaintiff' having offered to read the same and the answer in evidence, the court sustained the objection and refused to allow the same read. Plaintiff then offered to read the same after reading the interrogatories to Gray and his answers thereto, for the purpose of impeaching the testimony of Gray. Defendant objected upon the ground that no proper foundation had been laid for impeaching the witness, because in his answers he had not said that he did not say that he did not make all the statement, but said he remembered only a part of it and answered only to what he remembered; and because, if the witness Tigner should remember a few words more of the statement inquired about than Gray, that would not impeach Gray. The court overruled the objection and allowed the interrogatory and answer thereto to be read in evidence, not to show that the facts sought to be set up by Tigner’s answers were true, but only for the purpose of impeaching Gray, which ruling is assigned as error.</p> <p>5. Another ground is, that the court erred in refusing to charge as follows : “The plaintiff- claims m her declaration that the defendant wrongly and negligently caused the death of her husband, by employing as its agent in controlling, possessing and using its depot and station-house in Chipley, one Stephen M. Dixon, who was unfitted for said position of agent by reason of prolonged disease, a confirmed dyspeptic afflicted with hypochondria and melancholy, irascible, peevish, petulant, passionate, and as a result of the aforesaid afflictions being a dangerous man, and that the defendant well knew the fact that said Dixon was so unfitted for the position of agent of said defendant railroad. If the jury do not believe from the evidence that the said Dixon was, at the time of the killing of the plaintiff’s husband, unfitted for said position of agent for the reasons alleged, then they must find for the defendant.”</p> <p>6. The refusal to charge as follows is assigned as error: “If you believe from the testimony that S. M. Dixon was the agent of the defendant, and that the plaintiff’s husband, James O. Christian, by his conduct and abusive language towards Dixon provoked a personal quarrel between himself and Dixon, and that the killing of the plaintiff’s husband, James O. Christian, was the result of the quarrel, and that he was killed by Dixon as an act of personal resentment, it would not be within the scope of his employment as a servant or agent, and the plaintiff would not be entitled to recover.”</p>

Criminal law. Jury. Liquor. Local statute. Constitutional law. Before Judge Martin. Harris superior court. October term, 1891.

Criminal law. Liquor. Before Judge Martin. Harris superior court. October term, 1891.

<p>Applied to the facts of the case, the charge was more favorable to the State than to the accused, as it dealt hypothetically with malice and offered no hypothesis based on heat of passion. As what the witness called a “ touch ” with the foot may have been a “ kick ” or mistaken for a kick, the charge should have presented to the jury the law of voluntary manslaughter, so as to enable them to distinguish that grade of homicide from murder, and to determine which of these offences would have been committed if death had ensued. The court erred in not granting a new trial.</p>

Criminal law. Murder. Manslaughter. Prisoner’s statement. Confession. Charge of court. Before Judge Pish. Dooly superior court. September term, 1891. Coney was charged with the murder of Morgan, and was found guilty. His motion for a new trial was overruled, and he excepted. The evidence for the State tended strongly to show that the offence was murder because of jealousy.

<p>1. The court having promptly branded as improper the objectionable remarks made by counsel for the State in argument, and instructed the jury to disregard them, and it>not being manifest to the Supreme Court that they produced any effect injurious to the accused, although they were calculated to do so, the denial of a new trial on the ground that such remarks were made will not be reversed, no motion having been made by the accused or his counsel to declare a mistrial or to withdraw the case from the jury on account of the objectionable remarks.</p> <p>2. The newly discovered evidence being cumulative in part,.and in part impeaching, there was no absolute right to a new trial because it was not discovered until after the trial.</p> <p>3. The evidence, though directly conflicting, warranted the verdict; and whilst the finding is not altogether satisfactory to the Supreme Court, there is no legal cause for holding that the trial court abused its discretion in refusing a new trial.</p>

Taxation. Assessment. Arbitration. Estoppel. Before Judge Marshall J. Clarke. Eulton county.

<p>Attorney at law. Disbarment. Practice. Amendment. Evidence. Before Judge Maddox. Bartow superoir court. January term, 1892. ®</p> <p>Jesse A. Baker, as an attorney at law, was tried by the judge without a jury, on a rule to show cause why he should not be removed from the roll of attorneys, which rule was granted upon the petition of A. S. Johnson. Baker was found guilty of the charges preferred in the petition, or accusation, and the amendments thereto, and a judgment of removal was rendered. He excepted to the overruling of his motion for a new trial, and to the overruling of his demurrers to the accusation. This accusation alleged : In the sworn answer of Baker in the case made by a rule issued against him from the superior court on the petition of Mrs. S. K. Moor, he stated the following: “ The movant’s claim on which said decree was predicated consisted of an old judgment rendered against said A. Johnson as administrator of Lindsay Johnson, deceased, in his, A. Johnson’s, lifetime, in the superior court of Milton county, rendered on the-day of-, in the year-. In the lifetime of A. Johnson a compromise agreement had been made between A. Johnson and movant, or her said agent, by which said Johnson was to pay one thousand dollars which was to be accepted in full satisfaction of said judgment. Under this contract said Johnson paid five hundred dollars, leaving a balance of $500 unpaid. This compromise contract was made on the -day of-in the year-, or about that time. In the month of December in the year 1882, the said movant, through and by her said husband and agent, employed this respondent as attorney at law to try to collect out of the Johnson estate the said balance of $500.00 with interest thereon, left unpaid by Johnson under said compromise agreement, the said movant and her said agent then not claiming and not-intending to make any effort to collect the whole of said judgment, or any more than the unpaid balance under said compromise aforesaid. In making this first contract the said A. P. Moor, acting for his wife, stated he had paid out to Col. Dell, and perhaps others, large amounts in in fees, and he was not willing to pay any more fees unless the litigation should be successful and the money made, and he proposed to pay respondent a reasonable and liberal conditional fee out of what might ultimately be collected, and if nothing should ever be collected nothing should be paid to respondent for his services, but the particular amount of this conditional fee was not at that time fixed. Respondent agreed to accept this proposition, and the said Andrew P. Moor placed the Ü. fa. issued from said judgment vs. said'Johnson in respondent’s hands. Upon looking into the matter a little, respondent came to the opinion that it would be difficult for the Johnson estate to set up and maintain said compromise arrangement above mentioned, and suggested to said Andrew P. that he might be able to ignore said compromise and collect the whole debt as though no compromise arrangement had been made. Tie (said Andrew) then told this respondent that if he would proceed for the whole debt and get rid of said compromise, that respondent should have one half of all that should be received and collected, as a conditional fee, and.respondent accepted this proposition and agreed to attend to the entire litigation upon the terms proposed. This contract was made on or about the -day of-, in the year 1883, and before answer was filed for the movant, or other legal steps taken by respondent as her attorney. Eespondent did accordingly set up and claim, in the anwer filed for movant, the whole amount of said judgment, ignoring said compromise. The legal representative of said Johnson’s estate set up- and made a strong effort to establish said compromise and thus reduce the amount of movant’s claim, and also made attack upon the validity of movant’s judgment upon several grounds. But these efforts, after very great litigation, all failed, and respondent succeeded in recovering for movant the whole amount of her said judgment and ji-fa. without any abatement thereof on account of said alleged compromise, which claim and recovery was graded as a trust claim and judgment against the estate of said deceased.” The accusation alleges that Baker further swore in that answer that he received and collected the full amount of the judgment from Moon, as receiver of the estate of Johnson. Wherefore, petitioner accuses Baker of deceit in his profession, in that, having learned of the fact of the compromise made by Johnson, he deceived the master of this court, W. K. Moore, by pretending and contending that no such compromise was made, such pretension and contention being wilfully false. Petitioner further charges him with wilful misconduct in his profession, in that, being first only retained to collect $500 and interest from Johnson’s estate, and well knowing that only that much was clue from the estate to his client, yet because he knew that the estate and its representatives could not prove the truth and show conclusively said compromise and payment, he suggested the suppression of the truth and the collection of a sum which he knew, from information received of his client, was not in truth, law or justice due, and did then and there accept employment to suppress the truth and collect money which he knew was not due. Further, having wilfully and corruptly suggested the suppression of the truth, he agreed and undertook to collect the whole amount apparently due on the ji. fa. and judgment, upon condition that his client should pay him half of all that should be collected; and though knowing that only $500 and interest were due thereon, he wilfully, falsely and corruptly pretended and contended that the full amount apparently due ($2,000 more or less) was in fact due, and finally succeeded, by such false and corrupt pretension and contention, in collecting $1,654.50, one half of which he still retains as the wages of such misconduct. And although having made said sworn averment of his deceitful practice, and having filed said confession in the office of this court where it is spread upon its records, he yet fails to refund to the representative of the estate any portion of said amount, etc.</p> <p>Baker demurred generally, and by way of special demurrer alleged as follows : The quotation from his answer set forth in the accusation contains nothing contrary to law or to the duties which he owed to his client or the court as attorney at law. This quotation is simply made the basis or starting point for a long argumentative statement of conclusions, inferences and insinuations, instead of making direct and distinct charges of fact and intent, upon which issue could be joined. The accusation is general in its charge's and insinuations, but is not direct and specific, as good pleading and justice to the defendant require it should be. Bor example, it charges him with deceiving the master by charging that no such compromise was made, without pretending to state a single word used by him in argument or otherwise before the master. The accusation perverts the quotation from his answer to the rule of 8. K. Moor, and interprets it as meaning that only $500 was legally due on tliafi.fa., and that the compromise was legally valid and could be set up and maintained in law. Nothing of this sort appears in the quotation, but the accusation assumes that it is so contained, and therefrom the inference is drawn that defendant suggested the suppression of the truth, etc. In fact, the whole of the charges contained in the accusation are based on a misinterpretation of this quotation and consist in argument and inference of the pleader. Exception is taken to the overruling of the general and special demurrers.</p> <p>The original accusation was brought on August 1, 1888. Ten days afterwards an amendment thereto was filed, in which the relator prayed that in each place where the accusation is made by him against Baker, it be so changed as to appear that the accusation is made in the name of the State of Georgia upon the information of A. S. Johnson. In this amendment are the following allegations: Baker, having been informed of said compromise and having disobeyed the instructions of his client who directed him to see the representative of Johnson’s estate and know if she would abide by the compromise, suggested that it be ignored and the full amount apparently due on the fi.fa. and judgment be collected, and although he knew that the apparent amount was not in fact due, he undertook and contracted to collect the same upon condition that S. K. Moor would pay him, or allow him to retain half of said amount; by which contract Baker became directly and pecuniarily interested in the suppression of the compromise contract, in disproving the same, and in disproving any payment upon they? fa. or the judgment upon which it was predicated. Not satisfied with the information given him by his client or her agent, of the payment which had been made on the fi. fa. and judgment by A. Johnson in his lifetime. Baker required his client and her agent to make affidavit of the amount due thereon, which they did, swearing that $300 had been paid thereon, and they sent this affidavit to Baker who has retained it in his possession ever since , but neither he nor his client, nor any one for them, has ever entered said payment on the fi. fa. Afterwards Baker, appearing before "W. K. Moore, the master, and wholly failing to enter as a credit the payment which had been made on the fi. fa. and judgment, and omitting to mention the same or bring it to the attention of the master that the just and true balance due thereon might be allowed by him, offered the fi. fa. as evidence of the true amount due thereon (though knowing of the payment which had been made); and they?, fa. having been received by the master, Baker announced his case closed, knowing that by the allowance of the same in full he would, by the terms of his contract with S. K. Moor or her agent, receive at least $150 and interest more than he would receive should he inform the master of the truth by crediting the fi. fa. with $300 which his client had sworn had been paid thereon, or informing the master of the payment. And after the fi. fa. had been so received, the representative of Johnson’s estate introduced evidence to ^how payments upon the fi. fa. and a compromise thereof, and Baker, though knowing of the payment shown by the affidavit of his client, did nevertheless introduce as a'witness A. P. Moor, he being duly sworn, and by questions propounded to him procured from him a denial both of the fact of the compromise and that any payment had been made on the execution and judgmerit or the compromise agreement, and Baker knowing that he would profit, and intending to profit by the failure to enter the credit upon the execution, contended and argued to the master that the full amount apparently due thereon was in fact due. Thereafter, the $1,600 having been paid to Baker by the receiver of the estate, Baker wrote to A. P. Moor, agent for S. K. Moor, on November 21, 1887, that he had, after paying witnesses and everything else, only about $500, and then had to pay MeCutchen $50 for helping him in the ease ; whereas Baker has since sworn in the rule case of S. K. Moor against him (to recover said money or a part of it) that he had not paid out on account of witness fees and everything else over $75 or $100, and that he had not paid MeCutchen $50 or any other sum for helping him in the case; and the relator avers these two statements as last made to' be the truth, and that Baker, when he wrote the statements contained in the letter, intended to deceive his client, knowing them to be false, and having collected said money he failed to pay over the same, or any part thereof, until -, when he paid over half of it to S. K. Moor and refused to pay the other half or any part of it; and finally, when called on by rule to show cause why he should not pay over the other half, less $165.50 proposed to be allowed him by his client, he pleaded and swore as set out in the original accusation; and after that accusation was served upon him, he amended his answer to the rule of S. K. Moor and pretendingly pleaded that he had been mistaken when he stated, m his original answer to that rule, that he had collected the whole amount apparently due on the ft. fa. against the Johnson estate, and that in fact he had not collected the-full amount. Yet notwithstanding said answer he still refused and omitted to pay or offer to pay the $827 50 or any part of it, but went to trial on the issue made by said pleadings, and thereon produced and put in evidence the letters of A. P. Moor, agent of S. K. Moor, wherein Baker was distinctly informed of the compromise agreement and of the fact that $500 had been paid on the compromise of the judgment and fi. fa. by Johnson in his lifetime; and also put in evidence the affidavit of the Moors wherein they both swore that $300 had been paid on the fi. fa. and judgment; and by himself and his counsel argued to the court and jury that if the fund then in litigation was an unholy fund, obtained from Johnson's estate by the joint fraud of himself 'and the Moors, the jury should leave the parties where they found them, and read authority to sustain said position-And although the jury found against Baker in that; cause, he still retains said money and refuses to pay it’ over to his client. The relator further shows that in 1888, Baker having been employed to collect the fi. fa. of Thompson Anderson, survivor of Allison, Anderson & Company, against E. D. Graham, and having heard that a fi. fa. in favor of Graham & Graham, one of whom was E. D. Graham, against Cora M. Gray, had been in some way or to some extent transferred to W. H. Howard, applied to Howard to learn whether the transfer had been made and the facts of the same. Howard and Baker being upon friendly terms, Howard having often assisted him pecuniarily, he, knowing Howard’s feelings towards him and believing that on account thereof Howard would the more freely communicate any information he possessed, told Howard that he, Baker, owned the fi. fa. of Thompson Anderson against E. I). Graham; and afterwards in the superior court on the trial of the rule case of Graham & Graham against Franklin, to distribute the money Cora M. Gray had paid on the fi. fa. of Graham & Graham against her, Baker, then claiming the same on the fi. fa. of Thompson Anderson against Graham, and attempting to set aside the transfer of said ft. fa. against Gray to Howard, testified that he did not own the ft. fa. of Thompson Anderson against E. D. Graham, and being asked if he had not told Howard that he owned said ft. fa., answered “I did”; and being asked, “Was that true?” answered “No”; and being then asked, “ Did you tell Howard the truth, then ? ” answered “ No ” ; and being then asked, “You swear now you told Howard a falsehood?” answered “Yes.”</p> <p>The amendment just set forth was allowed on August 10, 1888. The first demurrers by the defendant were filed on July 15, 1889, and were considered by the judge in connection with his consideration of the ca'se generally upon its merits on the evidence. At the same time and in the same connection Baker demurred to the amendment j ust stated, on the grounds as taken in the first part of the special demurrer, except only as to the portion of the amendment touching his failure to enter a credit on the ft. fa. against Johnson’s estate for money which he did not collect and was not collected by S. K. Moor after the ft. fa. was placed in his hands, which charges he says seem to be based on a misapprehension of the duties of an attorney at law. Further objecting, he says that the charges set forth in the amendment are not legally sufficient as to that portion which relates to what he said to Howard and what he testified in relation thereto, because it does not charge any breach of duty or bad faith towards any client or any court, but amounts simply to an allegation that he admitted with more than usual promptness, under oath, that a statement he had previously made to a third person was incorrect, without further explanation. He also says that the portion of the amendment referring to what he had written to S. K. Moor in relation to the money collected by him, and the charges made against him in connection therewith, are indefinite, vague and insufficient, and do not make any case against Mm; but that the accusation shows that he claimed a conditional fee of one half as due by contract, and that he sought only to retain what he insisted the contract authorized him to retain. Another ground of this demurrer is, that the accusation does not attach as an exhibit a full copy of Ms answer from which the quotation is made, which quotation is made the basis of the accusation, nor does it otherwise set forth the substance of the whole of his answer. — One of the grounds for new trial is, that the court erred in allowing the amendment to which the demurrer just stated relates, over Baker’s objections that it involved a new and distinct accusation against him, in no way connected with the original accusation, which ruling was made during the trial of said ease. This ground then states that the amendment was allowed by Judge Fain, and that Judge Maddox who tried the ease passed no order therein.</p> <p>The amendment just recited was sworn to. Other amendments filed July 8th, 25th and 26th, August 23d, and November 6th, 1889, were not sworn to, and on each one of these is entered by the respondent an objection to its sufficiency and a denial of the charges therein. The motion for new trial complains of error in overruling the respondent’s objections to the sufficiency of each and every accusation against him, and of error in allowing the amendments now to be stated, because none of them were verified by the oath of the relator. The judge certifies that the ground as to failure to verify was not mentioned before him. The amendment of July 8, 1889, alleged as follows: On May 10,1889, came on to be heard the cause of J. A. Baker v. S. K. Moor, which was a motion to set aside the verdict rendered against him in favor of 8. K. Moor; whereupon Baker moved to continue said motion for a new trial, and for cause to continue stated upon oath that Q. L. Bell in'April, 1889, had told him that if ho, Baker, had known the character of A. P, Moor (who was a material witness against Baker on the trial of the case of S. K. Moor against Baker), he, Baker, would not have lost his cause, that he could get affidavits at Gumming, Georgia, to impeach Moor, and that he, Bell, and his father would give Baker affidavits as to Moor’s bad character tending to impeach him; and that said Bell at the same time and place told him to come over there, and he, Bell, would help Baker in getting up affidavits to impeach Moor ; and that that was the first intimation Baker had had that Moor could be impeached. Upon this showing Baker secured the continuance he moved for. In truth Bell never told Baker that he could get affidavits as to Moor’s bad character tending to impeach him, nor that he would help Baker get said affidavits ; on the contrary, he told Baker he did not think Moor could be impeached in Gumming, Georgia, and he never told Baker at any time that Moor could be impeached anywhere, at any time or under any circumstances. The statements of Baker so made to the court were wilfully and knowingly false in that he swore that the alleged conversation he had with Bell in April, 1889, was the first intimation that he had that Moor could be impeached, when in truth Baker himself had stated in a letter written by him to Bell on March 21, 1889, that he had been informed that it would not be a very difficult matter to impeach Moor in Forsyth county. The statements so made by Baker to the court were solely to deceive the court and secure a continuance of the motion for a new trial; and having so made the statements, he argued the same and insisted upon their truth and legal sufficiency. — The motion for new trial alleges that the court erred in allowing this amendment over the respondent’s objections that it introduced a new and distinct accusation against him, in no way connected with or explanatory of the original accusation, and that it appears therefrom that the matters therein charged against him all transpired after the filing of the original accusation, and did not exist at the commencement of the proceedings.</p> <p>The amendment of July 25,1889, alleged as follows: On February 21, 1888, Baker having been employed by "W". E. & J. R. Puckett, legatees under the will of E. D. Puckett, deceased, and knowing that E. D. Graham, a member of this bar in good standing, had been employed to represent and was then representing, as attorney, Mrs. Emily Puckett, executrix of E. D. Puckett, wrote to said executrix, among other things, to wit: “My firm represents ¥m. E. & Jas. R. Puckett, who, are legatees under the will and, as you well know, stand in the greatest, in fact the only danger, in consequence of your not paying the debts of your testator. I am not mad, neither are my feelings the slightest ruffled at you for interposing the claim to the levy on the lands of Mrs. Lary. I am satisfied you are acting under the advice of your counsel, who I must say only desires to get you involved in long, tedious and expensive litigation, that he may have the harvest he had in the Tumlin case, and get as a lawyer more out of the estate than any one of Tumlin’s heirs has yet been able to get. And in my judgment, if you go on following Graham’s advice in the administration of that estate, you will squander everything you have, and everything Capt. Puckett left those two little children of yours, that the old man tried so hard to provide bountifully for. Graham undertook to represent Mrs. Cora Gray, and is now suing her for about two thousand dollars attorney’s fees. He undertook to represent Mrs. Dick Roberts, and to-day, while her husband left her good property, she has not one cent of it, and has had to pay me out of her own estate over one hundred and fifty dollars besides other amounts; and all of this where there was no necessity for it whatever, except to make fees for which he stood sorely in need. These are notorious facts known of all men, and should be known by you. As long as you listen to Graham you never will pay a cent of the indebtedness of that estate, but will hold back and make no effort to wind the estate up, and have me moving to remove you, and to have you give bond, etc., etc., and you resisting it and lawing and paying fees out of the estate to Graham, which will finally come out of you, and a thousand other things to bedevil, worry, harass and annoy you and everybody else, and take the money of that estate to be by you and Graham tried to be saddled on my clients, and their property taken to pay it. Now your duty is plain, and you should proceed at once to sell such property as is set apart in the will to pay debts, and pay them; and then turn over to yourself, as guardian of your children, what is going to them, and then be discharged from the executorship, for then the estate is fully administered. But instead of doing that (and your common sense will tell you that is right), you will listen to Graham and wait until after the 12 months expire, and then you will become liable to suit. Everybody begins to sue and levy upon the estate, and here it goes and the estate is wasted. Now as you have written me and caused me to believe that up to this time you have been misled by Graham, I am determined you shall have a fair chance to do right, and then if you get into trouble it will be your own fault. I will not move against you on the first Monday in March as I intended to do, but will wait until first Monday in April and then move, if something is not done towards winding up that estate. I know I do not bear you the slightest ill will, but do sincerely desire you to go on and administer the estate and have no trouble, and will render yon any aid in my power to properly aid you, and would not charge you one cent, and make you this offer to convince you of my sincerity in all that I say. "With the best of wishes, I am very truly, J. A. Baker. P. S. Judge Iloward concurs in every word I have said about the proper administration of that estate. J. A. B.” The allegations against Graham are each and all untrue and slanderous; and it was wilful misconduct in Baker thus to attempt to induce Mrs. Puckett to cease to act upon the advice of her chosen attorney, and to endeavor to induce her to abandon him and accept in lieu thereof his own so-called advice. — The motion for new trial alleges that the court erred in allowing this amendment and in overruling the respondent’s objection that a new and distinct cause of action was thereby added to the original accusation, which new and distinct ground was in no way connected with the original accusation.</p> <p>The amendment of July 26, 1889, alleged that after the original information in the present case had. been served upon Baker, he amended his answer to the rule of S. K. Moor,by alleging that his original answer thereto was mistakenly made in that he swore that he had succeeded in collecting the whole amount due on the fi.fa.; and in said amendment he admitted that the compromise agreement had been allowed by the master, and that he had not collected the full amount of the fi.fa.; and on the trial of the rule case he swore that the master allowed the compromise agreement and did not allow the full amount of the fi. fa. Notwithstanding all of which he still fails and refuses to pay over to S. K. Moor any part of the $827.15 remaining in his hands. — The motion for new trial alleges that the court erred in allowing this amendment and in overruling the respondent’s objections, which were the same as those made against the amendments just above stated.</p> <p>The amendment of August 23, 1889, alleged that Baker voluntarily approached B. II. Jones who had an execution against the Pyrolusito Manganese Company for $19.05 principal, besides interest and costs, and represented to Jones that he, Baker, could collect the execution, and if Jones would turn it over to him he would do so, and as an attorney and a man he would guarantee its collection. Thereupon Jones turned it over to him as an attorney for collection, and he thereupon caused it to be levied on an ore-washer and fixtures, as the property of the defendant in execution, and caused the same to be advertised for sale, and at the sale caused the same to be knocked off at $11, and then sold the same to the alleged bidder for $75, having before the sale bargained it, and only paid over to Jones $9.95 and pocketed the difference between $11 and $75, and still retains the same, concealing his couduet in the premises from Jones and refusing to pay over to him the amount due on the execution, and still retains and withholds from the manganese company the difference between the amount of the execution and the purchase price of the property. — The motion for new trial alleges that the court erred in allowing this amendment and in overruling the respondent’s objections thereto, on the grounds that no time is therein alleged as to when the matters occurred, and the same is barred by the statute of limitation, and that it seeks to add new and distinct grounds of accusation in no way connected with the original accusation.</p> <p>The amendment of November 6, 1889, alleged that upon this trial and in argument before this court, the defendant falsely stated that Mrs. Emily R. Puckett opened the correspondence with him, upon which and in consequence of which the letter quoted in the amendment of July 25th was written; and as evidence of this charge the relator tenders the letter of Baker & Heyward of February 20, 1887.</p> <p>The motion for a new trial contains the general grounds that the j udgment is contrary to law and evidence, and the following special grounds :</p> <p>Error in refusing to continue the case when the amendment allowed and filed on July 26, 1889, was made, Baker and his counsel both stating that they were surprised by the amendment, that it made a new and distinct ground which they were then not prepared to meet, and that they could procure evidence tp meet and overcome it; Baker’s statement being made under oath. This motion was made on the 25th and 26th of July, 1889; the case was passed from then to the 4th and 5th of November, when the court heard all competent evidence offered by either party.</p> <p>Error in overruling Baker’s objections to the following testimony of A. • W. Eite: Q. “ State whether or not Mr. Baker was present during the entire trial ” (referring to the trial of the rule case of S. K. Moor v. J. A. Baker). A. “ Well, sir, he was here and might have gone out, and no doubt did for a few minutes during the trial.” Q. “State whether or not James B. Conyers addressed the court and jury upon the argument of that case.” A. “Yes, sir, he made an argument before the jury.” Q. “State whether or not he read any authority and took any position m regard to the court leaving the parties where they found them, if this was an unholy fund.” A. “Yes, sir, he took that position, argued to the jury and read authority from the Supreme Court, and asked Judge Fain to charge the jury that if Moor and Baker confederated together and defrauded the Johnson estate, that Mrs. Moor, the wife of Moor who was acting as agent, could not recover in this case, and that the courts would leave them where they found them. Mr Conyers read authority and asked the court to charge the jury on that point.” The objections were, that there was no charge or accusation authorizing any such testimony; that it showed the acts of James B. Conyers and not of Baker; that it was irrelevant; that Baker was not shown to have been present or in any way assenting to it; an d that Conyers was Baker’s counsel in that case, his positions were his own, and Baker was not responsible for them.</p> <p>Error in admitting the following testimony of A. S. Johnson: Q. “ Bid you hear the position taken by brother Conyers in regard to this being an unholy fund ?” (referring to the fund claimed in the Moor rule case). A. “Yes, sir.” Q. “Whatdid he say?” A. “I can’t give his exact words; he read to the court on the question that where the fund was an unholy fund and fraudulently obtained, that the court would not help either party, and argued to the jury that if they found it was an unholy fund, the courts would not have anything to do with it. lie did not say that it was an unholy fund, but if the jury should so find.” The objections were the same as those urged against the admission of the testimony of Eite.</p> <p>Error in admitting, over objections that it was irrelevant and immaterial, the following testimony of E. B. Graham: Q. “ What amount of fees did you receive from that estate ?” (referring to the estate of E. B. Puckett). A. “ 1 have received thirty-two dollars. I prepared an account before the master for $150, and gave them credit for the amount received. Q. “ Has he allowed it ?” A. “ I don’t think he has reported. I afterwards appeared for her when the will was probated.” Q. “ What are your charges ? Are they reasonable ?” A. “ I think they are quite low.”</p> <p>Error in rejecting the following testimony given on the cross-examination of W. K. Moore, a witness introduced by the relator, and shown to be a lawyer of several years practice, and this testimony being offered as expert evidence : Q. “ If Mr. Moor had come to you and told you that he had received about $1,200 on this fi. fa., and that he had ascertained from Maxwell & Vincent that they had paid their money to Col. Johnson, and had paid it on the Dysart & Vincent debt, Johnson being the means through which the money had been paid, and that it took little, the rise of $1,200, to pay the compromise of the Dysart & Vincent claim, and insisted that when he made that affidavit that he did not know what Maxwell & Vincent would swear, was still open for about half, that he got it from Johnson and that it had been paid upon the fi. fa. of Vincent, and that he had discovered that it came from Dysart & Vincent from Johnson, don’t you think that it would be the duty of Baker to go on and insist that the Johnson fi.fa. had nothing paid on itj1” A. “I think so.” Q. “Then suppose that your client was to tell you that Col. Bell had compromised this case with Johnson, and that he had discovered that he had never paid a cent — ” The court here interrupted by stating that “ what Col. Moore thinks about this under the same circumstances, and what he would have done, is ruled out.”</p> <p>Error in admitting, over objection that it was írrelevant, hearsay and illegal, the following testimony: Q. to Baker by Akin: “ Did not Mr. Eite, upon the motion when you made your motion to continue your motion for a new trial in the S. K. Moor rule case, did not Mr. Eite then and there state to the court under oath that he had a conversation with Geo. Bell, in which Geo. Bell denied having the conversation with you which you had testified about before the court?” A. “Yes, sir.” Error in admitting, over objection that it was hearsay and irrelevant, a long itemized account made out by A. M. Eoute, showing that he had as attorney for Mrs. A. N. Roberts, executrix of R. C. Roberts, deceased, made collections from seventy-nine different parties, and had collected the sum of $3,237.05, for which he had charged commissions to the amount of $323.70.”</p> <p>Error in admitting in evidence, over objection that it was hearsay and irrelevant, the petition of Mrs. Emily R. Puckett against Thomas M. and William E- Puckett et al., filed on January 18, 1889, alleging that E. D. Puckett died testate and his will, a copy of which was annexed, was proved in common form October 3, 1887, and letters testameutary were issued to the plaintiff, and on February 6,1888, the will was proved in solemn form; that the testator owed some debts the exact amount of which the plaintiff could not state, but set forth twenty-three persons and firms to whom he was indebted in the aggregate sum of $1,102.95 ; that commissioners to sot apart a year’s support for the plaintiff and two minor children were appointed on April 2, 1888, and had assigned $750 in money to be realized out of the property of the estate, which report and assignment wore made the judgment of the court on September 8, 1888; that since her qualification the executrix had paid debts out of the property of the estate, amounting to $682.38, which includes $328.78 paid to year’s support, the other amounts going to eighteen different persons, among which was $32 to E. I). Graham; that she has assented to all the legacies, except Kittie Larey, James R. Puckett and William E. Puckett; that R. W. E. Jones on a fraudulent claim has sued her; that there is not enough property to pay his debts outside of specific legacies; that several parties have sued her and others are threatening suit and collection by executions; that claims will be filed by different legatees, and thus many suits will arise; that she is advised that it was the intention of the testator to charge the legacy of William E. Puckett and James R. Puckett with payment of the debts, in the event the property set apart for that purpose proved insufficient, and if this is correct, the property bequeathed to them should be sold to pay the debts, but William E. and James R. insist that the rents alone should go to pay debts, and a conflict of legal opinion exists about this, and doubt as to construction of the will. To prevent multiplicity of suits she prayed for construction and direction, for injunction against creditors and that they be required to come into court and prove their claims, for guardian ad litem for children, and for general relief and process. The bill also specified other property not mentioned or specifically devised by the will. The will gave certain lands to William E. and James R. Puckett jointly, but directed that they he retaiued in possession of the executrix and rented out, and the proceeds he applied to the payment of all the testator’s debts, and then be turned over to William E. and James R. Puckett and not before. The hill was sanctioned and ordered filed and restraining order was granted on January 17, 1889; and the cause was referred to J. M. Neel as special master on March 2, 1889.</p> <p>Error in admitting, over objection, the following testimony of George L. Bell: “ 2d direct interrogatory. Please state whether or not you ever received any letter or communication from J. A. Baker relating to impeaching A. P. Moor. If yea, please state when, and attach the original, properly identified, to your answer. Did or did you not reply to said communication ? If yea, attach copies of the same, properly identified, to your answers; if you have not copies, give their substance as nearly as you can, and state where the originals are. A. I did. The letter is in my office at Cumming, Ga. I cannot, therefore, attach it to my answers. I replied to said communication. I have no copies of my reply. I do not remember date of Baker’s letter, hut it was before spring term of Pickens superior court. 3d direct interrogatory. Please state whether or not you told said J. A. Baker at Jasper, Ga., in April, 1889, or at any other time or place, that he could get affidavits at Cumming, Ga.,. or anywhere else, to impeach said Moor, and that you and your father would give affidavits of Moor’s had character tending to impeach him, or if you would help said Baker to get said affidavits? Bid yon or did you not ever tell said Baker at any time or place that the said A. P. Moor could be impeached by affidavits procured from any designated locality ? State fully all that was said between you and said Baker on this subject.” A. “I did not. I did not. I did not. I did not. I do not remember everything that was said on this subject. "Wo talked several times during the week about Baker’s case. I asked Baker when I first met him if he had received my reply to his letter. lie said that he had, and that he intended to go over to Forsyth county and see what he could do towards getting affidavits to impeach Moor. I told him that he might be able to get them in the lower portion of our county where Moor had last resided, but I did not know. I asked him to come to my house and be my guest when he visited our couuty. As he wont to leave Jasper and I bade him good-bye, I remarked in a general way that if I could be of service to him he could command me. I also told him, during some of the conversations had with him, that Moor was rather a troublesome man. I stated further to him that I had collected $100 from Col. A. Johnson for Moor, for which I had received no pay. That is the substance of my conversation with him.” The objection was, that by the first interrogatory and the answers quoted, it was sought to give and did give the contents of writings, and that by both the interrogatories and answers the object was to charge and convict the defendant of false swearing or perjury, and that to do so he must be confronted by the witnesses. The objection was also in writing on the interrogatories at the time they were sued out. When the objection was • made to the court, counsel for the relator stated that the letters alluded to by the witness were in existence and would be produced, and afterwards the following letters were read in evidence.</p> <p>“ Cartersville, G-a., March 21st, 1889.</p> <p>“Hon. Geo. L. Bell: Dear Sir, — I am in some important litigation with Andrew P. Moor, and in the course of his testimony he swears knowingly and corruptly false. He is a new comer here and not generally known, in fact known very slightly. I have been informed that it would not be a very difficult matter to impeach him in Forsyth Co. Please let me know how this is, and I will go over and see about it.</p> <p>“ Yours truly, etc. J. A. Baker.”</p> <p>To this letter was attached the affidavit of Geo. L. Bell that the above letter was the letter called for by the subpoena duces tecum and it was the only letter called for in his posession, etc., when served with the subpoena.</p> <p>“Gumming, Ga., March 30, 1889.</p> <p>“Mr. J. A. Baker: Dear Sir, — Your favor of the 21st inst. has been received. In regard to the impeachment of A. P. Moor, I expect it would be difficult to do, owing to the fact that for several years past he has been moving from one place to another, and has not resided in any community long enough to show general character. Of course, if you were to undertake it you would want to successfully discredit him. This is my opinion about it, and I write it candidly. I am sorry you are having trouble with him. He is a troublesome man to deal with. Yours truly, Geo. L. Bell.”</p> <p>Error in admitting, over objections, the following testimony of George E. Sims by interrogatories : “ I heard Geo. L. Bell read a letter he had written J. A. Baker in 1889, relative to the impeachment of A. P. Moor. I heard Geo. L. Bell read a letter from J. A. Baker on the same subject. I have neither the originals or copies. Baker wrote Bell, stating he had been informed A. P. Moor could be impeached in this county, and asked if it could be done. Bell wrote Baker that in his judgment said Moor could not be impeached in this county. This was the latter part of March, 1889.” The objections were substantially the same as those taken in the ground just preceding this one; and it was further objected that there was nothing to show that the letter from Bell to Baker was ever sent or mailed to Baker, and that the original was not accounted for by the witness. Counsel for the relator stated that the letters were in existence and would be produced; and afterwards during the trial, letters of similar purport were read in evidence.</p> <p>Error in admitting the following testimony of R. H. Jones, over objection that it was hearsay and irrelevant: “The first I knew of the levy on thej7. fa., I was passing by Wolf Pen court one day, and Mr. Jenkins, the bailiff, asked me if I was not going to get out, and I said, for what? ‘Well,’ he [replied], ‘you have a case here to-day. You have got some property levied on here,’ and I said, ‘I reckon not,’ and he said, ‘Yes, you have,’ and I asked him who was representing me, and he said, Mr. Baker. He said that Johnson was there representing Baker, and I remarked that I had nothing to do with it. And also Jenkins said, ‘You had better stay here and see that it brings your claim,’ and I told him I was to get my money anyhow.”</p> <p>Error in admitting, over objection that it was irrelevant and hearsay, the petition of Adelaide N. Roberts, executrix, against J. R. Willmore et al., filed on May 3, 1886, in Bartow superior court, for injunction, direction and marshalling assets: The bill sets out the creditors of the estate; shows herself to be executrix. The assets of which testator died possessed are of the value of $6,000. Pleads known business inexperience. Says she consulted A. M. Eoute as attorney. Thought that the estate was amply solvent, therefore made no application for year’s support. Alleges much complication in the business with W. W. Roberts, and that she arbitrated with W. W. Roberts and' was surprised at the result of the arbitration. She intrusted A; M. Route to collect debts due the estate and pay debts owing by the estate, and followed his advice. He finally furnished her with a statement showing that he had collected $8,237, and paid $2,918 ; and that he elaimédfees $343, the balance in his hands being insufficient to pay him; She and Route have collected about $4,000, and paid all out but about $200 used by herself the first year. All the solvent claims have been collected, and the only assets consist of $100 worth of corn and an equitable interest in a farm. Sets forth the suits of Willmore, and says that ft. fa. is in the hands of sheriff. Sets forth. an indebtedness to Nancy Barnwell, and to James E.. Stephens, executor, A. M. Route and R. H. Jones, and', that to all these suits plene administravit must be pleaded.. Shows that she and her minor children are entitled to-year’s support. Prays for injunction, and that the estate-be distributed by decree of the court, etc. Signed by Graham & Graham, plaintiff’s solicitors. The court on May 2d, 1886, sanctioned the bill and restrained all the parties, and set the case for a hearing on the 1st Monday in June, 1886. It was then continued to 3d Monday in June, 1886. On the 3d Monday in.June, the court enjoined all parties until the final hearing;, except J. R. Willmore’s suit against Mrs. Roberts to fix lieu individual responsibility. Service of said bill was- acknowledged by J. A. Baker, attorney for J. R. Will-more, May 3d, 1886. The answer of J. R. Willmore was, in brief, as follows: Defendant admits that testator died in possession of a farm near Adairsville, Ga., but denies that it is only of the supposed value of $500, and says that it was appraised at $1,590 over and above incumbrances. Denies that plaintiff only received personal property of the value of $1,000, but says that was worth $2,480.70, what it was appraised at, and that plaintiff returned the items showing this-to. be. a trueinventory, and swore that it was “ true, just and correct” ; that the notes received by plaintiff were worth and appraised at $5,064.84, none of which were appraised as insolvent or desperate, and that nearly all are on solvent parties, and at the lowest estimate are worth $4,000; that the open accounts were appraised at $2,057.71, making a total óf $7,122.55, instead of $6,000 as alleged.; and that of the accounts plaintiff should have collected at least $1,500. Defendant charges that on :20th May, 1885, plaintiff collected of D. J. Guyton .$728.82, one half belonged to the estate ; that she has ■an. award against W. W. Roberts for $1,010.40, and that this is not disputed. Defendant admits plaintiff’s inability to attend to the business of the estate, and this is the direct and sole cause of the complications in the business of the estate. Defendant charges that plaintiff sold 'all the personal estate except such things as she wanted, but for some sinister purpose fails and refuses to make out and return a true and correct sale bill. Defendant does not know how plaintiff transacts her business as between herself and her attorney-at-law, A. M. Route, whether she takes the advice of her counsel or not, but - is informed that she fails to do so. Nor does he know whether plaintiff knew the condition of the estate or not; she has been in possession of all the assets and data since June 22, 1883, and if she don’t know, it is due to her carelessness and ineompetenoy; she should have known. Defendant makes a part of his answer a part of plaintiff’s returns to the ordinary as executrix, wherein she shows that she has paid on open accounts $1,575.61, some of the accounts made after the death of testator; that she has paid notes in full, amounting to $302,53; that in law these should only prorate with defendant, but she did right in paying them, because the estate 'was solvent so far as notes were concerned, and she ought to pay defendant. The true state of matters is, that the estate is worth, solvent notes, $4,000 ; solvent accounts $1,500 ; Guyton matter, $364.41; Adairsville farm,above mortgages, etc., $1,500; personal property," $2,480.70 ; four hundred and seventy bushels of corn, '$235; total, $11,180.51. The debts will not approximate this sum. Shows that defendant’s debt was on note, and that judgment had been recovered ; and prays that restraining order be dissolved, that plaintiff be enjoined from further meddling with the estate, and that a receiver be appointed, and general relief. J. A. Baker, def ts sol’r. This answer sworn to by J. A. Baker, June 7th, 1886, he swearing the facts positively alleged to be true. The court granted the injunction against plaintiff, appointed Douglas Wilde receiver, and enjoined all the creditors from proceeding against the estate, but allowed Willmore to press his suit against the executrix to fix her personal liability. To prevent an adjudication as to waste, etc., before the special master, M. R. Stansell, Willmore amends his pleadings and strikes all of his original answer charging waste, etc. This amendment was allowed on November 4, 1886, by M. R. Stansell, special master, to whom the whole matter, with full power, had been referred by the court, and his amended answer was signed by J. A. Baker, attorney for Willmore.</p> <p>Touching the grounds complaining of the admission of evidence, the judge certified that, to avoid constant and repeated argument, he stated at the trial that he would not observe the usual rules of law as to the admissibility of evidence, but in making his finding would undertake to give effect only to legal evidence.</p>

Cancellation of deed. Insanity. Evidence. Before Judge Maddox. Floyd superior court. September term, 1891. Petition to cancel a deed, on account of insanity of the maker and for fraud and undue influence. The case has been before this court twice. 85 Ga. 638; 87 Ga. 324. It was again-tried on October 13th and 14th, 1891, and upon the introduction of the testimony for the plaintiff’ the court granted a nonsuit.

Forthcoming bond. Evidence. Attachment. Judgment. Levy. Before Judge Janes. Paulding superior court. August term, 1891. Action by Doyal, former constable, for the use of Tolbert, against Johns and Cain, upon a forthcoming bond. A nonsuit was granted, to which ruling, and to certain rulings upon evidence hereafter mentioned, plaintiff excepted.

Husband and wife. Loan. Corporation. Officer. Usury. Before Judge Miller. Bibb superior court. April term, 1891.

Churches. Authority to convey. Municipal corporations. Evidence. Dedication. Notice. Deed. Mistake. Contract of sale. Practice. Before Judge Miller. Bibb superior court. April term, 1891.

Railroads. Negligence. Damages. Before Judge Ross. City court of Macon. Passmore sued the railroad company for damages, because of injuries received by him while in its employment as a brakeman, in a collision. He obtained a verdict for $1,250. A motion for a new trial was overruled, and the defendant excepted. The motion contains the grounds that the verdict was excessive, and that the court erred m not granting a nonsuit.

<p>Estates. Tenants in common. Partition. Title. Before Judge Martin. Harris superior court. October term, 1891.</p> <p>This case turns upon the construction of the third item of the will of William Hastey, the grandfather of Sarah V. Bonner, formerly Sarah V. Wills, the complainant in the court below. An auditor reported, among other things, that under that item of the will complainant was entitled to recover one half of lot of land 28 in Harris county, and certain rents and profits thereof. Julia A. Hastey, one of the defendants, excepted to the report, claiming the absolute title to the lot of laud, and that complainant is not entitled under the will of William Hastey to any part thereof. ' This exception was demurred to; and the demurrer was overruled.</p> <p>Item three of the will was as follows: “I desire that my beloved and ever affectionate daughter, Julia A. Hastey, remain upon and enjoy as her home my homé place, with the lot of land on which my improvements are situated, the same being lot of land number 28 in the third district of originally Troup, now Harris county, and that she together with my granddaughter, Sarah V. Wills, enjoy the rents and profits of said place with my beloved and devoted grandson, William B. Hastey, if compatible with his wishes, by agreement with my said daughter, Julia A. Hastey, to supervise and direct and assist his aunt, and to realize with her during his natural life the rents and profits of my said home, but in no event to be compelled to encumber himself with said care, and in the event that William B. Hastey declines the trust and benefits in this item of my will, then I desire my son John B. Hastey supervise all of my said daughter’s interest, and that Edy, cold., be permitted to remain upon contract.” The first item of the will.gave directions as to the testator’s burial. The second item as to payment of his debts. The fourth item as to his stock. The fifth item gave all the rest of his estate, to be taken possession of• by his son John.B., and appropriated either to the payment of testator’s indebtedness to John B., or to be sold and the proceeds applied to the payment of said debts, and if anything remained over, to be distributed according to the statute of distribution. The sixth and last item appointed John B. his executor. It appeared in evidence that complainant was the granddaughter of testator and entitled to inherit the distributive share of her mother, if any there were, in Ms estate; and that she remained on the land with Julia and W. B. Hastey up to 1882, and then, by permission of Julia A., left it, as the auditor found, without knowledge of her rights under the will. Complainant alleged in her bill that her father died when she was an infant, and her mother when she was about six years old, and that she lived with her grandfather until Ms death, which occurred when she was about fifteen years old, etc.</p>

Vendor and purchaser. Parol contract of sale. Pleading. Evidence. Practice. Possession. Lien. Title. Estoppel. Before Judge Fish. Dooly superior court. September term, 1891.

Amendment. Promissory notes. Practice. Admission. Evidence. Charge of court. Before Judge Roberts. Dodge superior court. February adjourned term, 1891. Action by McArthur, surviving partner of the firm of McArthur & Griffin, against Harris &■ Mitchell, upon a contract of lease and certain promissory notes therein referred to.

Ejectment. Title. Prescription. Estoppel. Set-off. Before Judge Boynton. Spalding superior -court. August term, 1891.

<p>1. Two adjoining lots of land being included in tbe same bond for titles and afterwards in tbe same deed of conveyance executed in pursuance of such bond, but not described as two'adjoining lots or as one plantation, settlement or tract, actual possession of one prior to the recording of tbe deed is not such possession of the other as will serve to establish a title by prescription as to the latter, although the possession be long enough continued to per-feet a title as to the former. Tritt v. Roberts, 64 Ga. 156; Barber v. Shaffer, 76 Ga. 285.</p> <p>2. Under the facts of this case, the plaintiff below was not estopped; nor was she accountable in equity out of the lot which she recovered, either for improvements or for any part of the proceeds of the sale made by her nominal trustee which he had applied to her use, such proceeds not amounting to more than the value of the other lot which the defendant in the action succeeded, by prescription, in holding against her. It would not be equitable for the defendant to thus defeat her claim as to one of the lots, and at the same time take credit for a part of the proceeds of sale arising from both lots, less in amount than the value of the one which defendant retains and continues to enjoy.</p> <p>3. Inasmuch as by the conveyance executed in 1874 to effectuate an executor’s sale made in December, 1866, the title vested directly in the plaintiff, though the conveyance was to another as trustee for her, she being then a married woman, the trust was executed eo instanti, and when the order of sale was obtained from the chancellor in 1873, there was no title in the trustee, and the sale subsequently made by him under that order was not one to which the act of 1876 (Code, §2925b) applies. Consequently, the bar of three years prescribed by that act is not available as against the assertion of the plaintiff’s title in this action.</p> <p>4. Whether certain witnesses were competent or incompetent, their testimony was immaterial to the result of the case upon its substantial merits, in view of the finding made by the jury. There was no error in refusing a new trial.</p>

Railroads. Negligence. Charge of court. Before Judge Van Epps. City court of Atlanta. Akridge sued the railroad company for damages, alleging in brief: About September 22, 1890, he was driving a gentle mare to a sulky, going south along the East Point road.

Will. Guardian. Minor. Party. Service. Sale. Jurisdiction. Estoppel. Fraud. Before Judge Gober. Pickens superior court. September term, 1891. The demurrer of the Southern Marble Company to the petition of Stegall et al. was overruled, and exception was taken.

Husband and wife. Divorce. Alimony. Injunction. Parties. Practice. Amendment. Before Judge Janes. Haralson county. At chambers, Mrs. Price by her original petition alleged: She and her husband have three children, naming them. Her husband has treated her cruelly, has often during the last six months come home in a drunken and mad condition, breaking furniture and cursing, beating and abusing her and the children.

<p>New trial. Practice. Brief of evidence. Before Judge Harris. Carroll superior court. October term, 1891.</p> <p>In October, 1890, Luther obtained a verdict against the railway company. Defendant made a motion for new trial, the hearing of which was first assigned for November 5, 1890, and defendant was allowed until that time, by order of the court, to file an approved brief of the evidence. By regular orders the time for said hearing and within which to file an approved brief of the evidence was postponed until October 24, 1891, when, as appears by the record, an order was passed reciting that, whereas the motion was set to be heard in vacation and was not then heard, but by an order set for hearing at “ this, the October term of the superior court,” and whereas it has not been heard, and said court is to be adjourned to the 8th day of December next, it is ordered that the motion be set for a hearing in vacation and be heard on the first Monday in November next. On November 2, 1891, as appears from the record, an order was passed reciting that the motion having been set for a hearing on that day, the. parties agreeing thereto, it was ordered by the court that the hearing be continued until November 16th, and that the movant have until then to perfect the motion and have approved and filed a brief of the evidence to the same extent as such rights existed on November 2, 1891, this continuance not to affect the rights of either party as they existed on November 2, 1891, and if the right to perfect the motion and file an approved brief of the evidence existed then, it could be done on November 16, 1891. On November.16,1891, at chambers, as appears by the record, the motion for new trial was called for a hearing, and plaintiff* moved to dismiss it on the ground that movant had failed to have approved and filed a brief of evidence in the case in accordance with the orders in the case, which motion was sustained, and to which ruling defendant excepted.</p> <p>There is some variance between the record and the bill of exceptions. The bill of exceptions states that by regular orders the time for the hearing and within which to file an approved brief of the evidence, was postponed until November 14, 1890, thence until January 12, 1891, thence until April 9, 1891, thence until October 24, 1891, thence until November 2, 1891, and thence until November 16, 1891, at which last date the motion was continued without mention of the brief of evidence; and that thereupon on November 16, 1891, the date assigned for the hearing of the motion, the same was dismissed by the court upon motion of plaintiff’s counsel; and that the brief of evidence referred to was filed in the clerk’s office on November 18, 1891, without the court’s approval.</p>

New trial. Before Judge Boynton. Spalding superior court. August term, 1891. Curry sued the railroad company for damages, and the jury found for him $100 and costs. He moved for a new trial, which was granted, and the defendant excepted. The declaration alleged: On September 5, 1890, he was at defendant’s depot in Griffin for the purpose of getting on board its cars to go to McDonough, at the time according to the schedule the cars were to leave.

Telegraph company. Penalty. Damages. Constitutional law. Before Judge G-ubrry. Early superior court. October term, 1891. James sued the telegraph company for the statutory penalty for failure to deliver a message within a reasonable time, and for damages resulting from such failure. He obtained a verdict for both the penalty and damages. Defendant’s motion for a new trial -was overruled, and it excepted.

<p>Mortgage foreclosure. Amendment. Before Judge ■ Pish. Webster superior court. October term, 1891.</p> <p>Claims were interposed by Ada Wbaley to the levy of executions in favor of Nicholson & Co. against Harris. By consent the cases were tried together, and on motion of the claimant the: levy was dismissed, because the mortgages from which the executions issued by foreclosure showed upon their face that they were given to pai’ties other than Nicholson & Co., who foreclosed them, and could not be foreclosed in the name of Nicholson & Co., without written assignment of the party or parties to whom they were made. They were mortgages on personalty, made to the Savannah Guano Co., .and its assigns, and the Atlanta Guano Co., and its ¡assigns, to secure promissory notes payable to those •companies or bearer (each note, together with the mortgage securing it, constituting one instrument). To the ruling dismissing the levy, and to the refusal of the court to allow the foreclosure “to be amended for the use of said D. W. Nicholson & Co.,” the plaintiffs excepted.</p>

<p>The declaration, set forth a cause of action. The evidence supported it. There was no error in the charge of the court which misled the jury or resulted in injury to the defendant, nor in admitting or excluding evidence; nor was the verdict excessive. The court did not err in denying a new trial.</p>

New trial. Practice. Railroads. Negligence. Evidence. Damages. Charge of court. Jurors. Before Judge Maddox. Chattooga superior court. March term, 1891. 1. Owen sued the railroad company for damages from personal injuries, and obtained a verdict for f17,500. The defendant moved for a new trial; the motion was overruled, and exceptions were taken to that ruling, and to the overruling of a demurrer to the declaration.

Levy. Tax sale. Lien. Verdict. Before Judge Bower. Dougherty superior court. October term, 1891. Burks filed his petition for an order to the sheriff of Dougherty county to put him in possession of the west half of lot number 79 on Broad street in the city of Albany, Ga., under a deed from the tax-collector of said county to the lot, made to Burks, and to require Morgan to show cause why the order should not he granted.

Promissory note. Stock subscription. Fraud. Before Judge Bower. Dougherty superior court. October term, 1891.

New trial. Damages. Railroads. Before Judge Hansell. Lowndes superior court. ■ November term, 1891. This case originated in a statutory proceeding to assess damages claimed by Jones against the railroad company for running its right of way and constructing its road through certain lands of Jones. The jury-summoned by the sheriff found in favor of Jones $700, and an appeal was taken to the superior court by the railroad company.

Practice. Evidence. Mortgage. Attestation. Lien. Before Judge Atkinson. Charlton superior court. November term, 1891. A ji.fa. issued from the foreclosure of a mortgage.in favor of Baxley, Boles & Company against T. R. Morgan & Company, was levied upon an engine and boiler and entire saw-mill and fixtures, which property was claimed by Benton & Upson. Foreclosure was made December. 20, 1890, and levy December 22, 1890.

Husband and wife. Evidence. Title. Charge of court. Before Judge Atkinson. Appling superior court. October term, 1891. Mrs. Carter brought her action against Holton to recover a sorrel mare. She obtained a verdict; defendant’s motion for a new trial was overruled, and he excepted. The motion contains the following grounds : 1.

Mortgage lien. Receiver. Laches. Practice. Before Judge Gober. Cobb superior court. November term, 1891. Under a creditors’ bill, brought to the March term, 1891, of Cobb superior court, by various creditors of McKinnon, Trautwein not being a party, one Boone was appointed receiver.

<p>A guarantor of the payment of a promissory note, payable at a chartered bank, is not an indorser within the meaning of that provision of the constitution which authorizes suit against indorsers to be brought in the county of the residence of the maker. Consequently, where suit was brought by the G. Co. against B. as principal, and J. & T. as indorsers, in the county of B.’s residence, J. & T. residing in another county, upon a promissory note payable at a chartered bank to plaintiff or order, signed by B. and having thereon the following signed by J. & T.: '* For a consideration not herein named, we guarantee the payment of this claim” to the G. Co., the declaration was demurrable for want of jurisdiction as to J. &T., the guarantors.</p>

Criminal law. Murder. Manslaughter. Evidence. Before Judge Atkinson. Glynn superior court.. December adjourned term, 1890. ¡ Candus Gardner was indicted for the murder of IsaiahMinifield, and was found guilty. He excepted to the overruling of his motion for a new trial.

Criminal law. Robbery. Venue. Practice. Evidence. Before Judge Atkinson. Ware county. At chambers, James and Randall Sweat were indicted for robbery, alleged to have been committed upon George Snider on August 19, 1889, in Ware county. They were tried in November, 1889, and found guilty. Their motion for a new trial was overruled, and they excepted. Snider, the prosecutor, was a witness for the State.

Constitutional law. Criminal law. Arrest. Before Judge Martin. Muscogee superior court. May term, 1891. Conviction of assault with intent to murder; new trial denied. The assault was committed by firing a pistol on a policeman of Columbus, as he was about to arrest the defendant just outside of the city limits. The grounds of error are sufficiently indicated by the decision.

<p>Promissory note. Accommodation indorsement. Coil-1 sideration. Negotiable instrument. Before'Judge Van Epps. City court of Atlanta.</p>

Title. Notice. Bona fide purchaser. Charge of court. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1891. Complaint for land (a city lot) was brought by Barnett against Arnold. No pleading other than the declaration appears in the recoi'd. The verdict was in favor of the plaintiff, and the defendant excepted to the overruling of his motion for a new trial.

<p>■Where a mortgage upon realty is given for securing several negotiable promissory notes, some of which notes are negotiated by the mortgagee before maturity and others are retained by him, and after the maturity of all the notes the mortgagee in his own name, and without ever having made any assignment of the mortgage or any interest therein, forecloses for the whole amount of the notes so transferred and retained, and afterwards assigns the judgment of foreclosure to one of his creditors who, besides extinguishing his antecedent debt against the mortgagee, pays the latter a large sum in cash, the debt and the cash together being the consideration o£ the assignment, the assignee, if he takes the assignment without any notice of the transfer of the notes or that the transferee liad any interest in the mortgage security or in the judgment of foreclosure, acquires the title to the judgment unaffected by the secret equity of the transferee, and the latter cannot recover from the assignee any part of the proceeds of such judgment after the judgment has be'en paid off by the mortgagor. The equities protected by section 3597 of the code, irrespective of notice, are equities between the parties to the judgment, and not those in favor of strangers to the judgment, as to whose names and interest the record is silent.</p>

<p>1. The rule that a fugitive from justice, surrendered for trial by a foreign country under treaty stipulation, cannot, after his extradition, be tried for an offence not embraced in the demand or application on which he was surrendered, does npt apply to fugitives from justice fleeing from one State of the American Union to another and surrendered on demand under the provisions of the constitution of the United States. These latter may be tried for any offence committed by them in the State to which they are returned, though the offence may have been committed before the demand and surrender, and though it be not the particular offence on account of which they were brought back for trial.</p> <p>: By the act of February 26th, 1877 (Code, 24649), a nolle prosequi may be entered by the solicitor-general in any criminal case with the consent of the court after an examination of the case in open court. This being so, the consent of the court is conclusive upon the validity of a nolle prosequi which the court has allowed the solicitor-general to enter before putting the accused on trial. The latter, when arraigned upon a bill of indictment subsequently found and returned by the grand jury for the same act or offence, cannot, by plea in abatement or motion to quash, draw in question the rightful disposition of the former bill by nol. pros.</p> <p>3. A plea in abatement to a bill of indictment, or a motion to quash the bill, is not sustainable which sets up that a member of the grand jury that found the bill was related by affinity to the prosecutor within the fourth degree, his wife being a second cousin of the prosecutor. Such relationship, according to the settled law, belongs to the same class of causes of challenge as does the fact of service by the juror on a previous trial or investigation of the same case or matter in controversy.</p> <p>4. Several counts, each charging forgery, one by falsely and fraudulently making a bill of exchange in a fictitious name, another by fraudulently obtaining a sum of money by color of the same bill (alleging it to be drawn in a fictitious name), another for fraudulently obtaining a sum of money by color of the same bill, and another for falsely and fraudulently uttering the same bill, the last two counts, however, not alleging the bill to be drawn in a fictitious name, may be joined in the same bill of indictment, all the offences being felonies and offences of the same nature according to the code, 224453, 4455, 4450. And at the trial the State would not, as matter of law, be bound to elect on which particular count or counts it would rely for a conviction.</p> <p>5. On the counter-showing, taken in connection with the showing for a continuance, there was no abuse of discretion by the presiding judge in denying the application. And no error appears in admitting in evidence the facts constituting the counter-showing, 'most of them consisting of acts and declarations by the prisoner himself which were inconsistent with the good faith of his showing, and those which consisted of declarations by others not being separately objected toon the ground that they were hearsay.</p> <p>6. On a trial for forgery, representations by the accused calculated to make an impression that he was a person of wealth and respectability, some of the' representations being made to one of the Iversons afterwards defrauded by the forgery and some of them to the brother of that person, the brother being the medium of introduction between the accused and one of the members of the firm defrauded, are admissible iu evidence on behalf of the State, there being facts and circumstances in evidence tending strongly to prove the falsehood of the representations. The fact that the</p> <p>‘ accused pretended to write to his father for a large sum of money and caused an envelope addressed to the person he said was his father to be mailed, which envelope on being aftewards returned unopened by due course of mail was found on examination to contain nothing but a blank piece of paper, is admissible in evidence together with the envelope and piece of paper.</p> <p>7. When a man assumes not only a name which is not his own, but the relationship of son to another who has no such son, and in that name draws a bill of exchange and passes it for value to a person who believes he is dealing with a genuine and not a fictitious son of the alleged parent, the name as to that transaction is fictitious, and under section 4453 of the code the bilí is one drawn in a fictitious name and the drawer is guilty of forgery.</p> <p>8. Designedly obtaining money with intent to defraud by color of a bill of exchange drawn in a fictitious name is a felony under section 4455 of the code, such a bill being embraced in the words “ any counterfeit letter or writing made in any other person’s name, or fictitious name.”</p> <p>9. The evidence warranted the verdict, and there was no error in ndt granting a new trial on any one of the grounds contained in the motion therefor.</p>

<p>1. Under the system of pleading prevailing in this State, the positive and unqualified charges of material facts contained in a bill, in equity praying for relief and waiving discovery, though the bill be signed by counsel only and not sworn to by the complainants, are not mere suggestions of counsel, but are imputable to the complainants as declarations made by them; and in other suits to which they are parties, may be given in evidence as tlieir admissions.</p> <p>2. A certificate of the clerk of the superior court stating two cases by name, and adding “ that the above stated cases have been duly dismissed, as appears from the dockets of said court,” is not admissible in evidence to show that the cases were in fact dismissed.</p> <p>3. A witness testifying that she was so young at the time, that she did not know from whom certain property was bought, or where the money came from to pay for it, but saying she knows now that the money came from a specific fund, shows by her own testimony that what she calls her present knowledge is not her own personal knowledge of the fact, but a state of mind produced by hearsay, or something else by which she has been enlightened . since the fact occurred, nothing appearing to explain how or by what means her so-called knowledge was produced, or from what source it was derived.</p> <p>4. A trustee for a life-estate only having sold and conveyed the fee, and the remaindermen having, after the death of the tenant for life, brought suit against the purchaser to assert their title in remainder and to recover the premises, the mere fact that pending this suit they filed a bill against a purchaser from the tenant for life, in which they c'aimed other property as being the proceeds of sale by the trustee of some or all of the original trust property, would not defeat the action, although the property sought to be reached as proceeds was such in fact, and the com- • plainants had full knowledge of the fact at the time of filing the bill.</p> <p>5. If the trustee of the life-estate sold the fee and received the purchase money for the whole, and if lie afterwards invested some of that purchase money in other lands; and the remaindermen, after the death of the life-tenant, appropriated these other lands to their own use with knowledge of all the material facts, their so doing was a ratification of the sale and conveyance of their estate in remainder by the trustee, and they would be estopped from recovering from the purchaser their remainder interest. If they did not have knowledge of the facts, they would, upon proper equitable pleadings, be liable to account in the present action for so much of the value of the lands received by them as would equal the proceeds of their remainder in the original trust property which were invested in these lands, with interest thereon. To the ratification here spoken of, the terms of sections 2192 and 2194 of the code would apply.</p> <p>(3. Under the rule that the declarations of a person since deceased, against his interest and not made with a view to pending litigation, are competent evidence, declarations made by one in possession of lands and holding them as apparent owner, to the effect that they were purchased with proceeds of the sale of certain premises, and that they were trust property standing in lieu of these premises, the declarant being now dead, are admissible in evidence against the remaindermen under the original trust referred to in favor of a purchaser of the original trust lands, these being the premises now in dispute, and the declarant having been a tenant for life in these premises under the same trust in which, the title in remainder now sought to be enforced had its origin. Declarations by a tenant for life in possession of the proceeds of a trust fund, by which declarations she virtually admits that her estate in these proceeds is limited to her own life, are against her interest, for the reason that, presumptively, a person in possession of property apparently as owner is such owner, not for life only,, but in fee. Collateral facts relevant to the principal fact, and embraced with it in a declaration made against interest, may, as-well as the principal fact itself, be proved by the declaration.</p>

<p>Nuisance. Municipal corporation. Police power. Before Judge Roney. Richmond superior court. October term, 1891.</p>

<p>Criminal law. Sunday freight-train. Police. Interstate commerce. Before Judge Milner. Dade superior court. September term, 1891.</p> <p>Indictment for running a freight-train on Sunday. The defendant was convicted; and the question made by his exceptions is, whether under the facts the statute (Code, §4578) upon which the indictment is founded, is repugnant to article 1, section 8, of the constitution of the United States. The train was run from Chattanooga, Tenn., to Meridian, Miss., over the railroad of the Alabama Great Southern Bailroad Co., a common cai'rier, in the States of Tennessee, Georgia, Alabama and Mississippi. It was loaded in Tennessee with freight for points beyond the limits of Georgia.</p>

Landlord and tenant. Life-tenancy. Vendor and vendee. Before Judge Hutchins. Clarke superior court. April term, 1891. On January 12,1891, Jonas, as agent for Mrs. Benton, made affidavit to eject Sykes as a tenant holding over without payment of rent for a tract of land of which Mrs. Benton was the owner for life. Sykes filed a counter-affidavit.

<p>1. Where pending a suit by creditors of the holder of a certificate of deposit issued by a firm of bankers (that suit being against such holder and afterwards by amendment against the bankers also, and the latter being enjoined therein from paying the certificate of deposit), a suit is brought against them by a present holder of the certificate who took it from the former holder after the first suit was brought and after a receiver therein had been appointed, the superior court of the county in which both suits are pending has jurisdiction to enjoin the plaintiff in the suit founded on the certificate, notwithstanding he is a non-resident of that county and a resident of another county of this State. That court has jurisdiction also to order said plaintiff to be made a party defendant to the first suit at the instance of the hankers, and there litigate his right to the fund as against the receiver and all parties plaintiff to that suit, whether they claim in harmony with the receiver or in opposition to the interests which he represents.</p> <p>2. Under the facts of this case, the bankers were entitled to the injunction and order of interpleader prayed for.</p>

<p>The rule in Shelley’s case does not apply unless an estate is limited to the heirs, general or special, of the same person to whom a preceding freehold estate is given or granted. Hence, the rule does not apply, so far as A. is concerned,.to a conveyance in trust for the use of A. during her life, and at her death the property to vest in the children born of her body, to them and their heirs forever; and if A: should die without any children so born, or if her children should all die intestate and without issue after her death, then the property to be sold and one half the proceeds to revert to the donor, and the other half to go to a named person, his heirs and assigns forever. The heirs of A., as such, are neither mentioned nor contemplated. Her children’s heirs- might be different persons from her own heirs. Certainly, her children’s heirs general would be a different species of heirs from her heirs special. Her children took as purchasers, and could not consistently with the terms of the conveyance take by limitation or inheritance. The deed now under construction was made in the year 1844.</p>

<p>Contract.' Damage. Set-off. Recoupment. Pleading and practice. Before Judge Willis. City court of Columbus.</p> <p>Baxley, Boles & Co. sued Fontaine for a balance claimed to be due on an account for cross-ties, including a charge of $232.50 for storage on ties in Brunswick. The defendant’s first plea, besides that of the general issue, sets up that in so far as the ties were delivered they were delivered in pursuance of a special contract between the plaintiffs and himself, whereby the plaintiffs agreed to furnish him, delivered free on board ship at Brunswick, 50,000 ties of a certain description, all to be delivered between September, 1889, and July, 1890, for which the defendant agreed to pay a certain price sixty days after delivery of each ship-load free on board at Brunswick, less ten per cent, of such amount, which it was agreed the defendant should retain as guarantee of the fulfillment of the contract, to be paid the plaintiffs only after full completion of the contract; that in pursuance of the contract the plaintiffs did deliver to him f. o. b. at Brunswick a certain number of ties; that from time to time, at the special request of the plaintiffs and as an accommodation to them, he made advance payments on account of the several shipments before the same were due and payable; that in order to do this it became necessary for him to borrow from bank at interest, upon faith of the several cargoes, the amounts so respectively paid, and also to insure said cargoes, all of which was well known to the plaintiffs who, in consideration of such advance payments, agreed to repay him the amounts so by him paid on account of interest and insurance (the amounts of the advances, interest and insurance being itemized); and that of the gross number of ties shipped, 729 were rejected in New York according to the contract, and on these the defendant had paid freight from Brunswick, which payment the plaintiffs became and were liable to repay; wherefore he pleads as a set-off, against the amount for which he became liable for the accepted ties, the amounts paid by him for insurance and for freight on the rejected ties, as well as the total of the advance payments and interest. In his second plea he denies that he is indebted to the plaintiffs on account of storage of ties in Brunswick.</p> <p>The third plea alleges as follows : On or about March 10, 1889, the defendant entered into a contract with the plaintiffs, whereby they agreed to furnish him with such number of cross-ties as might be necessary to fill any contract he might thereafter make for supplying ties to railroad companies, not to exceed fifty thousand ties a month, for a period of twelve months after he should have closed his first Contract with such railroad companies, which ties were to be of certain stated dimensions and for certain prices. All were to be delivered as called for, free on board ship at Brunswick, subject to New York inspection. At the time of this contract he notified the plaintiffs that he desired to enter into it for the purpose of submitting bids to, and entering into contracts with, eastern railroad companies to supply them with cross-ties, that such was the business he proposed to undertake and carry on, and that he would call for the ties to be delivered according to contract as he might be requiredffo deliver them to the railroad companies with which he should contract; all of which was specially brought to the knowledge of, and well understood by, the plaintiffs. In consideration of the obligations assumed by them, he agreed to go to New York and negotiate the sale of ties to the railroad companies centering there, and thus secure contracts for the furnishing of ties, all of which should be supplied by the plaintiffs at the prices, and upon the terms named. They were solicitous to have him undertake the business, since by reason of his acquaintanceship and influential connections they anticipated that he would be successful and thus open a market for their production. Relying upon the faith of said contract he went, in the summer of 1889, to New York where he opened an office for the sale of ties, and labored earnestly, ardently and successfully to establish his business, to which end he spent four months or more in New York at an expense of $1,500 or other large sum. He was constantly in communication with the plaintiffs, who knew that he was expending much labor, time and money in consideration and upon the faith of his contract with them. Relying upon the same he submitted bids for furnishing ties to the following railroad companies at the prices stated:</p> <p>N. Y. C. and EL R. R. R. 50,000 at 55 cts.</p> <p>Cent, of N. J.................. 50,000 “ 58 “</p> <p>IX, L. & West. R. R......... 30,000 “ 62 “</p> <p>N. Y., L. E. & W. R. R..... 50,000 “ 53 “</p> <p>N. Y., Out. & W. R. R..... 50,000 “ 49 “</p> <p>The bids to the first two above named were each accepted, and contracts therefor awarded' to defendant. The contract with the N. Y. C. & EL R. R. R. has been fully performed and executed. Ele was assured by officials of the last three named companies that his bids were the lowest and best that had been submitted, and that the same would be accepted and the contract awarded him at the proper time. He also made bids to the Pa. R. R. for 50,000 ties, to the N. Y. & Noi’theastern for 30,000 ties, to the West Shore for 50,000 ties, and the Rhode Island R. R. for 30,000 ties, all of which bids, if accepted, would have yielded him large profits, and some of which would have been accepted had not he been compelled to withdraw all bids because of the breach of contract by the plaintiffs as hereinafter specified. While all of the above bids were pending (except that to the N. Y. C. & EL R. R. R., which had been accepted) he was informed by the plaintiffs on or about October 19, 1889, that they would be compelled to decline to supply ties any longer at the prices agreed upon, since they could make arrangements that would pay them much better. He immediately and earnestly protested, and demanded that plaintiffs should comply with the contract, informing them that their failure to do so would entail severe losses upon him. Without positively stating whether or not they would continue to furnish ties at the prices named, they replied that they would try to arrange matters satisfactorily. For some months affairs continued in this uncertain and indefinite state, the plaintiffs continually feeding him upon the delusive phantom of hope, until finally they positively and absolutely refused to perform and abide by their contract; in consequence whereof he was compelled to withdraw all bids pending as above stated, greatly to his damage. By this breach he was also rendered unable to comply with his bids to the Cent. R. R. of N. J., which had been accepted and the contract awarded him. By reason of all of which he was ruined in his business, lost credit with his associates and those with whom he had undertaken contracts, and was deprived of divers great gains and profits that otherwise he would have received. He assigns special damages from this breach of contract by the plaintiffs, in that (1) he had submitted a bid to the D. L. &. W. R. R. to furnish 30,000 ties, which bid he was assured would be accepted, which ties the plaintiffs by their contract agreed to furnish at 35J cents each, the freight on which from Brunswick to New York was 221 cents each, thus rendering the cost of each tie delivered in New York 58 cents, leaving a profit of four cents per tie, or $1,200; (2) that he had submitted to the N. Y., L. E. & Western R. R. a bid for 50,000 ties at 53 cents, which bid he was assured would have been accepted, which ties the plaintiffs had agreed to furnish at 29J cents each, and the cost of transportation would have been 16 cents each, thus rendering the cost to him on each tie delivered in New York 45J cents, leaving a net profit of 7J cents, or $3,750; and (3) that he had submitted to the N. Y., Ont. & Western a bid to furnish 50,000 ties at 49 cents, which the plaintiffs had agreed to furnish at 29i cents each, and the cost of transportation from Brunswick to New York would have been 16 cents each, so that the cost to him would have been 45J cents for each tie delivered in New York, leaving a net profit of 3i cents or $1,750. Pending all these transactions he was in constant communication with the plaintiffs, they all the while knowing that he relied upon his contract with them in order to comply with the contracts he was soliciting; during all this time the plaintiffs encouraged him to submit bids and solicit contracts; and after he had done so at large expense to himself, and had obtained contracts and assurances of contracts that would have yielded him large profits, it would bo a fraud upon him to permit the plaintiffs to violate their contract as they have done. The business he had established at such pains and expense and which promised to be so remunerative was completely ruined, and his credit entirely destroyed, solely because of the unlawful breach of contract on the part of plaintiffs as above set out. Wherefore he has been damaged $10,000, and prays that he may be allowed to recoup the same against plaintiffs’ claim in the suit, and that he may have judgment therefor.</p> <p>To this third plea the plaintiffs demurred generally, and especially because (1) the defendant seeks to recover upon a contract certain speculative damages which are set forth as prospective profits, and are too remote to be the basis of an action or cross-action; (2) he seeks to recover $1,500 as an expense in New York, without setting out an itemized account of said expenses, and said expense of $1,500 is not an element of damage under a contract to deliver a merchantable article; and (3) he does not set forth a binding, legal contract between himself and the plaintiffs. This demurrer was overruled, which ruling is the foundation of the plaintiffs’ cross-bill of exceptions.</p> <p>By amendment the defendant pleaded: In consideration of his undertakings and agreements as set out in his original plea, the undertakings and promises of the plaintiffs as therein set out were made; such mutual undertakings formed the consideration of said agreement; and in good faith he has performed his undertakings and agreements, and in consequence thereof has suffered inconvenience, loss and injury, and has been subject to charges and obligations. The obligation and contract referred to, by the terms of which the plaintiffs undertook and agreed to furnish him with the ties specified at the prices named, was in writing, or some note or memorandum thereof was in writing, signed by the plaintiffs. Said contract was broken by them with a knowledge and for the purpose of depriving the defendant of such benefits as are specified in the last paragraph of section 3073 of the code.</p> <p>There was a verdict for the plaintiffs, and a motion for a new trial was overruled, to which the defendant excepted. The motion complains of the following rulings: A written contract dated September 12, 1889, between the plaintiffs and the defendant, was exhibited to witnesses and its execution proved, but it was not formally introduced in evidence. It provided that the plaintiffs should deliver free on board at Brunswick, subject to New York inspection by the agent of the New York Central & Hudson River Railroad Company, 50,000 ties, delivery to be made by the month, and all delivery to be made prior to February, 1890, according to certain specifications therein contained, all ties not conforming to such specifications being rejected by the inspector, to be removed by the plaintiffs, after deducting the cost of freight on the same, the defendant to retain ten per cent, of the purchase price on all ties by way of liquidated damages in the event of a failure by the plaintiffs to perform the contract; that for all ties so delivered free on board at Brunswick defendant should pay the plaintiffs 32J cents each within thirty days after each month’s deliyery in New York; and that “free on board vessel means that vessels must load themselves, but all wharf charges are to be paid by ” the plaintiffs. After having overruled the demurrer to the defendant’s plea of recoupment, the court refused to permit the defendant to prove the original general verbal contract and the entire transaction out of which he contended the written contract above mentioned grew, or to show that this written contract was but a part of the original general contract, and was made in pursuance and under the terms of the same. The court further ruled that under the pleadings the defendant could recoup his damages only for breach by the plaintiffs of this written contract (no breach of which was alleged), and that he could not recoup damages for a breach of the original general contract set up in the plea, in pursuance of which it was therein alleged the written contract was made. The court also refused to permit the defendant to prove that there was a verbal contract entered into between the parties in March, 1889, which was the original general contract in pursuance of which the contract for the furnishing of the ties sued upon was made; and that the contract sued upon was nothing but a subcontract carrying out the original contract “ on their part,” and was a performance on both sides, to that extent, of the original contract. The defendant did not claim that the plaintiffs violated the written contract. And after the case had gone to the jury but before a verdict was received, the defendant moved that the court open the case to permit him to show the entire transaction out of which the written contract grew, and to offer evidence to sustain his plea of recoupment for breach of the original contract, which motion was made upon the ground that the plaintiff's had sued upon general account for goods sold and delivered, and had not declared upon any special contract in writing to supply ties for the New York Central & Hudson River Railroad Company; and the motion was overruled.</p> <p>After the rulings above set forth, and the introduction of all the evidence offered, the parties agreed upon the number and value of the cross-ties delivered, and by consent the court submitted to the jury only two questions : (1) As to the amount of insurance which the plaintiffs should pay; and (2) as to whether the defendant was liable for storage as claimed. Both these issues were found by the jury in favor of the plaintiffs. The motion for a new trial alle'ges that the verdict is contrary to the evidence, without evidence to support it, and decidedly and strongly against the weight of the evidence; and further, that it is contrary to law and the principles of justice and equity.</p>

Criminal law. New trial. Murder. Practice. Evidence. Charge. Before Judge Bower. Worth superior court. October term, 1891. Croom was found guilty of the murder of Hamlin. Upon a second trial the verdict was the same as before, and a motion for new trial was overruled. The motion contained the following grounds : 1. The court erred in allowing, over objection of defendant, one Hargard to testify as to what occurred between him and Croom a week after the shooting of Hamlin.

Practice. Exception. Argument. Juror. Charge.Criminal law. Cheating. Before Judge Westmoreland. Criminal court of Atlanta. Conviction of cheating and swindling. The exceptions are, to the overruling of a demurrer to the accusation, and of a motion for new trial. The demurrer was overruled on May 4, and there was no exception pendente lite. The motion for a new trial was overruled on May 31, and the bill of exceptions was certified on June 15.

<p>l. Although the statute (Code, ?4628) declares that every indictment shall be deemed sufficiently technical and correct which states the offence in the terms and language of the code, or so plainly that the nature of the offence charged may be easily understood by the jury, an indictment charging that the accused with force and arms and arsenic poison, and other poisons to the grand jurors unknown, but all being weapons likely to produce death, did unlawfully and with malice aforethought make an assault upon a named person with intent then and there to kill and murder him, is wanting in due certainty; and a special demurrer thereto, alleging, in effect, that the indictment did not state how or in what manner the accused used the poison in the commission of the alleged offence, and that the facts were not set out in the indictment with sufficient particularity to enable the accused to make a defence, should have been sustained.</p> <p>2. As the indictment should have been quashed on demurrer, all proceedings had thereon after overruling the demurrer were necessarily erroneous.</p>

<p>1. Alleged error in admitting evidence over objection of counsel for the accused cannot be considered when it does not appear what objection was made to the evidence at the time it was offered.</p> <p>2. As repeatedly ruled by this court, the State need not prove the commission of an offence on the precise day alleged in the indictment, but it will be sufficient if the evidence shows the offence to have been committed at any time within the period of limitation before the finding of the indictment.</p> <p>3. While the evidence upon which the accused was convicted is not entirely satisfactory, it is sufficient to warrant the verdict, and this court will not, therefore, interfere with the discretion of the court below in refusing a new trial.</p>

<p>Practice. Service. Certiorari. Before Judge Miller. Bibb superior court. April term, 1892.</p>

<p>Criminal law. Indictment. Forgery. Before Judge Miller. Bibb superior court. April term, 1892.</p>

<p>1. Under an accusation which charges in the terms of the statute larceny from the house of certain hens and a rooster, a conviction may be had for simple larceny, the latter offence being included in the former.</p> <p>2. A charge in the accusation that the defendant did unlawfully, wrongfully and fraudulently, after entering the house of a person named, privately steal therefrom five black hens and a black rooster of the value of seventy-five cents each, the property of said person, sufficiently alleges a larceny of the property to uphold a conviction for simple larceny.</p>

<p>Criminal law. Indictment. Before Judge Milner. Catoosa superior court. August term, 1892.</p>

Criminal law. Jury trial. Waiver. Practice. Argument. Evidence. Before Judge Turnbull. City court of Eloyd county. 1. The defendant was indicted for disturbing a congregation of persons lawfully assembled for divine service in a grove at West Borne. He was tried in the city court of Eloyd county. Upon the calling of the case the defendant and the State both announced ready.

<p>Criminal law. Indictment. Evidence. Before Judge Martin. Muscogee superior court. May term, 1892.</p>

<p>1. When, after a proper preliminary examination as to their free and voluntary nature, confessions or criminating admissions are adjudged competent and received in evidence, there is no room for any question touching the propriety of having conducted the preliminary examination in the presence of the jury.</p> <p>2. When, in verifying instructions given to the jury as set out in the motion for a new trial, the presiding judge qualifies the verification by referring to the whole charge of the court, such qualification must be regarded in construing the motion for a new trial. There was no error in defining or describing a reasonable doubt thus: “ A reasonable doubt is such a doubt as the term itself implies. It is difficult to explain what a reasonable doubt is; it means a doubt that has something to rest upon, some reason that it is based on, such a doubt as would control yon and you would be governed by in your own important business affairs; it means such a doubt as a sensible, honest-minded man would reasonably entertain in an honest investigation after truth, a doubt that would arise from the evidence or the want of evidence in the case. It does not mean a mere vague conjecture, or a bare possibility, of the innocence of the accused.”</p> <p>3. Declarations made with an exculpatory object may have an inculpatory effect. On a trial for arson, declarations by the accused designed and tending to' explain his possession of some of the goods which were in the burned building immediately preceding the fire, and his knowledge touching the whereabouts and the possession of other parcels of the goods, were in their inculpatory tendency criminating admissions as distinguished from confessions, and it was error for the trial judge, in charging the jury, to denominate them confessions and instruct upon them as though they were admissions of guilt, instead of admissions of fact from which, together with other evidence, the jury might or might not infer guilt.</p> <p>4. The evidence, without the declarations in question, being wholly insufficient to warrant the verdict, and with them of very doubtful sufficiency, the error of the court in treating the declarations as confessions necessitates a new trial, notwithstanding three different juries have found the accused guilty. There can be no punishment inflicted except as the result of a legal trial.</p>

Criminal law. Evidence. Venue. Murder. Manslaughter. lies gestee. Witness. Before Judge Gamble. Tattnall superior court. Henry Eutch was convicted of the murder of Alfred Kennedy who was killed by him on August 81, 1891.

<p>1. Where a suit for damages was brought jointly against a city and an individual, and an order was .passed dismissing the action as ' to the city “ because the declaration shows no cause of action 1 against that defendant,” and a verdict was rendered in favor of ' the other defendant, the granting of a new trial at the instance of the plaintiff does not reopen the case against the city.</p> <p>2. Two concurring verdicts having been rendered in a divorce case brought by the wife, each finding a total divorce, between the parties, and the latter (returned since the adoption o£ the present constitution) being silent as to the rights and disabilities of the parties; and a second marriage between the same parties having been subsequently solemnized, after which the wife brought another suit for divorce against her husband to dissolve the second marriage, upon a ground different from that on which the first suit was instituted; and in the second case two verdicts of divorce in the usual form were rendered, the latter relieving the defendant of his disabilities, followed by a decree in accordance therewith, whatever may have been the legal effect of the proceedings in the first case as to the husband’s right to marry again, the verdicts and decree in the second case dissolved all marriage ties whatever between these parties, and relieved the husband, so far as his marriages or either of them with this woman were concerned, from all disability to marry again.</p> <p>,3. The court having charged, in effect, that as a result of the proceedings in the first divorce case the defendant was under legal disability to marry and could not lawfully marry the same woman, and that the decree in the second divorce suit relieving him of his disability to marry did not relieve him of- the original disability, .and consequently his attempted marriage with the plaintiff after •the granting of the second divorce did not create between them the relation of husband and wife, and upon his death she did not become his widow, rightly corrected the errors thus committed by granting a new trial.</p>

Municipal corporation. Water rate. Duress. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1892.

<p>1. The allegation in the declaration that “ the defendant was negligent in not providing proper rules and orders, for the transaction of business in its yard ” was not sustained by the evidence.</p> <p>2. There is no negligence in the construction of machinery which, when properly used in the ordinary manner, is safe under all con- ^ ditions which will probably arise in any and every instance of such use- Hence, although it may have a defect, yet if that defect be one which does not interfere with its safe and proper use with reference to the purpose for which it was constructed, an injury to an employee’s hand while accidentally in contact with the defective part of the machinery, but which was very unlikely to occur, cannot be attributed to negligence on the part of the company in the construction of the machinery.</p> <p>3. Taking into consideration the emergency in which, under the evidence, the pláintiff and his co-employee were acting when the latter, by applying the brake, caused the injury to the former, neither of them was guilty of negligence, and it satisfactorily appears that the crushing of the plaintiff’s hand was simply one of those unfortunate accidents incident to a business of this kind.</p> <p>4. The presumption which the law raises against the company having been removed by the evidence, there should have been no recovery for the plaintiff, and it was error to refuse a new trial.</p>

<p>Contract. Evidence. Carrier. Before Judge "Westmoreland. City court of Atlanta.</p>

<p>1. Counsel for the plaintiff in his opening address to the jury may make a full statement of what he expects to prove, although the plaintiff may be present in court and afterwards be introduced as a witness in her own favor as to the matters stated.</p> <p>2. Where, in an action for personal injuries, the declaration alleges that all of the plaintiff’s injuries will continue for a long time and prevent her having free use of her person, that the injuries to her side and arm are permanent, that she will not be able for a very long time, by reason of said injuries, to discharge her domestic duties, and that her capacity to earn money has been destroyed for a long period of time and permanently decreased one half, it is not error to permit a witness to testify that the condition of the plaintiff ten years hence, if it continues going on as it is, will be that of a confirmed invalid, the court instructing the jury that they cannot consider any permanent damage except to the arm ■ and side, and that evidence as to the duration of other injuries can be considered only as showing that the injuries will extend for some time in the future.</p> <p>3. A municipal ordinance may be proved by the production of the original book of ordinances, identified as such by the clerk of the corporation and shown to háve come from his custody. Notwithstanding the statute of Sept. 19th, 1891 (Acts 1890-1, p. 109), makes an official certified copy evidence, it is not the exclusive evidence.</p> <p>4. Where the witnesses had been separated at the request of counsel, and one of them testified and afterwards remained in the courtroom and heard the testimony of other witnesses, it was not error for the court to allow him to be again introduced to testify in rebuttal; it was certainly no abuse .of discretion. His having heard the testimony of other witnesses would go to his credit, but would not render him incompetent.</p> <p>5. A specific charge which is legal and adjusted to a distinct matter in issue, involving the right of the plaintiff to recover, and which may materially aid the jury, should be given as requested, although in principle and in more general and abstract terms it may be covered by other instructions given by the court. A request in this case to charge that “ the precise thing which every person is bound to do before stepping upon a railroad track, is that which every prudent man would do under like circumstances. If prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means,” was legal and applicable, and should have been complied with. The case being a close one under the evidence, and its pressure being upon the matter as to which this charge was asked, the refusal of the request is ground for a new trial.</p> <p>6. A new trial is not demanded because of the misconduct of counsel in his remarks to the jury, where it does not appear that any objection was made at the time or that the court failed to require counsel to desist, and where in his charge the judge characterized the remarks as improper and instructed the jury to disregard them. The proper method of taking advantage of any misconduct of counsel amounting to cause for a new trial, is by prompt objection and a request to withdraw the case from the jury. It is generally within the sound discretion of the court to grant this request, or, if the misconduct is not so gross as to require a mistrial, to forbid counsel to persist therein, and to instruct the jury not to allow the same to have any effect against the opposite party. If objection be made and a continuance asked for and refused, the refusal would be subject-matter for review on a writ of error after the final termination of the case.</p> <p>7. The reasonableness or unreasonableness of a city ordinance regulating the speed of a train upon a street, is 'a question of law for the court to decide and not for the jury, unless it depends in the opinion of the court on the existence of particular facts which are disputed. In this case it was error to charge that the reasonableness or unreasonableness of the ordinance was a question for the jury._</p> <p>8. The instructions excepted to as to damages for pain and suffering caused by diminished capacity to labor, were not error.</p> <p>9. The instructions of the court in recharging the jury were the same as those approved in Parker v. Railway, 83 Ga. 539.</p>

<p>Mortgage. Amendment. Evidence. Debtor and creditor. Usury. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1892.</p> <p>Burgwyn Brothers Tobacco Company and others filed their petition in the nature of a creditor’s bill against their debtors, J. M. Bentley & Company, and certain other defendants, asking for injunction, receiver, etc. After a hearing the court denied the prayer for receivership so far as the stock of goods of Bentley & Company was concerned, but granted a receiver as to other assets they might have, with authority to demand of the sheriff and receive any surplus of the proceeds of the stock which might be in his hands after discharging mortgages upon it. Plaintiffs excepted, alleging that the court erred in not appointing a receiver as prayed for; in not enjoining the Atlanta Talc Manufacturing Company and H. Lewis, defendants, from collecting usury in their mortgages, and in not ordering the same held subject to a final trial by jury; in permitting these mortgagees to proceed without enjoining them from the collection of the usury; and in certain rulings as to evidence, mentioned hereafter.</p> <p>The petition set forth the claims of petitioners, and alleged that they were all due; that demand had been made of the debtors for payment after maturity of the debts, and payment had been refused; that the debtors were a firm of traders and were insolvent; that mortgages had been given, two to the Atlanta Talc Manufacturing Company, one for $650, dated February 10, 1892, and recorded April 22, 1892, and the other for $226, dated and recorded -, and one to J. H. & A. L. James for $2,000, dated April 25, 1892 ; that these mortgages covered the stock of goods, and the mortgage to James covered notes aud accounts, and in law notes and accounts could not be mortgaged, the attempted transfer of them in the manner set out in the mortgage being illegal and void; that J. H. & A. L. James, in addition to their mortgage, had a number of notes as collateral security, sufficient to discharge the indebtedness to them; that the Atlanta Talc Manufacturing Company had sufficient collateral security outside of the mortgages to fully satisfy and pay off all indebtedness due it, if any was due it, which petitioners did not admit, nor did they admit that there was due J. II. & A. L. James the sum mentioned in their mortgage ; that the mortgages are tainted with usury and are void; and that the mortgagees should exhaust their collateral security before going on the stock of merchandise. The petition prayed for a receiver to take charge of all the assets of Bentley & Co.; that the defendants be enjoined from interfering with the assets and be required to turn them over to the receiver; that the Atlanta Talc Manufacturing Company and J. H. & A. L. James be enjoined from proceeding with their mortgages or collecting any of the assets in their hands, and from transferring their mortgages or any of the assets held by them, etc. By amendment it was stated that, it having been disclosed by the answer of Tolleson, one of the defendants, that he had transferred to Lewis one of the mortgages, an order was asked making Lewis a party defendant, and it was prayed that he be required to show cause why the receiver should not be appointed and injunction issue, and why the mortgage held by him should not be cancelled and set aside.</p> <p>J. II. & A. L. James answered: The mortgage of $2,000 was made to them to secure a note of like sum, to cover an existing indebtedness with the intention and expectation of further advances being made, which on account of the feared insolvency of Bentley & Company were never made, and the latter are now indebted to J. H. & A. L. James upon notes now amounting to $400, and an overdraft amounting to $866.33. These defendants hold, as collateral security, certain notes and drafts the face value of which is $941.54, which they are endeavoring to collect in reduction of the indebtedness, but out of which they do not expect to be able to realize the whole indebtedness due them. They rely upon their mortgage as1 security only so far as- .the property therein set out cgn be mortgaged in law. They have not received so much as $15 interest on the debt, and claim only lawful interest of eight per cent. The mortgage is just and valid. Attached to the answer was a copy of the mortgage and of the note, and a list of the collaterals. By amendment these defendants set forth that since they made their answer they had collected enough to reduce the indebtedness upon the overdraft from $366.33 to $255.80, making the true indebtedness to them $655.80.</p> <p>The Atlanta Talc Manufacturing Company answered: On April 9, 1892, Bentley & Company made it three notes for $75 each, due fifteen days from date and payable to Tolleson or bearer. To secure these notes Bentley & Company gave a mortgage on the stock of goods. These notes and the mortgage were transferred for value and before maturity to Lewis, and this defendant now has no interest in them. The sale of the notes and mortgage occurred on April 11, 1892. On February 10, 1892, Bentley & Company owed this defendant $650, evidenced by note of that date, due ninety days after date, secured by a mortgage on the stock of goods. A deposit of collaterals was also made to secure this note, but these collaterals will not pay the debt or anything like it, they being substantially and practically worthless, and defendant looks to the mortgage as the only source from which to realize its debts. Defendant is informed that Bentley & Company are insolvent. The stock of goods is worth about $1,200, but defendant believes that any sale of this stock will bring a much less sum. The three mortgages held by Lewis, James and defendant will more than exhaust the fund which may be realized from the property mentioned in the mortgages, and the appointment of a receiver will be a costly hardship upon the mortgagees, from which petitioner can reap no benefit. Oút of the collaterals deposited to secure its debt this defendant has collected $300. It had the right, as will be shown by the notes, to use the collaterals. In pursuance of this right it has discounted $300 face value of the col-laterals with J. II. & A. L. James. Defendant had to indorse these collaterals; they are of but little value, and défendant will probably be forced to take them up. Defendant denies that at the time the restraining order and rule nisi were granted, Bentley & Company were traders. Their stock of goods had been seized by the sheriff the day before the granting of the order and rule.</p> <p>Lewis answered: On April 11, 1892, he purchased from Tolleson the mortgage made by Bentley & Company to secure an indebtedness of $225. The notes the mortgage was given to secure were not paid at maturity, and defendant foreclosed his mortgage. lie has been informed that the sale of the property has been stopped by an order of the court. He does not know why a receiver should not be appointed, but if it is meant that a receiver should be appointed for the stock of goods embraced in his mortgage, he earnestly protests against it. He is informed and believes that there are liens on the stock which will more than exhaust any fund arising from a sale thereof. The notes and mortgages were purchased by him for value before maturity, and so far as he knows, are perfectly valid. The mortgage was foreclosed on April 25, and he is informed that the restraining order and rule nisi were granted on April 26. At that time the store had been closed by the sheriff’, and the business stopped.</p> <p>Upon the hearing plaintiffs introduced testimony of Bentley, one of the defendants, to the following effect: "When the bill was filed he was engaged in collecting the outstanding indebtedness due his firm, and continued after the filing as rapidly as circumstances would permit him. His firm was indebted to plaintiffs the amounts set out in their respective bills; these debts were due, and demand had been made upon his firm for them. He had taken an inventory of his stock of goods and merchandise just after his store was closed by the sheriff, and it invoiced $2,400. The merchandise and fixtures were valued at their^eost price. Some of his goods were of a perishable nature, and he did not know at the time he testified the condition of those goods. All his stock was new, as his firm had only been in business about six mouths. His firm borrowed $500 from the Atlanta Talc Manufacturing Company about the date wlíen the mortgage was executed, and executed note and mortgage for1 $650 ; and $200 about the date of the second mortgage to that company, giving notes and mortgage for $225. His firm never received on the notes and mortgages more than $700, and was never indebted to the company more than that sum, excluding the usury contained in the face of the mortgages. The company had collected $302 of the notes placed with it as collateral security in addition to the mortgages, and he was informed and believed that it had ¡rediscounted or hypothecated three more of the notes, ■realizing $300 from J. H. & A. L. James, making a total uf $602 which should be credited on the company’s mortgages. — James testified that he discounted three motes for $300, payable to Bentley & Company, and paid 'Tolleson the money for the notes, less the discount. Two persons testified that they had been engaged in the grocery business for a number of years, and upon an inspection of the stock of groceries and fixtures of Bentley ■& Company, thought they were reasonably worth from *$1,200 to $1,500. Plaintiffs also introduced a pauper affidavit made by Bentley. J. H.& A L. James introduced' their mortgage, covering the stock of goods and fixtures of Bentley & Company, at No. 56 South Broad street, Atlanta, Ga.; “ also notes, drafts and accounts on books of said J. M. Bentley & Co., a list of which is furnished by them on a separate piece of paper”; also two mules and a dray. This mortgage stated that it should stand for and include all future advances of money and indebtedness of any kind to date of foreclosure or settlement, owing by Bentley & Company to J. H. & A. L. James. The rate of interest stipulated for in the mortgage was eight per cent. James testified that since making their answer his firm had collected, out of the collaterals it held, enough to reduce the indebtedness upon the overdraft from $366.33 to $255.80, and the true indebtedness of Bentley & Company to his firm was $655.80. There was evidence of several persons who had been engaged for a number of years in the grocery business, that the stock of Bentley & Company was not worth more than from $1,000 to $1,200, or that if it was sold within thirty days from a day named, it would not bring exceeding $1,000 to $1,200. Bentley testified that the present actual value at forced sale of the stock of goods would not exceed $1,000, and taking the stock as it stands, the safe and office fixtures would not bring one half the list price; that the perishable goods and stock have become damaged in value; that the stock was seized by the sheriff under mortgage in favor of the Atlanta Talc Manufacturing Company; and that his former affidavit was based upon the cost price of the goods and the list price of safe and fixtures. The Atlanta Tale Manufacturing Company introduced the $650 note. Lewis introduced the three notes for $75 each; also the mortgage dated April 9, 1892, to the Atlanta Talc Manufacturing Company, describing the three notes, and being upon the following property : “All of our stock of goods of every kind and character, and our store at 56 South Broad street, also one fire-proof safe with burglar-proof vault in it; said safe was made by National Safe & Lock Company, and we have paid for it in full.” Attached to this mortgage was an affidavit made by H. Lewis, to the effect that he was owner and holder of the mortgage, and that there was due on it $225 principal, and $9 protest fees, etc. Plaintiffs’ attorney moved to rule out this mortgage upon the grounds, (1) that there was no written assignment of it, it being made to the Atlanta Talc Manufacturing Company, and H. Lewis foreclosing it as owner; (2) that the description contained in the mortgage was insufficient, “as it did not describe what class of goods as would enable one to find said property.” These objections were overruled. Lewis tendered the mortgage Ji.fa. dated April 25, 1892, issued upon the affidavit attached to the mortgage in favor of the Atlanta Talc Manufacturing Company against Bentley & Company, covering the same property as was mentioned in the mortgage. To this fi.fa. plaintiffs objected, upon the grounds that it did not follow the affidavit of foreclosure, the affidavit being made by Lewis and the fi. fa. being issued to the Atlanta Talc Manufacturing Company. This objection was overruled.</p>

<p>Railroad. Foreign corporation. Yenue. Remedy. * Statutory law. Before Judge Yan Epps. City court of Atlanta.</p>

<p>1. Where a total divorce is granted in a court of Alabama, and by the decree the custody of the only child is given to the mother, the effect is to put the mother, as to the control of the child, in the place of the father, and make her custody and control legal. Hence habeas corpus at the instance of the father for the possession of the child, on the ground that it is illegally detained and that the mother is not a fit and proper person to rear it, will not lie.</p> <p>2. In order for the father or any other citizen to obtain possession of the child from the mother by habeas corpus, after .a decree awarding it to her, the applicant must maké the sworn allegation required • by section 4612(g) of the code. The matter of this allegation relates to the condition of the child, and is not covered by charges to the effect merely that the person having custody of the child is an unfit and improper person to retain control of it.</p>

Probate of will. Judgment. Estate. Husband and wife. Title. Estoppel. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1892. The following is a statement of all the facts necessary, or material, to a proper understanding of the points ruled in this case : Jasper Smith died intestate in Cobb county in 1862, leaving an estate in which was included the land in controversy in the present case, and-his widow, Celia Ann Smith, was his only heir at law.

<p>1. The plaintiff having made to the defendant a written offer to sell him a machine under full guarantee in certain designated respects, but in no others, and at a named price to be paid in specified installments, the writing providing that defendant might take the machine on three months’ trial before deciding whether or not he would accept it; and he, before the expiration of that time, having thoroughly tested the machine and pointed out to plaintiff’s agent its failure, in consequence of various defects he had discovered, to come up to the proposed guarantee, and having therefore declined to purchase it on the terms proposed, but having after-wards, with a full knowledge of the machine and its defects, purchased it at the same price, without express warranty, upon a proposition made by himself and on terms in some respects more favorable to himself, giving his promissory notes in settlement, it is not a valid defence to an action thereon that there was a breach of the guarantee in the original offer to sell; or that in consequence thereof the consideration of the notes failed, tota'ly or partially; or that the machine was not merchantable and rea- ‘ sonably suited to the use intended.</p> <p>2. There was no error in rejecting amendments offered to pleas of defendant previously filed, the amendments referring vaguely to “ improvements and attachments ” which plaintiff was to put upon a machine, without describing them; to a letter of given date, without setting it out or stating a sufficiency of its contents to inform the court of its purport and meaning, from which letter, as alleged, a certain stipulation, the terms thereof not being stated, had been omitted by the mutual mistake of defendant and plaintiff’s agent. These amendments, for the reasons above indicated, were too indefinite and uncertain, and could not be aided by reference to the evidence introduced before they were offered, or to evidence rejected by the court.</p> <p>3. There was no error in rejecting evidence tending only to prove allegations contained in amendments to defendant’s pleas which had not been allowed, or to establish the defences of breach of warranty and failure of consideration, which, under the undisputed facts of this case, could not avail the defendant; and the court did not err in directing a verdict for plaintiff, or in refusing a new trial.</p>

<p>1. Where two persons administer upon an estate and one of them is also guardian of the minor heirs of the intestate who have an undivided half-interest in the estate, and the administrators, after obtaining an order for the sale of the land, sell it, and at the sale each buys a part thereof, both together buying it all, the sale is voidable at the instance of the heirs. In such case, where one administrator, who has an undivided half-interest in the estate, buys more than half of the land in value and pays the excess to the other administrator as guardian, who wastes the money, such payment to the guardian will not bar the election of the heirs to reclaim the land; and in order to retain the land the administrators must account to the wards for at least the amount so wasted by the guardian. The administrators, having co-operated in a breach of trust by purchasing at their own sale, could not, by passing money from one to the other, take off of themselves the risk of the safety of the fund and put that risk upon the minors.</p> <p>2. A recovery by the heirs against the administrators was not precluded by a judgment of the ordinary against the guardian in a proceeding instituted by a surety to be relieved from the guardian’s bond and to cite him to a settlement, upon the ground of waste and mismanagement, by which judgment the guardian was removed and directed to pay over to his successor an amount found to be due by him as guardian to such heirs, including proceeds of the illegal sale, nothing having been collected on the judgment and the heirs having done nothing to ratify it.</p> <p>3. Heirs who elect to avoid a sale by an administrator to himself must do so within a reasonable time, and analogizing a suit for realty thus purchased by the administrator to other actions for realty where the defendant holds under color of title, the election ordinarily should be made within seven years from the time of the sale, by heirs who are of age and not under other disability at that time, or if then under disability, within seven years after the disability has been removed. The evidence does not show affirmatively that more than seven years had elapsed from the removal of the disability of any of these plaintiffs when the suit was commenced.</p> <p>4. Proper diligence was not shown in procuring the newly discovered testimony before the trial.</p> <p>5. There was no error, as against the defendant, in refusing a new trial on the terms prescribed by the court,</p>

Railroad employee. Machinery. Negligence. Before Judge Van Epps. City court of Atlanta. Action for damages to the plaintiff* while in the defendant’s employment as a flagman or brakeman. While he was putting on a brake in the discharge of his duty, the brake-wheel flew off, he was thrown to the ground and his leg was cut off by the train. He obained a verdict for $5,000, and the defendant moved on the general grounds for a new trial, which was denied.

Railroad. Passenger. Ticket-office. Charge of court. Damages. Before Judge Richard H. Clark. Clayton superior court. Strickland sued the railroad company for damages because of his ejection from one of its trains, he being thereon for the purpose of going from Jonesboro to Forest. He obtained a verdict for $1,500. Defendant’s motion for new trial was overruled, and it excepted.

<p>1. Under the statutes of this State, a railroad company is liable for injuries to the person of an employee by the negligence or misconduct of other employees of the company, without negligence on his part, whether such injuries are connected with the running of trains or not. That a rule of liability not applied to other classes of employers is thus imposed upon railroad companies, does not render these statutes obnoxious to the fourteenth amendment to the constitution of the United States, as denying to such companies the equal protection of the laws.</p> <p>2. The declaration alleging that the plaintiff’s hand was crushed and injured by the falling of an eccentric upon it, proof that the eccentric in falling knocked his hand upward and crushed it against other machinery, was not so far inconsistent with the declaration as to constitute a substantial variance between the allegata and probata, but it would have been better to amend the declaration so as to make it conform accurately to the evidence.</p> <p>3. The allegations of the declaration being ambiguous and uncertain as to whether the negligence intended to be complained of was only the failure to warn the plaintiff generally that going under the engine and aiding in removing the eccentric was dangerous, or the further failure to warn him specially of the' result of unfastening the eccentric and the consequences thereof when the fireman was about to remove the bolt, and it being very doubtful whether it was negligent at all to fail to give plaintiff the general warning indicated, and the evidence of negligence upon the theory that the special warning was not given being vague and uncertain, and it being apparent that it can be cleared up and made more satisfactory so as to show the cause to which the injury was really attributable, the ends of justice require a new trial.</p>

<p>1. Ordinarily, where one renders in behalf of another valuable services which are accepted by the latter, the law raises in favor of the former an implied promise to pay for the same, although no formal or express contract to pay has been made. Where, however, the parties sustain towards each other the relation of parent and child, and the services performed are in the nature of care and attention bestowed by a son upon an old and infirm father, no such presumption arises by operation of law. In order, therefore, to sustain a recovery by the son for such services, it must affirmatively appear, either that they were rendered under an express contract that the son was to be paid for them, or the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection arising out of this relation. Such foundation for a recovery would be laid when it is shown that a son, under an express contract with his father, an afflicted and infirm old man, agreed to move to the father’s house, nurse and wait upon him and minister to his wants and necessities, the father agreeing on his part, in consideration of such services to be performed, to leave at his death his home place to the son; and if this contract, by reason of the fact that the old man subsequently became insane and consequently mentally incapacitated, could never be performed on the part of the father, and the son with perfect good faith fully met and complied with all the obligations resting upon him under the terms of the same, he could recover upon a quantum meruit the value of his services, the quaniummeruit not being the basis of his right to recover, but the measure of the amount he was entitled to receive, the same not to exceed, however, the value of the property to be given him under the contract.</p> <p>2. The full amount the plaintiff would be entitled to recover for his services in such case should be reduced by what he has actually received from the property or estate of the father in excess of what was necessary to support and maintain the latter during his lifetime ; and where the plaintiff has had in his possession the entire estate of the father for many years before the latter’s death, he should set forth in his declaration, and establish by such competent evidence as may be at his command, what he has received and consumed, but the mere failure to do this will not be cause for a new trial where there is sufficient evidence before the jury to enable them to reach a fair conclusion as to what is the truth in this respect.</p> <p>3. On the trial of civil eases, decisions of this court, and especially its comments upon the facts of cases, should not be read by coun- ■ sel to the jury. Such a practice cannot aid the jury in ascertaining the law applicable, for this they must take from the court; nor in arriving at the truth of the case on the facts, for this they must get from the evidence.</p> <p>4. An allegation that a contract was made in 1879 may be supported by proof that it was made in 1877, the contract not being in writing and the date not being an element material in its description.</p> <p>5. While a contract between a father and son cannot, after the former becomes insane, be changed or modified by an agreement between his children, the father himself, so long as he is capable of contracting in person or by agent, may change a contract previously made with the son, if the latter consents and agrees thereto.</p> <p>6. The court may properly ask questions of witnesses on the stand, with a view to elicit the truth of the case, but should not make remarks or comments upon them or their testimony which may tend either to magnify or diminish in the estimation of the jury the importance or effect of such testimony, either as to credibility or value.</p> <p>7. It is the right of the plaintiff, when the original declaration has been lost, to establish in its stead a true copy with all entries thereon. No copy should be so established when it is known that the same is not in all respects an accurate copy of the lost original and all such entries, including verdicts rendered at former trials of the case. If defendant’s counsel wish such verdicts concealed from the jury, a request to this effect should be made at the proper time before the jury retire to their room.</p>

<p>Landlord’s lien. Equitable plea. Auditor’s report. Jury trial. Practice. Amendment. Interest and usury. Discount. Cotton factor. Evidence. Damage. Auditor’s fee. Partnership. Before Judge Roney. Burke superior court. May term, 1892.</p>

Injunction. Pleading and practice. Before Judge Roney. Burke county.

<p>Railroad. Drawbridge. Negligence. Before Judge MaoDonell. City court of Savannah.</p>

<p>Deed. Possession. Boundary. Before Judge Martin. Crawford superior court. March, term, 1892.</p>

Criminal law. Seduction. Juror. Charge of court. Before Judge Fish. Sumter superior court. May term, 1892. The indictment charged the commission of the crime of seduction “by persuasions and promises of marriage.” The defendant was convicted, and he excepted to the overruling of his motion for a new trial.

<p>1. In so far as the evidence of an employee of one of the pai'ties conflicts with that of other witnesses, the jury may look to his employment as a fact which may affect his credibility.</p> <p>2. A request to charge covered by the general charge need not be given.</p> <p>3. The evidence being that the plaintiff was furnished with a coupling-stick to be used till he learned how to couple without it, and that his injury was received after he had learned to couple without a stick and had on many occasions done so, some of the instances being in the presence of his superior officers, who made no objection, the court properly denied a request by the defendant to charge the jury that if the plaintiff, in undertaking the service, was furnished with a coupling-stick and directed to use it in coupling, but did not use it at the time of the injury, and attempted to make the coupling with his hand instead of the stick, and was hurt in making such attempt, he could not recover.</p> <p>4. That an engine was defective is not established by the testimony of the plaintiff that the engineer told him, some days after the injury, that it had certain defects; although the engineer had testified that he did not so tell him. Impeaching the evidence of the engineer by contradicting him as to what he had said, would not prove that what he had said was true. Watts v. Starr, 86 Oa. 392. Such impeaching evidence being the only evidence touching any defect in the engine, there was nothing on which to base instructions to the jury to “look to the evidence and determine whether the engine was defective, . . . whether there was a leak in the steam, which escaped into the cylinders and caused the accident.” So instructing was consequently erroneous.</p> <p>5. Answers to hypothetical questions as to how an engine would act if steam escaped into the cylinders, etc., would not establish the fact that there was a defect in the engine, without evidence that the particular engine acted in that manner.</p>

<p>1. Lands held in trust under the act of July 31st, 1783, and subsequent acts, vesting, in trustees funds arising from the sale and lease of certain lands of the State for the erection and maintenance of a public academy in the county of Richmond, are exempt from municipal taxation, though separate from the tract on which the academy is situated and used only as a means of income for the institution, the same being public property of the State.</p> <p>2. Where trustees as tenants in common own choses in action which are taxable as private property, and some of the trustees reside within and some without the limits of a municipal corporation, the corporation may tax the pro rata shares of those trustees residing within, but cannot tax the shares of those residing without such limits. This is true irrespective of the question as to whether a majority or minority of the trustees reside within the municipality.</p>

Deed. Testament. Before Judge McWhorter. Elbert superior court. March term, 1892. Land was offered for sale by the administrator of Sarah Ann Tarpley, formerly Brown, and was claimed by the administrator of Oba Brown and by the heirs of William S. Brown. The verdict was for the claimants, and a motion for a new trial was denied.

<p>Claim. Evidence. Title. Before Judge Miller. Houston superior court. October term, 1891.</p>

Negligence. Evidence. Charge. Master and servant. Before Judge Ross. City court of Macon. Attaway sued the railroad company for damages on account of injuries alleged to have been caused by a piece of steel which flew into his eye in consequence of the negligent use of defective tools by the boss or overseer under whom he was working as an employee of the defendant.

<p>Negligence. Evidence. Charge. Before Judge McWhorter. Hart superior court. March term, 1892.</p>

<p>]. Where an award is excepted to on the ground that the arbitrators acted improperly in bringing a person before them and taking his Statement as a witness in the case without notice to the excepting party and without his knowledge or consent, after having announced that the taking of testimony was closed, it is not incumbent upon such party to show, in addition to this, that the conduct complained of operated to his injury.</p> <p>2. In such case there is no presumption that the party waived notice or consented to the examination of the witness in his absence.</p> <p>3. The court did not err in instructing the jury that they were not authorized to consider the legal ability, business skill or systematic habits of the arbitrators, in arriving at a conclusion as to the issues of fact.</p> <p>4. There was no error in overruling the motion for a new trial.</p>

Promissory note. Indorsement. Protest. Notice. Corporation. Subrogation. Limitation. Contribution. Before Judge Eye. City court of Richmond county. On June 12,1891, Asbury Hull sued Samuel H. Myers for $175 and interest on two notes made by the Augusta Athletic Association, payable to the order of George R. Sibley and others of the directory of that association.

<p>Where a total divorce is granted upon the application of the wife, permanent alimony generally follows as a matter of right. Hence, where a wife sued for a total divorce on the ground of cruel treatment, and in her petition prayed for permanent alimony, and the evidence showed that the wife had no separate estate or means of support and that the husband was able to support her, a verdict granting the divorce but denying alimony was contrary to law in so far as it denied alimony.</p>

<p>On the trial of an indictment for assault with intent to murder, the specific intent to kill being a necessary ingredient of the offence, its existence or non-existence is matter of fact for determination by the jury from the evidence, and not the subject of any legal presumption from a part of the evidence only. It follows that a charge of the court in these terms was erroneous: It is charged that he made the assault with a pistol which is a deadly weapon. The court charges you that if the defendant intentionally shot the prosecutor with a pistol, the law would presume malice, and if death had ensued the law would presume that it was murder, for the law presumes that a person intends to do that which is the legitimate consequence of his act; and if a person shoots another with a deadly weapon, then it presumes that he intended to kill him, and if he intended to kill him then the law presumes that it was done with the intent to murder him. Now it is for you to say, in the first place,, whether or not this defendant shot the prosecutor, did he do so with a pistbl? If ho did, then does the testimony show that he was justified in what he did ? The burden of proof is upon the defendant whenever the State shows or whenever the evidence shows that he shot the prosecutor with a pistol.”</p>

<p>1. Rules of a railroad company prescribing the duties of its agents, not promulgated as notice to the public of the powers and authority of such agents, but merely intended as private instructions to the company’s employees, are not admissible in evidence in behalf of the company against a plaintiff not shown to have con-traded with reference thereto nor to have had any knowledge thereof.</p> <p>2. The verdict was amply sustained by the evidence, and a new trial was properly refused.</p>

Railroads. Negligence. Husband and wife. Pleading and practice. Before Judge Westmoreland. City court of Atlanta. Separate actions were brought against the railroad company by John J. James, and by his wife Lou James. The head-notes sufficiently state the material allegations of the declarations, and the ground of the motions to dismiss made at the trial. No demurrer was filed at the first term.

<p>1. A party who brings a suit upon a chose in action, though it be an open account, and he has only the equitable title thereto, may amend his declaration by adding the name of the person who has the legal title, suing for his use. Such amendment does not make a new cause of action, nor is it demurrable because of want of privity between the usor and usee</p> <p>2. Where the 'action was by a defendant in fi. fa. against an attorney of the plaintiff va.fi. fa., for the recovery of fees which he alleged the attorney had collected from him illegally, and an amendment to the declaration alleged that the attorney had made a special contract with the plaintiff to reduce the claim to judgment for a certain fee in order to protect the defendant and save him from paying the full amount of fees specified in the note, but that the attorney had collected more than the fee agreed upon, and was not entitled to the excess over the amount agreed upon, he must, in order to recover on the amendment, prove the contract alleged.</p> <p>S. Where a plaintiff sues another for money had and received for his use, he must prove that it was his money. Proof that the money was paid by the agent of a loan company is not sufficient, nor is proof that it was the money of his son sufficient.</p> <p>4. If the agent of the loan company was acting also as the agent for the plaintiff in paying off the judgment, and he and the attorney who obtained the judgment disputed about the amount of the fees, and the dispute was compromised by the agent’s paying the attorney one half of his claim, the plaintiff cannot recover the money thus paid, although his agent paid it under protest. There was no such duress as to make the payment illegal.-</p> <p>5. The verdict was not warranted- by the evidence.</p>

<p>1. To constitute robbery, there must be force or intimidation, asportation without the consent of the owner, and the intent to steal. A person taking property from another under a bona fide claim of right and with the purpose of applying it to the payment of a debt from the latter to himself, is not guilty of robbery. In such case the animus furandi is lacking. It is otherwise if the claim of right is a mere pretence.</p> <p>(a) Under the evidence in this case, the court should have submitted to the jury the question whether the claim of right made by the deceased was bona fide or a mere pretence accompanying an intent to steal.</p> <p>2. To constitute robbery, it is unnecessary -that the taking of the property should be directly from one’s person; it is sufficient if it is taken while in his possession and immediate presence.</p> <p>3. If a trespass on the person or property of another amounts to a. felony, the killing of the trespasser will be justifiable if necessary in order to prevent it; but a trespass which amounts only to a misdemeanor will not justify the killing. Where, therefore, a person stopped in the highway the wagon which another was driving and took from it certain meat of the other for the declared purpose of settling a debt which he claimed was due him by the owner, and while proceeding with his pocket-knife to cut off enough of the meat to pay the debt, the owner sought to prevent him, and the trespasser cut at him with his knife to prevent interference, and the owner thereupon seized a fence-rail, a deadly weapon, and without necessity struck the trespasser on the head, thereby causing death, the homicide was not justifiable if the claim of debt was made in good faith and there was no intent to steal, but was manslaughter. If the blow was to prevent robbery and was necessary for that purpose, the homicide was justifiable.</p> <p>4. It is questionable whether the construction placed upon section 4332 of the code in Pound v. The State, 43 Ga. 127, by Lochkane, C. J., arguendo, is correct as to the property contemplated being only such as is at or near the habitation; but whether so or not, the section has no application where the injury intended is not a felony and the property attacked or invaded is so inconsiderable that the injury threatened is not serious, but slight, such as severing from a side of meat a small part of it.</p>

<p>3. The facts appearing in the bill of exceptions and transcript of the record showing that the goods in controversy were not embraced in the mortgage, and that the bill of. sale, the consideration of which was only one hundred dollars, could not have been intended to embrace, in addition to the mortgaged goods, other goods worth or estimated to be worth over fifteen hundred dollars, it follows that neither the mortgage nor the bill of sale embraced the goods in controversy.</p> <p>2. The evidence warranted the judge, to whom the facts as well as the law of the case were referred, in finding not only that these documents did not in fact embrace the goods in controversy, but that the bank at the time of taking the bill of sale was chargeable with notice that the goods now in controversy were consigned goods and therefore not intended by the mortgagor, its debtor, to be either mortgaged or sold. ,,</p> <p>3. A contract by the terms of which one person agrees to receive goods on consignment to be sold by him as the agent of another, ' monthly reports of sales and of goods on hand to be made, the goods to remain on consignment as the property of the consignor until paid for in full by the consignee, and all proceeds of sale to belong to the consignor until he is paid the invoice price in cash, which is to be done for each article as soon as sale of it is made, and with no provision whatever for the acquisition of title to the goods by the consignee, is not a contract of sale but of bailment and agency for the sale of goods, notwithstanding the contract provides, that the compensation of such consignee shall be whatever he.shall receive, upon sale of such goods, as surplus over the price named in the contract; that if any of such goods be removed from his place of business they shall be paid for immediately; that he shall keep the goods insured for the benefit of the consignor, and shall pay freight, safely store, keep in good condition and hold them free from all charges and taxes, and assume all risk of loss or damage from any cause whatsoever; a further stipulation being that on failure of the consignee to sell in a reasonar ble time, or on his failure to comply -with any condition of the contract, then the agency shall terminate at the option of the consignor, and goods remaining unsold are to be subject to his order ' free from all charges.</p> <p>(a) That the invoices which accompanied'the consigned goods said they were sold, some of them stating “terms contract,” others, “ terms contract ” and “ terms spot cash,” others, “ terms when sold,” and one “ terms......,” would not necessarily negative the theory that all the goods were merely consigned, and none of them sold to the consignee.</p> <p>4. The nature of the contract was not varied or waived as to the goods remaining unsold, by the acceptance of notes instead of cash for some of those which had been sold. After a sale by an agent which entitles his principal to a cash payment, the principal may take the agent’s notes in lieu of cash without converting the agent into a purchaser of the goods, if he was in fact an agent to sell at the time the sale was effected.</p> <p>5. The contract providing that under certain circumstances therein stated, “ all goods remaining unsold in said second party’s hands, are to be subject to the order of said first party, free of all charges,” and the undisputed testimony showing that the circumstances existed which entitled the consignor (the first party) to avail itself of this provision, it follows that there was nothing due from the consignor to the consignee on account of expenses paid by the latter on the goods remaining unsold, which are the goods now in controversy. Hence there was no error in not finding anything in favor of the bank or anyone else, on account of such expenses paid.</p>

Equity. Practice. Judgment. Estoppel. Vendor. Evidence. Deed. New trial. Before Judge Richard H. Clark. Clayton superior court. March term, 1892. In 1876 J. 8. Cook owned 75 acres of land in the 12th district of Clayton county, upon 50 acres of which it seems he had taken a homestead as the head of a family consisting of himself, his wife, and one minor child named John Cook.

Construction of statute. Words. Carriage by sea. Damages. Before Judge Harden. City court of Savannah. Mrs. Way sued the steamship company for $1,000 damages from the negligent transportation of a cedar chest containing valuable goods, by which alleged negligence the chest and its contents were broken and injured. Among the contents for which, damage was claimed were, a Chantilly lace shawl valued at $400, and several fans and parasols valued at $310.

Administrator’s bond. Pleading. Evidence. Principal and surety. Judgment. Sheriff’s return. Before Judge Ross. City court of Macon. 1. This was an action on an administrator’s bond. The defendants demurred to the declaration, because the bond sued on, or a copy, was not attached thereto. It is assigned as error that the court overruled the demurrer without requiring the plaintiff' to attach such copy, and without an offer by plaintiff' to do so.

Attorney and client. Witness. New trial. Before Judge Boynton. Butts superior court.

<p>Equity. Injunction. Pleading. Cross-petition. Demurrer. Water. Easement. Evidence. Before Judge Milner. Whitfield superior court. April adjourned term, 1892.</p>

Criminal law. Charge of court. New trial. Before Judge Martin. Muscogee superior court. November adjourned term, 1892. Conviction of burglary. A new trial was asked on the general grounds and the special ground stated in the first head-note. The State proved the commission of the burglary and the stealing of three pairs of shoes from'the storehouse which was entered. One pair of these was found on the feet of one Rivers.

<p>Homestead. Husband and wife. Amendment. Before H. T. Lewis, judge pro hac vice. Putnam superior court. March term, 1892.</p> <p>An application for homestead made by Mrs. Johnson was caveated by Christine Little, who also demurred to the application. Upon the trial before the ordinary the caveat and demurrer were overruled. The cause was carried to the superior court by appeal, where the demurrer was sustained, and Mrs. Johnson excepted.</p> <p>The petition alleged, in brief: For years petitioner has had the entire care and support of herself and minor children. Her husband, because of very hard labor in the discharge of his duties, was compelled to give up the position he held and retire with her to where she now resides, being broken down in health and having no property of his own from which he could make or derive a support. From that time until now he has been physically weak and utterly unable to do the work of a man, and consequently from his own exertions unable to add or contribute anything material to the support of himself, petitioner, or her minor children. He owns no property and is entirely dependent upon her for support, the same being derived from petitioner’s property and no other source. For years all accounts for provisions and supplies have been charged directly to her, and no credit extended to her husband, but her name is signed to all evidences of indebtedness which creditors may and have often required of her, all of said credit being extended to her upon the exclusive faith of her own property, and in the cultivation and management of her lands she always supplied and paid for whatever was used, and alone has the care and support of herself and minor children. Her husband is unable to do hard work of any kind. Therefore she alleges that she is the head of a family consisting of herself, her husband, and six minor children. By deed executed to her husband as trustee for herself and minor children, attached as an exhibit, she owns a life-estate of an undivided half-interest in certain land, and by inheritance through her father’s will, a fee simple estate in the other half. She desires to have this land set apart as a homestead under the constitution of 1877, and also to have set apart the personal property embraced in a schedule attached, which is all the personal property belonging to her. She also attached a schedule of the names and post-offices of her creditors. This application was verified by her affidavit to the schedules; and amended by alleging that she has upon her hands the care, support and maintenance of her four minor girls, naming them and giving their ages, her husband having no property of his own from which he can support them and being physically unable to do so.</p> <p>The caveat was that applicant was not entitled to homestead and exemption, because neither the head of a family, guardian or trustee of minor children, an aged or infirm person, nor a person having the care and support of dependent females of any age. The demurrer was similar to the caveat.</p>

<p>1. Where, in a criminal trial, the judge fully and fairly charged the jury concerning the law of reasonable doubt, he was not bound to give a request instructing them, in effect,' that if they have a reasonable doubt as to the existence of some particular and specially-enumerated fact, or what should be the proper inference therefrom, it would be their duty to give the accused the benefit "of such’doubt.</p> <p>2. Under the facts presented by affidavits concerning the competency of one of the jurors, it was not error to refuse to set aside the verdict on the ground that such juror was not fair and impartial.</p> <p>3. The fact that a juror’s granduncle married the grandmother of the prosecutor, establishes no relationship either by. blood or marriage between the juror and the prosecutor, it appearing that the latter was not a descendant of that marriage.</p> <p>4. It was not error to charge that threats made by the deceased ' against the accused, although communicated to the latter before the homicide, would not justify the killing unless, at the time of the killing, there was some effort on the part of the deceased to kill the accused or inflict upon him an injury amounting to a felony, it appearing that the court also instructed the jury that they might take such threats into consideration in determining whether or not .the circumstances were sufficient to excite the fears of a reasonable man, and the charge being otherwise full and correct on the subject of reasonable fears.</p> <p>5. If a person, on being assaulted- by the brother of another, instantly withdraws and arms himself, and, before sufficient cooling time has elapsed, returns, and a combat ensues between himself and the other, the latter being the first to produce actual contact, and the former, without deliberation, but acting under the sudden impulse of overmastering passion, kills the other, he would be guilty of voluntary manslaughter.</p> <p>6. The evidence fully warranted the verdict for voluntary manslaughter, and a new trial was properly refused.</p>

Criminal law. Murder. Evidence. Threat. Witness. Practice. Before Judge Roberts. Telfair superior court. October adjourned term, 1892. John May was indicted for the murder of Henry Brown, and was found guilty of voluntary manslaughter. He excepted to the overruling of his motion for a new trial.

<p>1. The case having been tried at a regular term of the superior court, when a special verdict was rendered on specific questions propounded to the jury, upon which verdict a decree was entered by the court in vacation under an order passed in term for this purpose, it was too late, in a bill of exceptions assigning error in the rendition of this decree, to also except to and assign error upon rulings made at the trial, more than sixty days before the bill of exceptions was tendered, no exceptions pendente lite to such rulings having been filed. Consequently, this court has nothing before it for determination except the errors alleged to have been committed in rendering the decree, taking into view only the pleadings, the verdict, and the decree itself.</p> <p>2. The plaintiff’s declaration describing and designating the defendant therein by a corporate name identically the same as that borne by two railway corporations, one of which purports to have been chartered by an act of the legislature of this State, and the other deriving its existence (whether de. facto or de jure) from the consolidation of the Georgia corporation with two others, one chartered by the State of North Carolina and the other by the State of South Carolina, and the consolidated company having expressly announced itself as the defendant in the action and made defence thereto, and the plaintiff having recognized and litigated with it as the proper defendant in the suit, he cannot, on a motion made by himself to enter a decree upon a special verdict found by the jury, or in resistance to a motion made by the consolidated company to enter a decree in the cause, raise any question as to the legality of the consolidation, inasmuch as that would be to deny the existence of the corporation which he has recognized by litigating with it as the sole defendant in the action.</p> <p>3. A deed to a corporation conveying land “ to be used by it for railroad purposes,” conditioned that “if work is not commenced on said road in two years, then said property is to revert to” the grantor, the name of the grantee being that borne by the railway company formed by the consolidation of three different companies, and also that previously borne by one of the companies entering into such consolidation, is presumptively a conveyance to the consolidated company and not to the original company which bore the same name, it appearing inferentially from the verdict that prior to the signing and delivery of the deed the latter company had, by reason of such consolidation, been superseded by the new company, and therefore did not in fact longer exist. This being so, the court correctly construed the deed as being conditional, not upon the commencement of work in Georgia within two years after the date of its execution, but upon the commencement of work anywhere on the line, of the consolidated company’s railway, and rightly held that the construction and operation of a part of the line situated in North Carolina would satisfy this condition.</p> <p>4. The verdict, construed in the light of the pleadings, warranted the decree in all its provisions.</p>

<p>Under the act approved October 17th, 1885 (Acts 1885, p. 103), a summons issued from a justice’s court, service of which is made before the term at which the defendant is cited to appear but too late to be due service for that term, goes over to the next succeeding term and the latter becomes the appearance term. This act applies to justice’s courts, as well as to all other courts of the State. The case of W. & A. Railroad v. Pitts, 79 Ga. 532, was ruled upon the provisions of the code, and decides nothing as the construction or application of the act above mentioned.</p>

<p>3. “The duty of common carriers with respect to the transportation of persons or property is a duty independent of contract, arising by implication of law from the fact that persons or property are received in the course of the business of such employment.”</p> <p>2. Hence, where a railroad company receives goods on a contract made with the owner or his agent, to carry them to their destination beyond the terminus of that company’s line, and while in the course of transportation they come into the hands of a connecting railroad company by whose negligence there is unreason- ■ able delay in delivering them at destination, the latter is liable in an action of tort for the delay, although there be no contract relations between the two companies nor any contract between the owner of the goods and the company causing the damage.</p> <p>3. “The sayings of the agents of a railroad company are admissible and will bind the company only when made in the particular business entrusted to them, and while engaged in that business.”</p> <p>4. Hence, to authorize the introduction in evidence of telegrams from one agent of a company to another about the loss of certain goods which the company had received for transportation, it must appear that the agent who sent the telegram or the one who received it and gave it currency was the agent at the point to which the goods were consigned, or to which they were actually sent, while in the course of transportation, or that it was within the scope of his duties to investigate the loss or to ascertain the time when the goods were received by the company. No such proof being made as to the business of the agent,, it was error to admit telegrams and letters sent by him to another agent of the company, and received by the latter and by him communicated to the plaintiffs.</p> <p>5- It was error to admit letters purporting to be written by an agent of the company, one addressed to plaintiffs, and others addressed to other agents of the company, without proof of their execution together with the fact of agency, and that the admissions made therein were touching matters within the scope of the agent’s duty.</p> <p>6. Letters purporting to be written to the plaintiffs by the vendor's of the lost goods, stating the cost thereof, were irrelevant and inadmissible.</p> <p>7. Where a common carrier receives goods for transportation and is sued for delay in delivering them, it is error to charge that the carrier is bound to extraordinary diligence as to the time of transportation. Ordinary and reasonable diligence is the rule.</p> <p>8. Where the plaintiff seeks to recover expenses of litigation, under section 2942 of the code, the amount is not a matter of discretion with the jury, but must be proved, the discretion contemplated by the statute being as to the allowance of any amount whatever.</p> <p>9. Where a plaintiff brought an action against a railroad company upon an express contract made between him and another company, and dismissed that action after an adjudication by this court that he could not recover therein, the result of that action is no bar to a subsequent suit against the same company founded upon tort, for unreasonable delay in delivering goods which it had received for transportation from a connecting road, although the goods were the same as those involved in the former action.</p>

<p>Elections. Municipal corporations. Statutes. Words and pirrases. Practice. Quo warranto. Injunction. Before Judge Guerry. Terrell county. At chambers,</p>

<p>Even in an action on an unconditional contract in writing, an entry on the judge’s docket of “ answered,” and the marking thereon of the name of defendant’s counsel at the appearance term, prevents the case from being in default and is equivalent to filing a plea of the general issue, to which plea any other issuable defence, supported by the oath of the defendant, may afterwards, at any stage of the case, be added by amendment. The court may impose terms on the party applying for leave to amend, provided there has been negligence “ in respect to the matter of amendment.” If leave was applied for on the first day of the second term at or before the calling of the case for final disposition, this was full diligence in the matter of amending; and consequently, the right to amend was unconditional, and the court had no power to exact the payment of costs, that power, under the provisions of the statute, resting wholly on the fact of negligence.</p> <p>(a) In this case the court erred in not granting leave to amend without requiring the payment of costs.</p>

<p>Railroads. Independent contractors. Negligence. Charge of court. Before Judge Martin. Chattahoochee superior court. March tei’m, 1892.</p> <p>The material portions of the declaration were, in 'substance, that the plaintiff was an employee of The Savannah & Western Railroad Company, in the' capacity of fireman; that the company was causing an extension of its line to be built, furnishing iron for the track and engines to haul the construction trains, and was running trains over the greater part of this extension; that he was ordered by his superior officers, agents of defendant, to work as fireman upon the engines running over the completed portions of the extension; that he obeyed this order, and while engaged in the performance of his usual duties as fireman on one of the engines thus employed, and being still in the service of defendant, he was, without fault or negligence on his part, injured by a derailment of the engine, caused by the negligence of the defendant in failing to keep in safe repair and condition both the engine and the track over which it v as then running.</p> <p>Besides the general issue, the defence mainly relied upon was, that the railroad track in question was not, at the time of the injury, in the possession of the defendant, but of another corporation, the Chattahoochee Brick Company, which, as an independent contractor, was building the extension for the defendant; that this contractor, and not the defendant, was operating the train upon which plaintiff was at work when injured, and had exclusive control of its movements, as well as of the employees thereon; and that, consequently, the contractor, and not the railroad company, was liable to the plaintiff for the injuries he received.</p> <p>The evidence showed that the defendant furnished the train to the contractor, and directed the plaintiff to work as fireman on the engine attached fio the same; that defendant paid plaintiff' and the. engineer, who was also working upon this engine under orders from the defendant, their wages, though under the contract between the railroad company and the contractor the amounts so paid were to be charged to the latter; that the conductor in charge of the train was an employee of the contractor, and directed and controlled the movements of the train; that the plaintiff was not guilty of any fault or negligence in bringing about the calamity by which he was injured; and that whatever may have been the original contract between the railroad company and the contractor, its terms were not adhered to, but the former took chai’ge of and supervised the work of construction, gave directions concerning it, and assumed general management and control of the enterprise to such an extent that in law the relation of master and servant really existed between the railroad company and the contractor.</p> <p>There was some slight evidence tending to show that the track at the place where the injury occurred was defectively and improperly constructed, but the decided preponderance of the evidence was that the track was well built and safe. As to the condition of the engine, the weight of the evidence was to the effect that it was old and in some parts, especially the brakes and appendages thereto, defective, though it had been but recently repaired. It was not shown, however, that the defects were of such character as would have made it the duty of the fireman to discover and guard against them.</p>