Volume 91 — Georgia Reports

<p>Before Judge MacDonell. City court of Savannah. July term, 1892.</p>

<p>Before Judge Falligant. Chatham superior court. March term, 1892.</p>

<p>1. It is no intimation that a special defence, such as alibi, is doubtful or untrue, for the presiding judge to charge the jury in substance that the defence, if true, is decisive of the case, and that if the jury think it sustained by the evidence, they need not investigate further. In this case the instruction complained of was as follows: “Let me suggest, as a preliminary matter for you, the consideration of the defendant’s defence, because if you think that is sustained by the proof, you need not investigate the question of assault with intent to murder, or of the lesser grades that fall under that charge. The defendant contends as to whoever may have committed the assault upon the street car conductor, and whatever his guilt may be, that he is not concerned in it, because he says he is not the man. The jury will see that contention goes to the root of the whole matter, and if it is true it ends the case. He claims that he has proved what the lawyers call an alibi, that he has shown by the evidence of the various witnesses that at the time of the occurrence, that at the time of the actual shooting here in town, he was two or three miles, whatever the distance may be, away from the scene of the transaction, the crime. He claims he has proven that at the actual time of the shooting he was in Vineville, some miles from the place of the shooting, and could not possibly have been present.”</p> <p>2. The evidence not being briefed as required by statute, but set out by questions and answers covering more than thirty pages, the immaterial blended with the material, this court presumes the evidence was sufficient to warrant the finding, the presiding judge having approved the verdict by denying a new trial.</p>

<p>Before Judge Boss. City court of Macon. March adjourned term, 1892.</p>

<p>]. Where an indictment containing four counts charged the accused, with the offences, respectively, of fornication, adultery, adultery and fornication, and fornication and adultery, all with the same woman and at the same time, and upon the trial the court, on motion of the accused, compelled the solicitor-general to elect upon which count he would proceed, and he thereupon elected the first count charging fornication, and a general verdict of guilty was rendered, the motion, order of the judge and election by the solicitor-general all having been made orally, it was proper and lawful, at the hearing of a motion in arrest of judgment made by counsel for the accused, for the court to perfect the record by having an order entered nunc pro tunc setting forth the above recited facts. Nor was this action of the court vitiated by the absence of the accused, his counsel being present and it not appearing that the accused desired to be present or that anything was done by the court to prevent his presence. ■</p> <p>2. Construed in the light of the record as perfected, the verdict was applicable to the first count only, and was sufficiently certain.</p>

<p>Before Judge Martin. Muscogee superior court. May term, 1892.</p>

<p>Before Judge Fish. Sumter superior court. May-term, 1892.</p>

<p>By the act of November 12th, 1889, a brief of the evidence, as well as the application for a new trial, is required to be filed within thirty daj'S after the trial, except in extraordinary cases. When the time is extended by special leave and order of the court, the court, even if it has discretion so to do, is not bound, after the period thus granted has expired without the order having been complied with, to allow the brief to be filed nor to entertain the motion, or any part of it, without a brief. As the statute is imperative, not mentioning any excuse whatever, it contemplates that the movant can and must comply with its terms, irrespective of whether the official stenographer of the court has written out his report of the evidence or not. And hence the stenographer’s omission or failure so to do is no legal reason for delaying the filing beyond the time granted by the court’s special order; certainly not, unless that reason is, under all the circumstances, satisfactory to the presiding j udge. Acts 1889, p. 83. It follows that, where a case was tried on May 17th, a motion for a new trial made on the 18th, and a special order granted on May 20th allowing thirty days to file the brief and amend the motion, it was too late on July 5th to file the brief. This being so, it was not error to dismiss the motion on the day last mentioned, and to deny an order then applied for to extend the time for filing the brief and amending the motion from the expiration of the previous order to that day.</p>

<p>1. Where a juror upon his voir dire had answered that he was opposed to capital punishment in cases of extreme youth, and by consent of counsel for the accused was put upon the court as a • trior, and then stated that he was not opposed to capital punishment, the court did not err in allowing counsel for the State, over objection, to interrogate him further, nor in setting him aside for cause, the juror finally explaining that he was conscientiously opposed to such punishment'though it might be shown that the accused was over the age of fourteen.</p> <p>2. The court having placed upon the State the burden of proving the capacity of the accused to commit crime, if in the’ opinion of the jury he was under fourteen years of age, and having charged thus: “ You take all the facts proven by both sides in said case, and all the facts going to establish his age and development and mental capacity, his mental development, the facts and the transaction as they throw light upon it, what he did at the time and afterwards, whether immediately afterwards or days afterwards, everything introduced either for himself or against him, and determine intelligently for yourselves whether at the time of the alleged homicide this boy had reached that point where he knew the distinction between good and evil and was amenable to the law. . . la trying the case you take all the evidence,” — a fair construction of the charge as a whole is, that the jury should look to all the .evidence, and that they were not restricted on the question of capacity to evidence which related to the commission of the offence and subsequent events.</p> <p>3. The court having charged the jury upon the general rule as to reasonable doubt, and that this rule applied “ to every material proposition and point in the case,” and that if the accused was under fourteen years of age they should acquit unless they should find beyond a reasonable doubt that he knew the distinction between good and evil sufficiently to enable him. to understand the nature and consequences of his act, the denial of the defendant’s requests was not error.</p> <p>4. The evidence warranted the verdict.</p>

<p>1. The evidence warranted the verdict.</p> <p>2. Newly discovered evidence which only tends to discredit a witness who testified on the trial, is not cause for granting a new trial, especially where it is not shown by affidavits of the accused and his counsel that they did not know of the evidence at the time of the trial.</p> <p>3. A juror will not be heard to impeach his verdict. There was no error in denying the motion for a new trial.</p>

<p>1. An unsigned letter in the handwriting of a person resting under a charge of larceny of a bale of cotton, addressed to one of the owners of the cotton and sent to him by mail, is admissible in evidence against the writer on his trial for the larceny, the letter suggesting that he, the owner, had better see the person charged with the larceny and make him pay money, that the owner can double the cotton in money instead of paying cost, and that from all the writer has heard the owner will lose the case. Though the letter ended abruptly and had no signature, there is no evidence that it was notas complete as the writer wanted or intended it to be, and it embraced no offer or proposition to compromise. On the contrary, it manifested an effort to influence the owner to drop the prosecution for the sake of getting pay for his cotton, without disclosing that the person thus attempting to influence him was the individual who was accused of the theft. The letter was relevant, and that it was in the handwriting of the accused was sufficiently proved to warrant the court in admitting it in evidence as a document emanating from him.</p> <p>2. The evidence as a whole warranted the verdict, and there was no error in denying a new trial.</p>

<p>Before Judge Van Epps. City court of Atlanta. December term, 1891.</p>

<p>Before Judge Van Epps. City court of Atlanta. December term, 1892.</p>

<p>Before Judge Marshall J. Clarke. Fulton superior court. September term, 1891.</p>

<p>Before .Judge Marshall J. Clarke. Fulton superior court. March term, 1892.</p>

<p>1. Where one bargained to another a tract of land, receiving a small payment in cash and two promissory notes for the balance of the purchase money, maturing at different times in the future, and gave to the vendee a bond conditioned to make to him a good and sufficient title to the land if he “ shall promptly pay the said several notes at the times specified,” and the vendee, after cultivating the land one year, practically abandoned the possession of it, failed to pay either of said notes at maturity, did not attempt to do anything more with the land or assert “ any right over it in any shape or form,” and never at any time paid any taxes thereon, and the vendor, without objection on his part, took possession of the property and retained possession thereof for more than four years, no sufficient reason or excuse for the failure of the vendee to pay the notes appearing, the latter was not then entitled, by tendering the balance of the purchase money with interest, to compel a specific performance by the vendor, and thus obtain a deed to the property. It was the right of the vendor, after default by the vendee as stated, to rescind the contract by re-entering the land, taking possession of the same, and tendering to the vendee the money he had paid, or such portion thereof, if any, as might be due him on a fair settlement between the parties. The vendee cannot complain of the exercise of this right when he shows no reason whatever for failing to pay his notes as stipulated, nor is the tender mentioned an essential to a rescission when the conduct of the vendee, as herein recited, amounts to a consent to the rescission without such tender. See McDaniel v. Gray & Co., 69 Ga. 433; Benedict v. Lynch, 1 Johns. Ch. 376; Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677; Hudson v. Duke, 21 Ga. 403.</p> <p>2. The grant of a nonsuit was not error.</p>

<p>Before Judge Van Epps. City court of Atlanta. March term, 1892.</p>

<p>3. The A fa. levied being an execution founded on the foreclosure of a mortgage made by a married woman, upon a phaeton, and the claim interposed resting upon a pledge of the same property made by her husband as security for a debt, this debt and the pledging to secure it being junior to the mortgage, and the creditor, at the time of the creation of the debt and the taking of the pledge, believing that the debt was that of the husband and that he owned the property, and, so far as appears, not knowing of the wife’s title or of the mortgage executed by her, on the trial of the claim case evidence is admissible, in behalf of the plaintiff in execution, that the husband came to plaintiff’s office and said he needed money to finish certain vehicles he was making; that thebusiness was his wife’s business and she would make a mortgage; that the plaintiff consented; that the husband and wife were both present when the mortgage was executed; that he, the husband, read it over and explained it to her; that the creditor had already advanced her fifty dollars; that he paid into her own hands when she signed the mortgage one hundred and fifty dollars; that the mortgage was signed and the money paid in the warehouse where the phaetons were; that the husband was in possession at the time; that he said the money was to carry on his wife’s business ; and that the phaeton described in the levy is the one embraced in the mortgage. Treating the claimant as the husband’s creditor and as claiming title under him,-the claimant was in privity with the husband and consequently would be affected by his disclaimer of title in himself whilst he was in possession of the property, and by his recognition of title in the wife and her assertion of the same by executing the mortgage- The business being hers, the jury could infer that his possession was her possession, and hence that she was in possession at the time of executing the mortgage. This would make a prima facie case in behalf of the plaintiff in execution against the claimant.</p> <p>2. A mortgage executed in May, 1884, and not recorded within thirty days thereafter, is inferior in dignity to the rights of a bona fide creditor of the mortgagor, who became such after the mortgage was executed and before it was recorded, and who received the property in pledge as collateral security at the time of extending credit and still has possession of the same. 'Whether usury in the transaction would affect the bonafides and prevent priority, queere?</p> <p>3. A lender of money who, thinking the borrower wants it on his own credit and for use in his own business, takes for the loan the borrower’s note under seal and as collateral security a pledge of personal property supposed to belong to the borrower, reducing the property to possession, may, after discovering that the borrower was the general agent of his wife in conducting the business and that the money was for use in .her business, elect to treat her as the debtor in lieu of the husband, her agent, and may enforce payment of the debt out of the property pledged. Although the note, being under seal, would not bind her, no adequate authority to execute the instrument being shown, yet the loan of the money to be used in her business and upon the faith of a collateral afterwards proving to be her property would bo a sufficient consideration for the pledge, and the pledging of the wife’s property by the husband for money to be used in her business is sufficient evidence, in the absence of anything to the contrary, that he acted as her agent in procuring the loan, though he manifestly wished to conceal the agency and did conceal it, other testimony conclusively showing that he was at the time her general agent in carrying on and conducting her business.</p> <p>4. As the general property in goods pledged remains in the pawner and the pawnee has only a special property therein, the statute declares that the goods may be seized and sold under execution against the pawner, but upon notice by the pawnee to the levying officer, his lien, according to its dignity, will be recognized in distributing the proceeds of sale. Code, §§2142, 2144. When the pawnee’s title to his special property in the pledge is tainted with usury, this is his only remedy; for, in consequence of section 2057(f) of the code, he has no title which can be asserted in a claim case as against one who is in privity with the pawner. Zéllner v. Mobley 84 Qa. 748.</p> <p>5. The court did not err in overruling the motion for a new trial.</p> <p>By two Justices.</p>

<p>Before Judge Cobb. City court of Clarke county. June term, 1892.</p>

<p>Before Thomas Finley, judge pro hao vice. Fulton superior court. March term, 1892.</p>

<p>The main issue on the trial of an action for personal injuries against a railroad company being whether or not the plaintiff, who could neither read nor write, had for a specified sum of money released the company from all claims for damages resulting from such injuries and liad knowingly signed, by making a cross-mark, an instrument of writing to that effect; and the evidence for the plaintiff, if true, showing that he had not so released the company, and that when he signed the paper it was not read over to him, but that he was misled by the company’s servants as to its real contents, and by them made to believe it was merely a receipt for money he claimed to be due him as wages; while the evidence for the company, if true, showed that plaintiff had released the company and had signed the paper with a full knowledge of its contents; and the jury having determined this issue in the plaintiff’s favor, this court, under our system constituting the jury the tribunal to decide all questions of fact, and especially to pass upon the credibility of witnesses, has no authority to set aside their verdict, after its approval by the court below, it being in all other respects fully supported by the evidence, and there being no complaint that any errors of law were committed at the trial.</p>

<p>Before Judge Marshall J. Clarke. Fulton superior court. March term, 1892.</p>

<p>Where a person who was cited to appear before the recorder’s court of the City of Atlanta to show cause why he should not abate a nuisance, appeared and among other defences pleaded to the jurisdiction of the court, and this plea was overruled and the case tried upon the merits and he was ordered to remove the nuisance, and he thereupon took the case to the superior court by certiorari, in which he did not assign error upon the judgment overruling his plea to the jurisdiction but complained of other alleged errors, and his certiorari was overruled and the judgment overruling it was affirmed by the Supreme Court, the judge of the superior-court did not err in refusing to grant him an injunction to prevent the city marshal from executing the judgment by removing the nuisance. Brown on Jurisdiction, sec. 18, and note 2.</p>

<p>1. To the levy of an execution issued from a judgment against several defendants alleged in the petition upon which the judgment was rendered to be joint promissors in the contract sued upon, illegality will not lie in favor of one of them upon the ground that the contract shows upon its face that he was merely a surety and that the judgment was not rendered against him as such, where it appears that he was duly served and made no defence to the action.</p> <p>2. It is not a good ground of illegality that a levy upon the property of another defendant in the judgment was dismissed by the plaintiff without an order of court, and the execution afterwards levied upon the property of the affiant. Dismissing the levy dismissed the case, and any plaintiff may dismiss his case in vacation. Code, §3447.</p> <p>3. The dismissal of a levy on the lands of the principal is no ground for illegality on the part of a surety. Manry v. Shepperd, 57 Ga. 68.</p>

<p>Before Judge Westmoreland. Cityeoui’tof Atlanta. June term, 1892.</p>

<p>Before Judge Marshall J. Clarice. Fulton superior court. March, term, 1892.</p>

<p>Before Gapers Diokson, judge pro hao vice. Newton ■superior court. March term, 1892.</p>

<p>Though the evidence of a single witness for the defendant, if true, was sufficient to overcome the legal presumption of negligence, yet as that evidence was in conflict with the testimony of a witness for the plaintiff, a question of credibility was thus raised for the jury to decide, and they having found for the plaintiff, and the judge of the superior court on review by certiorari being satisfied with the verdict, the judgment is</p>

<p>1. In an action against a railway company for killing stock on the track at night, the testimony of a witness for the plaintiff showing that the stock ran suddenly upon the track about fifteen feet in front of the locomotive, which was running down grade, and in his opinion nothing which the engineer could have done would have prevented the accident, and there being no evidence to the contrary, the legal presumption of negligence arising out of the mere fact of the injury was rebutted, and it was error to deny a motion for a nonsuit. Let an order declaring a nonsuit be entered.</p>

<p>Before Judge Hutchins. Walton superior court. August term, 1892.</p>

<p>’ Before Judge Richard H. Clark. DeKalb superior court. February term, 1892.</p>

<p>1. Where three civil suits were pending in the superior court, and the defendant therein employed the attorney who brought the suits to defend him in a criminal case, and this attorney advised him to remain away from the court so that he could not be tried at that term in the criminal case, but gave him no advice as to the civil suits, to which no defence had been filed, and the court rendered judgment therein, there was no error in denying an injunction against the judgments on the ground that the defendant was advised to stay away from the court on account of the criminal case.</p> <p>2. It was not cause for an injunction that the petitioner had employed counsel to defend the civil actions, and had received a- message from him that he was sick and that all of his cases would be continued for the term, the petition for injunction failing to allege that the message or any part of it was true.</p> <p>3. It is not error to deny an injunction where the only evidence in support of the allegations of the petition is an affidavit that “ the facts contained in the foregoing petition, so far as concerns my own act or deed, are true of my own knowledge, and what relates to the acts or deed of any pther person, I believe to be true.” Bailey v. Bailey, 90 Oa. 435.</p>

<p>1. The credit of witnesses is for the jury. The evidence, though conflicting, warranted the verdict.</p> <p>.2. It is not cause for reversing a judgment denying a new trial that the accused by reason of sickness was, according to the opinion of a physician, unfit both in mind and body to undergo a trial, no unfitness having been brought to the attention of the court before the trial commenced or whilst it was in progress, and the accused having announced ready and made no motion for a continuance, and having had the advice and assistance of counsel.</p>

<p>Before Judge Roney. Richmond superior court. April term, 1892.</p>

<p>1. Where credit was extended upon the faith of a representation by the debtor made about six months prior to the dealings between himself and the creditor, in a written statement of his assets and liabilities to an agency engaged in furnishing to subscribers reports as to the financial standing of .persons in business, and furnished by this agency to the creditor at the time the credit was extended, which representation was to the effect that the debtor had in his own name town property of a certain aggregate value, and this included the value of a certain house and lot of which, two years before, he had made a parol gift to|his son, who had ever since been in possession, and to which, after the representation was made and before the credit was extended, he made a deed of gift to the son, the donor being then solvent and not thereby rendered insolvent, the conveyance, in the absence of fraud, was not void as between the donee and the creditor, although not recorded until after the creation of the debt.</p> <p>2. The evidence being undisputed that the donee was in possession of the property at the time the credit was extended to the donor, the court did not err in refusing to charge that if the credit was extended on the faith of the property, without notice of the deed, the conveyance was void as between the creditor and the donee.</p> <p>3. A request to charge that if the deed was withheld from record and concealed from the creditor, this might be, “under all the evidence,” sufficient to render it void if the goods were sold on the faith of the property conveyed, was properly refused; the charge requested was liable to be construed as an expression of opinion upon the evidence.</p> <p>4. The evidence warranted the verdict.</p>

<p>Before Judge Richard IT. Clark. DeKalb superior-court. August term, 1892.</p>

<p>There being no controlling question of law involved in this case, there was no abuse of discretion by the trial judge in granting a first new trial.</p>

<p>Before Judge Falligant. Chatham superior court. December term, 1891.</p>

<p>Before Judge Ealligant. Effingham superior court. May term, 1892.</p>

<p>Before Judge Miller. Bibb superior court. November term, 1891.</p>

<p>Before Judge Ross. City court of Macon. June term, 1892.</p>

<p>1. A tax law general in the title and in the enacting clause thereof is not made a special law by a proviso which excepts from its operation any county which has a board for equalizing taxes under special act, there being, in fact, no county having such a board by any special act which is not void because of its conflict with the constitution. Thus, the act of August 14, 1891, providing for a board of equalization, and • declaring that the commissioners of roads and revenues, and in case there are no such commissioners, the ordinaries of the counties of this State, shall appoint a board of equalization for said counties for all property subject to taxation in their counties, is a general act of uniform operation throughout the State, although it contains a proviso in these terms, “ Provided, that the provisions of this act shall not apply to any county which has a board of equalization under special act,” and although there be in two counties of the State such boards under special acts, both of which are void because in conflict with that clause of the constitution requiring all taxes to be levied and collected under general laws. There can be no presumption that the legislature intended a saving in favor of prior unconstitutional acts. Consequently, the expression, “ board of equalization under special act,” is to be construed as referring, not to any void act, but to a valid one, if any such exists, and there being none such in existence, the proviso goes for naught.</p> <p>2. The body of the act in question contains nothing different from what is expressed in the title thereof, the words “a board of equalization ” in the title being sufficient to include such a board for each county in the State, as provided for in the body of the act.</p>

<p>1. A case having been duly called, and without objection set for trial at a specified time, four days later, and the trial having then begun in the absence, without excuse, of counsel for defendant, it was not error, upon his coming into court, to refuse to continue the case on his motion on the ground that his client, a lady who was then residing in another county, was not present and he could not safely go to trial without her presence, and that he had mailed her a letter on the day the case was set, notifying her of the time of trial. Nor was it error, after verdict in plaintiff’s favor, to refuse a new trial on the ground that this letter was prevented from reaching the defendant in time for her to attend the trial, because of storms and floods delaying the mails, it appearing that no plea had been filed, and defendant’s affidavit in support of this ground, although alleging in general terms that she had a good defence to the action, not stating nor in any manner showing what the alleged defence was.</p> <p>2. A contract executed by two parties, wherein the party of the first part acknowledges receipt of a cash payment, and agrees, in consideration thereof and of a certain sum to be paid monthly thereafter for a stated term, to “ rent ” to the party of the second part for that term a certain piano, and upon the payment of the “ rent ” as stipulated to give a receipt for the payment in full of the piano, is a contract of conditional sale. Hays v. Jordan & Co., 85 Ga. 741, and cases cited; Cottrell & Sons v. Merchants & Mechanics Bank, 89 Ga.. 508, 15 S. E. Eep. 944.'</p> <p>3. When, in a trover suit for the recovery of personalty sold of which the seller had reserved the title and which had been partly paid for, the plaintiff elects to take a money verdict, the proper amount to be recovered is the unpaid balance of the purchase money with interest thereon, embraced in one aggregate sum. Bradley v. Burkett, 82 Ga. 255, and cases cited.</p> <p>4. On the trial of a trover suit for property held by defendant under a conditional sale from the plaintiffs, there being no special plea whatever filed by defendant nor tender back of the property, and it appearing that defendant is still in possession and that this possession has not been disturbed by action or otherwise, it was not error to reject evidence tending to show that the title to the property was not in the plaintiffs at the time of the conditional sale, although it may be true that since the sale other persons have asserted title and notified defendant not to pay plaintiffs for the property.</p>

<p>Where an execution was issued by a clerk of the superior court on or before April 29,1867, upon which no entry of any kind was made by an officer until after September 14,1875, the judgment upon which it issued was dormant, notwithstanding an entry by the clerk, made September 30, 1868, on the execution docket, without being so requested to do by the plaintiff in execution, to the effect that on the day last named the execution was handed by the clerk to the sheriff. Code, J2914.</p>

<p>1. In a suit upon a promissory note against a maker and indorser (not an accommodation indorser), judgment having been rendered in plaintiff’s favor against the indorser, but in favor of the maker upon a plea of payment by the latter, and-the plaintiff having obtained anew trial as against him only, the judgment remaining of full force against the indorser, these facts will not estop the indorser, upon a second trial between the plaintiff and the maker, from testifying that the note was in fact paid to him by the maker, and by himself to the plaintiff, before the suit was brought. While the judgment against the indorser is conclusive and binding upon him, and he would be estopped from availing himself, by his own or any other evidence, of any fact inconsistent with that judgment, he is not estopped from testifying as a witness in favor of the maker to facts inconsistent therewith. As somewhat analogous, see Geise & Go. v. Bluthenthal & Bichert, 88 Ga. 285,14 S. E. Rep. 479.</p> <p>2. The indorser having testified that the maker had paid the note to him, and thathe had paid the same to the plaintiff in cotton before the suit was brought, it was error to reject, as evidence tending to affect the credit of the witness, the judgment rendered against him, there beingother evidence tending to show that he had made no defence but acquiesced in the judgment, had made no motion for a new trial, nor otherwise attempted to set the same aside. The testimony of a witness may be attacked by showing conduct on his part in the nature of admissions inconsistent with such te? • timony, as well as by proof of contradictory statements.</p>

<p>Before Judge Miller. Bibb superior court. November term, 1892.</p>

<p>Before Judge Hutchins. Jackson superior court-February term, 1892.</p>

<p>1. Where a claim is pending in the superior court, the presumption is that the claimant has given the damage bond required by the-statute, and if no such bond can be found in the clerk’s office, it may be treated as lost. But if the sheriff testifies that he does not remember that any such bond was ever delivered to him, and the clerk testifies that no such bond was ever filed, it must then be affirmatively shown that an original was duly delivered to and. accepted by the sheriff as provided by law. In this case, it did not so appear.</p> <p>2. Where no damage bond has been given as provided in section 3726 of the code, nor an affidavit in forma pauperis has been filed in conformity to the provisions of section 3733, the claim, on motion made by counsel for the plaintiff in fi. fa. before issue joined, should be dismissed.</p> <p>3. The statute contemplates that the bond required in claim cases ' shall be given when the claim is interposed; and it was, therefore, error to allow the claimant to give a bond at the trial term, after a motion to dismiss the claim for want of the bond had been made in time, and improperly overruled.</p> <p>4. The claim should have been dismissed on motion, and consequently all the subsequent proceedings in the case were nugatory and of no avail.</p>

<p>Before Judge Wellborn. Hall superior court. July-term, 1892.</p>

<p>Before Judge Martin. Marion superior court. October term, 1892.</p>

<p>Before Judge Milner. Murray superior court. February term, 1892.</p>

<p>1. The true construction of the act approved February 28th, 1874 (Acts of 1874, p. 176), entitled “ An act to amend the charter of the city of Athens, and for other purposes,” is that it contemplates a system of registration for only one election annually, and consequently that the system is confined to the election of municipal officers. It follows that at the time of holding.the election to determine the question of issuing water-works bonds, this election having been held on September 30th, 1892, there was no statutory requirement upon the municipal authorities to order registration as a preliminary to this election.</p> <p>2. According to the principle decided in Kaigler v. Roberts, 89 Qa. 476, 15 S. E. Rep. 542, the act of 1878, embraced in §508(1) of the code, lays down the rule for determining whether or not two thirds of the qualified voters of the city voted in favor of issuing the bonds in question, that rule being that the tally-sheet of the last preceding general election shall be taken as a correct enumeration of the qualified voters.</p>

<p>1. The law for changing the lines of militia districts is a general law of this State, although in some of the counties the power is lodged with the ordinary and in some with commissioners of roads and revenues. See Code, §§484, 486, 5150, 5177.</p> <p>2. When the lines of a militia district are legally changed the territory thus added to a district becomes subject to the system as to fences or stock-law which prevails in that district. Thus where the stock law was adopted in Blooming Grove district by a vote of the people on May 8th, 1891, a farm or plantation which was subsequently added to that district by a change of the district line would be from the time of such change fenced by the lines of its lots or tracts the same as if it had belonged to the district at the time the election was held. The question indicated in the third head-note of Hillsman v. Harris, 84 Ga. 432, is thus answered in the affirmative.</p>

<p>1. Where a statute provided that an amendment td an execution which had been levied would cause the levy to fall, and the legislature repealed the statute and declared that a levy should not fall if the execution was amended, the repealing act applied as well to cases which were pending at the time of its passage as to those which arose afterwards. It did not deprive the defendant in execution of any substantial right, hut only regulated the procedure of the court, in which he could acquire no right. Such a repealing statute is not within the constitutional inhibition against the passage of retroactive laws. Pritchard v. Bailroad, 87 Ga. 294, and authorities cited.</p> <p>2. Where the defendant in execution has filed one affidavit of illegality, he cannot file another for causes which existed and were known, or in the exercise of reasonable diligence might have been known, at the time of filing the first. The negligence or ignorance of Ms counsel in not informing him of his legal rights is not a sufficient ground to take it out of the rule.</p> <p>3. The evidence warranted the verdict, and was sufficient to authorize the judge to make the charge complained of.</p>

<p>1. Where, for a period of more than seven years, the only entries upon an execution issued from the superior court were two made on the same day, the one acknowledging receipt of costs from the plaintiff in execution, and the other receipt of costs from the defendantin execution, both signed “ W. S. Askew, former sheriff,” such entries were not sufficient to prevent the dormancy of the judgment upon which the execution issued. An ex-sheriff is not an officer authorized to execute and return the execution, and consequently an entry by him does not meet the requirements of section 2914 of the code. It has no force derived from or depending upon his official character. His capacity to act, except as a mere individual, in receiving money, no longer existed.</p> <p>2. Evidence tending to show that the costs receipted for in such ■ entries were dueto the person signing the same as “former sheriff,” and that the entries themselves were made in the presence and by the consent of both the plaintiff and the defendant in execution, was properly rejected, because, even if true, the judgment, under the provisions of the above cited section, would nevertheless be dormant.</p>

<p>Before Judge 'Westmoreland. Criminal court of Atlanta. December term, 1892.</p>

<p>Before Judge Westmoreland. Criminal court of Atlanta. December term, 1892.</p>

<p>1. As it affirmatively appeared in the showing for a continuance that the accused had other witnesses by whom he could prove the same facts which he expected to prove by the absent witness,, and as the latter was brought into court under an attachment in time for Ms evidence to have been taken before the trial closed and he was not introduced as a witness, the refusal to grant a continuance on the ground of his absence is not cause for a new trial. Allen v. The State, 10 Ga. 86; Anderson v. The State, 72 Ga. 98.</p> <p>'2. Although the State has examined some of the jurors to uphold the verdict, public policy requires that none of the jurors shall be heard to impeach it, even in reply to those who have testified in its vindication.</p> <p>8. Under all the competent facts in evidence by affidavits, there was no necessary cause forgetting aside the verdict on the ground that one of the jurors was not fair and impartial. The statements imputed to him, as having been made before the trial, he did not remember, and his character as an upright and intelligent juror was fully vindicated. The statements, if made, indicate bias or prejudice against the accused, or a fixed opinion of his guilt, but under his explanation, they could be treated rather as rash and incautious remarks founded upon mere rumor and not expressive of any settled or permanent opinion which would not readily yield to evidence. Regarding the presiding judge as in the position of a trior of the juror’s competency, it does not affirmatively appear that his decision was erroneous. That he ought to be so regarded, see Ray v. The State, 15 Ga. 223, and Brinkley v. The State, 58 Ga. 296.</p> <p>4. There was evidence sufficient to justify the verdict, and there was-no error in overruling the motion for a new trial.</p>

<p>Before Judge Fish. Sumter superior court. November term, 1891.</p>

<p>1. On a trial for murder, the fact that the deceased had instituted a prosecution against the accused for the offence of adultery and fornication, alleged to have heen committed with an unmarried daughter of the former, in consequence of which the accused bore ill will against the deceased, is relevant as tending to show a motive for the homicide on the part of the accused; and the warrant charging him with the misdemeanor, and a bond given by himself and others conditioned for his appearance to answer .“ said charge,” were properly admitted in evidence. Kelly v. State, 49 6a. 12.</p> <p>:2. Where, during the progress of a trial, counsel on both sides have made frequent and repeated objections to the admission of testimony which are frivolous and neither well taken nor material, it is not error for the judge to remark in the hearing of the jury: “Counsel seem to make a good many objections that I do not think are necessary,” although the particular objection then under consideration was sustained.</p> <p>3. The evidence, though entirely circumstantial, was sufficient to authorize a conviction; and the trial judge being satisfied with the verdict rendered, this court must affirm his judgment refusing a new trial.</p>

<p>Before Judge Fish. Sumter superior court. May term, 1892.</p>

<p>Before Judge Roberts. Montgomery superior court. October adjourned term, 1892.</p>

<p>1. Where there was no appearance by the plaintiff or his counsel when his case was called in its order for trial, it was not error to dismiss the same for want of prosecution, and there being no motion to reinstate the case, it was noterror to refuse a irial on plaintiff’s announcement shortly afterwards that he was ready.</p> <p>2. A judgment dismissing an action of bail-trover is amendable at the same term of the court by adding thereto an order for restoring the property to the defendant, the same having been taken from his possession and turned over to the plaintiff upon a bond given by the latter under section 3420 of the code.</p>

<p>1. Where a car inspector of one railroad company takes down in a memorandum book the numbers of certain cars which are about to be delivered to another company, and subsequently it becomes necessary to prove the numbers of these cars in order to identify certain brasses which had been stolen therefrom, the book is admissible in evidence on the trial of a person accused of the theft, if the inspector testifies that he made the entries of the numbers at the time he inspected the cars, “ for the purpose of preserving the memory” of the numbers, that the entries were correctly made, and that he cannot remember the numbers independently of the book. Allen v. Georgia Bank, 60 Ga. 347; 1 Greenleaf Ev., §437 and notes.</p> <p><(a) The book being admissible in evidence, it is not error to allow the jury to take it with them to their room and use it in their deliberations. The court may direct marks to be placed opposite the numbers in the book to aid the jury in finding the numbers of the cars in dispute, there being other numbers of other cars in the book.</p> <p>ü. Section 3248 of the code forbids a trial judge to intimate in his charge to the jury his opinion as to what has or has not been proved, and declares that should he do so this court shall grant a new trial. Hence, on the trial of a person accused of the larceny of certain brasses from certain cars, it was error to charge: “The State offers in evidence the stove in which it claims the metal was melted away from these brasses; offered also testimony as to jack-screw used for the purpose of obtaining the brasses from the car.” This was an intimation of opinion that the accused used the jack-,screw to obtain the brasses from the car.</p>

<p>Before Judge Miller; motion for new trial before Judge Bartlett. Bibb superior court. November term, 1892.</p>

<p>Before Judge Wellborn. Lumpkin superior court. April term, 1892.</p>

<p>Before R. J. McCamy, judge fro hae vice. Bartow superior court. January term, 1892.</p>

<p>Before Judge Milner. Catoosa superior court. February term, 1892.</p>

<p>Where an employee of a railroad company brought his action against it, alleging that he was injured by a co-employee’s negligence in dropping a bar of iron which they were lifting, and the railroad company defended on the ground that the iron was not negligently dropped by the co-employee, but that its fall was caused by the accidental slipping of his foot, and there being some evidence to sustain this theory, it was error in the court to refuse to give in charge a written request of the defendant that “ if the evidence shows that the injury was caused by the accidental slip of the foot or stumble of the witness Seay (the co-employee), then the plaintiff cannot recover.”</p> <p>(a) While as a general proposition, a charge that if the injury was the result of an unavoidable accident the plaintiff could not recover, may have covered the request, the case was a proper one for applying the principle to the specific defence relied upon. Metropolitan R. Co. v. Johnson, 90 Ga. 500, 16 S. E. Eep. 49.</p>

<p>1. It appearing that the defendant in fi. fa. offered to sell the claimant certain seed-cotton in consideration of a promissory note for rent of land, due by the former and held by the latter as transferee from the landlord to whom the note was given, and that the claimant replied he would take the cotton on the terms proposed when delivered at a certain gin, but that it was never so delivered, and that the claimant still holds the note, there was not, under these facts, any sale of the cotton to the claimant, but merely an executory contract of sale. Even if the act of December 22,1884, would otherwise be applicable (Acts of 1884^5, p. 91), it is not so in this case, for the reason that the cotton was never actually turned over and delivered by the tenant in payment of the rent.</p> <p>2. The verdict of the jury in the justice’s court being without evidence to support it and manifestly wrong, the superior court erred, in overruling the certiorari.</p>

<p>Before Judge Janes. Walker superior court. August term, 1892.</p>

<p>.'The petition for certiorari and the answer of the magistrate not having been specified or sent up to this court as a part of tho record, and the only error complained of in the petition for certiorari, so far as is shown by the bill of exceptions, being that the verdict of the jury was contrary to the. evidence, and it appearing from the brief of testimony set forth in the bill of exceptions that there ■was some evidence to authorize the verdict rendered by the jury, this court will not reverse the judgment of the superior court overruling the certiorari.</p>

<p>There being some evidence connecting the accused with the burglary, and the trial judge being satisfied with the verdict, this court will not control his discretion in refusing a new trial.</p>

<p>Before-Judge Fish. Sumter superior court. November term, 1891.</p>

<p>Before Judge Fish. Sumter superior court. November term, 1891.</p>

<p>There was no abuse of discretion in denying the injunction or in dissolving the restraining order.</p>

<p>1. Where suit was brought against G. & C. as partners, and G. filed a plea denying the alleged partnership, evidence to the effect that C. stated in the presence of G. that they were partners in the business in question, and that G. made no denial of this statement, was properly admitted, as tending to prove the partnership, notwithstanding such statement had never been communicated to the plaintiff and could not possibly have affected his dealings with the alleged partnership.</p> <p>2. Whether the silence of one in whose presence statements are made which he does not deny amounts to an admission, depends upon whether the circumstances required of him an answer or denial. Hence, it was not error to refuse to charge that defendant, in whose presence a statement was made which he did not deny, would not be bound thereby unless, under the circumstances, it was his duty to speak, and this duty was due to the plaintiff. No question of duty is involved, but the question is: does the silence or conduct of the party, naturally and according to human experience, amount, under the circumstances, to an admission of what is said in his presence ?</p> <p>3. There being evidence that one of the alleged partners had signed the name of the alleged firm to the promissory note in suit, and other evidence tending to show the existence oí the partnership, it was not error to admit the note in evidence, although it was not signed in the presence of the party denying the partnership.</p> <p>4. Where one is indebted to another both upon a promissory note and upon an open running account, and the debtor makes various partial payments without directing to which indebtedness they shall be appropriated, it is generally the right of the creditor to elect to which of his demands against the debtor he will apply such payments. Code, §2869.</p> <p>h. That a promissory note to which a partnership name was signed, executed by one of the alleged partners, notin the presence of the other, contains a waiver of homestead, presents no legal objection to its admissibility in evidence. While one partner cannot waive the other’s right to take a homestead out of the individual property of the latter, the former may bind such partner for the payment of a debt due by the firm.</p> <p>6. The admission of evidence which might have been objected to as irrelevant, will not be cause for a new trial when objection to its admission was made, not on this ground, but on another which presented no legal reason for rejecting it.</p> <p>7. While the evidence was conflicting and would have warranted a verdict for defendant, it was sufficient to authorize a finding for the plaintiff; and the trial judge being satisfied with the verdict, this court will not control his discretion in refusing a new trial.</p>

<p>Before Judge Janes. Paulding supeifior court. January term, 1892.</p>

<p>Before Judge Janes. ■ Polk superior court. Feb-i’uary term, ] 892.</p>

<p>1. A part of the necessary equity of heirs to set aside a sale of land made by an administratrix to herself is that they shall make their election to do so within a reasonable time. If they seek to set aside the sale after the lapse of a very long time, on the ground of their ignorance of the facts, or on the ground of fraud by the administratrix in concealing the truth, it is necessary to allege facts which would excuse or justify ignorance both as to the real character of the sale and the fraud, or show that the heirs have exercised ordinary diligence to discover their rights.</p> <p>2. The bill having been filed more than ten years after the sale complained of, and no facts accounting for the ignorance or vindicating the diligence of the complainants being set forth, there was no error in dismissing it on motion at the hearing for want of equity, although it had not previously been demurred to.</p>

<p>1. The drunkenness, if any, being voluntary, and no request being made to charge anything on the subject, it was not error as against the accused lor the court to omit any reference to section 4301 of the code or to its provisions touching drunkenness as an excuse for crime.</p> <p>2. Generally the killing of an officer or other person to prevent an illegal arrest is not murder but manslaughter. Consequently, shooting at him for the same purpose without killing him is prima facie not an assault with intent to murder.</p> <p>3. The evidence of the policeman being that he was called to arrest the accused by an old woman who keeps a boarding-house on the corner of Oak and Third streets, whose name he did not know or had forgotten; that she stated to him the accused had broken in her trunk and taken twenty-nine dollars and a few cents, and a coat; that she described him and said she wished the policeman to look out for him; and that this was about three hours after the property had been stolen, it was error to charge the jury, upon the trial of the accused for an assault with intent to murder by shooting at the policeman whilst the latter was endeavoring to arrest him without a warrant, thus: “ If you believe from the evidence that the officer had been notified to look out for him as a thief, and that evening he approached to arrest him, and the defendant fled before the officer drew the weapon and without endeavoring to attack the defendant in any way, the defendant while fleeing and the officer pursuing, he drew the pistol, fired upon him, and you believe the pistol was a weapon likely to produce death, you would be authorized to convict him of assault with intent to murder.” This charge assumes that the facts enumerated would constitute probable cause for making the arrest without a a warrant, whereas they might or might not, and whether they would or would not would be for determination by the jury in the light of all the circumstances attending the case, including the facilities for obtaining a warrant according to the spirit of section 4723 of the code.</p> <p>4. One who, on seeing an officer approach,-takes to flight and continues to fly, has no right to express information that the purpose of the officer is to arrest him. To entitle him to receive such information, he should not put and keep himself beyond the officer’s reach. The court erred in not granting a new trial.</p>

Before Judge Marshall J. Clarke. Fulton county.. June 22, 1892.

Before Judge Marshall J. Clarke. Fulton superior •court. March term, 1892. in this case, commenced in 1890, a verdict for the defendant was rendered on March 30,1892. Within thirty days, and at the same term, the plaintiff moved for a new trial. A rule nisi was granted on April 27, returnable on May 14. On June 30 the motion came on to be-heard, and the defendant moved to dismiss it because no brief of evidence was filed within thirty days after the trial.

<p>1. One who by written contract lets premises to another for one year with a privilege of renewal for two years longer, admits the tenant-into possession, and, at the expiration of the first year, sues out a-summary statutory process maliciously and without probable cause to dispossess the tenant as a tenant at will holding over, is liable to an action for malicious prosecution of a civil proceeding,, if any special damage to the tenant is occasioned thereby.</p> <p>2. The premises being occupied and used by the tenant as a boarding-house, the loss of boarders occasioned by suing out the malicious process was special damage. So too were trouble and expense, including counsel fees, incurred by the tenant in giving-bond and security to prevent summary expulsion from the premises by virtue of the malicious process. The declaration, though loose and needing amendment to give it full certainty, set forth a cause of action, and it was error to dismiss the same on motion or general demurrer.</p>

<p>1. It is competent for the General Assembly to make the residence of a lessee corporation, for the purposes of suit, the same as that which the lessor corporation had when the relation of lessor and lessee originated. By section 3407 of the code, the lessee, or person or corporation having possession of a railroad, is liable to suit in the same court or jurisdiction as was the lessor or owner before the lease. A declaration which names the defendant corporation as lessee of a specified railroad, and which indicates that the defendant is in possession and operating the road, is to bo construed as seeking to charge the defendant in its character as lessee, though no lease be set out or expressly alleged.</p> <p>2. As the statute virtually makes the county of the principal office or place of business of the lessor before the lease the county of the principal office or place of business of the lessee, a declaration against the lessee alleging that its principal office within this State is in the county where the suit is brought, shows jurisdiction over the person of the lessee though the latter be a foreign corporation.</p> <p>3. The lessee of a line of railroad partly within this State and partly within the State of Alabama is subject to suit here by an employee for a personal injury sustained in Alabama whilst engaged in his duties as an employee upon the line.</p>

Before Judge Boynton. Monroe superior court. August term, 1892.

Before Judge Boynton. Monroe superior court. August term, 1892. Indictment alleging that the defendant, on March 15, 1890, in Monroe county, “ did sell a quantity of spirituous and intoxicating liquor, the same not being furnished as a medicine to a patient under’treatment by him, nor domestic wine raised by him,” etc. To this-indictment defendant demurred; the demurrer was overruled, and he excepted.

<p>1. A magistrate, when not presiding in court, does not act judicially in answering questions put by counsel on a court day, whether or not a given case has that day been called, and counsel shaping his conduct by such answer must take the risk of its being correct.</p> <p>2. By virtue of the act of October 8th, 1885, a justice’s court may hold from day to day until its business is disposed of. A petition for certiorari which alleges that the regular court day was on the first Monday of the month, and that the judgment in question was rendered on the twelfth day of the month, without alleging that the court did not sit from day to day, or that its business was disposed of before the 12th day of the month, or that for some reason it was not in legal session, does not call upon the presiding magistrate to show by his answer that his court was legally in session on the latter day.</p> <p>'3. A bill of particulars attached to a summons in a justice’s court is an office paper of the court, and when lost a copy may be established instanter. That this was done and that the copy may not have been correct, will not be cause for reversing the final judgment in the case, if the judgment itself was free from material error.</p> <p>•4. The evidence as recited in the magistrate’s answer warranted the judgment, and the superior court committed no error in disposing of exceptions to the answer, in dismissing the traverse, or in overruling the certiorari and affirming the judgment.</p>

<p>1. The charter of a loan and building association granted by the superior court at October term, 1866, expired by statutory limitation at the corresponding date in 1886.</p> <p>B. Where the superior court of the county in which a corporation was located appointed in 1879, before the charter expired, a receiver for all the assets of the corporation, and in another suit, commenced after the charter expired, appointed another receiver in 1887 for all the assets then remaining and ordered the latter receiver to institute such actions as he thought necessary to reduce to possession any property claimed by third persons to which the corporation had title, a defendant in an action of ejectment brought by the second receiver cannot protect himself against a recovery by setting up outstanding title in the first, the first having been appointed pendente lite, and no final decree, so far as appears, ever having been made in the cause. It is doubtful whether title’ to the realty of the corporation would vest in the first receiver by the mere order appointing him, but if it did, he never having asserted it, it was divested by the order appointing the second receiver in so far as to enable that receiver to recover the property and administer it under the direction of the court as provided for by section 1688 of the code. The same court having jurisdiction over both receivers and over the custody by them, of any assets brought in by either, would be competent to protect the rights of all parties, including the defendant in ejectment, against any conflicting claims by the receivers.</p> <p>3. A receiver of an extinct corporation, if he would be estopped at. all by the acquiescence and assistance of a stockholder and ex-officer of the corporation in a sale of assets made by a third person after the charter expired, would not be estopped unless it appeared that such acquiescence and assistance were with knowledge that the corporation had some right or title to the assets thus dealt with. Where the assets consisted of a small parcel of woodland embraced in a larger tract, and the larger tract was sold and conveyed by a third person with the assistance as well as acquiescence of the stockholder and ex-officer, he not being aware at the time that the larger tract included the smaller one, there would be no estoppel. Especially would there be none which could beset up and asserted in a mere action of ejectment brought by the receiver against the purchaser, to which action the stockholder and ex-officer was no party.</p> <p>4. The purchaser of land at an administrator’s sale gets no better-title than the intestate had. Hence, where the intestate had conveyed absolutely to his creditor, whether in payment of a debt or only as security therefor, a purchaser from his administrator got no title as against the creditor, except upon condition of redeeming the land if it was taken by the creditor as security only.</p> <p>5. There was no error in admitting or rejecting evidence, or if any, it was immaterial to the substantial merits of the case. Upon the controlling facts the plaintiff was entitled to recover, and the court was correct in directing the jury accordingly.</p>

Before Judge Marshall J. Clarke. Fulton county. September 3, 1892. On July 18, G. W. Brooke, Nelson Morris & Co., and J. J. & J. E. Maddox, for themselves and such' others as might become parties plaintiff, alleging themselves to be creditors of the Lowe Brothers Cracker Company, a corporation, brought their petition against that corporation for injunction and receiver.

<p>Before Judge Richard H. Clark. Clayton superior court. March term, 1892.</p>

Before Judge Fish. Sumter superior court. May-term, 1892. Indictment for seduction of Miss Jennings; verdict of guilty; exception to denial of a new trial. Tbe motion for new trial sets forth the following: 1. Error in admitting the testimony of Miss Jennings, over the objection of defendant’s counsel, in relation to promises of marriage after the alleged seduction.

<p>Before Judge Eve. City court of Richmond county.. May term, 1892.</p> <p>In connection with the facts stated in the opinion,, see National Park Bank v. Berry, 89 Ga. 333.</p>

Before Judge Miller. Bibb superior court. April term, 1892. Plaintiffs in error were convicted, in tbe recorder’s court of Macon, of violating the market ordinances of that city by selling fish and meats at places other than the city market-house, during the market hours as fixed by the ordinances. On certiorari the convictions were sustained. Por the other facts see the decision.

<p>Before Judge Miller; motion for new trial before Judge Bartlett. Bibb superior court. November term, 1892.</p>

<p>Where the parties are at issue in a county court on the declaration and plea in an action involving more than fifty dollars, the losing party is entitled to appeal to the superior court from the final judgment rendered against him. Code, §§286, 3610(a).</p>

<p>Before Judge Jenkins. Jones superior court. April term, 1891.</p>

Before Judge Roney. Richmond county. June 25, 1892. The National Bank of Augusta filed its petition against the Richmond Factory and Coffin, trustee. Service was made of the petition and of a temporary restraining order upon the president of the factory May 11, 1892, and upon Coffin the same day. Before the cause was heard the factory filed a demurrer and Coffin an answer, and the petition was amended.

Before Judge Miller. Houston superior court. April term, 1892. Mrs. Hufbauer and Mary E., W. N. and R. B. Goff, ber children, sued Jackson in complaint for land. Defendant pleaded specially former recovery in the same ■case, and a judgment of the superior court of the county, between plaintiffs and defendant, concerning the same ■subject-matter.

<p>Before Judge Attaway. City court of Cartersville. March term, 1892.</p> <p>Action in the city court of Cartersville, Bartow county, by Clark & Co. against Sims & Auchmuty as principals and McGinnis as guarantor, on an account for $149.65 balance of principal. The verdict was for the plaintiffs, and the defendants excepted to the overruling of their demurrers.</p> <p>The declaration alleged that the principal debtors, of Polk county, bought of plaintiffs the articles shown in the attached bill of particulai-s, and in the same month. McGinnis, of Bartow county, gave to plaintiff's his-guaranty in writing for the full payment of said account. McGinnis demurred on the grounds: (1) He' took no benefit on account of the sale of the goods, nor were they sold or charged to him, and a recovery cannot be had against him in this suit. (2) A written guaranty being the foundation of the action against him, the suit cannot be maintained unless the guaranty is declared on as the foundation, or a copy of it is attached to the declaration; and in such action the principal debtors cannot be joined as defendants. The principals demurred on the grounds that, the declaration showing that they live in Polk county, they cannot be sued with, a surety or guarantor out of the county of their residence and in the county where the guarantor resides..</p> <p>The plaintiffs amended by alleging that McGinnisguaranteed in writing the payment of a bill of goods ordered by the principal debtors, which bill of goods was sold on the faith of his guaranty, plaintiffs first-stating to him that his guaranty would be accepted, and that it was accepted, and that the goods to the amount of account sued on would be shipped and had been furnished. Attached were copies of two notes from McGinnis to plaintiffs, one dated October 3, the other October 5, 1889. The first stated: “Please ship the goods to Sims & Anchmuty, and I will see that it is paid when due.” The other stated: “Your favor of 4th inst. received and contents noted. Yon can ship the-$300 woi’th of goods. I will become responsible or see that Sims & Auchmuty pays for them. Ship at once.” McGinnis demurred to this amendment, on the ground that it does not show that plaintiffs notified him that they had accepted his offered guaranty or acted upon it.</p>

Before Judge Maddox. Floyd superior court. March term, 1892. McCall by his petition alleged: On February 27th, 1891, he purchased of McDonald the property described in a bond for title attached, giving his notes for the sums therein stated as the purchase price, which notes McDonald holds.

■ Before Judge MacDonell. City coui’t of Savannah. July term, 1892. Haas having obtainedjudgment on attachment against the Melrose Milling Company and caused process of garnishment to be served, the Old National Bank of Evansville, Indiana, interposed its claim to the funds in the hands of the garnishees. The jury found in favor of the claimant, and the plaintiff excepted to the refusal of a new trial.

<p>1. Applied to a negro man who, at the passage of the act of March 9th, 1866, touching the relation of husband and wife between persons of color, had two reputed wives, both of whom he had espoused under the forms of marriage during the existence of slavery, the act contemplated that he should not continue to cohabit with both of them on any condition, that he might continue to cohabit with one of them by selecting her and making her his lawful wife in the mode prescribed, which was by having the usual marriage ceremony known to the law performed between her and himself, and that after this was done the general laws of the State, civil and criminal, should apply to them as to other persons duly united in wedlock. According to the intent as well as the letter of the act, it required both the selection and the ceremony to take place immediately, but postponing compliance only made cohabitation penal; it did not disable the parties from complying, or inhibit compliance, at any time however late. Acts 1865-6, p. 240; Code, §1667.</p> <p>2. The selection of one of the reputed wives and subsequent cohabitation with her, whether exclusive or attended by cohabitation with the other also, was no compliance with the act without performance of the marriage ceremony. Unless that was performed, the selection counted for nothing, and was no obstacle to after-wards selecting the other and making her the lawful wife by going through the marriage ceremony with her, she consenting to it.</p> <p>3. After the husband’s death, the reputed wife whose marriage was celebrated by means of the marriage ceremony was his widow, and as such is entitled to administer upon his estate. The other reputed wife has no claim upon the estate whatever, even if he continued to cohabit with both until he died.</p>

<p>Before Judge Ross. City court of Macon. March, term, 1892.</p>

Before Judge Attaway. City court of Cartorsville. March term, 1892. Action against Willingham as principal and Johnson as surety on a promissory note dated January 13, 1891, for $200, due at ninety days, with interest from maturity at eight per cent., containing a waiver of homestead or exemption rights. The principal did not defend; the surety pleaded usury.

Before Judge Bower. Decatur superior court. May-term, 1892. This was a conviction of assault with intent to rape. A new trial was denied, and the defendant excepted. There was testimony to the effect, that he went in the evening to the house of Hopson on an errand, finished his business and started off, and Hopson thought he-was gone. Hopson and his family retired to bed, his daughter Alice, with her younger sister, sleeping in another room.

<p>Before Judge Martin. Muscogee superior court. November term, 1891.</p>

<p>Before Judge Roney. Burke supei’ior court. May term, 1892.</p>

<p>1. Where, during the progress of a trial, newspaper reports thereof are published containing comments favorable to one side, which papers are likely to be read by jurors trying the case, it is not error for the judge to express in the presence of the jury his disapprobation of such articles and his intention to deal with the persons responsible therefor, nor to caution the jury not to be influenced thereby in making their verdict.</p> <p>2. When, during a trial, the plaintiff (a child) is on the stand testifying as a witness, and the court has apparently good reason to believe that the child’s mother, by nods or other motions of the head, is endeavoring to direct or influence the child’s testimony, it is not improper for the court, without expressing any opinion as to the mother’s purpose or motive, to simply call counsel’s attention to the matter, it appearing also that the court, upon being informed that the mother was suffering from a nervous affection, stated to the jury that no wrong inference should be drawn by them from the movements of her head.</p> <p>3. When, during the progress of a trial, the jurors, by leave of the court, are allowed to go to their homes, and one of them, while thus separated from his fellows, has a conversation with an important witness for the plaintiff, in the course of which the juror asks, and the witness answers, many questions about the case, and the latter points out and describes to the juror the place of the alleged injury for which plaintiff sued, such conduct is grossly improper both on the part of the juror and the witness, but it does not require a new trial at the instance of the plaintiff, it not appearing that he and his counsel were ignorant of these facts until after the trial had ended.</p> <p>4. The conductor of a street car may testify as to his recollection of the number of passengers upon his car at a given time and place, notwithstanding he kept a slip “ taken from the register on the car, and left at the company’s office, which showed the number of passengers carried on that trip.”</p> <p>5. Where a boy eleven years of age, without the intention of paying fare but with the purpose of stealing a ride, hoards a passing street-car and secretes himself from observation so as to avoid detection, he is in law a mere trespasser, unless his presence on the car be actually known and assented to, either directly or by implication, by the driver or conductor. Assent to the hoy’s riding upon the car free will not arise by implication from the mere fact, that the driver discovered him, knew of his presence and made no demand upon him for fare, the driver being charged simply with the duty of properly managing his team, and neither required nor authorized to collect the fares or attend to the wants of passengers, a conductor having been provided by the street railway company for these purposes.</p> <p>6. While the degree of care which a street railway company owes to. a trespasser upon its cars is not more than ordinary or reasonable diligence, yet, where such trespasser is a child of tender years, due regard should be paid to the known indiscretion of childhood, and the inability of children to exercise proper precautions for their own safety. The duty resting upon the company to employ the proper precautions to avoid injury to children entering its cars,' would comprehend the exercise of reasonable diligence to. guard and shield from danger a child not of the age of discretion to understand and appreciate the peril of riding in an unsafe and exposed position. Accordingly, it would generally be negligence, to allow such a child to ride upon the steps of the front platform when bis presence in a situation thus exposed to danger is actually-known, or the circumstances are such as would make failure to note his peril palpable neglect and inattention to duty on the part of those having the control and managment of the car.</p> <p>7. Whether a hoy eleven years of age has sufficient capacity to understand and appreciate the danger of riding in an unsafe and hazardous position on a street-car, and could, by the exercise of that degree of care and diligence to be expected of a boy of his year's and experience, have avoided an injury to himself while thus exposed to peril occasioned by the too rapid driving of the car around a curve, is a question for the determination of the jury under proper instructions from the court.</p> <p>S. The finding by the jury is sustained by the great preponderance of the evidence ; and not only is the newly discovered evidence merely cumulative, lout no showing of diligence in its procurement is made. None of the irregularities complained of as having occurred during the trial are such as would vitiate the verdict; and although the charge of the court is not entirely free from error, and should, perhaps, in some respects have been more full and complete, it fairly submitted to the jury the real merits of this particular case, and presents no error which would require the granting of a new trial.</p> <p>Argued at the last term.</p>

Before Judge Miller. Bibb superior court. November term, 1891. Action of Faulk by next friend, for damages from personal injui’ies. The verdict was for the defendant, and the plaintiff’s motion for a new trial was overruled. The head-note sets forth the charge excepted to in one ground of the motion.

Before Judge McWhorter. Hancock superior court. April term, 1892. Cooper was indicted for the larceny of a speckled ox belonging to Amanda Dixon, on May 2, 1889, in Hancock county. He was convicted, and moved for a new trial on the grounds that the verdict was contrary to law and evidence, and for newly discovered evidence. The motion was overruled, and he excepted.

<p>Before Judge Hutchins. Franklin superior court. March term, 1892. t</p> <p>On the 1st day of January, 1877, J. T. Knox conveyed to his wife a tract of Hand containing 1,150 acres, more or less, the consideration expressed in the deed being love and affection and the sum of five dollars. On the 19th of April, 1879, one Lester, as administrator of Matthews, obtained a judgment against Knox upon a written contract made September 21st, 1876, by which Knox contracted to retain Matthews as attorney at law to represent him in a prosecution for robbery then pending in the superior court of Iiart county, and promised to pay Matthews the sum of $250.00 as a retaining fee, but in the event he (Knox) should be discharged without trial, the said retaining fee should be only $200.00. A fi.fci. issued from this judgment, and was levied, April 28th, 1879, upon about three hundred acres of the land covered by the above mentioned deed. It does not appear what disposition had been made of the balance of the 1,150 acres. A ji.fa. for a trifling amount, issued from a justice’s court against Knox, was also levied on the three hundred acres, and this land was advertised for sale on the first Tuesday in December, 1879. Shortly before that day, counsel for Lester agreed with Mrs. Knox, who had filed an application for a homestead in the land levied on, alleging therein it was the property of her husband, to which a caveat had been filed by Lester as administrator, that the sale should be postponed till this application was disposed of. No notice of this agreement was given to the sheriff’, however, who proceeded to sell the land on the day named, and it was knocked off to J. H. Vickery, who had no knowledge or information of the agreement to postpone until after he had bid oft’ the land, but he did know before the sale that Mrs. Knox’s application for a homestead in this land was then pending. Before he paid the purchase money, both he and the sheriff' were informed of the agreement, but nevertheless Vickery paid the sheriff the amount of his bid, who received the money but subsequently refused to make Vickery a deed to the land, and continued for some time to so refuse until Vickery obtained the consent of Mrs. Knox for him to make the deed. In the meantime she had amended her application for a homestead by claiming an exemption of the proceeds of the land in the shei’iff’s hands as a part of her husband’s estate in lieu of the land which had been sold. The price at which Vickery bid off' the land was $305.00, but it was subject to an incumbrance of $700.00, which he paid, making the actual cost to him $1,005,00. After the sheriff’s deed had been made, Mrs. Knox remained in possession of the land and paid Vickery the rent of it for one year. She then abandoned the possession and removed from this State to South Carolina; whereupon Vickery took and retained adverse and undisputed possession for nearly nine years before the present action was brought. Mrs. Knox’s application for a homestead was finally allowed,, and the homestead set up and established by a judgment of the superior court, the case having been appealed from the court of ordinary, the language of this judgment showing it was the intention of the court to allow the homestead in the land itself, instead of exempting the proceeds of the sale thereof, which Mrs. Knox had claimed by the amendment above referred to. On the 5th day of March, 1889, Mrs. Knox, suing in her own right and as next friend of her minor son, who was a beneficiary of the homestead, brought an action against Vickery for the cancellation of the sheriff’s deed and the recovery of the land for the benefit of herself and this child. Among other things, she alleged that the real consideration of the deed from her husband to herself conveying the 1,150 acres of land, was the repayment to her of large amounts which had belonged to-her and which had been appropriated and used by him;. that she consented to the making of the sheriff’s deed in consideration of a parol promise made to her by Vickery that he would sell her the land at the price at which he bid it off, make her a bond for titles, and give her ample time in which to pay for it; that he after-wards refused to comply with these promises, and on different occasions increased the amount 'at which he-declared he would be willing to sell her the land, to each of which additional exactions she from time to time: assented, but he finally avoided and evaded her, and refused to sell her the land at all. There was some proof to the effect that Vickery obtained her consent to the making of the sheriff’s deed by threatening to have her husband, who was a fugitive from justice, arrested if she. did not consent, but it can scarcely be doubted, taking her side of the case as true, that she consented because of Vickery’s promise to sell her the land. It is not perfectly clear upon what title or right she sought to recover. Her petition mentions the deed from her husband to herself, but it does not distinctly appear that she relied upon it as a basis of recovery. It would rather seem from the allegations of the petition that she relied for a recovery mainly upon her homestead title, and to some extent on the parol contract between herself and Vickery above mentioned. So far as this contract is concerned, it will be noticed that she does not pray for a specific performance by Vickery, but merely alleges that the sheriff’s deed would not have been made except by her consent, and that Vickery having fraudulently violated the promise by which this consent .was obtained, that deed, for this reason, should be cancelled and set aside, and the land decreed to be the property of herself and her child.</p> <p>Pending the action J. H. Vickery died, and his administrators, R. D. Yow and C. W. Vickery, were made parties. The trial resulted in a verdict for the plaintiff'. The defendants moved for a new trial on many grounds. The judge below granted a new trial because, in his opinion, the fraud complained of by the plaintiff having been discovered by her more than seven years before she brought suit, she was not entitled to recover. To this decision Mrs. Knox excepted, and the defendants, by cross-bill, filed exceptions, to the refusal of the court to grant a new trial on the remaining grounds of their motion.</p>

<p>1. The special contract for the shipment of the car-load of stock providing that plaintiff could not recover exceeding a certain amount for each mule, evidence of the real value (whatever it might be) of one of them which was injured, was admissible for the purpose of showing that this value was at least equal to the amount specified in the contract.</p> <p>2. Where, in a special contract in writing between a common carrier and a shipper of live stock, the amount of freight is left blank, the blank may be filled by parol evidence showing the actual amount contracted for and paid by the shipper.</p> <p>3. The stipulations in the special contract contemplating that the shipper or his agent should accompany the stock while in transitu, and containing a provision that, in case of accident or delay, it should be the duty of the shipper, or agent, to feed, water and take care of the stock, the court should have given the request of defendant that, “ under this contract, it was the duty of the plaintiff, or one of his agents, to accompany this stock; and if the loss or damage was the result of Ms not accompanying the stock, then he could not recover.”</p> <p>4. The evidence showing that the shipment of the mules was made on a valid special contract at a reduced rate of freight, and the finding of the jury being upon the basis of general liability irrespective of the special contract, the verdict was contrary to law and the evidence, and the court erred in not granting a new trial.</p> <p>Argued at the last term.</p>

<p>1. According to Central R. Co. v. Dwight Mfg. Co., 75 Ga. 609, and Falvey v. R. Co., 76 Ga. 597, the valid contracts embraced in the bills of lading involved in the present case were through contracts for shipment from. Griffin, Georgia, to New York and Philadelphia, and the company with whom they were made was responsible for performance both to and beyond the terminus of its own road. The first of these authorities cuts off the company from availing itself of any limitations or restrictions of its general liability expressed in the bills of lading, the shipper not having expressly assented thereto, and there being no evidence to prove his assent save the mere acceptance by him of the bills of lading.</p> <p>2. A stipulation in a bill of lading which exempts the carrier from liability unless notice is given of the damage within a specified time, is one of the matters forbidden by section 2068 of the code, and is not effectual without proof of assent thereto by the shipper.</p> <p>3. When goods, though perishable or liable to rapidly deteriorate from internal causes, are damaged while in the hands of the carrier, the burden of proof is upon him to show either that he was free from negligence, or that notwithstanding his negligence the damage occurred without his fault; that is, that his negligence did not contribute to the damage.</p> <p>4. The bills of lading being silent as to the time within which delivery was to be made at New York and Philadelphia, the law presumes it was to be done in a reasonable time, and parol evidence is not admissible to negative this presumption by showing that a definite and specific time was agreed upon either expressly or by implication.</p> <p>5. The declaration alleging an undertaking to deliver in a specific time, but none to deliver in a reasonable time, evidence of what would be a reasonable time was inadmissible, and no recovery could be had under the declaration as it stands for failure to deliver in a reasonable time.- Jf the necessary allegation is supplied by amendment, all the relevant facts and circumstances touching the particular shipment, as well as touching that class of shipments generally, may be shown to ascertain what length of time wbuld be reasonable.</p> <p>Argued.at the last term.</p>

<p>1. It having been shown on the trial of a suit against a railroad company for damages alleged to have been occasioned by delay in delivering a car-load of fruit, that the defendant accepted the same for transportation and gave a receipt describing the car, stating it was consigned to a named party at a designated point, and containing the figures “62.20,” the point named being- in another State and beyond the defendant’s line, there was no error in admitting evidence to prove that the “ 62.20 ” was the amount of the freight for the entire distance, and was prorated among all the railroad companies over whose lines the car was routed in order to reach its destination; nor in leaving the jury to determine whether or not the receipt, in the light of such evidence, constituted a through contract of shipment.</p> <p>2. The evidence, being ■ as above stated and uncontradicted, demanded a finding that the receipt was a through contract of shipment, and errors made in submitting this issue to the jury were therefore immaterial and harmless.</p> <p>3. The defendant having received the fruit under a special through contract of shipment, to be transported to destination over other lines, and not having in any manner limited its legal liability, is bound, by itself or competent agents, to deliver the goods at destination within a reasonable time, and is liable for damages resulting from the negligence of such agents in failing to so deliver, as it would be'for such negligence upon its own line.</p> <p>4. Whether a common carrier would or would not be excused for any delay in delivering goods resulting entirely from a strike by some of its employees in which there was neither violence nor lawlessness; yet, where it affirmatively appears that the delay was caused in part by the disobedience and failure in the performance of their duties of other employees who did not engage in the strike, but were retained in the company’s service, and the carrier not having shown that the injury resulted from delay caused solely by the striking employees, it is liable for failing to deliver in what would usually be a reasonable time a car-load of fruit which became worthless from inherent qualities because alone of detention en route beyond such reasonable time.</p> <p>5. The verdict was warranted by the evidence, and the court committed no error in refusing a new trial.</p> <p>Argued at the last term.</p>

<p>1. The purchaser of goods cannot recover of the seller damages for non-delivery measured by his profits on a particular contract of resale and by his losses on account of inability to perform that contract, unless the seller at the time of making the contract of sale had notice of such contract of resale. In the present case there was no evidence of notice. It was therefore error to charge the jury thus: “You have the right to include what it may have been compelled to pay out, or what 'it may have lost in the way of profit, if it be shown to you in figures what such payment or loss is.”</p> <p>2. In a motion for a new trial a complaint of the charge of the court, in these terms: “ The court erred in its charge as to the next following clauses as to the telegrams which passed in regard to shipment of the thirty tons — same being a question for the jury — the illustrations tending to confuse the jury on the point, and should not have been given in charge, said telegrams, along with all testimony on said point, being exclusively for the jury, under the issue,” does not state what the charge was, and consequently is not for adjudication by the Supreme Court.</p> <p>Argued at the last term.</p>

<p>Before Judge Falligant. Chatham superior court. June term, 1892.</p>

Before Judge Hutchins. Clarke superior court. April adjourned term, 1892. Baldwfin sued Marqueze & Varney, alleging: Defendants-are indebted to him $2,000.

Before Judge Hutchins. Clarke superior court. April term, 1892. An equitable petition was brought by creditors of the firm of Hirschfield & Blumenthal, against the members of that firm, and against II. B. Claflin & Co., John Cohen and others, for the purpose, among others, of cancelling a mortgage in favor of Claflin & Co., on the stock of merchandise and store fixtures of the debtor firm.

<p>Before Judge "Wellborn. Hall superior court. July term, 1892.</p>

Before Judge Milner. Gordon superior court. February term, 1892. This was an action by Patton & Jackson against H. S. Printup, J. C. Printup and R. S. Talley, for damages from tbe drowning of a horse by alleged negligent management of a ferry-boat on the Oostanaula river. Pending the suit H. S. Printup became insane, and his name was stricken and the case proceeded against the ■other two defendants.

Before Judge Milner. Bartow-superior court. July term, 1892. A petition was brought to foreclose a mortgage made by William Aubrey and his wife. William Aubrey had died; his wife was appointed his executrix, and letters testamentary issued to her on May 2, 1881.

Before Judge Ross. City court of Macon. December adjourned term, 1891. Stubbs sued Witkowski in trover for a horse. The defendant’s pleas set up the following: Plaintiff’ placed the horse at Powers’ livery-stable, with instructions to Powers to sell it, agreeing to pay him for the horse’s board until sold.

<p>Before Judge Maddox.- Walker superior court. February term, 1892.</p> <p>A petition was brought, February 23, 1886, by John Puryear, to require Foster, sheriff, to make to him a deed to a certain land lot in pursuance of a sale alleged to have been made by Strange, former sheriff', on the fii’st Tuesday in August, 1873, under a mortgage fi. fa. alleged to have issued from the superior court in favor of John Y. Jackson & Co. against Rial Stancel, at which sale Puryear claimed to be the purchaser. He excepts to the rejection of evidence, and to the grant of a nonsuit. His application was resisted by the administrators of Stancel who had died. This latter fact was the ground of objection to the testimony which was ruled out. The. following evidence was introduced without objection : All the records and papers of every kind belonging to the office of the clerk of the superior court, including the files of the newspapers containing the official advertisements of sheriff’s sales, were destroyed by fire in 1883. Strange was sheriff in 1873, and published his advertisements in the Rome Courier. He now lives in Indian Territory. He had no office in the court-house; his office was in his pockets. The clerk of the superior court' (who has been in office continuously since 1872) has no recollection of the foreclosure of a mortgage in favor of John Y. Jackson & Co. against Stancel, or of any such papers ever having been of file. Foster has been sheriff continuously since 1885. No fi. fa. in favor of John Y. Jackson & Co. against Stancel ever came into his hands, nor was any such fi.fa. turned over to him by his predecessor in office, nor has he ever seen such fi.fa. since he has been sheriff. Strange was succeeded by Mize (deceased), who was succeeded by Withers (deceased), who was succeeded by' another Mize (deceased), who was succeeded by Patterson. Patterson was sheriff before the court-house was burned (February 3, 1883). ■ No fi.fa. in favor of John Y. Jackson & Co. against Stancel was ever in his possession ; he never saw any such fi. fa. or any other such papers as claimed by plaintiff’. Puryear testified tbat Strange signed and delivered to him, on the day it bears date, the following receipt which was exhibited to the witness and introduced in evidence: “Received of John Puryear nine dollars payment of costs on mortgage fi. fa. of J. Y. Jackson & Co. vs. Rial Stancel.' This August 5thr 1873. Wm. Strange, sheriff’.” He further testified that, soon after Strange went out of office, he went to Patterson, then the sheriff’, in search of said fi. fa., and failed to find it in his office or among his papers, and has since made diligent search and failed to find it. J. W. Jackson testified that he was a member of the firm of John Y. Jackson & Co. He thought the land in question was sold in 1869, and Strange was sheriff’ as he remembered. John Puryear bid off’ the land for John Y. Jackson & Co. The reason why a deed was not made at the time of sale was, because they were in debt and hoped to sell the land soon after the sheriff’s sale, and did not demand the deed, thinking that when they did sell the lot they would get the sheriff’ to make to their vendee instead of to them. Subsequently to the sale, in pursuance of an arrangement between the plaintiff, John Y. Jackson & Co. and John Puryear, said Puryear was entitled to a deed to the land. Witness does not know that they ever made but one effort to sell it; thinks they advertised it for sale only once, in the Rome Courier; does not know who levied on the land; was not present when it was sold; thinks it brought $50; the fi. fa. should have been credited with that sum less-costs. Plaintiffs in fi. fa. had the land bid off for them.</p> <p>Following is the rejected testimony: By John Puryear, that Strange as sheriff' sold at public sale on the first Tuesday in August, 1873, the land in question, as the property of Stancel, under a mortgage fi. fa. issued from the superior court in favor of John Y. Jackson & Co. against Stancel; that witness bid off the-land at sheriff’s sale, and no deed was made to him by the sheriff at the time; that some time afterwards he saw the mortgage fi. fa. under which the sale was made, in the office of the clerk of the superior court, having the entry of levy on the land and of the sale on the-day named, to John Puryear for $50, and the disposition of the money arising from the sale; that John Y. Jackson & Co. had a mortgage executed by Stancel to them to secure $500 due them by him, and the land in question was included in the mortgage; and that this mortgage was regularly foreclosed in the superior court, fi. fa. issued thereon, and Strange as sheriff levied the fi. fa.. upon the land, and sold it at regular sheriff’s sale on the first Tuesday in August, 1873, and witness bid-it off' for $50. By J. W. Jackson, that John Y. Jackson & Co. had a mortgage given to them by Stancel for about $500 principal, which they foreclosed in 1868 or 1869, to the best of his recollection; that execution, issued on the foreclosure, and was levied on the land in question; that after the sale of the land Stancel came to see witness to get permission to cut three trees off of the land, and said he thought witness was the right one to come to, as he did not want to get into any trouble about it; that witness told him to go ahead and get the trees; that Stancel recognized John Y. Jackson & Co. as owners of the-land (dr their survivors) after the sale, so far as witness knows; he never heard of Stancel claiming any rights on-the land after the sale, earlier 'than 1882.</p>

<p>Before Judge Turnbull. City court of Floyd county. June term, 1892.</p>

Before Judge Janes. Paulding superior court. January term, 1892. Action by Carter against Sanders & Abies on the contract set out in the opinion. The verdict was for $150 in favor of the plaintiff and defendants excepted to the refusal of a new trial.

<p>The corporate authorities of the city of Milledgeville having by an amendment to the charter, approved October 16, 1891, power to grant licenses to retail spirituous liquors within the city, and having exercised the power by fixing the fees for licenses at as much in the city as required by the general law in the county, the commissioners of roads and revenues for the county of Baldwin had no power or jurisdiction over the granting of such licenses to retailers whose business was carried on in the city of Milledgeville for the year 1892.</p> <p>Argued at the last term.</p>

<p>Before Judge Martin. Muscogee superior court. May term, 1892.</p> <p>A petition for injunction was brought to restrain the-City of Columbus from constructing a sewer through the private property of the plaintiffs in that city,, it being alleged that the city was seeking to take' plaintiffs’property without first paying them the damage;that the damage would be irreparable; that such taking-would be only for the private accommodation and benefit of a few individuals, and not for the welfare and benefit, of the public, etc. On the hearing an interlocutory injunction was denied, which judgment was affirmed by the Supreme Court. 87 Ga. 440. The case came on to be tried before a jury, and upon the submission of evidence by the plaintiffs, the court ordered á nonsuit, to which ruling they excepted.</p> <p>In evidence appeared the following extract from the minutes of the city council of April 2, 1890: It being stated that certain property-owners on the block between 14th and 15th streets and 1st and 2d avenues proposed to furnish pipe to drain their lots, but that some other property-owners on the same block objected to it being laid through their property, the matter was, on motion,, referred to the street committee with the mayor and city attorney, with power to act. On January 7, 1891, a. petition of property-owners residing on said block was presented to the mayor and council, for the construction of a sewer for sanitary drainage of the block, the petitioners agreeing to pay in full, pro rata, for the construction, as per services rendered the property of each petitioner. This was signed by Preer, Frazer, Swift, Bulloch, Battle, Nisbet and Lott. This petition was-recommended by the sanitary inspector and the board of health; and on motion of an alderman, the sewer was ordered built. On March 4, 1891, at the suggestion of’ the mayor, the council elected one Howard as arbitrator in the matter of condemning a portion of the plaintiffs’ lot for the sewer. Another paper was in evidence, signed by Preer et al. (the persons above mentioned), with others, agreeing to pay into the city treasury when demanded the amounts set opposite their names (the total being $300), for the purpose of purchasing the right of way for a sewer through the center of the block in question, in compliance with a resolution adopted in council on March 15, 1892. The mayor testified that the city council required the citizens on the block above the plaintiffs to agree to raise $300 before the city undertook to build the sewer; this amount was to be used in buying terra cotta pipe for the sewer; the city had the pipe put in, furnished the hands and had the work done. He further testified thus: Before building the sewer we tried every way possible to get the right of way from the ladies. I as mayor did all in my power to avoid a lawsuit with the ladies. We offered to buy the right of way from them, and they refused to sell it; then as a last resort we had an arbitration of the matter as required by the city charter. The arbitrators fixed the amount at $300. I tendered this money to the attorneys for the ladies, and they refused to accept it. Then I deposited a certified check with the clerk of the superior court for the amount, which is subject to the ladies’ call. I consider that this sewer is of importance for the health of Columbus, and is a public necessity. It is a combination sewer with open eyes on each lot, to carry off’ storm-water and night-soil from the closets. The chairman of the street committee of the council testified similarly as to the character and necessity of the sewer. The plaintiffs (Misses McDaniel) testified: They live on their property at the corner of the block and on the lower side of it, their lot extending back to the .center of the block. Bulloch lives above and next to them; then Frazer, Battle, Lott, Swift, Harrison and PreeT live immediately above; they have a perfect open drain from the back of their lots, that runs through and across plaintiffs’ lot into the eye of a sewer on 14th street. This drain carries off all the water from their lots, and drains them perfectly. This block and the locality are unusually healthy; there is no local cause for sickness; many old people live in the block and in the vicinity, and all are in good health. Nobody ever tried to buy the right of'way through plaintiffs’ property, or to negotiate with them for it. The parties above them, and only a few of them, will be benefited by the sewer, and they will only be benefited by using the sewer for their water-closets. The sewer has been built through plaintiffs’ back yard, and does no good; it is private in its nature, and benefits only those individuals who worked through the council to get it constructed under the guise of a public necessity, and by their paying for it or agreeing to do so. The plaintiffs also introduced, by consent, the testimony of one Barney, formerly the superintendent of public works of the city, which was before the judge on the hearing for interlocutory injunction, to the effect that the sewer would greatly damage plaintiffs’ lot, make their residence unhealthy, and virtually ruin the same.</p>

Before Judge Yan Epps. City court of Atlanta, December term, 1891. Johnson sued the railroad company for damages for loss of services of his wife, and expenses for physician’s-bill and medicines, growing out of an injury which she sustained by the running of defendant’s locomotive and ears.

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

Before Judge Turnbull. City court of Floyd county-March term, 1892. Mrs. Thomas sued Funkhouserfor $1,000, alleging that previously to September 5, 1890, on that day and until and during May 6,1891, he was her agent in Rome, Ga., and as such in charge of a house of which she was then the owner. As such agent it was his duty to rent the house and keep it insured against fire, etc., for which services he was to receive a commission on the rents collected.

<p>1. An amendment to the declaration in an action on promissory notes • against the administrator of the maker, which alleged that a collusive and fraudulent decree was rendered against the administrator, pending the plaintiff’s action, by which all the available assets of the estate for the satisfaction of the creditor were recovered of the administrator by certain claimants, such assets consisting of a tract of land; that the recovery was with the consent of the administrator and made for the purpose of defeating the plaintiff’s suit against him; that thereafter the land was sold to certain named purchasers, who bought with notice of the plaintiff’s claim, set forth a cause of action for general equitable relief as against the administrator and the claimants of the land who colluded with him, but did not set forth any cause of action ■ against the purchasers, there being no allegation that they purchased with notice of the fraud, or of any infirmity in the decree adjudicating the land to be the property of their vendors as against the estate represented by the administrator. The plaintiff’s claim being simply a claim for money, notice of it would afford no suggestion that the title of the estate to the land was, or would be, in controversy.</p> <p>2. A creditor who would not, after obtaining judgment against his debtor, be too late to proceed for a fraud committed against him by the debtor in collusion with third persons, is, a fortiori, not too late when he proceeds before judgment by amendment to his-pending action.</p> <p>3. Where, in a statutory action upon promissory notes, the plaintiff" filed an equitable amendment to his declaration, making additional parties and praying for special and general relief against • them all, the amendment being meritorious as to some of the new parties and not so as to others, it was error to sustain a motion to-dismiss the amendment, made jointly by all the defendants.</p> <p>Argued at the last term.</p>

Before Judge Boynton. Monroe superior court. February term, 1892.

Before Judge Eve. City court of Richmond county. June 4, 1892. Action of libel, by W. ~W. Radford against the-' Augusta Evening News, a newspaper corporation, on account of the following publication : “ IT SHOULD BE STOPPED. “ A style of soliciting business which the grand jury should investigate. “ It is not a new sensation, but it is a very bad style for Augusta, to solicit business for magistrate courts at the daily levees of the recorder.

<p>1. For a municipality to take the property of a citizen under a power conferred by the legislature to tax by local assessment, it must in all matters of substance follow the power strictly. Where the legislature authorized a municipal corporation to improve its streets and to assess on the basis of frontage the abutting real estate for two thirds of the cost of such improvements, and further-provided that the municipality should be treated as the owner of all intersecting streets and should pay a just pro rata of the entire cost according to the frontage of the intersections, and where ' the mayor and aldermen passed an ordinance requiring a certain street to be improved, and assessing two thirds of the cost against the abutting owners and providing that a certain committee should furnish to each abutting owner a bill of his proportion of the cost, according to frontage, and further directed that the committee should leave out of the calculation both the frontage and the cost of the street intersections, this last part of, the ordinance was contrary to the statute, and the assessment made by the committee against an abutting owner upon the plan of the ordinance was illegal, and an execution founded on the assessment against said owner was also illegal. Consequently a charge by the court-that the execution was presumptively correct, and that the burden was on the defendant to show the contrary, was erroneous. This error vitiated the whole trial, and the court erred in not granting a new trial.</p> <p>2, As there has been no legal apportionment of the assessment amongst the several abutting parcels of real estate, it is indispensable that such apportionment should be made. The safe course would be to make it, not through a committee, but directly by the mayor and aldermen (the municipal body), basing it upon proper evidence. There ought to be an, assessment roll, showing the total cost of the work, and as to two thirds thereof, how it is apportioned amongst the several abutting parcels, including the street intersections, giving the sum chargeable to each parcel, with the name of the owner, the mayor and aldermen being treated as owner of the street intersections. This roll, when officially ascertained to be correct, should be entered on the minutes of the mayor and aldermen for due authentication and preservation. Whether any further municipal legislation on the subject maybe requisite in consequence of the defect in the existing ordinance, is matter for consideration.</p> <p>By two Justices. Argued at the last term.</p>

Before Judge Martin. Muscogee superior court. May term, 1892. . Assumpsit on a promissory note payable to Flint or order at the office of the Corbin Banking Company, New York City, with interest at eight per cent, per annum, indorsed to the plaintiff.

Before Judge Martin. Marion superior court. April term, 1892. An execution in favor of Blue & Stewart against McElmurray, issued from a judgment rendered November 14,1885, was levied on land in which the defendant-had taken a homestead, by virtue of an affidavit that-the debt which was the foundation of the judgment was-for the purchase money of the land levied on. Issue was taken by counter-affidavit.

Before Judge Guerry. Quitman superior court. March, term, 1892. Roberts sued the railroad company for wrongful expulsion from its passenger-train. He .recovered a verdict for $150, and the defendant’s motion for a new trial was overruled.

<p>I. The act of March. 4th, 1869 (pamphlet, p. 14), amending section 3329 (now 3406) of the code, is hot unconstitutional as being violative of par. 3, sec. 6, art. 3, of the constitution of 1868. Under that constitution, this paragraph, by its own terms, was directory only to the legislature, and this was so both as to the prohibition against amending a section of the code by mere reference to its number, and as to the requirement that the amending kct should distinctly and fully describe, the law to be Amended.</p> <p>2. A declaration against a railroad company showing upon its face-that the company is duly chartered under the laws of the State, and complaining that it damaged the plaintiffs by constructing a railroad upon their land in the county in which the suit is located, shows substantially, though not in accurate form, that the railroad of the company is wholly or partly in that county. A demurrer to the declaration, on the ground that the plaintiffs had not alleged at all that the company’s railroad was situate in the county, was properly overruled, and the action was maintainable-under section 3406 of the code. Had the demurrer complained specifically that the fact was not alleged with due and proper certainty, it should have been sustained, unless the plaintiffs, as would have been their right, had by amendment supplied the want of certainty by a more full and lucid allegation.</p> <p>By two Justices. Argued at the last term.</p>

<p>The streets of the city of Brunswick being by its charter vested in fee simple in the mayor and council, with power to widen, extend and straighten the same, and with power to open, lay out and establish new streets, the necessary incidental power of grading and otherwise improving the streets and keeping them in repair is also in the mayor and council. None of these powers are withdrawn, abridged or limited by the amended charter of the city approved November 12,1889, providing for the creation of a board of health and the election of a health officer. Ordinances passed under the authority of the amended charter, which do not expressly name the mayor and council as subject thereto, are not operative upon them when acting as a municipal body in the exercise of their corporate functions in improving or repairing the streets. Brooks v. State, 54 Qa. 36; Lingo v. Harris, 73 Oa. 28. Consequently, the board of health or its members cannot have the mayor and council restrained or enjoined from grading and improving a street, on the ground that the work or its results will be dangerous to the public health.</p> <p>By two Justices. Argued at the last term.</p>

<p>1. Under the facts, there was no abuse of discretion in subjecting the conductor to the ordinary rule applicable to the sequestration of witnesses.</p> <p>2. As by the law of this State a boy over fourteen years of age is presumably capable of committing crime, he is presumptively chargeable with diligence for his own safety against palpable and manifest peril, such as that of jumping from a railway train in rapid motion. In the absence of any evidence of want of ordinary capacity in the particular boy, he should not be treated as achild of “ tender years,” but as a young person who has passed that period and become chargeable with such diligence as might fairly be expected of the class and condition to which he' belongs.</p> <p>3. There was no error in admitting evidence, and none in the charge of the court, except upon the question ruled on in the preceding note.</p> <p>By two ¿Justices. Argued at the last term.</p>

<p>The declaration sets forth a cause of action, the allegations being, in. substance, that in August, 1891, plaintiff was driving a mule hitched to a buggy in a street of the city of Macon; his mule becoming frightened he jumped from the buggy, and while his attention was thus directed to his mule, plaintiff, without fault on his part fell into a hole, the mouth of a sewer in said street; the sewer was unprotected and in a dangerous condition and had been ’ so for ten days, and its condition was known to the city, to whose-negligence it was due; that in consequence of such fall he was greatly injured, suffered from concussion of the spine, was unconscious for twenty-four hours after the injury, suffered great pain which still continues, and is now totally unfitted for business; has become liable for one hundred dollars for medical attention;. at the time of the injury he was forty-six years of age, and was earning two hundred dollars per month; to his damage fifteen thousand dollars, etc.</p> <p>Argued at the last term.</p>

Before Judge Miller. Bibb superior court. April term, 1892. Patterson made affidavit that Johnston owed him for rent of certain land $480 with interest, and that the rent was due and unpaid., TJpon this affidavit a distress warrant was issued October 27, 1888, which was levied upon certain crops, etc. Johnston interposed a counter-affidavit, that neither the sum distrained for nor any part of it was due. The case was tried, resulting in Patterson’s favor.

<p>1. Tlie true legal owner of land of which neither he nor any one else is in actual possession cannot maintain a hill or equitable petition to cancel, as a cloud upon his title, deeds and mortgages, although duly recorded, made by strangers, none of whom, so far as appears, ever had possession of the premises or any conveyance or color of title from the State, or from any one 'connected with the true title, or any one who ever had actual possession. In order for outstanding conveyances to be a cloud upon title, it is necessary that they of themselves, or in connection with alleged extrinsic facts, should constitute an apparent title; that is, one upon which a recovery could or might be had against the true owner were he in possession and relying upon possession alone. Anything which would force him to attack the adverse title,-or to exhibit his own, would be a cloud ; anything which would not have this effect, would be no cloud.</p> <p>2. Where the plaintiff fails to make out a case, and the presiding judge, after so deciding, announces that he intends to direct a verdict for the defendant, thus giving the plaintiff an opportune to take a nonsuit or dismiss his petition, neither of which is done, and the case is then disposed of by_directing a verdict, there is no error.</p> <p>Argued at t-lie last term.</p>

<p>Before Judge Miller. Talbot superior court. March term, 1892.</p>

<p>fEven if the evidence was sufficient to establish the defendant’s guilt of adultery, the verdict was contrary to law, there being undisputed evidence of a' voluntary condonation and cohabitation after notice to the plaintiff of the alleged acts tending to show the defendant had committed adultery, and the expression by him of belief in her guilt, and no evidence that adulterous acts, if committed at all, were repeated or committed after the condonation. This being so, the court erred in not granting a new trial.</p> <p>Argued at the last terra.</p>

<p>When a bail-bond in a criminal case is conditioned for the appearance of the principal at the county court to answer a bill of indictment, the bail is not bound to produce his principal until a bill of indictment has been found, although when the obligation was entered into there was pending in the county court an accusation for the offence, made out after the accused had waived indictment. If it was the purpose of the officer to take an obligation for’ appearance to answer the pending accusation, that purpose was not signified by taking an obligation to answer to a bill of indictm ent, a county court accusation not being a bill of indictment but something different therefrom both in form, and substance.</p> <p>Argued at tlie last term.</p>

Before Judge Fish.- Sumter superior court. November term, 1891. Mrs. Oliver brought six suits in the county court, upon six promissory notes each for $66.66, dated July ■8, 1885, due respectively May, June, July, August, September and October, 1886, payable to H. Horne, agent for Mrs. Oliver, or bearer, and signed A. Hirsch & Co. Upon their left-hand corners were the words : “ Bent note.

Before Judge Fish. Dooly superior court. March term, 1892. Held: upon these facts, that there should be proof of the existence of the original grant, by the production of a copy from the office of the secretary of state, before the testimony of the loss of the seal was admissible. To this ruling the plaintiff excepted.

Before Judge Hansell. Thomas superior court. March term, 1892. A bill in equity was brought in 1887 on behalf of the grandchildren of George E. Smith deceased, to set aside an instrument of conveyance to William T. Smith, an illegitimate son of George E. Smith, executed by the wife of George E. Smith (the plaintiffs’ grandmother) shortly before her death.

<p>Before Judge Roberts. Pulaski superior court. November term, 1891.</p>

<p>Where the dedication of so much of a public street as crosses an existing track and the right of way of a railroad company, has resulted by implication from the laying out of the street at that point by the municipal authorities and its use by the public, acquiesced in by the railroad company, the company is not thereby precluded from constructing and using for the passage of its locomotives and cars, when essential to the convenient transaction of its business, an additional track upon such street, within the limits of the right of way owned by it at the time of the dedication, if the track is so constructed and used as not to interfere more with the use of the street by the public than is ordinary and usual at street and railway intersections where the whole breadth of the right of way is occupied with tracks for the passage of locomotives and cars.</p> <p>Argued at the last term.</p>

Before Judge Sweat. G-lynn superior court. May term, 1892. Ejectment was brought by Oceanna Sears against. James E. King. The plaintiff obtained a verdict for the premises in dispute, and the defendant excepted to the-overruling of his motion for a new trial. The plaintiff by cross-bill excepted to the overruling of her motion to dismiss the motion for a new trial.

Before Judge Marshall J. Clarke. Fulton superior court. September term, 1891. Burke & Co. sued Mrs. Akers upon an account, and also to foreclose a lien as contractors and material men, for work done and material furnished for the repairing* and building of a house belonging to her.

Before Judge Westmoreland. City court of Atlanta. March term, 1892. The widow of Harbuck obtained a verdict against the East Term., Va. & G-a. Railway Co. for his homicide. The company moved for a new trial on the general grounds among others, and the motion was overruled. Harbuck was a section boss on the G-eoi’gia Pacific railway, the track of which was used by defendant’s trains.

<p>Before Judge Richard H. Clark. Clayton superior court. March term, 1892.</p> <p>The petition of Odom alleged: He bought from Estes a tract of land which Estes represented as containing forty-one and a quarter acres. He paid part cash, gave his notes for the balance, and took a bond for titles, in which the land was described as containing forty acres more or less. He paid $27.50 per acre and in all $1,100. After he had paid all the purchase money •except a note for $200, and. after the note had been traded to one Kuglar, his attention was called to the fact that the tract only contained thirty-two acres, and he •discovered that Estes returned it for taxes as containing •only thirty-two acres. Odom then had it measured by a competent surveyor, and for the first time learned that it only contained thirty-three acres. He at once called on Estes to right the wrong and return him the amount or value of the seven acres and to get his note, all of which Estes refused. He was compelled to pay off the note, and he took a deed from Estes i n which deed the land, is described as containing forty acres more or less. He had confidence in Estes and in good faith relied on his representations, and thought it was at least forty acres, while Estes insisted that it was forty-one and a quarter. The tract did originally contain forty-one and a quarter acres, but Estes had previously sold his brother seven or eight acres, all of which was unknown to Odom until long after said transaction. Estes well knew that the tract contained only thirty-two acres, and, with intent so to do, did by such fraudulent and false representations deceive and defraud him in the sum of $192.50, the value paid for the seven acres, and interest thereon. Since the purchase the land is greatly increased in value, and by said fraudulent conduct of Estes petitioner has been forced to pay out his money, and in not getting the amount of land contracted for he has been injured and damaged $800 ; for the land is now worth $40 or $50 per acre, and Estes, after demand made, refuses to indemnify him for his damages or pay him said sum fraudulently received from him for the land.</p> <p>There was a verdict for Odom for $99.37J, with interest. Defendant’s motion for a new trial was overruled, and he excepted. The motion contains the general grounds, and the following:</p> <p>1. The court erred in refusing to charge thus: “A description of quantity of land as so many acres, stating number of acres, followed by the words “ more or less,” will cover a deficiency in quantity, unless the deficiency is so great as to justify the suspicion of willful deception, or mistake amounting to fraud. Therefore it is to a large extent a question of good or bad faith on the part of the seller. If Estes acted in good faith, believed that he really had the quantity of acres specified in the deed, then a deficiency of quantity, however great, would not authorize a suspicion of deception on the part of Estes.”</p> <p>2, 3. The court erred in charging as shown in the second and third head-notes.</p> <p>4. The court refused to charge : “If Odom knew the land, or if before he bought the lines were pointed out to him and no deception was practiced by Estes upon him in pointing out the lines, then he cannot claim-that there was such a mistake as would amount to a fraud ; for if the buyer has an opportunity to examine and decide for himself the quantity of land he buys, he could not complain if there be a deficiency in the number of acres.” And in no part of the charge were the jury instructed upon the defence, that the lines were pointed out to Odom, that no deception in so doing was practiced upon him, and that he was fully capable of judging of the quantity of acres contained in the body of land which was conveyed to him by defendant.</p> <p>5. The suit was for deceit and not for breach of contract; and plaintiffs evidence shows that the property he got under the deed was of much more value than the price he paid for it, and he was in no wise defrauded or cheated.</p>

<p>1. When an appeal is pending in the superior court from a judgment rendered by a justice of the peace, the summons is amendable in matters of substance as well as matters of form, provided there is enough to amend by. There was enough to amend by in this case, and the requisite amendments being made, the defects complained of were not cause for dismissing the action.</p> <p>2. On the hearing of an appeal in thesuperior court, it is immaterial whether the judgment appealed from be void or valid, if the appellee recognizes the appeal as duly taken, and raises no question touching the validity of the judgment below. The appellant by entering the appeal recognizes the judgment as the basis of it, and as something needful to be appealed from. Nor can he urge that the appeal was entered too late. The amount and date of the ' judgment need not be inquired into at the instance of the appellant.</p> <p>3. After several appeal cases have, with the consent of parties and by order of the appellate court, been consolidated into one case-for trial, it is too late for the appellant by plea or motion to' attack the jurisdiction as to one of the consolidated cases, on the ground that the amount involved therein was too small to bring it within the statute allowing appeals. If the appellant regarded it as too small he should not have entered the appeal, nor should he have consented to the consolidation so as to make that case abide the final judgment in the consolidated case.</p> <p>4. Promissory notes given when there was no statute on the subject of usury and no limit as to the amount of interest, are not usurious, no matter how much past interest or usury was embraced in them as a part of the principal. If the debt was good and valid as to the principal and was mature at the time the notes were given, and by the notes the day of payment was postponed, this postponement was a sufficient consideration both for the interest and usury embraced as a part of the principal and for future interest at the rate expressed in the face of the notes.</p> <p>Argued at the last term.</p>

Before Judge Miller. Talbot superior court. September term, 1891. At the last trial, September 23, 1891, the jury found for the plaintiff $1,674.75, less $47.85. The facts material to the rulings here made will be understood by reading the decision in connection with the opinion rendered when the case was formerly before the Supreme Court. 82 Ga. 48.

<p>1. The act of October 12, 3885, “to fix the pay of official stenographic reporters,” declares that these officers shall be paid for their services in “taking down the testimony in the trial of such criminal cases as are required by law to be reported,” on the certificate and order of the judge of the superior court. County authorities, such as boards of commissioners of roads and revenues, have neither the right nor the power to audit, order paid, or otherwise act upon orders thus granted. Consequently, the writ of mandamus does not lie to compel them to do any of these things. If a stenographic reporter has a valid order on the county treasurer, granted by the judge of the superior court, he should present it to the treasurei, and upon payment being refused, may proceed by mandamus against him to compel payment. To make such an order absolutely compulsory on the treasurer, it would be safer and better for it to show on its face that it was granted for services rendered in taking down the testimony in the trial of criminal cases, and not generally “ for services as official stenographer.”</p> <p>2. Whether, under the above recited act, payment for “ taking down” testimony does not of itself include compensation for “writing out,” and if not, whether the judge of the superior court can allow anything for writing out, — Quaref</p> <p>By two Justices. Argued at the last term.</p>

<p>1. As it is the duty of the directors of a corporation to be informed of its condition with reference to solvency or insolvency, they are to be treated as having that knowledge when a mortgage upon its assets is executed with their assent or by their authority.</p> <p>2. On principles of general law, the directors of an insolvent corporation cannot, to the prejudice of any of its creditors, indemnify by mortgage upon its assets one or more of their own body against loss by reason of his or their suretyship for the corporation upon liabilities already incurred, such indemnity not being made in the execution or performance of any agreement or undertaking entered into at or prior to the time when the liabilities were incurred. Nor can they, in a like case, indemnify a cosurety of one or more of the directors, inasmuch as the indemnity of one surety inures by operation of law to the benefit of the others.</p> <p>S. In the present case, the mortgages under consideration are not only tainted with self-interest on the part of some of the directors, but no authority to execute them was conferred upon the president and secretary by any corporate act of the board of directors done and recorded as the statute under which the corporation was created expressly prescribes. If one of these infirmities alone would not render the mortgages void, certainly the two together have that effect.</p> <p>4. The mortgages being void as between the immediate parties thereto, no trust was raised by them in behalf of the creditors of the corporation to whom the sureties sought to be indemnified were bound. Nor can the creditors take anything by subrogation, there being no right acquired by the sureties to be subrogated to.</p> <p>5. There is no presumption of law that bonds held by a creditor as collateral security are worth their face value. In marshalling the assets of an insolvent debtor, such bonds should be estimated at their true value only, and the creditor should be allowed to prorate with unsecured creditors upon at least the balance of his claim.</p> <p>6. In the light of all the circumstances, there was sufficient evidence to warrant the report of the master that the corporation was insolvent when the mortgages were executed. Whether that insolvency was actually known or not to the mortgagees, is immaterial.</p> <p>7. Where, in the administration of the assets of an-insolvent corporation, intervening creditors claim as mortgagees, or as subrogated to the alleged rights of mortgagees, and it appears in evidence that they are creditors, but unsecured by the alleged mortgages, the master, on such a reference as that made in the present case, should report the amounts due them, respectively, so as to enable them to have rendered by the court in their favor the requisite judgments or decree to admit them to participate in the fund, if any, which may be for distribution amongst creditors of their class. This should be done whether there be in their pleadings any express prayer for recognition as unsecured creditors, or not. If one or more of them have judgments previously obtained in a court of this State, and the judgments are in evidence, the amounts and dates of the same should be reported as proved.</p> <p>Argued at the last term.</p>

Before Judge Roberts. Bodge superior court. March adjourned term, 1892.

<p>1. According to the true intent and meaning of the act of 1881 (Code, §1955a) touching conditional sales of personal property, such a sale evidenced hy contract in writing, executed and attested in the manner requisite to mortgages on personal property, is effectual to retain title in the vendor as against all creditors of the conditional'vendee except those who subsequently obtain liens before the vendor reclaims the property. But in order to affect such creditors as do obtain liens, if they themselves are in no default by failure to record where recording is necessary, the written contract of conditional sale must be recorded in conformity to the statutes applicable to the recording of mortgages on personal property. This is the general rule; but in the case of liens created by contract, actual notice of the vendor’s rights by the junior lien creditor will dispense with recording the contract of conditional sale, just as such notice would dispense with recording a mortgage.</p> <p>2. On the facts in the record, including the concession of there being no liens against the property, the court erred in sustaining the master’s report.</p> <p>Argued at the last term.</p>

<p>1. One who furnishes a saw-mill with corn, oats, hay, bran, etc., with which to feed the mules of the owner of the mill used in carrying on the work thereof, has a lien under section 1985 of the code for the price. And when the owner in giving his orders for these articles represents to the seller that they are wanted as provisions-for the mules, such owner will be estopped by the representation, and cannot set up in resistance to the lien claimed that some of the provisions were not in fact so applied, but were sold by him in general commerce from a trading establishment which he kept on the saw-mill premises. Whilst the representation might not, and probably would uot, bind the general creditors of the owner, the owner himself, where he alone complains, will not be heard to urge his own bad faith.</p> <p>2. Where the accounts for the provisions were settled by promissory notes, some of which were not due when the petition was filed ■ under the insolvent trader’s act, a lien as to the whole may nevertheless be allowed, the immature notes having become mature before the master's report was made up. The lien claimant having come in by intervention, and the assets of the debtor being all in the hands of a receiver, a demand for payment and an affidavit to foreclose the lien would be dispensed with, a foreclosure by intervention being, under the circumstances, a proper substitute for the statutory foreclosure provided for by section 1991 of the code.</p> <p>3. The evidence warranted the court in finding and holding that the lien claimed existed as to the whole amount of the indebtedness.</p> <p>4. Relatively to the lien of laborers, mentioned in section 1984 of the code, and to liens for timber, logs, provisions, etc., mentioned in section 1985, all saw-mills, whether they be in fact fixtures or not, are treated by the statute as personalty, and as to them these liens do not have to be recorded, and when foreclosed in the statutory method, section 1991 is to be pursued; but where the foreclosure is either made or to be enforced on a petition in the nature of a creditors’ bill, the court, though it must treat the proceeds of sale, so far as the mill is concerned, as derived from personalty, may have the mill sold with the land on which it is situated for one gross sum, and afterwards, if necessary, ascertain by evidence what proportions of this sum should be treated, respectively, as proceeds of the land and of the mill. Direction is given that if, in the discretion of the court, this mode of sale be advisable in the present case, it be adopted, and the decree for sale be modified accordingly. The word “mill,” as used in this note, comprehends all engines, boilers, machinery of every kind, and all hardware, implements, tools, etc., connected with and used, or proper for use, in the mill establishment, treating it as a going concern for the purpose for which it was erected. It does not include any buildings or any detached personalty such as vehicles, draft animals, etc.</p> <p>Argued at the last term.</p>

<p>Before Judge Roberts. Bodge superior court. March adjourned term, 1892.</p>

<p>Before Judge Roberts. Bodge superior court. March adjourned term, 1892.</p>

Before Judge Richard H. Clark. DeKalb superior court. February term, 1892. Arnold sued Johnson & Company, alleging: He is the owner of a strip of land, part of land lot 158 in the 16th district of DeKalb county, the strip being twenty feet ■wide, bounded on the west by lands of the Georgia Railroad & Banking Company, south by a public road, east by lands of Georgia A. and Sarah Y. Kinney, north by lands of petitioner.

<p>When a criminal case involving a felony has been brought to this court, and the accused escapes from jail and becomes a fugitive from justice, and this court is informed of these facts by affidavits from the proper officers, the writ of error, although the case has been argued, if not decided, before the escape takes place, will be dismissed, after giving the accused a reasonable time to surrender himself to the proper custody so as to insure submission to the judgment of this court when rendered.</p>

<p>1. There being evidence tending to show that the plaintiff’s husband, a brakeman employed upon one of defendant’s freight-trains, was killed by being knocked from the top of a car by a low bridge over defendant’s road, and there also being evidence from which the jury might have inferred negligence on the part of the railroad company in failing to keep in suitable order warnings of the approach of trains to the bridge, and it not appearing from the testimony introduced by the plaintiff that the deceased was himself guilty of any negligence, the motion for a nonsuit was properly overruled, and the court rightly submitted to the jury the determination of the questions of fact involved.</p> <p>2. In view of the evidence above stated, there was no error in refusing to charge the jury as follows, “ In a suit against a railroad company by one of its servants for injuries sustained by alleged negligence of others of its servants in the performance of an act with which the servant was connected at the time of the injury, then the presumption of negligence was not against the company before the plaintiff proved that the servant was without fault,” such request being inapplicable to the case presented.</p> <p>3. Although the court may have erred in its explanation to the jury of the mortality and annuity tables introduced in evidence, and the methods of their use, such error would be no cause for a new trial when it manifestly appears that it in no way misled the jury or caused them to overvalue the life of the deceased.</p> <p>4. The evidence warranted the verdict, both as respects the negligence of the defendant, and the absence of contributory negligence on the part of plaintiff’s husband.</p> <p>Lumpkin, J., dissenting. The evidence, taken as a whole, showing conclusively that although the company may have been guilty of some negligence, the deceased was certainly negligent, and might by the exercise of ordinary care have avoided the injury which caused his death, the verdict was contrary to law and the evidence, and should have been set aside.</p> <p>Argued at the last term.</p>

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

Before Judge Smith. Wilcox superior court. September adjourned term, 1892. Indictment for selling spirituous and intoxicating ■liquor on July 1, 1892, in Wilcox county.

<p>Under an accident policy insuring one against loss of time resulting from bodily injuries effected through external, violent and accidental means, “which shall, independently of all other causes, immediately, wholly and continuously disable ” the insured “from transacting any and every kind of business pertaining to his occupation,” the insurance company is not liable to the policy-holder for loss of time resulting from a physical injury, when it affirmatively appears that thirty days elapsed from the time the injury was received before the insured was disabled so he could not attend to his business; that he, being a merchant, was probably in his store every day during this period, giving more or less attention to his business, and did not till the end of that period abandon all attention to the same. The word “immediately,” being preceded by the words “independently of all other causes,” is a word of time, and not of cause and effect, and the time which it indicates is not the same as that which would be indicated by the phrase “ reasonable time.”</p>

<p>Before Judge Marshall J. Clarice. Fulton county. April 29, 1893.</p>

<p>3. In a trial for burglary where it appeared that the accused was a servant in a boarding-house, and entered a hired room of a lodger by using the key which he obtained by taking it from where the occupant of the room usually kept it hanging up in the hall, and there was no evidence whatever that the accused had any duties to perform in the room, or that he had any permission to enter it, or had ever entered it by direction or permission of any one, it was not error as against him to instruct the jury that if he had a right to go in there, and went in by permission of the owner or permission of the person who had authority to send him in; if he was directed, for instance, to go in there and clean up the room or open it, and went in by permission of the owner, and after being in, stole, that would not be burglary but larceny from the house.</p> <p>2. Nor was it error to charge the jury thus: “ If the defendant asserts that he went in by permission of the landlady, it is his duty to make it appear, upon the State showing the room was broken and unlawfully entered and that the defendant did it — that it was unlawfully entered by the defendant by taking the key and opening the door; and if the defendant sets up that he went in there by permission of any one who had a right to give it, that it is his business to make it appear”; this charge being made while statingthe law applicable.to the case generally, and not while charging on the prisoner’s statement, and there being nothing whatever in the evidence adduced by the State tending to show that the accused had permission to enter the room, 'for any purpose. In another part of the charge the jury were distinctly informed that they were authorized to take the prisoner’s statement for what they thought it was worth and they could receive it all as true and accept it in preference to the sworn evidence. The statement set up that it was the business and practice of the accused to go into the room to clean it up, that he went in for that purpose on the occasion of the alleged burglary, and after so doing took the goods, locked the door, carried the key back and hung it up in its place.</p> <p>3. The evidence warranted the verdict, and there was no error in denying a new trial; but the long term of thirteen years in the penitentiary, imposed by the sentence, being apparently out of proportion with the circumstances attending the commission of the offence, direction is given that the accused, if not already undergoing his punishment, be resentenced, and that the presiding judge reduce the penalty if in his opinion, after further reflection, so doing will consist with the ends of justice and the proper enforcement of the law.</p>

<p>A bill of indictment which charges the offence of perjury as having been committed in a named city court, in a judicial proceeding therein, by falsely swearing to certain things in a matter material to the issue, which issue is described as being whether a named person “was guilty of selling liquor without license” in a given county on a given day, is insufficient, the same not averring that-the city court had jurisdiction to entertain and determine the issue, or power and authority to administer an oath in the trial thereof, or that there was any indictment, accusation, warrant, or other means of putting the city court in possession of the case. The indictment is defective in not either alleging expressly that the city court had jurisdiction, or in not setting forth a state of facts from which the jurisdiction would appear without such express allegation. Selling liquor without license is not necessarily an offence, as a license is not required under the laws of this State to legalize the sale of any liquor except spirituous or intoxicating liquors.</p>

<p>The declaration set forth a cause of action, and there was no error in overruling the demurrer.</p>

<p>Where G. & D., as partners under that style, were agents of an insurance company when a policy of insurance upon a stock of goods was issued by the company through them, and they after-wards dissolved, and G. ceased to represent the company but continued in the insurance agency business at the same place as a member of a new firm using'the style of G. & Go., and the insured applied to G. for additional insurance on the same property, producing at the same time the former policy, which G. examined and thereupon issued another policy in a different company which G. & Co. then represented, signing that policy with the name of the new firm, these facts did not amount to a consent by the first insurance company that the insured might obtain the additional insurance embraced in the second policy. As G’s agency for the first company had terminated, he had no authority to represent that company, and the burden of verifying his authority was upon the insured, the policy on its face declaring that it would be rendered void by. procuring further or additional insurance, unless by agreement indorsed upon or annexed to the policy. The ignorance of the insured that the first firm was dissolved, or that G’s agency was in fact terminated, would not vary the relative rights of the parties.</p>

Before Judge Hutchins. Jackson superior court. February term, 1893. Farmer was indicted for murder, and was found guilty of voluntary manslaughter. His motion for a new trial was overruled, and he excepted. The motion contains the following, in addition to the general grounds : 1.

Before Judge Henry. Floyd superior court. March term, 1893. Wilkerson was indicted for murder, and was found guilty of voluntary manslaughter. His motion for a new trial was overruled, and he excepted. For the other facts see the decision.

<p>Before Judge Willis. City court of Columbus. April term, 1893.</p>

<p>1. Irrespective of statute, authority ou the part of a member of a farming partnership to bind the firm by giving in its name a promissory note for fertilizers may be established by proof that the fertilizers were necessary for carrying on the business of the partnership, were bought and used for that purpose, and that similar notes in the name of the firm had previously been given for a like purpose by the other partner and had been recognized by the firm, it not appearing that there was any stipulation between the partners restricting to either one of them the power of purchasing or giving notes.</p> <p>2. The evidence warranted the verdict.</p>

<p>1. The action being brought in the statutory form on an account, with a copy attached, and the attached copy being as follows: “ Amount due as manager for its office in Macon, for the months January, February and March, 1891, $3,000,” the cause of action was either for the whole or for the balance of an amount due to the plaintiff as manager; and after it appeared in evidence by the testimony of the plaintiff himself that the contract with him as manager had been fully complied with, the bill of particulars was not amendable by substituting for it another bill of particulars predicated upon a subsequent contract employing him, not as manager, but as the instructor of and assistant to his successor in the position of manager. Though the two contracts, were identical in terms as to the rate of compensation, they were in fact separate and distinct undertakings, and the breach of one would be a different cause of action from a breach of the other.</p> <p>2. As the amendment was improperly allowed, and ali subsequent proceedings were applicable alone to the cause of action thus introduced, the court erred in not granting a new trial.</p>

<p>1. A declaration in the name of E. D. Irvine, “agent for the Georgia Music House,” is amendable by striking out the descriptive terms following the plaintiff’s name.</p> <p>2. One who as the head of a family has procured an exemption of personalty, and afterwards invested the same or a portion of the property in business, may in bis own name recover from a wrongdoer property to which the former has acquired title in his business dealings, paying for it with some of the exempted property or its proceeds.</p> <p>3. The evidence warranted the finding, and the result, on review below, being satisfactory to the presiding judge who tried the case without the intervention of a jury, this court will not interfere with his discretion in refusing to grant a new trial.</p>

Before Judge Wellborn. Hall superior court. January term, 1893. Moore, Marsh & Co. sued Smith, Duckett & Dobbins, .as partners, on two accounts, one for shoes and one for hats. As attached to the declaration, the account for shoes is dated February 19, 1891, and states, “.terms April 1st”; while the account for hats is headed, “ April 10, 1891.” The jury found in favor of the plaintiffs the amount sued for as against Smith and Dobbins, but found in favor of Duckett.

<p>Before Judge Wellborn. Habersham superior court.. September term, 1892.</p>

<p>Before Judge Jenkins. Putnam superior court. March term, 1893.</p>

<p>Before Judge Attaway. City court of Cartersville. September term, 1892.</p>

<p>Before Judge Boynton. ITenry superior court. October term, 1892</p>

<p>The act approved October 21st, 1891 (Acts of 1890-91, vol. 1, p. 135), in relation to public roads, is a general law, and as such does not, because it provides that it “shall not go into effect in any county in this State until it is recommended by the grand jury of said county,” violate the constitutional requirement that laws of a general nature shall have uniform operation throughout the State. Nor does the act confer upon grand juries the power ot legislation. This act is not unconstitutional in that it denies the right of trial by jury; nor as creating a rate of taxation not uniform, in its character; nor as containing more than one subject-matter, or matter' different from what is expressed in its title.</p>

Before Judge McWhorter. Greene superior court. August term, 1892. An execution issued upon the foreclosure of a mortgage executed by Julia A. Jackson et al., was levied on the life-interest of Julia A. Jackson, and the remainder-interests of the other defendants in execution, in certain land, and a claim was interposed by Wilson as trustee for Julia A. Jackson and her children.

Before Judge Sweat. Wayne superior court. October term, 1892. Mayer & Ullman sued Wiggins upon eight promissory ■notes and an open account. At the trial plaintiffs introduced the notes and the account sued on, together with the sheriff’s entry of personal service on defendant, and •closed. There was no evidence for defendant. The court directed a verdict for the full amount of the notes and •account. Defendant’s motion for a new trial was overruled, and he excepted.

<p>1. As receivers of railroads operating the same under legal authority-exercise the charter franchises of the company, they are subject to suit in any county in which the railroad corporation itself may be sued for a like cause of action. While their personal residence is unaffected, their official residence coincides with that of the company they represent, the action being brought to enforce official and not personal liability. In order to sue a receiver appointed by a court of the United States, no permission of that court is requisite, there being an act of Congress dispensing therewith.</p> <p>2. The degree of diligence due from a common carrier to a passenger is extraordinary, no matter what means of conveyance may be em- . ployed; but what is extraordinary diligence by a freight-train is different in many respects from that which is such diligence by a passenger-train. In this case the jury would so understand from the charge of the court.</p> <p>3. In a proper case it is not error to charge that the plaintiff is entitled to recover for the pain and suffering he will probably endure in the future.</p> <p>4. A passenger by a freight-train takes the risk of the usual and ordinary jolts properly incident to handling and running such trains; and when the nature and degree of the jolt complained of are material, a witness who was present and had experience in such matters on the same railway should be allowed to testify in behalf of the company that the car was not going faster than usual, that the jolt was not more than ordinary, and the shock was not sufficient to throw a man unless he was standing. This evidence would serve to communicate to the jury in appropriate language some idea of the nature and violence of the jolt by which the plaintiff was injured.</p>

<p>Before Judge Harris. Heard superior court. March term, 1892.</p>

Before Judge Harris. Troup superior court. November term, 1892. The contract sued on is set forth in a former report ■of this case in 86 Ga. 686. At the second trial there was a verdict for $4,000 and interest in the plaintiff’s favor, and the defendant’s motion for a new trial was overruled. The motion contains the general grounds, and two assignments of error which are fully shown in the first and second parts of the opinion.

<p>Before Judge McWhorter. Greene superior court-August term, 1892.</p>

<p>Before Judge Jenkins. Wilkinson superior court. October adjourned term, 1892.</p>

<p>Before Judge Martin. Taylor superior court. February term, 1892.</p>

<p>Before John Peabody, judge pro hac vice. Talbot superior court. September term, 1892.</p>

<p>Before Judge Fish. Sumter county. December 12, 1892.</p>

<p>1. An administrator having an order to sell at private sale the wild lands of his intestate, first sold and conveyed the timber upon the land, receiving pay therefor, and afterwards, to a different purchaser, the land itself, giving notice to the latter that the timber had been sold, but so far as appears making no exception or qualification in the deed to this purchaser: Held, that one deriving his ■claim of title from the latter would, if a bona fide purchaser without like notice, be protected, but if he was affected with notice, he would hold the land subject in equity to the rights of the purchaser of the timber; and a petition in the nature of a bill for injunction and also for the recovery of damages would be maintainable to restrain him from appropriating the timber to his own use and from interfering with the purchaser thereof in cutting and moving the same from the premises within a reasonable time, and for the recovery of damages for timber already cut and appropriated. Whether as matter of strict law a separate sale of the timber was authorized by the order or not, yet as the order was the basis of that sale, it was admissible in evidence, inasmuch as a mistaken execution of the order, together with the receipt of the purchase money, would operate to create an equity in favor of the purchaser of the timber, which he could enforce against a subsequent purchaser of the land affected with notice of that equity.</p> <p>2. An order of sale granted to an administrator but not executed by him, remains operative after he has been succeeded by an administrator de bonis non, and may be executed by the latter.</p>

<p>Before Judge Sweat. Glynn superior court. May term, 1892</p> <p>Gale and wife sued the Brunswick Light and "Water Company for damages from personal injuries alleged to have been sustained by the giving way of the earth under Mrs. Gale while walking upon, a public street of the city of Brunswick; it also being alleged that the defendant had dug up and removed the earth for the purpose of laying some piping, and after replacing the earth, had failed to pack the same so as to be safe for foot-passengers, or in replacing it had done so in such a careless manner as to leave a cavity below the surface so as to render it unsafe for foot-passengers to travel over, etc. There was a verdict for plaintiffs for $10,000. Defendant moved for a new trial, which the judge ordered should be granted unless the plaintiffs would write off from the verdict $2,500. This they did, and defendant excepted to the refusal to grant a new trial.</p> <p>1. During the term at which the case was tried, on May 28th, the defendant filed its motion for a new trial, and at the same time took an order reciting that the testimony was voluminous and the stenographer had not had time to transcribe his notes, and requiring him to do so within twenty days from May 28th, and deliver the same to counsel for movants, and that counsel have until July 5th in which to perfect their motion theretofore made, and to file a bi'ief of the testimony. On the 5th of July, and during the same term, movants filed a brief of evidence under an order which stated that, it appearing to the court that the brief of evidence had just been completed and handed to counsel for movant, and that there had not been time to revise and approve the same, it was ordered that the brief be filed subject to revision and approval by the court at the hearing of the motion. Said brief was afterwards, on July 18th during the same term, approved by the court, the hearing of the motion having been set down for that day. Plaintiffs moved to dismiss the motion, upon the ground that the application for new trial was not filed together with a brief of evidence as provided by law, subject to the approval of the judge, within thirty days from the trial, that is, no brief of the evidence was filed with the application for new trial, either under the approval or subject to the approval of the judge, within thirty days from the trial. The motion to dismiss was overruled, and plaintiffs took a cross-bill of exceptions.</p> <p>2. The motion for new trial alleged that the court erred in charging the jury in the language of the first sentence of section 3067 of the code.</p> <p>3. Error was assigned on the following charge: “If, however, you should find that there was a washout or hole made by the caving in by the side of the city’s drain* whether connected with or disconnected with the defendant’s ditch, which was caused or resulted from the neglect or improper construction of the same, into which Mi’s. Gale stepped and was injured; and that Mrs. Gale by ordinary care could not have avoided the consequence to herself caused by the defendant’s negligence, then the • court charges you the plaintiff would in such case be • entitled to recover.”</p> <p>4. Testimony of I. N. Bishop was admitted over objection, as follows: “I was shown the hole near Dr. Gale’s residence, in which' Mrs. Gale fell. Dr. Gale showed me that hole. I looked at it and passed my cane down into it and struck something of solid nature; as near as I can remember, I made the remark that that sounded like piping; this was as I was going to see Mrs. Gale; it was on what you might say the side of the pavement crossing Gloucester and Egmont streets. I did not measure it .-.and I could not say exactly how many inches it was from ¿any particular point; the hole there was evidently where :a ditch had been dug and filled iu.” The objection was, that no witness had sworn as to the identity of the hole as the one into which Mrs. Gale had fallen, and the hole must be first shown to be the one into which she fell before Bishop could testify about it. It appears from the brief of evidence that before Bishop was put upon the stand, Mrs. Gale had testified and had described the location of the place where she claimed to have been hurt. Further error is alleged, in allowing Gale “to testify as to the condition of the hole, said hole not being identified by any witness who saw the accident, and the said Gale’s testimony as to the identity of said hole being simply hearsay, the objection being that such testimony was illegal and hearsay.” Before Gale testified Mrs. Gale and Bishop had testified, and one Wiggins had testified as to seeing Mrs. Gale fall into the hole, ¿and .as ho what was the location of the place where she fell. Gale testified, that the place was shown to him by ■some little boys who saw his wife fall into it, etc.</p> <p>5. Error in refusing to charge, as requested by defendant : (18th ground) “That if the jury should find from the evidence that the defendant dug a ditch on Egmont .street at the intersection of Gloucester street for the purpose of laying a water-pipe or gas-pipe, and after .laying such pipe, carelessly and negligently filled the ■earth into such ditch without ramming or packing such -earth so as to render the surface firm and safe for the purpose of walking, riding or driving over, and that the plaintiff Mrs. Joseph L. Gale stood present and saw how such ditch was filled, and that she knew or had reason to know, in the exercise of ordinary diligence, that such was carelessly filled, and that it was not sufficient to bear her weight without allowing her to sink into it, and that the plaintiff’ Mrs. Gale knew or had reason to know, ex- ■ ercising the prudence of an ordinary prudent man, that by stepping upon such so filled ditch she was likely to ■.sink into it, and yet, notwithstanding such knowledge, the plaintiff' stepped upon such ditch and was injured, that in such case she cannot recover; because, if the jury believe from the evidence that the defendant was negligent, but that the plaintiff Mrs. Gale, by reason of ordinary diligence, could have avoided the consequences to herself caused by the negligence of the defendant, she is not entitled to recover.” (19th ground) “ That if .■a plaintiff' knows of an act of negligence upon the part •of a defendant by which a place is rendered dangerous, .and yet with full notice of such danger thrusts himself into such dangerous place and is injured; that if such plaintiff, by the exercise of ordinary care, could have .avoided such dangerous place, that such plaintiff’ cannot recover for such injury.” (20th ground) “That if the Jury should find from the evidence that the defendant, .after laying their pipe at the place where plaintiff alleges she was injured, negligently filled in the earth into the ditch in such a manner as to render the surface dangerous; and that the plaintiff knew of such negligence and consequent danger, and at that point had a bridge over which she could have safely passed, and yet walked upon the dangerous surface with knowledge of the danger, that then in such case, if the jury should find from the evidence that the plaintiff by the exercise of ordinary care, i. e. such care as an ordinary prudent man would have exercised under like circumstances, and thus avoided the consequence to herself caused by the defendant’s negligence, then in such case the plaintiff cannot recover.”</p> <p>6. The defendant company,in addition to its exception to the overruling of the motion for a new trial, assigned error in that, as the evidence furnished no unit of measure by which it could be judicially determined what would have been a proper amount for the jury to find in favor of the plaintiff, the judge, having determined that the verdict was excessive, had no power to fix the amount by his judgment, but should have granted a new trial.</p>

<p>On the trial of an action upon a promissory note for $90.20, it was error to strike pleas alleging, that the real consideration of the note was the price of certain guano sold to defendant for $53.10; that the signing of the note was induced by fraud on the part of plaintiff’s agent, and done through mistake on the part of defendant ; that the note was signed at night when defendant could not well see, and he was informed by plaintiff’s agent that it represented only the indebtedness above set forth, and upon that repre. sentation defendant signed it; and further, that the note was made at night, when defendant signing it could not see the amount, but retying on and having confidence in the plaintiff, defendant signed the same upon the representation that the note was for the account, at the price stated in the plea; that the note was procured by fraud or mistake, and is in excess of the amount due $37.10, and defendant did not know said excess was in the note when signing.</p>

<p>1. Where a promissory note due at a future time did not when executed specify any place of payment nor any rate of interest from date, it is materially altered by inserting the name of a bank, which name includes the location of the bank, as the place of payment, and six as the rate per cent, of interest from date. This is true although the body of the note was printed and blank spaces were left in the printing for expressing a place of payment and rate of interest. With these spaces unfilled, the note would be payable generally and not at any particular place, and would bear no interest at any rate whatever until after maturity.</p> <p>2. A special plea on oath offered in due time as an amendment to a plea of non «sí factum, should have been allowed if it had been pleaded as a partial defence only, the same alleging “ that the note, foundation of plaintiff’s action, has been altered or changed since signed by defendant, and without defendant’s knowledge, consent or authority, in this: that as signed, the note was payable generally and not at any bank; whereas it is now, as has been altered or changed, made payable at Nat. Bank of Dalton; further defendant says said note when signed did not have on its face the figure 6 between the words ‘at’ and ‘per,’ but that same has been added since signed, without defendant’s knowledge^ consent or authority.” The effect of the plea, if sustained by evidence, would be only to defeat the action as to interest from the date to the maturity of the note, there being in the plea no allegation that either of the alterations was made by a person claiming a benefit under the note, with intent to defraud the defendant. In order to render the note void, these allegations as to one or both of the alterations would have to be made and supported by proof. Code, §2852. As the plea was to the whole action, and set up that the note was void by reason of the alteration, and was not insisted upon as a partial defence only, there was no error in striking the same.</p> <p>3. Where a plea of non est factum has been filed to a suit on a promissory note, the note is admissible in evidence upon proof of the defendant’s admission that he signed it, and without explanation of any of it contents which do not appear as alterations on the face of the note.</p> <p>4. The court did not err in overruling the certiorari, inasmuch as the special plea stricken was not a defence to the whole action and was not pleaded or insisted upon as a partial defence only.</p>

Before Judge Bichard IT. Clark. Fulton superior •court. March term, 1893. The plaintiff in error was indicted and tried for murder, and was convicted of voluntary manslaughter on -June 10. He excepted to the sustaining of a demurrer to his plea of former jeopardy.

<p>Before Judge Boynton. Monroe superior court. February term, 1892.</p> <p>Petition by Maynard, brought to the August term,. 1886, to foreclose a mortgage given by Marshall on May 3, 1880,' to secure a promissory note for $855, due December 1,1880, bearing the following credits: March 6,. 1882, proceeds of 4 bales of cotton, $177.10; February 2, 1884, $75; February 3, 1883, $131.40; December 15, 1884, $50; November 29, 1884, $35; November 25,. 1885, $35; January 15, 1886, $50.51. The note says-nothing as to interest; the mortgage stipulates for payment of “ all legal interest.” The defendant’s pleas were filed on February 24, 1891. They set up payments, in addition to the above mentioned credits, amounting to $405, and a failure to deliver a brake of the value of $14, belonging to an engine, etc., the consideration of' the mortgage. Also as follows : “ He borrowed the sum of six hundred dollars of plaintiff for six months, and plaintiff paid, about the same time, freight upon certain machinery for defendant, amounting to the sum of’ seventy-four dollars, and agreed to pay interest thereon at the rate of eight per cent., and was to have given a mortgage to said plaintiff for the sum of six hundred and seventy-four dollars; whereas in fact the said mortgage was taken by the said plaintiff for the sum of eight hundred and fifty-five dollars, which he the said defendant signed in ignorance of his rights and through a mistake, one hundred and fifty-four .04 dollars of the said eight hundred and fifty-five dollars being usurious,” etc. There was a farther plea of a tender, on or about April 1, 1886, of $345 as all that was due on the mortgage according to the contract, and of payment to plaintiff of that amount with interest since the tender. In answer to questions submitted by the court the jury found, that the consideration of the note was money advanced by plaintiff for defendant as a loan with which to pay for the engine, etc., and the transaction was not a sale; that there was usury in the transaction amounting to $99.03; that the credit of $177.10 of March 6, 1882, should be $200; and of the sum claimed to have been paid by the defendant in addition to the credits on the note, $50 is covered by one of those credits. It being conceded by counsel for both parties that $932 had been paid on the note, the jury having found that there was usury therein, and the judge having decided that the plaintiff was not entitled to recover any interest, a verdict in the defendant’s favor was rendered. The plaintiff moved for a new trial, which was refused, and he excepted. The motion alleges that the findings of the jury were contrary to law and evidence, because the transaction was a sale of the engine, etc., and not .a loan, because there was no usury in the transaction, because the defendant was not entitled to a credit of $200 instead of $177.10, and because the first of these findings was against the following instruction of the court: “If Mr. Maynard was the owner or became the ■owner of the engine and separator, and he sold them to Mr. Marshall for a price agreed on, then he had a right to make such a transaction. If Mr. Marshall agreed to give more in consideration of the fact that he was allowed time to pay for the property, and Mr. Maynard charged him more by reason of giving him credit than he would if they had contracted at a cash valuation, theu there would not be any usury in the transaction, because a person has .a right to charge a higher price on time than for cash.” The motion further alleges that the court erred in holding that the taking of usury as found by the jury, worked a forfeiture of all' interest, and that the plaintiff could not recover lawful interest. Two reasons are assigned why such ruling was ei’roneous: (l)that the section of the act of October 14,1879, which provides a forfeiture of all interest where more than eight per cent, per annum is charged, reserved or "taken, is not covered or provided for in the title of the act; (2) that this section of the act was repealed by the act of September 27, 1881.</p>