Volume 92 — Georgia Reports

<p>Indictment for murder. Before Judge Boynton. Monroe superior court. August term, 1892.</p> <p>David Thomas was convicted of voluntary manslaughter, and he excepted to the overruling of his motion for a new trial. Among the grounds of the motion was an assignment of error upon the refusal to grant a continuance on account of serious illness of A. D. Hammond,, leading counsel for tfie defendant. The indictment was found at the August adjourned term (held in November), 1891. The motion to continue was overruled on the 25th, and the trial set for the 80th of that month,, on which day the motion was renewed and again overruled. On this motion the showing provided by section 3525 of the code was made, and the State made a counter-showing. It appeared, in brief, that Mr. Hammond had been employed by defendant and his brothers before the commitment trial, in good faith, not for the purpose of continuing the case, and without knowledge that he had for some time been in bad health, he being the first attorney consulted, and they having acted on his advice,, paid the cash portion of his fee and arranged the balance, believing that he was able to represent them. He attended part of the commitment trial (it having extended over a week by continuances), going to and from the same in a carriage, and while present sitting in his chair and taking no part in the examination of witnesses- or the argument, but advising in the conduct of the case. His physician testified, that he was an invalid, having been sick a long time; that he was sick at the time of his employment, and had been for some time before; that he was sick at the time of the commitment trial, and attended the same against affiant’s opinion ; but that he was improving, and if he continued to improve, he would probably be well enough to try cases and attend to any professional business in court at the next February term. He had obtained leave of absence from court as to civil, but not as to criminal business.</p> <p>The killing took place on the premises of Gossett, who had impounded three mules belonging to Mrs. Thomas, which were running in his cotton-field. On the same afternoon that this was done (according to his testimony and that of his wife and daughters), he sent a message to the Thomas residence (which was three or four hundred yards from his own), to inform the Thomases that the animals had been taken up, with request to send and get them on payment of damages at fifty cents apiece. In the evening or just before nightfall came John and Jabez Thomas and took away two of the mules, as the Gossetts testified, forcibly and without reference to the damages claimed, although forbidden to take them. They further testified that John at this visit used profane language and ran one of the mules over one of Gossett’s daughters who had grasped the bridle. Shortly afterwards John and Jabez returned, accompanied by their brother David (who had a pistol) and a younger brother; the defence contending that their object was to retake the third mule peaceably, and to pay or arrange for the payment of the damages claimed. They were met by Gossett with his gun in his hands, and by his wife and two daughters. A quarrel and struggle ensued, in which the gun was discharged, killing one of the girls. The defence contended that this discharge was accidental; while the testimony of the Gossetts tended to show, that after Gossett had been seized and thrown down by John Thomas, and while he was being held down and beaten, still holding to the gun, David Thomas tried to fire on him with the pistol, and succeeding only in snapping it, threw it down, seized the gun, turned the muzzle towards Gossett’s head and pulled the trigger, discharging the load into the breast of the girl. Upon this and all the other material circumstances and the acts of the parties to the conflict, the evidence was directly conflicting. The Thomas boys were nephews of Mrs. Gossett, and the evidence indicates that ill feeling had existed between them and Gossett for some time.</p> <p>The motion for a new trial alleges that the court erred in refusing to charge the jury thus : “The act approved September 29th, 1881, establishing what is known as the fence law, is a local law applicable to Monroe county, and there being a general law on the subject of fence enacted in 1872, the local law applicable to Monroe county is null and void. The act approved Nov. 26th, 1890, makes the land line of any lot, parcel or tract of land a lawful fence in counties that have inoperative local laws on the subject; but this act of 1890 does not provide for the taking up or impounding of animals. Therefore, I charge you that on the 8th day of October, 1891, no law existed in this county which permitted Gossett to take up and impound the stock of Mrs. Thomas or Mr. Thomas. His remedy would have been a suit for damages, if any damage was done by the stock.</p> <p>“ If you believe from the evidence that Gossett had a gun in his hand and attempted to use it on John Thomas, or if the circumstances under which he had and held it were such as to justify a reasonable man to believe that Gossett was about to use the gun on John' Thomas, and if you believe that John Thomas, acting under such fear, seized Gossett and threw him to the ground to prevent Gossett from using the gun on him, and if you believe from the evidence that while Gossett was down, the gun was fired in an accidental way, that is, if it was not purposely and intentionally fired by some one, then I charge you that you could not find the defendant guilty of murder or any grade of manslaughter.”</p> <p>Other assignments of error are upon the following instructions to the jury, as well as upon that quoted in the second head-note : “ It is insisted by the defendant that if the Thomases went to the house of Gossett, they went there for the purpose of obtaining possession of a mule which Mr. Gossett had impounded in his possession, or that he had in his possession a mule which they had a right to ; and defendant insists that it would be no violation for them to go there and possess themselves of the mule, because they insist that there was, at the time, no law of force in the county of Monroe which would authorize Gossett to impound and retain possession of the mules.</p> <p>“ At the time of the alleged killing there was a law that was applicable to the county of Monroe, which authorized a person who found stock running upon his premises, to impound and retain them until the damages which the stock was alleged to have committed should be paid, or until the party owning the stock should give bond to replevy the property to pay such damages as might be assessed against him.</p> <p>“ If the gun was fired by the defendant involuntarily, fired in the commission or in the prosecution of a riotous intent, you would be authorized to convict.</p> <p>“ Before the jury would be authorized to return a verdiet of acquittal on the ground of misfortune or accident, it must appear to the satisfaction of the jury that there was no evil design on the part of the person committing the homicide, no evil intention, or that there was no culpable neglect.”'</p>

Accusation of misdemeanor. -Before Judge Westmoreland. Criminal court- of Atlanta. May term, 1893. The facts were agreed on and submitted to the judge. He held the defendant guilty, and exception was taken to the refusal of a new trial.

<p>1. It was too late to file a plea of misnomer as to the Christian name by which the accused was indicted, the plea not being offered upon arraignment o£ the accused, nor until after a plea of not guilty and a trial on the same up to the close of the evidence introduced by the State.</p> <p>2. Several grounds of the motion for a new trial complaining that evidence was admitted over objection, but not stating what the objection was, these grounds of the motion are not sufficiently definite to be considered.</p> <p>3. Although the evidence to connect the accused with the offence was wholly circumstantial and in some degree conflicting, there was enough in support of the verdict to render it proper for the Supreme Court to acquiesce in the finding after its approval by the presiding judge, his approval being signified by his refusal to grant a new trial.</p>

<p>Indictment for murder. Before Judge Bower. Decatur superior court. November term, 1892.</p>

Indictment for simple larceny. Before Judge Guerry. Oglethorpe superior court. October term, 1892. Wheeless was convicted of stealing, a mule, and his motion for a new trial was overruled.

Indictment for misdemeanor. Before Judge Turn-bull. City court of Floyd county. June term, 1892.

Liquor-selling. Before Judge Harris. Carroll superior court. October term, 1892. Dick Bohanan was indicted for selling and furnishing liquor within the 714th district G-. M., Carroll county. He was found guilty, and his motion on the general grounds for a new trial was overruled.

<p>1. The fact that the door of a house was usually kept locked at night is some evidence that it was locked on a particular night, there being nothing tending to show that the usage was not observed on the night in question. Under such circumstances, the usage, together with proof that goods stored in the house disappeared therefrom and were shortly afterwards found, some of them in the possession of the accused, and some in possession of a witness for the State, against him, will be sufficient corroboration of the testimony of the witness, he testifying that the building was burglarized by himself and the accused in the night by unlocking the door, entering the house and stealing the goods.</p> <p>2. Where the pressure of the case was upon the credibility of an accomplice as compared with the credibil ity of two daughters of the accused, the accomplice testifying that the accused was a party to the burglary, and the daughters testifying that the stolen goods found in possession of the accused were purchased by him from the accomplice in their presence, a charge of the court to the jury, that “ ordinarily when a burglary has been committed, when the evidence shows to the jury that a burglary has been committed, a house broken, the goods stolen therefrom, and shortly thereafter the defendant upon trial is found in possession of the stolen goods, that fact, the fact of possession, authorizes the jury to convict, provided the defendant does not satisfactorily explain his possession to the jury,” though not verbally, and perhaps not substantially correct, since it is true in some cases only, yet the jury having, in effect, found by their verdict that the explanation set up by the accused was false, and the testimony of the accomplice being sufficiently corroborated, there was no cause for a new trial.</p> <p>I?. Though burglary cannot be committed without force in the legal sense, it is not error to charge the jury that force or violence in a popular sense would not be necessary. Such, in effect, though not in terms, was the charge of the court in the present case. The charge contrasted the breaking of a house by unlocking the door with a key, and breaking it by force or violence of a different order and higher degree.</p> <p>4. There was no error in denying a new trial.</p>

<p>1. Under the code, an indictment alleging that the accused “ with arsenic poison, and other poisons to the grand jurors unknown, but all being weapons likely to produce death, did unlawfully, and with malice aforethought, make an assault upon” a named person “by putting said arsenic poison, and said other poisons to the grand jurors unknown, into coffee, and administering the said poisons to the said” person, charges the offence of assault with intent to murder with sufficient certainty and fullness.</p> <p>2. Where the accused put a deadly poison into coffee with the intent and purpose that the same should be drunk by another, who without knowing of tire presence of the poison actually drank of the coffee, the poison was “ administered ” to him by the accused, and in so doing the latter committed an assault.</p> <p>3. Though poison introduced into the stomach, is not, accurately speaking, a “ weapon,” an assault with intent to murder may be thus committed. This offence may be committed without using a weapon of any kind.</p> <p>4. On the trial of an indictment for assault with intent to murder by administering poison, a charge that “ if it should appear from the evidence that, whether this defendant did it or not, that several ” members of a family “ were poisoned, as to whoever did it with a view to poison and kill them, it would be an offence and a crime as to each and all of them,” in the absence of a request for more specific instructions as to the corpus delicti, sufficiently calls the attention of the jury to the necessity of proving the corpus delicti.</p> <p>5. If one puts a deadly poison into coffee, intending that several members of a family shall drink it, the act, in legal contemplation, manifests express malice towards one of these members, whether the accused had actual ill will towards him or not.</p> <p>6. The evidence was sufficient to authorize the verdict, and no error requiring a reversal of the judgment below appears in the numerous grounds of the motion for a new trial, complaining that the court intimated opinions as to the evidence; that improper conduct on the part of the solicitor-general was permitted; that the court erred in charging upon the law of circumstantial evidence, upon the prisoner’s statement, and upon other matters and questions ; that illegal evidence was admitted, and that the conduct, rulings and decisions of the court in many other specified particulars were erroneous.</p>

<p>Indictment for assault to murder. Before Judge Guerry. Hart superior court. March term, 1893.</p>

<p>3. It is not cause for arresting the j udgment, after a verdict of guilty of burglary, that the house alleged to have been broken and entered is described in the indictment as “ the storehouse of Woodlawn, Leo and Macedonia Alliance co-operated store.”</p> <p>2. The description of the house being as stated above,- and the evidence showing that the Macedonia Alliance had no ownership or interest in the house or the goods stored therein, the evidence failed to support the indictment; and there being no evidence that the house broken and entered was situated in the county in which the bill of indictment was found and the trial took place, the court erred in not granting a new trial.</p>

<p>Accusation of keeping gaming-house. Before Judge "Willis. City court of Columbus. January term, 1893.</p> <p>Hattie Bell was convicted of keeping a gaming-house. 'She excepted to the refusal of' a new trial, the grounds therefor being, that the verdict is contrary to law and evidence; and that the court erred in refusing to instruct the jury, that if they believe from the evidence that defendant only allowed persons to come together in her house and play and bet for money at cards one time, “this would not be to keep, have, use and maintain a gaming-house, within the meaning of the statutes of this State”; and that if they believed from the evidence that defendant was a married woman, and her husband was present at the time the playing and betting is said to have been done, “ then the law presumes that she acted under his coercion, and the crime, if any, will be attributed to him and not to her.” But the court charged that if defendant rented the house and was in control of it, she would be just as guilty as if she were a single woman, if the jury believed from the testimony that she kept a gaming-house.</p> <p>The evidence was as follows: A policeman testified, that on the night of the day charged in the indictment, he and other officers went to defendant’s house and heard some one on the inside say, “ If you want to play, ante up twelve and a half cents.” They demanded admittance and found several persons in the back room of the house, two or three of them sitting around a-table on which was a lamp and a pack of cards scattered about. Saw no betting or card-playing, and no money on the table or elsewhere in the house. One Bingham testified, that he was at the house on the same night before the policemen, raided it; that there was gambling going on there that night; that defendant, witness and two others were playing a game of cards for money; and that he never saw gaming going on there but that one time. Bor the defendant a witness testified that he was present at the time named, and that there were some cards on the table, but there had been no betting or gambling going on. He heard that defendant, Hattie Bell, and 'Harry Dillard were married, and knew they were at the time living together as man and wife. Harry Dillard was present when the house was raided. There was a party given there that night; witness got there about half past one o’clock, was there all the time Bingham was. Two other witnesses testified substantially the same as just stated, except that one of them got to the house early in the night, and the other was drunk. In rebuttal, a witness for the State testified that his firm rented this house to the defendant. She paid the rent, and they did not know Iiarry Hillard in the transaction.</p>

<p>Indictment for murder. Before Judge Roney. Richmond superior court. October adjourned term, 1892.</p> <p>Bor the material facts shown by the evidence see the opinion. Following are the grounds of the motion for new trial, in the order of the head-notes ruling upon them :</p> <p>1. A witness for the State, on cross-examination, gave the following answers to questions asked: Q. “ Have you not feeling against this defendant ?” A. “ Nothing more than he is a murderer and a violator of the law.” Q. “You do not know that he. violated law, of your own knowledge?” A. “No, sir.” Q. “You do have feeling against him?” A. “No more than I would if anybody else had committed such a crime.” Error is assigned, iu that the court did not, without request, rebuke the witness or otherwise correct the wrong thus done by him in -presence of the jury.</p> <p>2. The same witness was asked by defendant’s counsel, “ Are you not one of the parties that repaired to the Augusta Orphan Asylum and threatened to take this negro’s life?” The solicitor-general objected on the ground that the witness could not be required to answer the question, because it might tend to criminate him. Defendant’s counsel replied, that the question was propounded to show the state of feeling the witness had against defendant, and that the solicitor-general had no right to object on the ground stated, the objection being one which the witness alone could make in his own behalf, and unless he did so, he could be made to answer the question. The court permitted the question to be asked, and the witness declined to answer. He was asked by defendant’s counsel to give his reason for so declining, and the solicitor-general asked, “ Do you refuse to answer because it tends to criminate you ?” To this the witness replied he did. Error is assigned, because the court did not, without request, correct or otherwise notice this action of the solicitor-general.</p> <p>3. In conclusion the solicitor-general argued that the witnesses for defendant'had sworn, that Harris had his pistol pointed at defendant and that it was cocked; the solicitor-general claiming therefrom that they were uuworthy of credit, because if that were true Harris would have shot defendant. Defendant’s counsel objected, claiming that none of defendant’s witnesses had sworn that the pistol was cocked, but the only reference to the pistol being cocked was in that part of defendant’s statement referring to a time when all the witnesses for defendant had left the house. The solicitor-general in reply said, he was willing for the stenographer’s notes to determine which was correct as to the pistol being cocked, that it did not matter whether the pistol was cocked or not; if it were drawn and presented at defendant who was unarmed, their testimony-would be equally discredited; and continued so to argue until the stenographer found the reference to this point, and defendant’s counsel had it read by the stenographer from the defendant’s statement—as counsel for defendant claimed. The solicitor-general then claimed the right to infer or conclude that the witnesses for defendant intended to convey the impression that the pistol of Harris was cocked, when they claimed to have seen Harris have it pointed at Ramsey. Counsel for defendant objected, and asked the court specifically to rule on the point. The court overruled the objection, stating that counsel could argue any conclusion that he drew from the testimony he pleased, but in representing what witnesses swore to, he must not misquote them ; and allowed the solicitor-general so to argue as to the above conclusion.</p> <p>4-5. The court gave the following instructions in charging the jury : “ If you find Harris was manifestly endeavoring by violence to commit a felony on defendant, and the danger was so urgent and pressing as to render it necessary for the defendant to kill him in order to save his own life, he would be justifiable and you ought to so find. If, however, you should believe that Harris had no intention of committing a felony on the person of the defendant, had no intention to do violence to his person, but went to defendant’s house as an officer of the law, at the instance of the defendant’s wife, to protect her against her husband’s assaults, and being there in that capacity only, attempted to arrest the defendant in a legal manner, and defendant refused to be arrested and while resisting arrest killed Harris, then the killing would not be in self-defence and you ought to so find. If Harris was an officer of the law, and you should find that the defendant had violated the law by heating his wife, then Harris had the right to arrest him, and to make the arrest he could use such force as was necessary to effectuate the arrest. If he attempted to arrest the defendant and the defendant resisted, and he used only just such force as was necessary to accomplish the arrest, and was killed by defendant while pursuing his duties as an officer of the law, the defendant would be guilty of murder, and you ought to so find. If Harris (the deceased) employed unnecessary force, and by that cause alone was shot and killed, then the defendant is not guilty, and you ought to so find. If he only employed such force as was necessary to arrest defendant, and while in discharge of his duty was killed by defendant who was resisting arrest, then defendant would be guilty of murder, and you ought to so find.” Error is assigned on these instructions, in that they assume that defendant was resisting arrest, when there was no evidence to justify any reference in the charge to his so resisting; that there was no evidence showing at whose instance or for what object Harris went to defendant’s house; that the charge further assumes the attempted arrest to have been legal if defendant had violated (not was then violating) the law’ by beating his wife, without regard to whether the officer had a warrant or other legal process, the evidence showing that he in fact had none; and that the charges were argumentative.</p> <p>6. Error is assigned on the refusal of the court to give in charge the following: “If the officer, in making an arrest or attempting to make an arrest, used a deadly weapon when there was no legal necessity therefor, and"' if the defendant or party sought to be arrested was not forcibly resisting arrest with a deadly weapon, or otherwise seeking to commit a serious bodily harm upon the officer or to endanger the life of the officer, and if the party sought to be arrested really believed, acting under the fears of a reasonable man, that his own life was in danger, or that a serious bodily harm amounting to a felony was about to be perpetrated upon him by the officer, he would be justified in law in taking the life of the officer. The evidence or reality of the felonious intent of an assailant must be gauged by the defendant’s opportunity at the time; and if he have reasonable grounds to believe a felony to be intended, it makes no difference that such was really not the case. Under such circumstances he is justified in killing.”</p> <p>7. Requests were made to give the following instructions to the jury; and the refusal to do so is assigned as ei'ror: “ To constitute an arrest, the party against whom the process is awarded must either be actually touched by the officer, or confined in a room,' or must submit himself, either by words or action, to be in cus-' tody; and the merely given charge or causing him voluntarily to appear before the magistrate without the person’s being taken m actual custody, will not amount to an arrest. A person having authority to. arrest another must do it peaceably and with as little violence as the case will admit of. He must touch the person and ought to do it without violence, unless the circumstances require roughness; and if resisted, he may use force sufficient to effect his purpose, but if no resistance be offered, or attempt at escape, he has no right, rudely and with violence, to seize and collar his prisoner. It is the right of a party sought to be arrested, to insist upon the arrest being made in a legal manner before he need acquiesce therein, and he owes no duty to instruct or suggest to the officer how to make a legal arrest, nor suggest that he refuses to submit thereto because the arrest is not made in a legal manner. He may, if he choose, decline to acquiesce in the arrest, or decline voluntarily to submit himself to be considered under arrest. To do either is not, of itself alone, to resist arrest. It is not an arrest to say, ‘ Consider yourself under arrest; get your coat and go with me.’ If nothing more be done by the person seeking to make the arrest, or if the person sought to be arrested does not submit himself to be considered under arrest, or if he does not by word or act acquiesce in the arrest, under such circumstances and conduct upon the part of both parties as have just been detailed, it is not the legal fight of the officer to strike the other party, if the other party does not say more than that he will not go with the officer, or that the officer cannot take him.”</p> <p>8. Refusal to charge : “ A man may repel force by force in defence of his person, habitation or property, against one who manifestly intends and endeavors by violence or surprise to commit a felony upon either. In such case he need not retreat, but may pursue his adversary until he has secured himself from danger, and if he kill him in so doing, such killing is justifiable self-defence.”</p> <p>9. The court charged : “Provocation by words, threats or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder.” Error is alleged, in that the evidence did not show that defendant killed Harris because of any such provocation.</p> <p>10. Refusal to charge: “ Excusable homicide is defined to be that wherein the party killing is not altogether free from blame, but the necessity which renders it excusable may be said to be partly induced by his own act. Under the code or law of Georgia, there is no difference or distinction between this manner of homicide, and what is known as justifiable homicide. If either be found to exist, the defendant must be acquitted. All other cases than those enumerated in the code, which stand upon like footing of reason and justice, amount to justifiable homicide.”</p> <p>11. The court charged : “ Now, along with the sworn testimony in the case, you may take into consideration the statement of the defendant,” etc.; the alleged error being, that the charge says the jury may take, which is not a correct statement of the law.</p> <p>12. -The court charged: “If, after listening to the charge of the court and applying the law given you in charge to the testimony in the case, then you have a reasonable doubt as to the guilt of the defendant, and that is a doubt arising from the testimony, or the want of testimony, then it would be your duty to acquit the defendant; on the contrary, if your mind' is satisfied beyond a reasonable doubt as to the guilt of the defendant, it would be your duty to convict.” Error is alleged, in that the court practically told the j ury that they should convict of the offence charged, if they were satisfied beyond a reasonable doubt as to defendant’s guilt; whereas the court should have added, “of such offence as you may be satisfied he is guilty of.”</p> <p>13. Verdict contrary to law and evidence.</p>

Indictment for murder. Before Judge Richard H. Clark. DeKalb superior court. February term, 1898. Pritchett was tried upon a special presentment made at the February term, 1888, charging him, Lovejoy and Harrison with the murder of Hurst. See reports of the cases of Lovejoy and Harrison in 82 Ga. 87, and 83 Ga. 129. Pritchett was found guilty, with a recommendation to imprisonment for life. His motion for new trial was overruled, and he excepted.

<p>Assault and battery. Before Judge Bichard II. Clark, Fulton superior court. September term, 1892.</p>

Action for damages. Before Judge Westmoreland. City court of Atlanta. June term, 1892. Mitchell obtained a verdict against the railroad company for injuries received by him while in its service in Alabama. The company’s motion for a new trial was overruled.

Action for damages. Before Judge Westmoreland. City court of Atlanta. September term, 1892.

<p>Action for damages. Before Judge Van Epps. City court of Atlanta. September term, 1892.</p>

Action for damages. Before Judge Westmoreland. City court of Atlanta. June term, 1892. ■ Leathers sued the railroad company for injuries sustained by him from a negligent collision of defendant’s trains on one of which he was a passenger. He obtained a verdict, and defendant’s motion for a new trial was overruled. The grounds of the motion were : 1.

<p>1. The rule that an inexperienced servant who is employed to work about dangerous machinery is entitled to warning of any special danger incident to the work, is not confined to the case of young children, but applies as well to a youth seventeen years of age who is inexperienced in dealing with a machine like that by which he is injured and is unacquainted with the details of its construction and mode of operation. That the machinery is not defective or out of repair but is in perfect order, will not dispense with warning where the danger is not open and obvious. Whether the master at the time of engaging the servant or afterwards ought to have inquired whether he was experienced or not, or should have taken notice, under all the facts, of the probability that he was not, nothing being said on the subject by either party, is a question for the jury.</p> <p>2. Although the evidence was conflicting it warranted the verdict, and there was no error in denying a new trial.</p>

Action for damages. Before Judge Westmoreland. •City court of Atlanta. January term, 1893.

Complaint on note. Before Judge Westmoreland. City court of Atlanta. September term, 1892. The note sued on was dated May 28, 1874; the declaration was filed December 7, 1891. It was alleged, that in the year 1874 the maker removed from Georgia and has ever since continued to reside out of the State. There was a verdict for the plaintiff.

<p>Complaint on account. Before Judge Westmoreland. Citj7 court of Atlanta. September term, 1892.</p>

<p>1. if person undergoing imprisonment under a judgment of the superior court adjudicating him to be in contempt in disobeying an order to pay over money to a receiver, which adjudication has been affirmed by the Supreme Court, having, after the passage of the act of December 22, 1892, providing for trial by jury before imprisonment for contempt, petitioned the superior court for a trial, in the manner prescribed by that act, of the question of contempt, the case made by the petition was nota mere motion touching the mode of conducting a pending proceeding in the original case, but was itself a new and distinct case having for its object a trial áe novo of the question of contempt, just as though that question had not been previously tried and finally determined before the passage of the act on which the petition was founded. The granting of a motion to dismiss the petition would consequently have been a final disposition of the case thereby made. This being so, a denial of the motion by the superior court is, under section 4250 of the code, subject to review by writ of error, although, because of such denial, the case is still pending in that court.</p> <p>2. The direction given by this court in the case of Ryan v. Kingsbery, receiver, et al., 89 Ga. 228, did not provide for or contemplate the opening or modification of the judgment by which the fact of contempt was adjudicated, or the rendition of any new judgment on that subject. The object of the inquiry suggested was to ascertain whether, on the actual facts, and notwithstanding the legal conclusiveness of the judgment on the question of contempt, the imprisonment should be continued or terminated. To guide the discretion of the court in administering remedial punishment, the term of -which is not fixed by law, all pertinent facts may be adduced and considered, no matter whether they be consistent or inconsistent with a previous judgment in the same or in any other case. The conscience of the court may seek light wherever it is to be found. The element of conclusiveness in the judgment does not extend to the duration of the imprisonment. If so, the imprisonment might be perpetual.</p> <p>3. In the direction- above mentioned, there is nothing to hinder or prevent the presiding judge from referring or refusing to refer to a jury any question of fact arising upon the auditor’s report, the method of informing his conscience as to the actual truth of disputed facts being no less open to his discretion in this case than in any other in which the powers of a'court of chancery are to be exercised. Indeed, nothing whatever contained in the direction .was intended to be mandatory, except as to the range of the inquiry, if any should be made, and its freedom from the trammels of any previous investigation.</p> <p>4. The act of 1892 above mentioned is prospective in its whole scope and purpose. It does not apply, and was not intended to apply, to any case in which a party had, previously to its passage, been adjudged guilty of contempt, and was undergoing punishment therefor when the act was passed.</p> <p>5. Imprisonment for contempt, when not regulated by statute, being subject to the sound discretion of the court, or the presiding judge, it is not per se illegal to admit to bail one who has been adjudged guilty of contempt and who has undergone a protracted punishment therefor, this being done while a lengthy inquiry is in progress to ascertain whether he ought to be further imprisoned or not. The act of 1892 not being applicable to the pending investigation of the auditor’s report, the judge should determine the question of allowing or refusing bail without reference .to the provisions of that act.</p>

<p>Complaint for damages. Before Judge Westmoreland. City court of Atlanta. October term, 1892,</p>

<p>Action on forthcoming bond. Before Judge R. EL Clark. Newton superior court. September term, 1892»</p>

Action to recover land. Before Judge R. H. Clark. Rockdale superior court.

<p>Action for damages. Before Judge Jenkins. Washington superior court. September term, 1892.</p> <p>The declaration alleged, that the county caused to be erected a bridge at a named point across a certain creek, so negligently that a necessary railing to prevent persons using, the bridge from driving or backing off its sides into the creek, had never been put into position, or had been so carelessly managed as to be allowed to get out of repair and be broken and removed, of which defect defendant had notice. It was a public bridge erected by letting it out to the lowest bidder on May 12, 1888, and a bond was taken from the contractor faithfully to perform his contract and indemnify for all damages occasioned by a failure sq to do, and to keep the bridge in good repair for three years. The conditions of the bond prescribed by law as to the maintenance of the bridge for seven years, in accordance with the act of 1888, were violated; and the bridge was not. kept in repair, either by the contractor or by the county authorities. On March 5, 1891, plaintiff was lawfully on the bridge driving a horse to a buggy, when, in consequence of the defect mentioned, she and the horse and buggy were dropped over the side of the bridge into the creek, whereby she was damaged, etc. Written demand was made within twelve months on the ordinary for the payment of her claim.</p> <p>On demurrer the action was dismissed.</p>

Action for damages. Before Judge Eve. .City court of Richmond county. September 5, 1892. On January 13, 1891, Mrs. Glover sued the railway company for the killing of her son John C. Glover, who was alleged to have been fifteen years and five months 'old.

<p>1. Where one who is really surety for another gives a promissory note in discharge of the obligation in its original form, and the obligation has already been discharged by the principal debtor, the surety being ignorant of the fact, the note so given by the latter is without consideration, whether the maker had or had not inquired of the principal debtor to ascertain whether the original debt still subsisted or had been paid.</p> <p>2. A receipt on a promissory note in these words: “ Paid by a sale of stock on this note, $2,666.00,” signed by the holder of the note and attested by a witness, is not a bill of sale or written contract of sale.</p> <p>3. Where property is turned over by a debtor to his creditor to be sold by the latter and the proceeds applied to the debt, the balance, if any, after satisfying the debt, to be returned to the debtor, the custodian of the property, if he faithfully executes the trust, is not chargeable with its value, but only with the proceeds realized from the sale, or which might have been realized by him in the exercise of proper diligence. If he converts the property to his own use, he is chargeable with its actual value.</p> <p>4. In a contest between two persons as to the value of certain property which one of them had held for the other in a fiduciary character, and for which the former was bound to account, what the property brought at a tax sale at which the person entrusted with it became the purchaser, is not admissible in his favor either to show independent title in himself, or to show the value of the property at the time he received it. On the theory that the holding wag not upon a trust or agency, but upon a contract of purchase made several months previously to the date of the tax sale, the same rule would prevail.</p> <p>5. It was error, in charging upon the credibility of witnesses, to instruct the jury: “You may even consider their character for truth and veracity, if it be known to you.”</p>

Action for damages. Befime Judge Eve. City court of Richmond county. November term, 1892. The declaration alleged: Plaintiff rented from the trustee and was in possession of a store described, and the shelving against the walls therein, from October 1,1890, to October 1, 1891, for carrying on the crockery business therein, which was known to defendants, for $1,500 per year, the trustee agreeing to keep the store and shelving in thorough order and repair.

<p>1. Where the right to a certiorari is given by statute to either party, each may have the writ in his own favor in the same cause, and the pendency of the first writ sued out is no ground for dismissing the second.</p> <p>2. Where the claim of right to a private way is founded upon an uninterrupted use of the way for more than seven years by the owners of a certain plantation, their agents, servants and tenants, the right is not in the agents or servants themselves, but in the owners who alone are the persons injured by an unlawful obstruction of the way, as against agents and servants, in violation of the right. While their agent, by virtue of §2207 of the code, may commence and carry on a proceeding1 in their names to remove such obstruction, under §738 of the code, he cannot institute and carry on a proceeding for that purpose in his own name, either individually or as an agent.</p> <p>3. When in a petition to remove an obstruction from a private way, the petitioner alleges that he is the duly authorized agent of the owners of a certain plantation, naming'it, that he has been in the habit of using the private way, describing it, and that the said owners, their agents, servants and tenants had been in constant and uninterrupted use of the way for more than seven years before the erection of the obstruction complained of, the petition is properly construed as being brought by the petitioner, not in his individual right, for he sets out none, but as agent for the owners and in their behalf. This being so, the petition was fatally defective, the petitioner showing no right to maintain the proceeding, and it was error in the ordinary not to dismiss the petition on demurrer.</p> <p>4. The superior court erred in not sustaining the certiorari brought by the defendant in the proceeding before the ordinary, and as that proceeding was fatally defective ah initio, this reversal operates to reverse the judgment of the superior court in so far as it sustained the certiorari brought by the plaintiff in said proceeding.</p>

Action for damages. Before Judge MacDonell. City court of Savannah. November term, 1892. The declaration alleged: In Georgia on or about March 2,1892, plaintiff was a passenger, for hire paid by her to defendant, on defendant’s sleeping-car America, from Chattanooga to Macon.

<p>Complaint for land. Before Judge Wellborn. Ra-bun superior court. September term, 1892.</p>

Complaint in trover. Before Judge MacDonell. City-court of Savannah. November term, 1892. On June 22, 1891, MacIntyre, a cotton factor and commission merchant, made a cash sale to Green of thirteen bales of cotton, under the rules of the Savannah Cotton Exchange, of which both the buyer and seller were members.

<p>1. That a deed of assignment for the benefit of creditors, made by a failing or insolvent debtor, authorizes the assignee to proceed immediately upon the discharge of his duties as such, without containing any provision requiring him to give bond, does not invalidate the assignment. The giving of a bond is required by the act of October 16th, 188é, and this requirement must be obeyed before the assignee can legally begin the discharge of his duties, whether the deed of assignment provides for the giving of a bond or not. The act distinctly provides for carrying assignments into effect in case the assignee named fails to give bond.</p> <p>2. A deed of assignment is not invalidated because it directs that the assignee shall sell for cash only; nor because it authorizes the assignee to employ clerks; nor because authority is given the assignee to dispose of property in a storehouse “ where the same is now situated or elsewhere.”</p> <p>3. A deed of assignment contained the following clauses and directions : “ No money shall be paid over to the said creditors until all of the expenses incurred in the execution of this trust and deed of assignment shall have been first paid, including the commissions of the assignee, ... all of the expenses of clerk hire, insurance, taxes,” etc. “And the said assignee, as soon as allowed by statute, shall distribute the funds in his hands arising from the sale of the said property and the collection of the said assets” among certain designated preferred creditors, the balance, if any, to be distributed among the general creditors. “ The said assignee shall make daily deposits of the sales and collections in ” a named bank, “ and shall pay the same out from time to time according to the true intent and meaning of this deed of assignment, for the best interest of the creditors.” Construing all these provisions together, the true intent arid meaning of the instrument is, that the assignee shall, in advance of any distribution to creditors, pay the current expenses and charges then accrued, and reserve a sufficient amount for future expenses and charges, and not that there should be no distribution whatever among the creditors until after the last item of expense has been ascertained and paid.</p> <p>4. It is not essential to the validity of a deed of assignment that values should be affixed to the various items of property included in the inventory and schedule thereto attached.</p> <p>5. In the present case, the description of the goods and merchandise in the inventory attached to the deed of assignment, in connection with the fact that the inventory designates their location as being in a certain storehouse and warehouse therewith connected, and specifies what goods are stored upon each particular floor of these buildings, is sufficient.</p> <p>6. Where goods have been ordered by a debtor about to fail, and he discovers he will be unable to pay for the same, cancels the orders given therefor, and declines to receive the goods, that a deed of assignment made by the debtor shortly thereafter sets forth these facts and contains a list of these goods and of the persons from from whom they were ordered, not only affords no reason for declaring the assignment void, but is a strong circumstance tending to show that it was free from fraud.</p> <p>7. There was no abuse of discretion in denying the petition for injunction and receiver.</p>

<p>Petition for injunction, etc. Before Judge Gober. Cherokee county. At chambers, January 31, 1893.</p> <p>On November 3, 1892, Wood & Lovingood filed an assignment executed by them, for the benefit of creditors, to William Galt. On January 14, 1893, Haynes, Henson & Co., Everett, Ridley, Ragan & Co., and Beck & Gregg Hardware Co., creditors, brought their petition to set aside the assignment as null and void, and for injunction and receiver. The injunction was granted, and William Galt was appointed receiver to hold the assets of the defendants under order of the court until the final hearing. To this decision the defendants excepted.</p> <p>The assignment conveys all the goods, etc., specified in the attached schedule, in trust, to sell, sue for, demand, receive and recover all such sums of money as may be due and payable thereon; and after paying all reasonable and proper costs, charges and expenses, including a reasonable fee for the services of P. P. DuPre, attorney, for writing this deed and schedule, to pay to each and all of the assignors’ creditors that may be due and owing to them from the schedule attached; and if the proceeds of said goods, etc., be not sufficient to pay ofi‘ all creditors, then to pay them joro rata, except $126.60 to J. and Mrs. M. Galt and Mrs. M. Roberts, which is preferred; etc. The petition alleges that the assignment is absolutely null and void for the following reasons: The assignors failed and neglected to make a full and complete schedule of their creditors. The schedule filed by them does not contain the names of the following creditors: E. A. Eincher, $13.50; B. E. Perry, $25.98 ; R. T.' Jones & Co., $32.64; H. H. Davis, $2.10; J. D. Johnson, $6.00; Lamar Rankin Drug Co., $6.98; Jack Payne, $4.00; J. H. Kilby, $1.98; A. B. Coggins, $6.00. The amounts due the creditors as stated in the schedule are incorrect in this: The amount due Everett, Ridley, Ragan & Co. is stated to be $936; in fact the assignors owed them $990 besides interest. The amount due J. J. & J. E. Maddox is stated in the schedule to be $360; in fact the assignors owed them only $328.20. The amount due John Silvey & Co. appears in the schedule to be $160.90; m fact the assignors owed them $190 besides interest. The schedule of assets is incorrect and incomplete, and does not contain all the assets of the assignors. They operated two stores m Cherokee county, in which they carried on a general mercantile business; one in the town of Canton and the other at Pitts’ old stand, about ten miles away. When the assignment was made no inventory of the goods and other assets in the storehouse at Pitts’ old stand was made, but the assignors made what purported to be an inventory by guessing at the goods contained in that store, which purported inventory is incorrect, incomplete and utterly unreliable. It does not contain a full and complete inventory of the goods. It is impossible to specify in what respect it is incomplete and to enumerate the particular goods that are not enumerated therein, for the reason that no complete and correct inventory of the goods was ever taken. The purported inventory as filed contains goods and assets of the value of $696.42, when in fact the assignors did not have assets of any such amount, but only goods of the value of about $400. They owned a large lot of peas which were not measured, and the amount and value of which was not correctly stated in the inventory. The paper purporting to contain a list of their notes and accounts is incorrect and incomplete. W. 0. Haralson was indebted to them $5.23 besides interest, for which they had his note, which was not listed in the schedule. W. A. Davis owed them $10.40 besides interest, for which they held his note, which also was not listed; and so as to an open account for $4.50 due by A. B. Coggins. The petition also charges that the assignors and each of them are hopelessly insolvent and that the assignee accepted the trust, took charge of the assets, disposed of the goods and merchandise to the amount of $3,000 or other large sum, which he has in his possession, and that he has other assets undisposed of, of the value of $500 or other large sum.</p> <p>The defendants in their answer set up the following: The schedules were as full and complete as they were .able to give at the time of the making of the assignment. They deny any. intention or purpose to defeat or injure any of their creditors. The creditors that were not listed were very small, and were not on the books on •which the names of the creditors were kept, except E. A. Eincher whose name is found on the book with that of J. Allen Smith & Co., and the account is so stated. When the book was inspected in getting up the list of creditors, the name of Eincher was overlooked. The amount due him is only $8.10, as shown by said book and. by the statement submitted by him to the assignee. The claim of IT. IT. Davis for $2.10 on due-bill was correct. The due-bill was given for chickens bought of him with the understanding that the price was to be liquidated in trade at the store; and it was given by Lovingood, one of the firm, at the Canton store in the absence of Wood who had charge of the business in Canton generally, while Lovingood operated the store at Pitts’ old stand. Lovingood failed to enter the due-bill on any book. When the schedule of creditors was made out, Wood gave out the list of creditors for the business of Canton, and did not know of this due-bill. According to the best of their knowledge and according to their own books, the assignors owed nothing to the Lamar Rankin Drug Co. They owed A. B. Coggins nothing. Jack Payne owed them an account; they were not indebted to him as charged, but were due him on some barter $1.77 which had not been credited on his account. The amount due B. E. Perry as shown by their books was a credit of $11.23; he was due them $19.02; he had done some advertising and job work for them, and the amount of his charges was not known to them; but on investigation they find that the amount due him is $7.96, which they did not know was due at the time of making the assignment. It is not true that they owed R. T. Jones & Co. $32.60; on the contrary they owed them only thirty cents, taking the books of Jones & Co. for the facts, while the books of Wood & Lovingood showed that Jones & Co. were indebted to them $6.59. At the time of making the assignment the books showed that J. H. Johnston was indebted to them, and the payment to them of some cotton-seed worth $6.00, was forgotten; Ms account was not credited as it should have been, through inadvertence of the clerk Wood, and after allowing said credit nothing is due Mm as charged. Defendants have no knowledge of being indebted to J. H. Kilby in any amount; the account presented by Mm has been settled. The amount set forth in the schedule as due John Silvey & Co. is correct, as shown by statement made them by Silvey & Co., which they followed in making the schedule. The amount due Everett, Kidley, Kagan & Co. was $937.18, as shown by the books which were mere transcripts of bills furnished by that firm from time to time. . It is not true that the assets at Pitts’ old stand were lumped together and inventoried by guess, but a complete and minute inventory of said assets was taken by Lovingood and one Forrester. It is true the peas were not measured bushel by bushel, but the boxes in which they were were gauged by one Wiley, and the amount of peas ascertained in that way; the inventory thus obtained was returned as a part of the assignment. Leaving out of the list of assets the notes against Haralson and Davis was a clear oversight; they were in a blank book to themselves, which was overlooked by the parties making the inventory. The notes were called out by one party, and the list made by another. It was mentioned at the time that these notes should be among the assets,, but they were not found. However, they are of no-value, and the makers thereof are utterly insolvent. The assignment was made in the utmost good faith. Defendants desired all of their creditors to share alike in their assets ; if any were left out, it was a mere inadvertence or oversight. At the time it was made they had not been sued by any person or firm; and when they discovered their failing condition, they sought to do the best they could for all of their creditors.</p> <p>At the hearing there was evidence adduced, tending to support the allegations on both sides. B. F. Perry with a claim of $7.96, and E. A. Fincher with a claim of $8.10, were made parties plaintiff. The defendants said they would pay off these claims, which they could do by borrowing that amount of money; but no money was offered or presented, and this offer was not accepted. After the hearing and before the decision was rendered, John Silvey & Co. were made parties plaintiff on application. The defendants contend that at the time of the argument Silvey & Co. were not complaining of any error in the amount of indebtedness to them in the schedule of the assignors, and that such alleged discrepancy should not have been considered by the court for that reason. They further say that the failure to include B. F. Perry and E. A. Fincher in the list of creditors is fully explained in the answer, and when the assignors offered to pay said claims the same ought not to have been considered by the court as a ground for granting the prayer of the plaintiffs. It is also insisted that the evidence shows that the assignment was made in good faith, and that the discrepancies in the lists of assets and of creditors were not material, and do not show fraud or any good reason for setting aside the assignment.</p>

<p>1. Where a non-resident witness for whom interrogatories had been sued out was in court at the time of the trial, it was error to permit the answers to the interrogatories to be read to the jury over objection of the opposite party, although the witness was in attendance upon the court at the instance of the latter, the witness being actually present when the answers to the interrogatories were offered in evidence.</p> <p>2. J.t is not cause for a new trial that the court refused to allow certain questions propounded to witnesses by defendant’s counsel to be answered, it not appearing what answers were expected, and, in view of other evidence and of admissions in the declaration, no possible answers to these questions being substantially material.</p> <p>3. Upon the trial of an action against a railroad company for a homi - cide resulting in part from, the misplacement of a switch, it was not error to refuse to allow the defendant to show “ the common experience of railroads ” in getting back switch-keys from their employees, and that all railroads have great difficulty in keeping up with such keys and having them returned by discharged employees because of their real or alleged loss. Nor was there error in refusing to allow defendant to prove “ the custom or usage of railroads in reference to providing a watchman for each of their switches,” defendant expecting to prove “ that the general custom was not to provide a watchman for such switches.”</p> <p>4. Though one of the main issues was whether or not the engineer for whose homicide the action was brought was guilty of negligence in bringing about the collision which resulted in his death, there was no error in refusing to allow the defendant to prove that he “ was habitually reckless in running freight-trains at excessive speed, and running too fast over switches,” the witness’s knowledge not extending to more than two or three instances.</p> <p>5. The defendant may' invoke and use allegations beneficial to himself made in plaintiff’s declaration, without offering the declaration itself in evidence or otherwise proving the admissions contained in such allegations, and no unfavorable inference can properly be drawn against a corporation because of a failure to call as witnesses its own employees to prove the existence of facts shown by such admissions.</p> <p>6. The mere fact that a railroad company fails to recover from a discharged employee a key which controls the turning of a switch, is not of itself sufficient to make the company liable for the criminal act of such employee in maliciously misplacing a switch for the purpose of wrecking a train. The company is not bound to anticipate that, purely out of revenge for his discharge, a former em-. ployee might secretly commit so heinous a crime against it and the public. Nor is the company bound to exercise constant vigilance to prevent all persons whatsoever not in its employ from having the means or opportunity of tampering with its switches or its tracks. Whether or not in any particular case the company exercised the proper degree of care in protecting its switches from interference, is a question for the jury, in determining which they may look to tne evidence to ascertain if there was any reason for the company to apprehend such interference, and if so, whether, under all the circumstances, it used due diligence in endeavoring to prevent the same. In its charge to the jury, the court should not state or assume that a given state of facts would show negligence on the part of the company in the respect indicated.</p> <p>7. A prima facie case of negligence on the part of the defendant, which the plaintiff’s declaration covers, cannot be effectually answered by a given state of facts, if those facts involve a breach of diligence by the defendant in a material respect; and such breach of diligence, if shown, may be urged by the plaintiff, not to recover upon, but to defeat the defendant’s justification, although no reference to it is made in the plaintiff’s pleadings.</p> <p>8. According to the undisputed facts, the plaintiff’s husband was guilty of negligence in running his train in violation of the rules of the company, of which he had knowledge, and which he had agreed, upon entering its employment, to obey. For this reason, and because of errors committed by the court, there should be a new trial; and if, upon the next hearing, the evidence is substantially the same, there should be a verdict for the defendant.</p>

<p>1. Where a conveyance was made in consideration of support for life, the grantor had no right, without the consent of the grantee, to rescind the contract by a subsequent conveyance to another, merely because the support was withheld. She could not thereby defeat the first deed, her redress being an action for the value of the support withheld, or an equitable action to rescind if the special facts, such as insolvency, would make the latter the appropriate relief.</p> <p>2. The evidence warranted the verdict, and the newly discovered evidence could not properly change the result.</p>

<p>Equitable petition. Before Judge Miller. Bibb superior court. November term, 1892.</p> <p>Six firms brought a petition against Wolff & Buchwald,. a firm composed of Mrs. Lillie Wolff and Ephraim Buchwald, and against Mary Buchwald, Edward Wolff',. Peter Funkenstein, and Morris Brothers, a firm composed of Louis and Joseph Morris, the Wolffs and the Buchwalds being residents of Bibb county, and the other defendants of Clarke county. The court sustained a demurrer to the petition, to which ruling the plaintiffs excepted.</p> <p>The petition sets forth the following allegations: The plaintiffs are creditors of Wolff' & Buchwald for goods furnished, and they attach as exhibits to the petition statements of their accounts, the items thereof appearing to consist of liquors, cigars, etc. Cohen & Co. have sued out an attachment for purchase money of the goods furnished by them, which has been levied on certain goods of the invoiced value of $130.88, for which they have given bond and now have possession. All of plaintiffs’ debts were created by the purchase of goods from them by Wolff' & Buchwald for a cigar and liquor business begun about August 1, 1891, and conducted in Macon; said goods went into said business, and payment for the same has been refused. For the purpose of obtaining credit from plaintiff's, said firm, stated to the commercial agency of B. G. Dun & Co. that they would have in business $2,000 in cash, equally contributed; that they had purchased and paid for $1,500 worth of goods in Cincinnati; and that they had $500 on deposit with Cohen & Co.; which statement was made about July 4, 1891, and was untrue. It was published by Dun & Co. in their reports to their subscribers; and relying on its truthfulness, as well as. other representations made by defendants, plaintiffs extended credit to said firm, which they would not have done had no such statement been made and published. Substantially the same statement was made by said firm to Steinheimer, a member of the firm of Cohen & Co. Said firm also untruly stated to Pinkussohn, another of plaintiffs, that they had $2,000 in cash invested in said business, equally distributed, and Pinkussohn extended credit relying on said statement, and would not have done so but for the same. Since they extended credit plaintiffs have learned that neither member of said firm had any means, except that Joseph Wolff, the husband of Lillie Wolff, who represented her interest in the firm, put in for her $500 which was given to her by her father, Peter Funkenstein, and that E. Buchwald had and paid in only $1,000 in cash which was given to him by his wife’s relatives. Since plaintiffs’ goods were purchased, said firm have practically repudiated and shown the falsity of said statements, by giving a mortgage to Peter Funkenstein for $500, one to Mary Buchwald, wife of E. Buchwald, for $800, and one to Morris Brothers, relatives of Mary Buchwald; said mortgages being given upon the idea that the $500 paid into the business by Lillie Wolff was borrowed by the firm and not given to her individually, and that the $1,000 put in by E. Buchwald was not his property, but was borrowed from his wife and her relatives, these being the amounts on which they based their statements of $2,000 invested in the business. If the mortgages are valid the statements were false, and instead of having $2,000 in the business the firm had nothing. By reason of said false representation on which credit was obtained, no title passed from plaintiffs to the firm, and they hold plaintiffs’ goods and the proceeds thereof as trustees. At the time said firm asked and obtained credit from plaintiffs, they were insolvent and knew they were so, and they bought plaintiffs’ goods with no intention of paying therefor, and with full knowledge that they were not able and could not reasonably expect to be able to pay for them. Under foreclosure of two of the mortgages the sheriff is in possession of the store, business and assets of said firm, and is about to proceed to sell the same under an order of this court. A large part of plaintiffs’ goods are in the stock, and if sold by the sheriff, will be greatly sacrificed. The mortgages cover the entire property of the firm, who have also given the mortgagees an assignment of all accounts, notes and other choses in action held, claimed or owned by them. These mortgages are dated November 11th and 13th, 1891. Two of them were made to secure notes due one day after date, and were foreclosed on November 19th and 20th, 1891. As plaintiffs are informed, an order for quick sale of the property was applied for and obtained. The mortgages are of such amount as to exhaust the entire proceeds that the property would bring at forced sale. They are all parts of a fraudulent scheme to put the property beyoird the reach of the plaintiffs and other bona fide creditors from whom the property was fraudulently purchased. None of the mortgagees are dealers in the line of business conducted by Wolff’ & Buchwald; and the mortgages or any of the alleged debts on which they claim to be based, have no connection with the business of selling or furnishing goods to that firm, and if the sheriff’s sale is allowed and the mortgagees are permitted to take the proceeds, the moneys arising from the goods will be diverted from the persons from whom the goods were purchased and none of them will collect a dollar of the debts due them. The mortgage of Edward Wolff, while nominally for $1,050 of indebtedness, of which the sum of $500 appears on its face to be past due at the time of foreclosure, was foreclosed for $263.34 principal; and plaintiffs charge that this mortgage being for amount thus in excess of the entire amount of the claim really owing thereon, was a fraud' on creditors, and was intended to hinder and delay them by creating a first lien greatly in excess of any real indebtedness. At the time the mortgage of Morris Brothers was foreclosed it was not due, the same showing on its face that it was not to become due until January 5, 1892; and this foreclosure was an attempt to put the property beyond the reach of creditors. The alleged debts on which the mortgages were based were never heard of by plaintiffs or the other creditors who sold goods to said firm, until the mortgages were filed for record, and if any such debts ever existed they were fraudulently and purposely concealed from plaintiffs and others from whom said firm sought credit, with intent to induce them to extend credit and furnish goods on the faith of the statement made to the mercantile agency, to the effect that said firm owed no money to friends or relatives or any other obligation. If the money for which the mortgages were given was borrowed at all, it was not borrowed by said firm, nor was it borrowed to pay any indebtedness of said firm, but was furnished to Joseph Wolff to enable him on behalf of the firm to use said money as evidence of the firm’s financial worth, in obtaining the assistance of Cohen & Co. in making a favorable showing to the mercantile agency as a basis of credit. Morris Brothers, Peter Funkeustein and Mary Buchwald well knew that Wolff & Buchwald had no means whatever, except the $1,500 which they now claim to have loaned them wherewith to start the business. To furnish said money as they now pretend to have furnished it, not for the purpose of paying off any liability of the- firm, but to induce creditors to believe that it belonged to the firm and was its capital stock, operated to injure and defraud plaintiffs and others who extended credit; and m equity and good conscience these three persons should not be allowed to apply the goods so purchased, or their proceeds, to the payment of said alleged indebtedness, to the injury of plaintiffs and other creditors. Said mortgagees had and are chargeable with full notice of the fraud by which said goods were purchased, and by their act put it within the power of the firm to perpetrate the fraud, and cannot claim to be bona fide creditors without notice, in respect to the mortgages, as against the equitable title and right of plaintiffs and other creditors from whom goods were fraudulently purchased.' Plaintiffs believe and charge that the mortgages were not given to secure any valid subsisting indebtedness, but that the $1,500 claimed to have been furnished as a loan was really the money in part of Lillie Wolff' and in part of E. Buchwald, or if not actually the exclusive, individual property of E. Buchwald, was at least suffered by Mary Buchwald to be invested in his name as his share of the capital stock of the business, and to that extent was liable to the exigencies of said business, and was not intended to be a debt against the firm, but was intended to be advanced to E. Buchwald to enable him to go in said business and to be invested therein as his part of the capital stock. Plaintiffs believe that the $500 claimed to have been loaned by Eunkenstein was advanced to Lillie Wolff as her part of the capital stock, and it was not intended that E. Buchwald or the firm should be liable or bound to Eunkenstein in any manner for the payment of said sum, nor was the same ever an indebtedness of the firm, but was a part of the capital stock, was so treated by the firm, and, as plaintiffs believe, was a gift by Eunkenstein to his daughter. He well knew that she had no money as capital stock to invest in the business and that Joseph Wolff had none to invest in her name, and so knowing, furnished said money to be used as her investment therein. Similar allegations are made as to the $800 claimed to have been loaned by Mrs. Mary Buehwald. Plaintiffs believe and charge that $200 of the money alleged to have been furnished by Morris Brothers was never furnished by them to the firm, but if furnished to anyone, was furnished to Joseph Wolff at the request of E. Buehwald as part of the money in the hands of Morris Brothers to which E. Buehwald was entitled by reason of his marriage with Mary Buchwald. It is untrue that the firm ever invested in said business, borrowed money or otherwise, $500 in addition to the $1,500 aforesaid. On the contrary their purpose was to place in the hands of Cohen & Co. the entire amount of cash that could be raised by them, in order that the same might serve as a basis upon which they could get credit by means of the rating of the commercial agency; and it was untrue that said firm had or were able to raise or control any more money than the sum that was put up with Cohen & Co. for the purpose of obtaining such rating. It was by means of putting up said sum in their hands that Cohen & Co. were induced to believe that Wolff & Buehwald had a capital stock of $1,500, and so believing, aided them in obtaining a commercial rating based on the capital stock of that amount clear above all liabilities or .obligations to friends or relatives. It was by reason of the statement made by said firm to the commercial agency and the report of the agency based thereon, that plaintiffs and the other bona fide creditors of the firm were induced to sell and furnish the goods that produced the entire property now held by said firm. Mary Buehwald, Peter Eunkenstein and Morris Brothers aided and abetted Joseph Wolff and Wolff & Buehwald in perpetrating the fraud that resulted in obtaining from plaintiffs and others the goods that produced their entire assets. The goods of plaintiffs which are still in the stock bear the marks and brands of plaintiffs respectively, and can be readily identified. By reason of the fraud in purchasing them.they still remain the property of plaintiffs, and no valid lien was acquired thereon under the mortgages. The mortgages and assignments of accounts were parts of one scheme and purpose; and plaintiffs charge that the same amounted to a voluntary assignment by insolvent debtors for the benefit of creditors, in violation of the statute requiring such assignments to be accompanied by inventories and schedules of assets and creditors. Wolff & Buchwald, Joseph Wolff and Mrs. Mary Buchwald are each insolvent; as to the solvency of ffunkenstein and Morris Brothers, plaintiffs are not in a position to judge. The right and title in equity and good conscience of plaintiffs are similar, and if they and other creditors who sold goods to the firm on the faith of the same fraudulent statements, were to proceed separately to set up their respective rights, a large part of the property would be exhausted in expensive litigation by reason of multiplicity of suits. By reason whereof plaintiffs file this petition in behalf of themselves and such other creditors as may be made parties. And they pray for cancellation of the mortgages, for opportunity to inspect and identify the respective portions of goods purchased, in order that they may assert their title thereto; that the goods be sold and a separate account be kept of the portions so purchased from plaintiffs, and the moneys arising from the same be kept separate and applied to plaintiffs’ accounts; that the title to said goods or moneys be decreed to be in plaintiffs; that the trust arising from the fraudulent purchase be decreed to attach to the notes and accounts produced by the proceeds thereof by Wolff & Buchwald by the sale of said goods ; that plaintiffs have a decree for the amounts of their respective bills over and above.the proceeds of so much of the goods as they shall succeed in recapturing; that the defendants be required to produce books, papers, etc.; that the court appoint a receiver and grant such other relief as may be proper.</p> <p>The grounds of demurrer are, that there is no allegation that the mortgagees, or any of them, had any notice of any fraudulent intent at the time of taking their mortgages, or reasonable grounds to suspect any; that the petition shows that the plaintiffs have no common interest in the matters charged, but that their interests are separate and distinct, and they cannot, therefore, be joined in one petition against defendants; that plaintiffs set forth no property of any character or description to which they claim title, nor do they show any described property in possession of defendants; that there is no allegation that the mortgagees are insolvent; and that there is no equity in the petition.</p>

<p>Petition for injunction, etc. Before Judge Bartlett. Bibb county. At chambers, January 18, 1893.</p> <p>Powell and other citizens of Macon, owning and occupying residences on Second street between Walnut and Ocmulgee streets, brought .their petition against the Macon & Indian Springs R. R. Co., the Mayor and Council of the City of Macon et al., to enjoin the railroad company from erecting a street-car shed and electric power-house at the foot of Second street, and from constructing a spur-track of street railroad from said powerhouse along Second street to the proposed main line of railroad on Mulberry street, a distance of about a quarter of a mile; to declare void the license granted by the mayor and council to construct this spur-track; and to enjoin the mayor and council from granting any further license to build any street-car track on Second street in front of plaintiffs’ property. The case was heard by the judge upon the petition, the answers of defendants, and affidavits and other evidence introduced by both sides. The prayer for injunction was denied.</p> <p>The petition alleges, that the portion of the city where plaintiffs’ residences are situated has heretofore been appropriated exclusively for residence purposes, and is one of the few sections of the city which the growth of manufacturing industries and the spread of commercial interests has left as desirable residence’property. The defendant railroad company, under its charter and the leave granted to it by the mayor and council, is proceeding to build a line of street railroad in Macon for the carriage of passengers in street-cars propelled by electricity on the trolley system, and has obtained leave of the mayor and council to lay the spur-track in question, not intending it for. the use of the public in the carriage of passengers, but solely as a private track to run the cars from the regular line on Mulberry street to the proposed car-shed. The railroad company has no authority under its charter so to use the street, nor have the mayor and council authority to grant to it license so to do, and such grant of license is void. The pro~ posed location for the electric plant and power-house is at the foot of a steep hill where Second street ends and the slope begins towards the river. The residences of Powell and others of plaintiffs are situated just on the brow of the hill; and to establish a power-house in the situation mentioned would be to make their houses untenantable and valueless as residence property, because there would be a continual cloud of smoke wafted into their homes whenever the wind, set that way, together with a shower of soot, and the disagreeable odors attendant upon a large consumption of coal and the evaporation of coal-tar. The noise of flying machinery and the hum of electric dynamos would be a nuisance which would largely decrease the value of plaintiffs’ property, and force them to abandon it for other locations. The laying of this spur-track for the private use of the railroad company would create a nuisance to plaintiffs without any public benefit, and the establishment of a street-ear shed at the place indicated would be an eyesore to the neighborhood. There are many other points along its proposed line where the company could establish the same without injury to the surrounding property-owners, and without running a spur-track any distance from the main line to get the cars to the shed; and. there are many places where the company could place a branch wire, or other points where its powerhouse could be established, where the same would not be m a position to damage surrounding property-holders. The company has no authority under its charter or the laws of the State to build or operate an electric streetcar line on any of the streets of Macon, and particularly on Second street; such attempted use of the charter is a misuse not contemplated thei’eiu, the purpose of the charter being to provide for the construction of a railroad between the terminal points thei’ein named. The company does not own the fee simple title to the site upon which it is proposed to erect the powei’-house, but the propei’ty is owned by the East Tennessee, Virginia & Georgia Eailway Company, from which the defendant company has obtained some kind of permission to locate its power-house and car-shed there; and in order to avoid purchasing any of the numerous sites immediately along the line of its railroad, readily obtainable at a reasonable price, it is taking advantage of the privilege accorded it for a nominal sum to place its ear-shed and power-house at a point to reach which it will have to subject to its private ends over a quarter of a mile of one of the principal residence streets of the city. The site so chosen has a frontage of only twenty-five feet on Second street, and is totally inadequate for the purpose, if the defendant company is really proceeding in good faith to carry out the purposes for which it was given existence by its charter, to wit, to build an electric railroad from Macon to Indian Springs, and to have ten miles of the road built in five years. Two other lines of electric railway legally occupy the streets of the city, running through the principal streets and centers of business to the suburbs, in the direction of Indian Springs, with either of which the defendant company could connect m building the line authorized by its charter, without entering the city to operate a street railroad therein. The petition specifies various ways in which the power-house and other things to be erected, including the overhead electric wires, will be a nuisance and dangerous, decreasing the value of plaintiffs’ property without any compensation to them in the use of cars on the street or any benefit to the public; and alleges that the injuries to their property will be irreparable and such as cannot be compensated for in damages, etc.</p> <p>The answers took issue with the material allegations in the petition, and the evidence was conflicting.</p>

Equitable petition. Before Judge Hutchins. Jackson superior court. February term, 1892.' White and others brought their petition against the executor of Mrs. G-illeland and others, for injunction, construction of the will, etc. The ease was submitted by consent to the judge without a jury. For the other facts see the decision.

Equitable petition. Before Judge Hutchins. Banks superior court. March term, 1892. The plaintiffs are the children of B. V. Headen, and his wife Eliza O. Their father is dead, and their mother is living.

<p>1, By statute it is the duty of railroad companies to construct and maintain on the line of highways safe crossings over their tracks; and where a bridge over the track reasonably required a railing to project from the bridge a short distance along the margin of the highway, in order to render the crossing safe, and a traveler whose mule took fright while being driven across the bridge was precipitated from the highway and injured in consequence of the absence of such railing, the company is liable in damages.</p> <p>2, The evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>1. Upon the trial of a traverse to an attachment issued upon the ground that the defendant was a non-resident of this State, the fact that he, a few months before the attachment was levied, being then engaged as a contractor in constructing a railroad, offered to buy an interest in a business conducted in this State, saying at the time he liked the firm by whom this business was carried on, was not admissible to show that he “ had come to Georgia with the mind of remaining.”</p> <p>2. Although the defendant may have left his former home in South Carolina with the intention never to return, yet, if he had not permanently located in this State, nor declared any purpose so to do except upon the happening of a contingency which in point of fact never happened, he was so far a non-resident as to be liable to attachment on that ground; and the mere fact that in his business as a railroad contractor he had a temporary place of abode at which he might have been found and served with process, does not render the attachment void.</p> <p>3. The verdict was fully warranted by the evidence; and the defendant having traversed the truth of the affidavit in relation to the ground upon which the attachment issued, and having appeared in person at the trial to maintain his traverse, there was no error, under the provisions of section 3328 of the code, in entering a general judgment upon the verdict rendered against him.</p>

Issue of forgery. Before Judge Hutchins. Gwinnett superior court. September term, 1892.

<p>1. Where, on its face, the written color of title under which land has been claimed and held adversely for about fifteen years, during which time there has been no obstacle to bringing suit for its recovery, is ambiguous in respect to whether its terms ought to be construed as a deed conveying land in prsesenti or as a testamentary-paper, public policy and the general principle on which prescription rests require that the doubt should be given in favor of the occupant and against the adverse claimant. For this reason, the trial judge was correct in holding that the instrument in question was sufficient color of title on which to base a valid claim of title by prescription in behalf of the defendants.</p> <p>2. Of three alterations in the instrument, the one made after its execution was immaterial; and nothing appearing to show or indicate at what time the other two were made, and they serving properly to render the instrument consistent with itself according to its import in the main body of it, the presumption is that these twowére made before the instrument was executed.</p>

<p>Complaint on notes. Before Judge Wellborn. Towns superior court. September term, 1892.</p> <p>Rice sued Mrs. Jones on five promissory notes for $96.46 each, with interest, dated November 7,1890, and due twelve months after date. They recite that the sum promised is part of the purchase money of certain lots of land in Towns county. The verdict was in the plaintiff’s favor, and the defendant’s motion for a new trial was overruled. Her plea, in addition to the general issue, was, that the notes were obtained by fraud and undue influence of the plaintiff’ and W. H. Jones, defendant’s husband; that she never received any benefit therefor; that they are not for the purchase money of the land or any part thereof, but their consideration was and is a note and debt of her husband, which the plaintiff’ knew at and before their execution; that they were obtained by him and W. H. Jones in fraud of her rights, and are an attempted assumption of a debt due by her husband and not by her, which was known to plaintiff when he accepted them.</p> <p>The testimony for the plaintiff’ is to the following effect: The defendant owned land in North Carolina, oil which, she had given to McCloud and others a mortgage or deed of trust, signed by herself and her husband, "W. H. Jones. She exchanged this land with one Henson for land in Towns county, Georgia, he paying $225 as the difference in value of the lands, which sum went toward the paying off of the mortgage, which had to be done before he could get title. The plaintiff* advanced, for the same purpose, a note for $474 which McCloud owed him. These two amounts paid off* the mortgage. The defendant thereupon gave the plaintiff her note in which she bound the Georgia land for what he had advanced, and it was agreed between them that if this note was not sufficient, she would give' him a mortgage or any other kind of paper.on the Georgia land, to secure him for what he had advanced. The note was signed by her voluntarily and cheerfully, she telling him that if this showing was not satisfactory, she would give him any kind of showing he wanted after she moved to Georgia. The plaintiff testified that ~W. H. Jones came to him and said he could not make the Henson trade unless he got help from some of his friends, and thereupon plaintiff* agreed to help him in so far as the note against McCloud would go. Plaintiff gave this note to McCloud in Jones’ presence, and McCloud said he would give Jones credit for it. Jones and plaintiff then went to Jones’ house, and the next morning the defendant gave the plaintiff her note as above stated, thanking him kindly for his faithfulness as a friend, etc. After they came to Geoi’gia they gave the five notes now in suit, in lieu of the first note given to plaintiff. The defendant signed them freely, after it had been ■ explained to her that they were given for the same amount and in lieu of the old note. At this time plaintiff paid Jones $20 for boarding plaintiff’s children, half in cash and the other half as a credit on the note. The plaintiff further testified: “ They didn’t claim that I had not paid anything when they signed the new notes in Georgia. . . McCloud has never said anything to me about that note. The note paid by McCloud which I had against him was out of date, but he paid it cheerfully. . . I didn’t see the note or papersMcCloud had against Jones the day we were there. It was not my business. I didn’t go there expecting to pay the papers off. I did not take up the Jones note from McCloud when I settled with him. I didn’t go-there to take it up, and didn’t. I was not looking after any notes. I didn’t know there were any notes. It was none of my business. I told Jones I would advance the amount of the McCloud note I held against McCloud, on the mortgage that McCloud and others held against him and his wife. I didn’t take up the mortgage, and I don’t know where it is. I didn’t get any showing that I had paid McCloud. Mrs. Jones’ notes is all the showing I have got for what I paid McCloud, and is all I want. . . I knew that O.R. Jones was to help relieve the land in North Carolina of any incumbrances; we were all there for that purpose. .</p> <p>The defendant testified: The consideration of the notes in suit was, that the plaintiff was to lift a note which my husband had given McCloud for a lawyer fee.. I did not owe McCloud anything. I do not know whether the plaintiff ever lifted the McCloud note. I never received any consideration for the notes I gave plaintiff. Henson paid me $225 difference between the lands in the trade. I am now living on the land I got from him. I signed the note to plaintiff in North Carolina, for four hundred and seventy odd dollars, at the solicitation of my friends who thought it was for the best. In ever got any money from plaintiff. I gave the notes (in suit) in lieu of the note I gave plaintiff in North Carolina. McCloud is dead. He never presented the note to me for payment, and I don’t know whether or not plaintiff ever paid it. The North Carolina land was mine. They made the trade and I approved, sanctioned and closed it, although somewhat unwillingly. There was force or harsh measures used to get me to make the trade. I suppose it is true that I could not trade with Henson until the mortgage on the North Carolina land was lifted. This mortgage was given for my husband’s debts. I am not certain whether or not my husband signed it with me, but I don’t think he did. There were three notes for lawyers’ fees outstanding against him. I got no consideration for the notes I signed, or .the mortgage. I do not know where the mortgage is now, or whether anybody has ever lifted it or not. I suppose there is a credit of $20 on the lai’ge note, which plaintiff lacked of paying my husband for boarding his children. He paid their board to my husband, not in my presence or with my consent.</p> <p>O. R. Jones testified, that the mortgage in question was executed to secure three notes (put in evidence by defendant) for lawyers’ fees, each for $366.66 with interest from date, September 2, 1886, one payable to G-udger, one to Carter, and the third to McCloud and Moore. They were signed by W. IT. Jones. The witness further testified: These notes have been paid off and discharged principally by myself. I made a payment of $500 of my own money. I first lifted the two first notes by my own money, and money realized from the proceeds left by my brother. I paid the McCloud note myself, which was the last note. I paid the money to McCloud. It amounted then to $481 and a fraction. There are several credits of interest on this note, made while they were in bank. Neither Henson nor Rice ever paid anything on these three notes or on that mortgage. When I spoke of using the Henson money to help pay off" the McCloud note, I meant the $225 that he paid as difference between the land traded to him by defendant. I was present when the big note was given by defendant to plaintiff in North Carolina. It was given in consideration of his lifting the McCloud note which McCloud held against her husband. It was about one year ago that I paid off the McCloud note (September, 1891). There was no mortgage on the land that my sister traded to Henson at the time she executed the note to plaintiff in North Carolina. The mortgage had been cancelled. Plaintiff’ never took up the McCloud note. There was some agreement about it between him and McCloud, but it was never carried into effect. Plaintiff never paid anything on the mortgage at all. The notes which he has were given him hy defendant with the understanding' that he was to lift the note McCloud held against her husband with a note which he held against McCloud. She knew before she left North Carolina that plaintiff’ had never lifted or paid the notes. She signed this note (exhibited) in 1890, and gave four others after she came to Georgia, in lieu of it. I lifted the McCloud note after this note was given. Defendant never received any consideration for the note given in North Carolina, or these five ■either.</p>

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

Motion to award money. Before Judge G-ober. Hall superior court. July term, 1892. After the rendition of the decision in 87 Ga. 241, Candler filed a motion to amend his verdict and judgment of foreclosure of lien, so as to embrace the whole instead of a part of the railroad. This motion was granted by a judge pro hac vice, appointed by the clerk to preside in place of the judge of the circuit, who was disqualified.

Complaint for land. Before Judge Milner. Whitfield superior court. October term, 1892. The executor of Bettie J. Walker sued the administrator of W. Gr. Cavender who had held the land under bond for title from plaintiff’s testatrix, with part of the purchase money paid, the action being to enforce payment of the balance due.

<p>Where the vendees in a deed of conveyance, founded upon a valuable consideration paid by them, were described as trustees, no trust being declared and no beneficiary named, the word “trustees” is mere surplusage, aiid the vendees took the title for their own use, free from any trust whatsoever.</p>

<p>1. The refusal to strike the whole or a portion of a special plea on> demurrer thereto is not cause for a new trial when the entire plea and the particular portion referred to contain some allegations, which are good in law as a defence against the action, although in other respects the plea is defective and insufficient.</p> <p>2. It is too late, after the plaintiff’s ease has been closed and the defendant is introducing testimony, to object to the introduction of answers to interrogatories on the ground that one of the commissioners was an agent of the defendant paid to execute the same, no objection in writing having been previously made and notice thereof given to the defendant.</p> <p>3. Where a guardian sold land in which a minor ward had an interest, and the latter, after arriving at the age of twenty-one years, freely, voluntarily, and with a full knowledge of all the facts, received from her guardian in another State her full share of the proceeds of the sale, the same having been paid over to him by the guardian in Georgia during the ward’s minority, and no fraud whatever having been practiced upon her, she was estopped from recovering any interest in the land from an innocent purchaser holding under the purchaser at the guardian’s sale, even though that sale may not have been in all respects legal. The ward’s actual knowledge of the facts concerning the sale, and her acceptance, after maturity and with full knowledge, of her share of the proceeds, amounted to a ratification by her of the sale, although she may not have known that under the law the sale was illegal.</p> <p>4. There was no error in refusing a new trial.</p>

<p>Action for damages. Before Judge Henry. Eloyd superior court. September term, 1892.</p>

Complaint on promissory note. Before Judge Janes. Polk superior court. August term, 1892. The note sued on was given in part payment for a dry kiln sold by the payee to the makers. At the trial plaintiff' introduced a written order or contract signed by both parties. On motion the court struck defendants’ pleas save that of the general issue, on the ground that they were insufficient in law. Defendants then offered another plea, which also was stricken on the same ground.

<p>Equitable petition. Before Judge Janes. Haralson superior court. January term, 1898.</p> <p>Plaintiff and defendant are the daughter and son of W. J. Brown who died intestate on October 12,1886, his only heirs being these two parties and his wife. During his life, as the petitio'n alleges, he accumulated a large amount of property consisting in part of thirteen described lots of land, worth $5,000, of which he died in possession. On January 10, 1869, one Satterfield was appointed administrator (of whom is not stated), and "W. J. Brown and one Goldin were sureties on his bond. As administrator he failed to account to the beneficiaries of the estate for the money thereof; suit was brought, June 16, 1882, on his bond, and at the July term, 1884, of the superior court, judgment was rendered against him and his sureties for $700 principal, $90 interest, and costs. When this suit was brought W. J. Brown was very old, infirm and feeble in body and mind, and defendant was his confidential adviser and counselor in whom he had the utmost confidence and by whose advice he was easily influenced. Defendant advised and procured him to make defendant a deed or deeds to the land about 1882 or 1883, agreeing that if he would do so, defendant would procure a compromise of the suit and would then deed the land back to W. J. Brown. Satterfield and Goldin were both insolvent. Under these circumstances and with said agreement ~W. J. Brown made to defendant a deed to the land. Afterwards execution issuing from said judgment was levied on the land as the property of W. J. Brown, when defendant filed his claim, which remained undisposed of until it was compromised by defendant and Goldin paying between four and five hundred dollars, each paying half,, and the claim was dismissed. W. J. Brown lived and died on the land, and immediately after his death defendant took possession of it, and then promised plaintiff that he would pay her her one third of the value of the land as soon as his claim should be settled. In pursuance of this promise, in 1887 he paid her $100 and in 1888 paid her $100, which is all he has paid her .of her father’s estate. In 1887 he delivered to her three lots of the land (giving their numbers), agreeing to make her his deed to these lots and also to account to her for her part of the value of the other lots. Since that time she has continued in possession of these three lots, he being in possession of the other ten and receiving all the rents and profits thereof. "When he took possession of the thirteen lots they were worth $5,000, and he was. then due and owing her $1,666.66 as her one third part thereof. "When the three lots were delivered to her they were worth $500, which she accepted as a payment on her interest in all the land. Adding to this the $200' he paid her, leaves him still due her $966.66 besides-interest, which he refuses to pay, and he refuses to make her a deed to the three lots. She prays that he be required to execute to her a deed to the three lots, that they be decreed to be her property, and that he be compelled to pay her the $966.66 principal, with interest.</p> <p>The grounds of demurrer appear in the opinion.</p>

Ejectment. 'Before Judge Harris. Campbell superior court. Eebruary term, 1892. On May 23,1889, the administrator of Matthew Reid brought ejectment for a house and lot m Eairburn known as the McKown place. Mrs. Thompson filed an equitable plea, the nature of which will appear from the following report of the evidence. It appeared that Reid had owned the premises from March 22, 1884.

<p>Equitable petition. Before Judge Harris. Troup superior court. April term, 1892.</p>

<p>Action for damages. Before Judge Boynton. Spalding superior court. August term, 1892.</p>

<p>Taken in connection with the entire charge, there was no error in the charges, or refusal to charge, complained of; the evidence warranted the verdict, and there was no error in denying a new trial.</p>

Levy and claim. Before Judge Guerry. Quitman superior court. September term, 1892. An execution against W. M. Tennille was levied on land which was claimed by W. A. Hill as trustee for Mary J. Tennille et al. By agreement the case was submitted to the judge without a jury. He held the property not subject to the execution, and afterwards denied .a new trial, and the plaintiff excepted.

<p>Claim. Before Judge Q-uerry. Terrell superior court. November term, 1892.</p>

<p>Possessory warrant. Before Judge Pish. Webster superior court. April term, 1892.</p>

<p>1. A special plea that the payee of a promissory note would not execute a deed of conveyance which he was bound by contract to execute, unless the person entitled to the deed would execute and deliver a promissory note for a pretended debt which he did not owe and which had no connection with the consideration of the deed, is virtually a plea of want of consideration for the note, and as such is a good defence to an action founded on the note. Allegations of fraud and duress contained in the plea may be regarded as surplusage.</p> <p>2. Jf, at the time of taking a conveyance of real estate upon which a mine was situated and mining operations had been conducted, the vendee purchased from the vendor the mining and transportation machinery and implements which were then upon the premises, and accessible to the purchaser, giving his promissory note for the price thereof, and the vendee went into possession or was already in possession of the realty, no further delivery of the personalty was necessary unless there was some actual stipulation in the contract for subsequent and more formal delivery.</p> <p>3. There being a plea that the note, was in part without any consideration whatever, and also a plea of total failure of consideration, and there being evidence tending to show that it was understood at. the time of giving the note, which was the .time of the purchase, that the plaintiff, the payee, was to get up the tools, &c., and put them where defendant could get them, and he subsequently refused to do this, and that defendant never did get them, it was-error to charge the jury that if the defendant had notice of where the property was, and at that time he could have gotten possession of it by the exercise of ordinary diligence, and failed to do so, that would be constructive delivery to him, unless he asked the-plaintiff to actually deliver the property at’ the time of the trade. A request to get up the tools, &c., subsequently made, would be-equally effectual, if such was the understanding of the parties.</p>

<p>Appeal. Before Judge Martin. Talbot superior court. September term, 1892.</p>

Complaint on promissory note. Before Judge Miller. Talbot superior court. March term, 1892. Grandy & Son sued Mrs. Jane Y. McCrory upon a note for $1,200 principal, dated March 30, 1888, upon which there were certain credits.

Levy and claim. Before Judge Gamble. Macon superior court. November term, 1892.

<p>1. Where the term at which the case was tried had ended by adjournment on the 15th of July, and on the 13th of August counsel for the plaintiff tendered to the judge a bill of exceptions complaining of a judgment of nonsuit rendered during the term, this bill of exceptions having in it material errors both of omission and commission in setting out a brief of the evidence, and for that reason it was returned by the judge to the counsel with his objections indorsed thereon in extenso, the return taking place on the 18th of August, five days after the bill of exceptions was tendered, and the counsel did not tender a correct bill of exceptions until the 22d of November, the delay was inexcusable and unreasonable, the same, so far as appears, not having been occasioned by providential cause.</p> <p>2. The act of November 11th, 1889, in declaring that the judge shall, by any needful alteration, cause the bill of exceptions to conform to the truth, does not require him to make and insert in the bill of exceptions a brief of evidence substantially different from that set forth in the bill of exceptions presented to him, but only that he shall make such corrections as can properly be made by erasures and interlineations. If counsel, on being notified in writing of the judge’s objections, does not at once make the desired alterations or insist that the judge shall make them, but raises an issue with the judge and keeps that issue pending for two or three months, finally conceding that the judge was correct, and on that account tendering a new bill of exceptions, the failure of the judge to himself make the requisite alterations in the first bill of exceptions will not save the second.</p>

<p>1. The act oí Feb. 21st, 1873, providing for the issuing of attachments against debtors on the ground of fraud, confers no authority for issuing attachments returnable to any court except the superior court. And the local act applicable to the city court in Floyd county (Acts 1882-3, 534) does not vary the general law on this subject.</p> <p>2. The statutory rule (Code, §3309) that valid general judgments may, after notice of the pendency of the attachment, be rendered against the defendant notwithstanding the attachment be dismissed, does not apply when the court to which the attachment was returnable has no jurisdiction of that class of attachments; and the appearance of the defendant and a traverse filed by him of the ground on which the attachment was issued will not render valid a general judgment against him in favor of the attaching creditor as against third persons, although such appearance and filing of traverse might operate to make the judgment good as against the defendant himself, under section 3309 of the code and cases construing the same.</p>

Equitable petition. Before Judge Ealligant. Chatham superior court. December term, 1891.

<p>Where a widow in 1874 applied for and had set apart a homestead in the lands of her deceased husband for the benefit of herself and the minor children of her husband, the children, after they arrive at age, are not entitled, in a suit against her, to recover their parts of the land, she being still a widow. The principle that the homestead right continues as against creditors was ruled in Groover v. Brown, 69 Ga. 60. The same principle applies as between beneficiaries of the homestead.</p>

Action on contract. Before Judge Eve. City court of Bielimond county. August term, 1892. To the petition of W. P. McKeon, trustee of Ann McKeon (formerly Adams), the defendant, White, filed a demurrer, which was overruled. The petition alleged: On June 24, 1856, James Adams died without children, leaving his will which was duly probated. At the time of his death he was the owner in fee of a lot of land described, and had a perfect title thereto.

Complaint. Before Judge Willis. City court of Columbus. April term, 1892.

Equitable petition. Before Judge Guerry. Clay superior court. March, term, 1892. The petition against Fleming, and against Simpson and wife, was brought by Stubbs & Tison, creditors of Fleming by note and open account.

Action on contract. Before Judge Sweat. Glynn superior court. December term, 1891. Davis & Tatnall, stevedores, sued Milburn & Company, owners of the steamship Tiverton, for services in storing cotton in the vessel. A verdict in favor of the plaintiff's was rendered. The defendants excepted to the allowance of an amendment to the declaration, and to the denial of a new trial.

<p>1. Admissions by an officer of court in an answer to a rule against him. for money collected may be considered as evidence of facts necessary to establish his liability, notwithstanding the court in its order making the rule absolute may improperly go further and order the answer to be stricken. The order to strike is irregular, and may be treated as surplusage.</p> <p>2. A solicitor-general or attorney at law who, with the consent of the board of county commissioners, voluntarily hired out certain misdemeanor convicts, is not entitled to payment out of the hire for his services either in hiring or in collecting the hire. There is no law authorizing payment for such services from the funds of the county.</p> <p>3. Under section 3956 of the code, a rule absolute against an officer of court for money collected bears interest from its date until satisfied, at twenty per cent, per annum, whether a written demand for payment of the money was previously made or not.</p> <p>4. The fact that the rule absolute was rendered after the passage of the act of October 16, 1891, in relation to the hiring of misdemeanor convicts, does not bring the case within the provisions of that act, as it relates exclusively to cases arising from and after its passage, and the money for which the rule absolute was granted was collected before.</p> <p>5. Under the decision made by this court in this case at October term, 1891 (88 Ga. 238), the court below did not err in making the rule against the solicitor-general absolute.</p>

Levy and claim. Before Judge Milner. Floyd superior court. March term, 1892. A mortgage fi. fa. in favor of Roberts, transferee of Tallman, against Mrs. Margaret A. Skinner, dated July 31, 1891, was levied upon the lands therein described; Mrs. Skinner interposed a claim for herself as widow, and as next friend for the minor children, of J. J. Skinner, alleging that she and they were the beneficiaries of a homestead set apart in the property.

Complaint. Before Judge Janes. Paulding superior court. January term, 1892. The Villa Rica Lumber Company sued Mrs. Paratain upon a mortgage note. Defendant pleaded the general issue, no consideration, and that the note and mortgage were executed and delivered for a debt due plaintiff by Holcombe, her son-in-law, she being a married woman. The case was submitted to the judge without a jury.

Complaint. Before Judge Jenkins. Baldwin superior court. January term, 1892. On April 10, 1891, Whelan sued the Mayor and Aldermen of Milledgeville and the clerk thereof, alleging that they and their successors were indebted to him $500 with interest, for that on May 31, 1890, he opened a store in Milledgeville as retailer of liquors, and paid defendants $500 tax or license therefor and therefrom.

Motion to vacate. Before Judge Roberts. Twiggs superior court. October term, 1891. This bill of exceptions was taken by G. W. Jordan as next friend of the minor children of W. B. and Annie P. Tarver, to the passage of an order by the court, ex mero motu, setting aside certain proceedings. It appears that in 1882, W. B. Tarver applied to the ordinary for the setting apart of a homestead.

Action for damages. Before Judge Roberts. Dodge superior court. March term, 1892. The ease of S. Herrman & Bro. against the railway-company, for injury to plaintiffs’ horse by negligence of the company resulted in a “ verdict in favor of the plaintiff for $75.” Defendant’s motion for a new trial was overruled.

<p>Under the declaration and the evidence, this case should have turned, as to the question of the defendant’s liability, upon whether the conductor ordered the plaintiff’s daughter to jump from the train while in motion; and if so, whether the daughter was free from plain and manifest fault in obeying the order. If the order was not given, or if it should have been disobeyed on account of the obvious danger of complying with it, there could be no recovery ; otherwise there could be a recovery measured by the loss of services, reduced to their present net value, from the time of the injury up to the time when the daughter would attain her majority, to which should be added any expense to the plaintiff occasioned by the injury. As the daughter was about seventeen years of age, she should not be treated, with respect to her duty to care for her own safety, as a child of “ tender years,” but should be treated as a person who is presumptively chargeable with the exercise of the ordinary discretion possessed by young persons of her class and condition. Let the case be tried over, substantially upon the views .above indicated.</p>

Action for damages. Before Judge Atkinson. Wayne superior court. October term, 1891. Slater sued the railway company for personal injuries received by him by being struck on the foot by a stick of wood thrown from a passing engine of defendant. He obtained a verdict for $1,500. Defendant’s motion for new trial was overruled, and it excepted.

Action for damages. Before Judge Sweat. Glynn superior court. May term, 1892. Aiken sued Wheelwright & Company for breach of contract, and for certain expenses alleged to have been incurred by the plaintiff at the request of the defendants. The jury found for the plaintiff, and defendants’ motion for a new trial was overruled. The evidence is directly conflicting.

Action for damages. Before Judge Eve. City court of Richmond county. May term, 1892. The widow of Wesley Jenkins sued the telegraph company, alleging as follows: On August 18, 1891, Wesley Jenkins was employed by the defendant as a lineman to remove the wires from certain telegraph poles constituting a part of the telegraph line of the defendant between Augusta and Atlanta, Ga., and at or near a point on said line known as Belair, in Richmond county.

<p>1. The declaration set forth a cause of action, and there was no error in overruling a general demurrer thereto. The evidence warranted the verdict.</p> <p>2. The evidence showing affirmatively that the plaintiff was injured while engaged in the line of his duty, under the orders and in the immediate presence of the “ boss ” to whose orders he was subject, and that the injury was the result of negligence attributable to the company, either the sole negligence of the “ boss ” or the joint negligence of him and of absent officers or employees with whom he should have co-operated in so regulating the movements of his hand-car as to prevent a collision between it and a train, a recovery by the plaintiff would be defeated only by fault on his part amounting to rashness or recklessness in obeying under the circumstances the orders of the “ boss.” The evidence not making any such fault manifest, there was no reversible error in the charges complained of, or in refusing to charge the jury as requested.</p>

Before Judge Fish. Sumter superior court. November term, 1891. A verdict against Freeman was rendered at the May term, 1891, of tbe superior court, and he moved for a new trial. The court ordered, by consent of parties, that movant have until July 2, 1891, to perfect his motion and brief of evidence, and that the motion be set for hearing on that day.

Attachment. Before Judge Sweat. Glynn superior court. May term, 1892. Attachments were sued out against Anthanissen, master of the Norwegian bark Svalen, and the unknown, owners of that hark, for services rendered under contract for rescuing the bark from a position of peril on the bar of the Brunswick harbor.

Action for damages. Before Judge Miller. Bibb superior court. November term, 1891. Tbe nature of tbe action will appear from tbe report of the testimony. A nonsuit was granted, and plaintiff excepted. McKendrick testified: February 16, 1889, was driving a heavy ice wagon for plaintiffs up Third street in Macon.

Equitable petition. Before Judge Jenkins. Greene superior court. September term, 1892. Sarah Patrick and six of her children, and one Peck who joined them in the petition as their trustee, sued W. J. Boswell and L. J. Boswell, to recover possession of seven tenths undivided interest in certain land, and for cancellation of a deed thereto from the plaintiffs, (other than Peck) and two other Patricks to the defendants, dated March 2, 1881.

Action for damages. Before Judge Hansell. Brooks superior court. May term, 1892. Sims sued Horn for malicious arrest and prosecution. The jury found for the plaintiff $50. The defendant’s motion for a’new trial was overruled, and he excepted.

<p>1. Upon an inquiry as to what caused the breaking of a car axle which occurred on the railroad of the defendant at a time when a train was wrecked, it was not error to refuse to allow a witness offered by the defendant to describe to the jury an axle which had been brought to him, reputed but not proved to have come from the defendant’s railroad, and not identified either as belonging to the defendant or as the one involved in the inquiry, although the defendant also expected to prove by this witness that the axle-he examined “ was broken exactly as the other witness saw the-axle made by the wreck after the injury.”</p> <p>2. It appearing that the plaintiff had been injured in a wreck on defendant’s road, and that about two years thereafter he had a fall which resulted in serious injury to his spine, and the plaintiff" himself testifying that he “ got over the first hurt,” a charge based upon the theory that the injury caused to the plaintiff by the defendant was permanent, if authorized at all, should have been accurate both in substance and phraseology.</p> <p>3. The charge on the subject of permanent injury authorizing the-jury to consider any diminution in the plaintiff’s capacity to earn money caused by the injury alleged in the declaration as if such diminution would continue from that cause alone during the entire period of his expectancy and up to the time of his death, and not instructing the jury to take into consideration such diminution as might be caused by declining years or by receiving another serious injury of which there was positive proof by the plaintiff himself, was erroneous.</p> <p>4. Bead in connection with the entire charge, the instruction complained of regarding the measure of damages to be allowed the plaintiff on account of pain and suffering was not ambiguous, misleading or erroneous.</p> <p>:5. As the case is to be tried again, no opinion is expressed as to whether or not the verdict was authorized by the evidence. And as the questions relating to the refusal of a continuance and alleged newly discovered evidence, will not arise upon the next trial, no ruling thereupon is necessary.</p>

<p>Equitable petition. Before Judge Miller. Bibb superior court. April term, 1892.</p> <p>To the dismissal of his petition Hollingsworth excepted upon the grounds, that the allegations showed that the mortgages attacked amounted to a voluntary assignment by insolvent debtors for the benefit of creditors, and the assignment not being executed in accordance with law should be set aside; and that petitioner was entitled to a general judgment against Johns & Company, and the petition containing a prayer therefor, the court had no authority to dismiss it. The allegations are: Johns & Company, a firm composed of Gr. I. Johns and C. M. "Wood, owe petitioner, individually and as agent for Mrs. M. H. Hollingsworth, $7,425, by virtue of certain rent contracts made by Johns & Company with petitioner and Mrs. Hollingsworth, copies of which are attached, of which sum there is now due and unpaid $475. Johns & Company were engaged in business in the buildings of petitioner and Mrs. Hollingsworth, for the rent of which the rent notes and rent contracts were given, up to April 1,1892. On December 30,1891, Johns made and delivered to Hudgins a note and mortgage for $2,000, to Fleetwood & Company a note and mortgage for $1,500, to Lizzie Wood a note and mortgage for $1,775, to Mrs. Sarah Wood a note and mortgage for $1,300, and to Mrs A. R. Thornton a note and mortgage for $720. All the mortgages were executed and delivered at the same time, drawn by the same attorney, attested by the same witnesses, and covered the same property; and each of the mortgages referred in terms to the others, and provided that all of the mortgages should be of the same rank and dignity, and all were recorded at the same time. Johns & Company incumbered by the mortgages all the property held, owned or claimed by the firm, consisting of wines, liquors, etc., and each and every article owned by the firm in the business, with the proviso in each mortgage that it was intended to include each and every piece of property held, owned or claimed by the firm. Some of the mortgages were foreclosed and plaintiff seized the property, but before he sold the same a petition was filed by C. M. Wood, a member of said firm, defendant, praying for an accounting, and a consent order was taken appointing a receiver of the property, and the receiver is now endeavoring to sell it under said order. At the time of the execution of all these mortgages Johns & Company were insolvent, and the mortgages executed as before mentioned should be considered in law as one instrument ; their execution upon the entire assets of the firm was a ease of voluntary assignment by insolvent debtors for the benefit of creditors, and as such the mortgages were void, because Johns & Company at the time of executing them did not prepare and attach to them any schedule and inventory of the assets of the firm, nor any schedule of its creditors, as required by law. The moi’tgages are void as an assignment, and are void as preferences to said alleged creditors. Johns & Company are indebted to various persons in large amounts not secui’ed, and it would be inequitable and unjust to allow the mortgages, fraudulent as they are in law, to absorb the entire assets of the firm without prorating among the other creditors. The prayer is, that the receiver be enjoined from selling the property under the consent order, to which petitioner was not a party; that the mortgages be produced and declared null and void; that a receiver be appointed to take charge of the property and sell it; that the fund arising from such sale be equally and ratably distributed among such bona fide creditors as may become parties to this petition, etc. By amendment it is alleged, that Johns & Company are indebted to petitioner certain sums on notes attached, which are due and unpaid. He prays for general judgment against Johns & Company and the individual members of the firm for said amounts. Process is prayed against Johns & Company, the mortgagees and the receiver ; but there is no prayer for process against the individual members of the firm of Johns & Company.</p> <p>Fleetwood & Company and Miss "Wood demurred on the following grounds : (1) The petition does not make such a case as entitles petitioner to equitable relief or to any standing in a court of equity. (2) The petition shows that the property is now in the hands of a court of equity, under a proceeding between proper parties to give the court jurisdiction, and if petitioner is entitled to any relief he can obtain it by intervention in the case-now pending, in which a receiver had been appointed for all persons interested in the assets of the late firm of Johns & Company. (3) It is not according to the course and practice of a court of equitable jurisdiction to enjoin a receiver in one case under a petition for a receiver in another. (4) The receiver already appointed can only be reached or moved by an application to the court appointing him, by a party to the proceeding in which he was appointed, or by some person becoming a party to such proceeding for the purpose of addressing a petition to the chancellor, whose officer he is. (5) A receiver cannot be sued without permission of the court which appointed him, previously granted, and it does not appear that permission was granted petitioner to bring his suit. (6) The allegations of the petition do not show a voluntary assignment for the benefit of creditors, but on the contrary expressly negative the possibility of the instruments referred to constituting an assignment, by stating that said instruments are mortgages; a mortgage being only a lien and not a transfer of title, as is an assignment. (7) Charles M. Wood, the plaintiff whose suit is sought to be enjoined, is not made a party defendant to the petition or brought before the court. (8) G. I. Johns and C 0. M. Wood, the divers suitors and antagonistic parties plaintiff and defendant in the original suit of C. M. Wood against G. I. Johns, are sought to be dealt with as an individual entity, or as making together one person under the fictitious name of G. I. Johns & Co., so as to deprive each one of the rights he is entitled to as an individual and as a party.</p>

Complaint. Before Judge Miller. Bibb superior •court. April term, 1892. Baer sued Mrs. Dinkier for $1,420 with interest and attorney’s fees, alleging: February 19,1891, she bought from him thirteen shares of stock of the Macon Brewing Company, agreeing to pay him therefor $1,420. He delivered her the stock, which was duly transferred to her upon the books of the company.

<p>When a garnishee appeared at the term to which he was summoned and filed his answer denying indebtedness, and afterwards during the same term the court, while engaged in the trial of criminal cases (counsel in civil cases being excused from attendance), on motion of the garnishee took up the garnishment case out of its order, and ascertaining that no traverse to the answer had been filed, granted an order discharging the garnishee, it was no abuse of discretion, on a subsequent day of this same term, to revoke the discharge and allow the plaintiff to file a traverse, although the juries were discharged for the terra on the day the discharge of the garnishee was granted, it appealing that counsel for the plaintiff was surprised by the disposition of the garnishment case during his absence under leave, and at a time when he had a right to assume that no civil business would be disposed of. Walton v. Jones, 53 Ga. 91. The action of the court did not necessarily result in a continuance, as the court was one in which the judge could try issues of fact without a jury, unless a jury was demanded.</p>

<p>Petition for injunction. Before Judge Pish. Sumter county. At chambers, July 30, 1892.</p> <p>The petition alleged, in brief, as follows: Petitioner is the owner and in possession of a certain ice factory, comprising the land, building and machinery. All the machinery in the plant was intended to remain permanently there, and is so attached to the land and building that it would injure the building to remove it, and the machinery if removed would be of very little value, its chief value consisting in its use as part of the plant. The sheriff has a mortgage execution covering all of the machinery and all of the plant, except the building and the land, in favor of Harrell as trustee for various creditors of the Holgate Ice Machine Construction Company, and the sheriff’ threatens to levy upon all of the machinery, detach it from the building and. bring it to sale. If he is allowed to do this, the machinery would not bring half its value, the building, having been erected for this machinery, would be of very little value, and the damage to petitioner would be irreparable. The claims alleged in the mortgage and ji. fa. aggregate $5,119.96 with interest, etc. On January 21, 1891? petitioner made a contract with parties composing the Holgate Company to construct for petitioner a complete ice machine (of a specified capacity, and within a certain time). In compliance with the contract petitioner expended, in buying land and erecting building, $4,176.85, and in addition paid the Holgate Company $4,333.33, the amount named as first payment in the contract. The machinery was not completed within the time specified, and petitioner was deprived of the use of its money. In the spring of 1892, the Holgate Company undertook to repair and remodel themachinery to make it comply with the contract test. Beginning April 18, 1891, the test was made, the machine utterly failed to come up to the contract, and petitioner refused to make any other payment thereon, but offered, if the Holgate Company would repay it the money so paid out, it would turn over the entire plant,building and land to the Holgate Company. While petitioner was unwilling to accept the plant as a compliance with the contract, it had no alternative, as it had invested so much money, but to take possession and operate it with a view of trying to save some of the money so paid out. Upon taking possession and since operating the same, petitioner has found many defects m the construction of the machinery and has been compelled, at large expense, to repair and replace parts of the machinery improperly constructed. If the contract had been complied with on the part of the Holgate Company, petitioner would have had a profitable business, but with the machine as it is, it is doubtful whether petitioner can ever receive any income. After petitioner had made the first payment mentioned, and after the machinery had been attached as a fixture to the realty, the Holgate Company, without authority of law and without petitioner’s consent, executed the mortgage to Harrell. Many of the debts embraced in the mortgage were for purchase money of machinery bought by the Holgate Company and by it sold to petitioner and placed in the ice factory. Two of the creditors for whose benefit the mortgage was made to Harrell have each had recorded liens covering the same debts mentioned in the mortgage, the liens being claimed on the entire plant, machinery, building and land, and both these parties have sued to enforce the liens, which suits are pending. In addition to the mortgage, the Holgate Company and the parties composing it have executed two others purporting to cover all the machinery. All these mortgages were given without authority and are a cloud upon petitioner’s title, and it would be unjust to permit the creditors of the Holgate Company to proceed by foreclosing the mortgage and at the same time by suit on their liens. When the mortgage was given to Harrell, very few if any of the creditors named therein had been consulted, and the mortgage is not being foreclosed at the instance of the creditors, the real parties, but at the instance of the Holgate Company, which knowssit has failed to comply with its contract, and knowing this gave the mortgage and is now having it foreclosed, hoping that petitioner will pay out more money rather than be forced to litigate in a distant forum. The Holgate Company is insolvent. Petitioner prays for injunction against the sheriff, and that the various creditors named be enjoined from proceeding to enforce their mortgage, etc.</p> <p>Harrell as trustee for the creditors made answer in which the material allegations of the petition were denied. The judge granted the injunction prayed for, and defendants excepted.</p>

<p>1. An allegation in an indictment that a grindstone was stolen from a “wagon shed-house” is not supported by evidence showing that the grindstone in question was stolen from under a “ buggy shed-house.”</p> <p>2. When the accused has not put his character in issue, it is reversible error to allow the solicitor-general, over objection by counsel for the accused, to argue to the jury “that the defendant is charged with an offence that, if he is convicted, will disfranchise him; the charge of larceny from the house puts the character of defendant in issue, and under the law he had a right to bring witnesses and show his good character; he has known for a long time what the charge was, and he has not brought a single witness to show his goocf character; if he. could have shown that he had a good character, you know that he would have done so.” Dennett v. The State, 86 Ga. 401.</p>

Indictment for burglary. Before Judge Richard II. Clark. Fulton superior court. September term, 1892. Murks was convicted of burglary, and Ms motion for a new trial was overruled. The evidence tended to show, that two clays before the burglary, he was about the premises where it was committed; and upon the night of the day he had been upon the premises engaged in doing some work, somebody was heard in the cellar of the burglarized house.

Indictment for larceny from the house. Before Judge Fish. Sumter superior court. November term, 1892. The motion for a new trial, in addition to the general grounds, assigned error upon the admission in evidence of a record from the county court, showing the conviction of Dorsey (defendant’s witness) of simple larceny, over objection that it was irrelevant, and that if offered for impeachment, as stated by counsel, it was not competent for that purpose.

Indictment for burglary. Before Judge Eish. Sumter superior court. November term, 1892. The testimony for the State was to this effect: On the night of the 16th of May, 1891, in Sumter county, Mrs. Wise’s smoke-house, which had been locked shortly before night, was entered and meat' stolen therefrom. The back of the smoke-house made part of the enclosure -of the garden. The smoke-house was entered from the real’ by digging under.

Indictment for assault with, intent to murder. Before Judge Bartlett. Bibb superior court. November term, 1892. Gallery was convicted of assault with, intent to murder Graven, and a new trial was refused.

Indictment for murder. Before Judge Bartlett, Bibb superior court. November term, 1892. Alonzo Battle was convicted of the murder of Son Parker, with a recommendation to life imprisonment. The only witness introduced, as to the circumstances attending the homicide, was Adolphus Mims. He testified, that on a Saturday night in January, Battle and Parker came into his store and sat down by the fire.

<p>Indictment for assault with intent to murder. Before Judge Milner. Whitfield superior court. April term, 1893.</p>

Indictment for murder. Before Judge'Jenkins. Putnam superior court. March term, 1893. Hennie Hudson and her brother, Albert Smith, were jointly indicted and tried for the mui’der of Mon Hudson, husband of Hennie Hudson. At the trial each was permitted to introduce evidence as if being tried separately, and each was convicted with a recommendation to life imprisonment.

Indictment for selling and furnishing spirituous and intoxicating liquors to a minor. Before Judge Richard H. Clark. Rockdale superior court. April term, 1893. Burnett was found guilty of furnishing spirituous liquors to a minor.

Indictment for misdemeanor. Before Judge Milner. Whitfield superior court. April term, 1893. The defendant, who was the train dispatcher of. the Western & Atlantic Railroad Company, was indicted at the April term, 1891, for running a freight-train on Sunday, the 22d of March, 1891. After verdict of guilty, defendant moved for a new trial on the general grounds. The motion was overruled.

<p>This case is controlled by the decision in Atlanta & Florida Railroad Co. v. Fuller, just rendered. The evidence was the same in both cases. The verdict in the present case being for the defendant was right, and there was no error in refusing a new trial.</p>

Action for damages. Before Judge Nan Epps. City court of Atlanta, June term, 1892. Merritt as administrator of Butler sued for the homicide of Butler. He obtained a verdict for $8,000, and defendant’s motion for a new trial was overruled.

Action for damages. Before Judge Van Epps. City court of Atlanta. September term, 1892. White sued for personal injuries, and was nonsuited. He testified: I was hurt by one of defendant’s electric cars on Whitehall street, Atlanta, on a Saturday evening. I was with Bradwell. When we got to Whitehall street no car was in sight, and we walked along until we got to an alley between Hood and Cooper streets, a very wide block, when we saw it coming.

<p>Petition to foreclose lien. - Before Judge Westmoreland. City court of Atlanta. September term, 1892.</p> <p>The administrator of M. T. Castleberry alleged by his petition : As such administrator he is a material man and as such claims a material man’s lien against Johnston, and against certain described real estate of Johnston, for $65, the price and value of 10,000 brick sold and delivered by petitioner as administrator to Letch-worth as contractor, who was building or improving a house for Johnston on the real estate mentioned, on August 11, 1890, and of which sale and delivery petitioner gave written notice to Johnston, in compliance with the law and for the purpose of binding him and the real estate for the cost of the brick. Johnston has not paid for the brick and had not settled with Letchworth when he was served with the notice, but when so served was indebted to Letchworth for said improvement more than $65. "Within three months after the delivery of the brick, ’petitioner filed and recorded his claim of lien against Johnston and the real estate. The petition alleged demand for payment and refusal to pay and the bringing of the suit within the time allowed by law, and asked for a judgment for the $65, and for foreclosure of the lien against the real estate. Attached as exhibits were copies of the notice to Johnston and of the claim of lien. Defendant demurred on the ground that Letch-worth had not been sued to judgment or joined with defendant in this suit. Whereupon plaintiff' offered the following amendment: Letchworth absconded from the county and State before he had concluded his work for Johnston, and before plaintiff’ had a reasonable opportunity to enter suit against him. ITis departure was sudden and his intention to leave unknown to plaintiff. He has never returned to Georgia, and has constantly since his departure been and is now beyond the jurisdiction of its courts. It has been and is impossible, therefore, to recover a judgment against him, and plaintiff’s only remedy is against Johnston. Plaintiff had served Johnston with written notice of the existence of the debt sued for and of the fact that his real estate was liable for the debt and would be held liable, before Letchworth absconded, and while Johnston was indebted to Letchworth more than the amount of plaintiff’s claim, so that Johnston knew of the existence of the debt sued for, and that plaintiff would look to him for it, when he was in a position to fully protect himself in the matter, and after the service1 of the notice and before the bringing of this suit and before Letchworth absconded, Johnston had paid to Letchworth the money m his hands due Letchworth, or more than enough of it to satisfy plaintiff’s claim, in disregard of said notice. Letchworth left no property in the county or State, subject to attachment or garnishment, when he absconded.</p> <p>The demurrer was sustained, and plaintiff excepted.</p>

Complaint. Before Judge Marshall J. Clarke. Pulton superior court. September term, 1892. The action was originally brought by the plaintiff as a corporation for indebtedness of Van Pelt upon a bond, for advances made to him by plaintiff of which association he was a member. The case was referred to an auditor who, in December, 1889, filed a report finding in favor of plaintiff.

Complaint for damages. Before Judge Westmoreland. City court of Atlanta. September term, 1892. Ware & Owens sued Mrs. Eichberg for $300 commissions which they alleged to be due them as real estate agents, for finding a purchaser for a lot of defendant under an agreement with her to pay commissions therefor, the offer of which purchaser, they alleged, she accepted and promised to bring her deeds for examination, but finally repudiated the sale and refused to complete it.

Petition for injunction and receiver. Before Judge Butt. Muscogee county. April 22, 1893. The petition was on behalf of Dunham, Buckley & Co., Partridge & Richardson, and Everett, Ridley, Ragan Co., against Curtis & Futch.

<p>1. The plaintiff suing as executor of a deceased person having, without objection, testified that he was such executor, no further proof of this fact was necessary.</p> <p>2. Dismissal of a case for want of evidence to support it is virtually a judgment of nonsuit, and is no bar to a subsequent action for the same cause.</p> <p>3. The plaintiff’s right to recover depending entirely upon the presumption of negligence raised by law against the railway company, and the defendant having, by the uncontradicted testimony of the engineer, fully overcome this presumption; andit appearing that the fireman, who was not introduced as a witness, could not have thrown any additional light on the case because he was at the time occupied in supplying the engine with fuel, the verdict rendered in the magistrate’s court was contrary to law, and the court erred in overruling the certiorari.</p>

Complaint. Before Judge Janes. Polk superior court. August term, 1892. Mrs. Smith and Mrs. Burge sued their father to recover the value of certain promissory notes which they alleged he received in trust for their use and benefit. A nonsuit was granted.

Rule. Before Judge Miller. Crawford superior court. October term, 1892. Wrigbt as an attorney at law was ruled by A. 3). Schofield, surviving partner of J. S. Schofield & Son, alleging that on or about April 24,1890, they sent to Wright, through R. G-. Dun & Co., a note for $51 principal, made to Schofield & Son by Andrews and Mathews, which Wright had collected, and that he had refused to pay over the proceeds on demand.

Complaint on account. Before Judge Gamble. Baldwin superior court. July term, 1892. D. & B. Wolf, traders under the name of the Continental Jersey Works, sued Joseph for $41.16 balance on account.

Complaint on notes. Before Judge Martin. Chattahoochee superior court. September term, 1892. The bank sued Adams, maker, and Bivins, indorser, upon a promissory note. Plaintiff demurred to two pleas of defendant Adams. The demurrer was overruled. The verdict was for defendant, and a motion was made for a new trial on the general grounds, and was overruled.

Action on forthcoming bond. Before Judge Fish. Sumter superior court. November term, 1891. To the levy of an execution against Tom IJart.a claim was interposed by I. N. Hart as agent of M. E. Hart. The property was found subject, and was advertised to be sold, but was not produced at tbe time and place of sale.

<p>If by express legislative enactment a particular lot of land described by number be withdrawn from one county and added to another, failure to observe and conform to the changed boundary between the two counties for nearly forty years, and a continuous acquiescence in and observance of the old boundary for the same period, on the part of tbe corporate authorities of tbe counties respectively and on the part of tbe inhabitants and public officers, in rendering and exacting public duties, taxes, etc., will not prevent a recognition of the true boundary as established by the enactment, or interfere with the assessment and collection of taxes accordingly by the county in which the tract of land is actually situate. This being so, the tax-collector of the other county may be restrained by injunction from collecting taxes which would be due to it were the tract in that county, but which are not due because of its being in the adjoining county. The act referred to is that which relates to the counties of Worth and Dougherty. See Acts 1854, p. 319.</p>

Attachment and claim. Before Judge Boss. City court of Macon. September term, 1892. Attachment was sued out by Adams & Co. against Mann ou November 4, 1891, and was levied on a stock of goods in a storehouse at Echeconnee, and on certain horses, vehicles, cows, etc. A claim to the property was interposed by Johnson, and the evidence in his behalf was, that the levy was not made until November 5, and after a transfer of the property to him by Mann.

Certiorari. Before Judge Miller. Bibb superior court. November term, 1892. Hilliard sued the Rushing Produce Company, and obtained a verdict for $65.78, which was sustained on certiorari. The evidence for plaintiff was: A telephone message came to Cronell, the delivery clerk at the E. T., Y. & G-. R. R. depot in Macon, about December 26th, to deliver 126 boxes of oranges, shipped to Cady, to the Mansfield Dray Line in order that said dray line might carry them to defendants.

<p>The court committed no error in overruling the certiorari.</p>

<p>There is absolutely no merit, nor even any color of merit in this writ of error, and the</p>

Petition for injunction, etc. Before Judge Sweat. Ware county. At chambers, March 3, 1893. Aldridge by his petition alleged: In January, 1892, he contracted by parol with Barber to buy twenty acres of land (described) for $60, and in good faith went into possession and erected improvements (described) of the value of $185. He has paid $15 of the purchase money, and now tenders the balance, though it is not due.

Petition for injunction. Before Judge Richard H. Clark. Fulton county. May 27, 1898. The object of the petition was to restrain the defendants from procuring a charter for which they had applied to the superior court, incorporating them under the name of the “ Southern Dental College,” and from conducting the business contemplated by the proposed charter under that name.

<p>There being no allegation nor proof of insolvency as to the defendant against whom the main relief is prayed, and the evidence being conflicting, there was no abuse of discretion in refusing to grant an interlocutory injunction, thus leaving the rights of the parties to be determined by a jury at the final hearing under the evidence then submitted, and under proper instructions from the court as to the law applicable.</p>

<p>Indictment for burglary. Before Judge Richard H. Clark. Fulton superior court. September term, 1892.</p> <p>Delk, Moore and Johnson were indicted for breaking and entering tbe tailor-shop of B. Fresh and stealing eight pairs of pants and five coats. Johnson was found guilty, and his motion for a new trial was overruled. The special grounds of the motion were, that the court erred in the following parts of the charge :</p> <p>1. “I will charge you first upon this case as though Delk and Moore had not testified at all. I will first present the ease to you with these men entirely out of it and in no way in question in the case; and then taking the testimony that is before you as to the possession of a pair of pants or couple of pair of pants by this defendant, and all the testimony going to illustrate the possession of the pants, the management in regard to it and the conduct about it, do you believe you would be justified in the law in finding this defendant guilty of burglary in this case ? Do you believe then, applying the rule of law above as to the evidence, as I have given it to you, that you would be warranted in finding this defendant guilty ? If so, and you so believe, you should do so.”</p> <p>2. “ Perhaps I ought to charge you that the time that this burglary was committed, if you believe that.a burglary was committed, is immaterial. The law allows the State to go back four years, in cases of this sort, prior to the date when the bill of indictment was found. But if upon the testimony the time is made by the evidence material, it may be made from the run of the evidence material, and therefore, if that is the case you are to consider the time.”</p> <p>3. “ The solicitor-general, under the law, lias a right to conduct a case for the State as he sees fit, and then when it reaches the judge he has a right to do the same, and it is not for the jury to pass upon that.”</p> <p>4. The motion contained also the grounds, that the verdict was contrary to law and evidence. It appeared from the testimony of Fresh, that his tailor-shop was broken on Friday night just before or just after the first day of August, 1892( which was Monday; and that second-hand clothes of the value of about $125, which had been left with him to be cleaned and repaired, were stolen therefrom. He further testified: When I found the goods missing, I reported the same to Wright, Bed-ford and Cason, at police headquarters; and I got one coat and two pairs of pants back. I identified the two pairs of pants and coat at the station-house about six weeks after the breaking. I went with the officers and searched old man Johnson’s house (the father of defendant), and started to identify a pair of pants we found there, but did not, as they were not mine. Mr. Johnson told me to take them if I wanted them, but they were not mine.—D. S. Looney testified: I got a pair of Fresh’s pants off of defendant; we got two or three pairs of pants and a coat or two, but only got one pair of pants (a brown pair) from defendant. He said he got the pants from a boy named Myers, and that he had had them about six weeks. I went to Anniston, Alabama, after Delk and .Moore. I found Delk in the station-house there. It was after he was brought back that he told me Johnson was one of them, and what kind of clothes he had on. In getting up these goods we arrested a man by the name of Joe Montgomery who also went by the name of Myers. He sawed out of the station-house and got away about the 30th of last August. The other goods I found that belonged to Fresh were in Oxanna and Anniston, a pair of pants and a coat or two.—C. M. Cason testified: The pants that Johnson had on when arrested were the pants that matched the coat that Fresh has on now. It was a week or two ago (in September) when Delk and Moore told us about Johnson. When we arrested Johnson he pulled off the old pants he had on, and started to put on the pants he wears out of the shop, and I told him we wanted the ones he had pulled off. I think some of the officers have the pants in their possession yet. Old man Johnson was perfectly willing for us to search his house. —Will Harbuck testified: I work at Frank E. Block’s. Defendant worked there. I burned up an old pair of pants that belonged to him. Old man Johnson told me to do it; he had come after his son’s clothes. I burned a pair of pants and an old undershirt. No one picked out the pants to burn; they were under-the table with his clothes. I disremember the pants; they were black with blue or green stripes; they had two patches on the seat, sewed on the outside. Old man Johnson took a pair of pants away with him, and a top shirt. Cross-examined: The next morning after defendant was arrested, I was at Mr. Johnson’s house and told him about his son’s clothes being up at the factory, and went with him there after them. Di$ not tell him about the pants. When he came down after the clothes, he found those old patched pants and said they were old and shabby, and said he didn’t believe he would take them home, and to burn them up. They were old shabby pants with two patches on the seat. They were pants he had to work in. Mr. Johnson said I could burn them if I wanted to. He had left before I burned them. He did not know the things were there until I told him about them.—Delk and Moore testified that they and Johnson committed the burglary. Delk testified that Johnson got two pairs of pants, one of a kind of yellow cheviot, the other of green checks. There was testimony for defendant, that he had a dark brown pair of dirty pants on July 16, 1892 ; and that the burglary was committed on the night of August 19th. He stated that he got a pair of pants from a fellow who said his name was Charlie Myers, but whose name was Joe Montgomery, gave him seventy-five cents and was to pay him fifteen cents more, but never saw him any more; and that he knew nothing of the burglary, etc.</p>

Indictment for burglary. Before Judge Jenicins. Morgan superior court. March term, 1893. Dave Smith and Jerry Boswell were indicted for burglary.' Smith pleaded guilty. Boswell was tried and found guilty, and his motion on the general grounds for new trial was overruled. Besides' the testimony of Smith, the evidence for the State showed the following : The store of Cochran was broken open Tuesday night.

Indictment for murder. Before Judge Falli&ant. Chatham superior court. March term, 1893. On the night- of Sunday, January 24, 1892, A. W. Meyer was murdered in his soda water factory in Savannah. An indictment for the murder was found against Williams, Gray, Bacon, Heyward, and Joe Blois. The defendants severed. Blois was convicted, and his motion for a new trial was overruled. He was in Meyer’s service, and lived with him in the factory. No one else lived there.

Complaint for land. Before Judge Richard Ii. Clark. DeKalb superior court. August term, 1892. This ease was formerly before the Supreme Court, and a report of it will be found in 87 Ga. 138, under the name of Adams et al. v. Powell.

Bill to foreclose mortgage. Before Judge Miller. Bibb superior court. April term, 1892. This case was formerly before tbe Supreme Court. 86 Ga. 699. At a subsequent trial tbe plaintiff again obtained a verdict and decree against Mrs. Phillips, and ber motion for a new trial was overruled.

<p>1. Where two are tried jointly for a capital offence and neither waives his peremptory challenges, the State is entitled to half of the whole number which the law allows to both. Code, §4643.</p> <p>2. There was no substantial error in charging the jury touching reasonable doubt, as follows: “ Defendants in all criminal cases are presumed to be innocent until the contrary appears, and it is-your duty to give the defendants the benefit of this presumption, and this presumption follows the defendants all through the trial and until the proofs satisfy the mind of the jury of the guilt of the accused beyond a reasonable doubt,—that is, a moral certainty. That does not mean that the State should demonstrate to a mathematical certainty the defendant’s guilt; that would scarcely be possible in any human trial. It means that the evidence must, be of such a character as to leave the minds of the jury settled as to the conviction of the defendant’s guilt. It must not leave the. minds of the jury wavering, unsettled, hesitating or unsatisfied, because if it does, the law says the defendant is entitled to that, doubt, and to an acquittal. It does not, on the other hand, mean a vague, conjectural doubt, the doubt of a 1 crank,’ a doubt conjured up in the mind of any man. It means a doubt that grows out of the evidence in the case or the want of evidence. It means such a doubt as a juror would hesitate to act on in the most important business affairs of his own in the ordinary walks of life.”</p> <p>3. The homicide having been committed by shooting with a pistol, and the plaintiff in error being the person who fired it, there was, as against him, no error in char-ging thus: “ If the State has shown to you by evidence, beyond a reasonable doubt, that either of these defendants killed the deceased, and that the other was present aiding and abetting it, then the law presumes that the killing. was murder, and it is then incumbent on the defendant to show that such killing was not murder,—a lesser grade of homicide, or was justiflable”; the court having also charged that the mitigating facts would be available if shown by the State.</p> <p>4. If the accused shot at his assailant in consequence of an assault which he did not pro voice, and killed another person by bad shooting, the killing would be manslaughter if the assault was not such as would have justified killing the assailant. If it were such, it would be homicide by misadventure.</p> <p>5. In view of the testimony and the charge of the court as given, the charge was incomplete without adding thereto as a part of the law of the case, irrespective of any request for instruction, something in substance to the following effect: “ If the assault upon the accused was made with a weapon likely to produce death and in a manner apparently dangerous to life, the fact that the accused provoked the assault bjr opprobrious words would not put him in the wrong for resisting it so far as was necessary to his defence; and a seeming necessity, if acted on in good faith, would be equivalent to a real necessity.”</p> <p>6. Under the evidence in the record, the law of mutual combat was not applicable to the facts of the case, and the court erred in charging the jury on that subject.</p>

<p>The sender of a telegraphic message having erroneously given the address of the sendee as a particular street-number in a city, and the telegraph company having promptly carried the message to that number and being unable to deliver it because the sendee was not to be found there, the sender is not entitled to recover of the company the penalty prescribed by the act of 1887 (Acts 1887, p. 11), unless it affirmatively appears that the company knew the proper address of the sendee or could have readily ascertained the same. If upon examination of .the city directory the initials of the sendee’s given name as contained in the message were not found, the company would not, in order to escape the penalty, be bound to send the message to a person whose surname in the directory was the same as that of the sendee, although in point of fact this person was really the sendee, whose given name as set out in the directory corresponded to one of the initials in the address, the other initial not appearing in the directory.</p>

Action for penalty. Before Judge Westmoreland. City court of Atlanta. May term, 1893. The message was received for transmission during usual office hours in Atlanta, and was delivered to the sendee at Macon without delay. As written by the sender it was: “ Expect me there on East Tennessee train at seven thirty.” As delivered to the'sendee, the word “ seven ” had been changed to “ eleven.”

<p>1. Where a message, intended for transmission over the lines of a telegraph company, was written upon one of the regular blanks prepared and furnished by the company for the use of its customers, and upon the face of the blank, above the space left for the message, the following words were printed in plain type: “Send the following message subject to the terms on back hereof, which are hereby agreed to,” and below this space, in still plainer type, were printed the following words and signs: Bead the notice and agreement on' back “^Sg,” the writer of the message and consequently the contemplated sendee was bound by any reasonable rule or regulation printed on the back of the blank.</p> <p>2. A regulation so printed, and in the following words: “ No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the company’s messengers, he acts for that purpose as the agent of the sender,” was reasonable, and the company is not liable to the proposed sendee of such a message because of the failure of the messenger to whom it was intrusted to deliver it at one of the company’s transmitting offices, and the company’s consequent failure to transmit and deliver to the person addressed. This is so notwithstanding the delivery of messages to such a messenger was usual and customary in the regular line of the company’s business, and, according to its usage, it paid its messengers for every message delivered, and “ for every message so received to be transmitted.” By express stipulation, the messenger was, as to the service he undertook, the agent of the sender and not of the company.</p>

<p>1. Under a statute subjecting telegraph companies to a penalty for failure to make prompt delivery of messages, a company is subject to action.for such failure, whether the message was delivered to it for transmission directly by the sender, or by another telegraph company to whom the sender had delivered it, and which, after transmitting it over its own line, delivered it to the defendant company, by whom the transmission was completed.</p> <p>2. The declaration by the sendee of a message in a suit for the penalty incurred by delay to deliver, which describes the delivery for transmission as having been made by the sender directly to the defendant company at the point A, is amendable by alleging that the sender delivered it at that point to another telegraph company who transmitted it to point B, and that it was there delivered to the defendant company and by it forwarded to point C, the point to which it was directed.</p> <p>3. The message which the defendant delivered to the sendee after the delay complained of occurred, is admissible in evidence to prove the contents of the message to be as alleged in the declaration ; and the original message need not be called for or produced for that purpose.</p> <p>4. The message delivered by the defendant to the sendee being marked “ paid,” there was evidence from which the jury could find that it was a prepaid message and, therefore, should have been delivered with due diligence, as required by the statute on which the action is founded. The court erred in granting a nonsuit.</p>

<p>Action for damages. Before Judge Van Epps. City court of Atlanta. March term, 1898.</p> <p>The declaration alleges the following: The plaintiff' had leased a house and lot in the city of Atlanta, fronting fifty feet on Peters street and running back one hundred feet to the right of way of the E. T., V. & G. railroad, bounded on the northeast by McDaniel street and adjoining the McDaniel street bridge. His term of lease will not expire [until] the first of September, 1893. He uses the premises as a dwelling, restaurant, ice cream factory and family grocery. At the time he rented the same there was a bridge over the track of the E. T., V. & G. railroad on McDaniel street, which was near to and adjoining his premises; it was easily passed over and was a safe thoroughfare and used as such by the public; it had been erécted by the city, which had and exercised control of the same as a part of the public street. On the first of January, 1892, the use of the premises was worth to plaintiff $50 per month, and a part of this value depended on the free and unobstructed use of McDaniel street and the bridge over the railroad on that street as then constructed and in use. He used the rear room of the house as a restaurant and dining-room where he and his family and his customers, many of whom came across the bridge, took their meals, etc. In January, 1892, the city wrongfully permitted the railroad to raise the grade of the street by raising the bridge in the middle thereof five feet, and with, full knowledge of said act of the railroad has ratified the same. This raising of the grade has resulted in a public nuisance, which result must have been known as a reasonable result by the defendant, which, now after all possible doubt has been removed, continues the wrongful grade. The passage over the bridge is not only difficult but dangerous, both ascending and descending from the middle of the bridge towards Peters street, and for loaded wagons and other vehicles it is almost impassable and diverts passage and travel to other streets. The city has recognized the danger of ascending and descending the bridge as thus raised, and the railroad put the city on notice of its danger by putting strips across the bridge to prevent horses and other animals, as well as pedestrians, from slipping while going over the bridge, and to prevent loaded wagons from running down it; but this device has not prevented the wrong it knew it was doing. Plaintiff’ has been damaged in the use of said premises, by the wrongful acts of defendant, $40 per mouth from the first of January, 1892, and said damage will last until the end of his term, all of which has been caused by the raising of the grade of the street over the bridge. He has been especially injured by the erection of the bridge over McDaniel street, in that shortly after said erection a wagoner undertook to drive over it with a wagon loaded with lumber, coming from Peters street, and started up the same, but owing to the steepness of the bridge he was unable to do so, and because of the steepness alone his wagon was forced backward down the slope towards plaintiff’s house and ran against the dining-room, broke through the wall of said room, forced pieces of lumber therein, injured an organ belonging to him, knocked over a table at which he and his family were eating, and went on further with such force that it struck and knocked down a frame that he had at Ms front window on Peters street, and tore up the-plank of his front veranda facing Peters street. In passing by his dining room it struck the wall and knocked out two planks, to his actual damage in the sum of $50. Since that time three other wagons, from the same cause,, have run backward down the bridge against his house and struck it and caused great and constant alarm to-his family.; and the city, well knowing these injuries, takes no steps to protect him, to his damage $500. He complained to, the officers of the city of these injuries, but they paid no attention to his complaint; and the city, well knowing the dangerous condition of the bridge, a few days ago loaded up one of its own scavenger carts with all manner of filth gathered up from the streets, and by its driver, well knowing the danger of trying to go over the bridge and that there was danger of injuring plaintiff, undertook to drive the cart over the bridge and negligently let it run back against his dining-room door and empty its contents at his very door, breaking two planks of his wall and frightening and insulting his family.</p> <p>The amendments offered by the plaintiff set forth that prior to the raising of the bridge- his side entrance was easy of access and used as much as the entrance fronting Peters street, but since.the raising of the bridge the access to his side entrance has been so left as to make it accessible alone by the use of a plank from his side door to the street, a distance of three feet, the grade being raised to correspond with the abutment of the bridge, which is only a few feet from his side door, leaving it in a dangerous condition; that the bridge was negligently and. improperly constructed, and amounts to an obstruction of the street; and that the railroad track should have been lowered instead of interfering’, with the bridge, as the grade from Whitehall street below McDaniel street to the intersection of or near Pair' street by the railroad would have permitted the lowering of the railroad track.</p>

<p>Action for damages. Before Judge Westmoreland. City court of Atlanta. March term, 1893.</p>

<p>1. In the trial of an action for physical injuries against two defendants as joint tortfeasors, an instruction by the court that there was no evidence warranting a finding against one of them wrought no injury to the other, it appearing from the record that the defendant discharged by the instruction of the court would not be liable to contribution in favor of the one against whom the verdict was rendered.</p> <p>2. The rule forbidding a recovery from his master by a servant who subjects himself to injury by going without objection into a place known by him to be dangerous, is not applicable to a convict whose movements are controlled and directed by a guard or boss having and exercising the power of compelling the convict "\o obey his orders.</p> <p>S. The plaintiff, a convict, having been leased by the State to a penitentiary company, and that company having hired him, with other convicts, to another corporation engaged in the work of constructing a railroad, and he having been put to work under the control of a guard employed and paid by the latter corporation, and being required to obey the orders of such guard, this corporation is liable to the plaintiff for injuries received in consequence of his having gone, under orders from the guard, into a place where a dangerous explosive was being used, although all the convicts so hired may have been under the general charge of a “ captain ” appointed by the governor. This is true whether it was, or was not, lawful for such convicts to be placed under the control and management of the guard.</p> <p>4. The evidence was conflicting, but taking as true the version of it most favorable to the plaintiff, the verdict was warranted, and there was no error in denying a new trial.</p>

Garnishment. Before Judge Van Epps. City court of Atlanta. March term, 1893. Plant & Son, judgment creditors of Hanson, sued out process of garnishment which was served on the Mutual Life Insurance Company of New York, and was returnable to the December term, 1892, of the city court of Atlanta. Answer alleging no indebtedness was sworn to by the company’s agent on November 28, and was filed on November 30, 1892.

<p>The code, §3749, declares that “ in all civil cases the preponderance of testimony is considered sufficient to produce mental conviction.” This phraseology includes actions for libel in which a plea of justification presents the issue to be tried, although such plea imputes to the plaintiff the commission of a crime as charged in the publication alleged to be libelous. In order to sustain the plea it is requisite that the jury shall have a mental conviction of its truth, but they need not be convinced beyond a reasonable doubt, as this phrase is commonly understood in criminal procedure. This question was not directly presented in Ransone v. Christian, 56 Ga. 351, nor was it directly decided in Williams v. Gunnels, 66 Ga. 521.</p>

<p>Action for damages. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1892.</p>

Petition for injunction and interpleader. Before Judge Marshall J. Clarke. Fulton county. July 5, 1893.

<p>A tenant having obtained a temporary injunction restraining his landlord from turning him out on a dispossessory warrant, and pending the proceeding, having abandoned possession and suffered other parties to enter, and then dismissed the proceeding, the court has no jurisdiction, on summary petition by the landlord, to turn these persons out and put either the tenant or the landlord in. And as the landlord could not be put in possession as the result of a proceeding against these persons for contempt, there was no abuse of discretion by the judge in declining to. call upon them, to answer as for a contempt at the instance of the landlord.</p>

<p>Action for damages. Before Judge Westmoreland. City court of Atlanta. March term, 1893.</p>

<p>1. Under the evidence act of 1889, the maker of a negotiable promissory note is a competent witness in his own favor to prove payment thereof to the payee before the note was transferred, although the payee has since died, the action being by the indorsee of the note, and the personal representative of the payee not being a party thereto on either side.</p> <p>2. The rule that the grounds of objection to evidence which were urged at the trial must appear, applies to this case. There was no error in denying a new trial.</p>

Action for damages. Before Judge Van Epps. City court of Atlanta. March term, 1898.

<p>1. Where in an action by the second indorser against the first indorser of a promissory note, the declaration, besides setting forth the note with its indorsements, alleges a state of facts not apparent upon the instrument itself, which rendered protest for non-payment necessary to bind the indorsers, the case is properly one for a verdict by a jury, and not one for judgment by the court without a jury, although no issuable defence on oath has been filed. In such case the liability of the first indorser to the second is conditional upon the truth of the matters alleged in the declaration as to protesting.</p> <p>2. Where a garnishment is sued out pendente lite by the plaintiff and dissolved by the defendant, there can be no judgment rendered on the bond given to dissolve the garnishment until after judgment is rendered in the main action in favor of the plaintiff against the defendant therein. This judgment must be against the defendant alone, and not against him jointly with the surety on the bond.</p> <p>3. As the requisite preliminary judgment referred to above had not been rendered on the verdict, there was no error in setting aside the joint judgment rendered by the court against the defendant and the surety on the bond.</p> <p>4. Where, by misdescription in the bond executed by the principal and surety to dissolve a garnishment, the debt in the pending suit in aid of which the garnishment was issued, is stated as involving a less amount than it did involve, the bond is not vitiated thereby, nor is the undertaking of the surety to pay according to the condition of the bond limited or affected by the mistake.</p>

<p>Equitable petition. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1893.</p> <p>A fund produced by sale of the property of the Atlanta Piano Company (formerly the Atlanta Pianoforte Manufacturing- Company) was the subject of contest, for priority of payment, between the Lowry Banking Company as trustee, and Mrs. P. E. Holliday, and others. The first question in the case arises upon the ruling of the court that the instrument now to be described was a mortgage and not a deed, and that its lien upon the fund was not destroyed by usury. The instrument recites that the board of directors of the pianoforte company, a corporation, by virtue of the authority vested in the board by its charter and by-laws, did on April 8, 1889, by resolution duly passed and entered on the minutes, empower the president, W. B. Miles, to procure a loan of $20,000 for the use of the corporation on such terms as he should deem advisable, securing the same by deed of trust to the entire property and business of the corporation, and that by virtue of the authority so vested in him he negotiated a loan of $20,-000 at eight per cent, interest, evidenced by eighty notes of $250 each, of the date of this instrument, April 15, 1889. Each note is due one year after date and is payable to bearer at the Lowry Banking Company, bears interest at eight per cent, from date until paid, reserving the right to continue this loan at maturity for two years longer and to pay at any time before maturity by giving the holder sixty days notice, and it is one of a series limited to $20,000, and is secured by trust deed. To secure the payment of these notes, the pianoforte company by the instrument in question transfers and conveys to the Lowry Banking Company, and its successors in trust, the property therein described, to have and to hold for the purpose of the trust therein created. The party of the first part warrants the title to the property, and hereby covenants with the trustee to keep taxes paid on the property and to keep the same insured to the amount of $20,000, payable in case of loss to the trustee for the purpose of this trust; and if the pianoforte company should not keep the taxes paid and the insurance, or if it should fail to pay interest on the notes or any of them as they become due, and such default should continue for sixty days, then the trustee is authorized to take immediate control of the property and business, and after giving notice by newspaper advertisement, it may sell the property and business at public outcry on the premises to the highest bidder for cash, and make title to the purchaser. Out of the proceeds of sale the trustee will pay the costs and expenses of executing this trust, and with the balance, after paying taxes, it shall pay the principal debt above mentioned, and accrued interest. If the pianoforte company shall keep the taxes paid and the property insured and shall pay the principal and interest of the notes as they fall due, then said trust shall cease and determine, and the title hereby conveyed shall revert to it, and this deed shall be void.</p> <p>Mi’s. Holliday and the piano company contended that the trust deed was void for usury. They admitted its execution prior to Mrs. Holliday’s mortgage, and alleged the following as facts concerning it: It was made to the trustee to secure a loan of $20,000 from W. B. Miles to the company on April 15, 1889. By agreement of the parties the contract took the shape of bonds of $250 each, secured by the deed of trust, all of which bonds were taken at the time by Miles, and he furnished the company the $20,000. The bonds drew eight per cent, interest per annum, and interest was paid during the years 1889 and 1890, amounting to some $2,400. Miles exacted, as an additional consideration to1 the eight per cent, interest, the transfer to himself of $50,000 of the capital stock of the company, amounting to one fourth of its business and property. Under stress of circumstances the company agreed to this additional exaction, and issued to Miles $50,000 of its capital stock to be made as part of the contract of loan and agreed thereto at the time of the loan, which was at the time worth in the neighborhood of $10,000, the stock being given August 2, 1889. It was issued to Miles solely in consideration of the money, and the deed was executed to secure the loan of which this usury is a pai’t. Miles after getting possession of the bonds assumed to sell $10,000 to other parties, indorsing the bonds to them, but this was after the loan to himself and after he took the bonds. Upon taking the $50,000 of stock, he agreed that if the stock could be redeemed within one year from its issue by the company and the stockholders paying to him five per cent, of the value of the stock in the same proportion* as the bonds were to be paid off, that is for every bond of $250 paid off the first year, he would transfer back to the company or the stockholders $625 of the stock upon payment of five per cent, of the face value of the stock, to wit the extra amount of $31.25 per bond. In substance this would enable him to realize on each bond in one year twenty and one half per cent-., or twelve and one half per cent, above lawful interest. It was his intention to exact more than lawful interest. Wherefore the trust deed is void as a transfer of title or as creating any lien on the property of the company, and the holders of the bonds are not entitled by virtue of the deed to participate in the fund.</p> <p>In answer to questions submitted by the court the jury found the following verdict: All the promissory notes secured by the conveyance by the pianoforte company to the Lowry Banking 'Company were taken by W. B. Miles on his own account. Besides legal interest he received on May 25, 1889, from the pianoforte company on account of the notes, $50,000 of the common stock of the company, valued at fifteen cents on the dollar. Horty-two of these notes are owned by seven other individuals named, none of whom received the notes directly from the pianoforte company as evidence of a loan to it, but received them from W. B. Miles by a transfer from him as the owner of them. The verdict further finds (omitting facts not now material) that there is due from the pianoforte company to Mrs. Holliday $13,600 principal, and $4,550 interest, and that the mortgages to her were not made with the intention to delay or defraud creditors. Upon this verdict the court decreed (having held that the instrument made to the Lowry Banking Company as trustee was a mortgage) that the same be foreclosed for $12,500 principal with interest at eight per cent, on $2,000 from March 1,1890, and on $10,500 from April 15, 1891; that the verdict be made the judgment and decree of the court; that out of the fund $2,500 be retained until the application of complainant’s counsel for fees shall have been passed upon by a jury; that sundry amounts, including costs, receiver’s fees, taxes, and an execution held by one Fuller, be next paid; that the bonds held by various individuals other than Miles, and amounting to $10,500 with interest at eight per cent, from April 15, 1891, be next paid; that four of the bonds held by Miles, amounting to $2,000 with interest at eight per cent, from March 1, 1890, be next paid; and that the remainder of the fund be paid to Mrs. P. E. Holliday on the mortgage executed in her favor by the piano company on July 21, 1891, which is hereby foreclosed.</p> <p>Mrs. Holliday alleges by her exceptions that the court should have ruled that the trust deed to the Lowry Banking Company was void for usury, and that her mortgage was entitled to priority of satisfaction out of the fund over the deed. The Lowry Banking Company as trustee excepts by cross-bill to so much of the decree as limits the foreclosure of its mortgage to $12,500 principal with interest, as decrees only $2,000 principal with interest to be paid to W. B. Miles, and as decrees any portion of the fund to be paid Mrs. Holliday; and says that the court erred in not foreclosing said instrument for the full amount of principal and interest of the bonds, to wit $20,000 principal with interest on $9,500 from March 1, 1890, and on $10,500 from April 15, 1891, with direction that the same should be paid out of the fund in court before any portion of the fund should be paid to Mrs. Holliday; the specific error being, that there was nothing in the finding of the jury to authorize a decree reducing the principal amount of recovery to less than what is here contended for, nor anything in the verdict which authorized a decree in favor of Mrs. Holliday for any portion of the fund, until the indebtedness secured by the trustee’s mortgage was fully paid.</p>

<p>Petition for inj unction. Before Judge Smith. Pul aski county. At chambers, June 16, 1893.</p>

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

<p>1. Where commissioners appointed upon the application of a widow for dower have made their return assigning dower in certain land, and a traverse is entered by a person who claims the land as his own and sets up that the husband of the widow was not seized and possessed of it at the time of his death, this person, although he is the executor of the husband’s estate, is not incompetent under the evidence act of 1889 to testify on the trial of the issue thus formed, as a witness in his own behalf, as to transactions and communications with the deceased touching a sale and conveyance of the land by the latter to himself, the traverse being made in his own interest and not in behalf of his testator’s estate. In such case the proceeding is not a suit instituted or defended by the personal representative of the deceased, within the meaning of that act. The estate would not be bound by a judgment rendered in favor of the claimant, the estate being unrepresented as against his alleged title.</p> <p>2. Inasmuch as the nature and extent of the right of dower was not involved in the litigation, any error of the court in charging on that abstract subject was immaterial.</p> <p>3. It is error in charging the jury to direct their attention specially to the relevancy of a particular portion of the testimony favorable to one side, no special reference being made to any of the evidence favorable to the other side. For this reason the court erred in charging as follows: “I also charge you in reference to this case, upon a particular branch of this testimony, a particular portion of this testimony. As you will observe, I have •charged you in reference to the testimony in general. Everything here is evidence for you to consider and to weigh, but I charge you in particular that evidence of family disturbances between the husband and wife, and between her and one or more of his children by a former marriage, is relevant. I mean it is testimony for you to consider and weigh along with all the other testimony, and see to what conclusion it brings your mind upon the issue here as to whether this lady is entitled to her dower or not.”</p> <p>4. The requests to charge, in so far as they are legal, were covered by the charge of the court; and there was no error in the charge except as stated in the preceding head-note.</p>

<p>" Trover. Before Judge Gamble. Emanuel superior court. April term, 1893.</p>

<p>Petition for mandamus. Before Judge Falligant. Jefferson county. August 14, 1893.</p>

<p>1. A receipt by a railroad company in these words: “ Bill of lading for vegetables, fruits and melons. Issued by the S., F. & W., Pelham, Ga., July 1st, 1891. Received of J. R. Forrester, in apparent good order (inward condition and value of contents unknown) one car said to contain melons, consigned, marked and described as follows: 'Futch & Co., Augusta, Ga., S. A. M. 3151, via.Cordele, articles melons,’ ” is a receipt for a consignment of melons as in good order and where the car containing the same was delivered to another railroad company whose line formed one of several connecting railroads between the point of shipment and the point of destination, the presumption, in the absence of proof to the contrary, is that this company also received the melons “ as in good order,” and unless the presumption is repelled by evidence, the carrier is liable accordingly.</p> <p>2. The evidence showing that a particular freight-car, bearing a specific number, and laden with melons, was shipped from Pelham, a point on the line of the S., F. & W. railway, and consigned to Augusta, that this identical car was afterwards in the possession of the defendant company at Augusta, and that this company sent to the consignee a bill for the freight, the fact that the defendant’s railroad was one of a line of connecting railroads between Pelham and Augusta was sufficiently established.</p> <p>3. The presumption being that the melons were delivered to the defendant in good order, the burden of proof was on it to show, either that when the original company received the melons they were in a damaged condition, or that they had become so after shipment without fault on the part of any of the carriers. This is true, although the melons were freight of a perishable nature, and would, by mere lapse of time, become worthless from natural inherent causes. Notwithstanding'this fact, it -was, in view of the plaintiff’s evidence tending to show that the time consumed in transportation, was apparently longer than necessary, incumbent upon the defendant to prove that, in fact, there was no unnecessary nor negligent delay by any of the carriers which caused or contributed to the damaged condition of the fruit.</p> <p>4. The court erred in granting a nonsuit.</p>

Action for damages. Before Judge Eve. City court-of Richmond county. February term, 1893. Andrews sued the Augusta Railway Company for damages sustained from a shock from an electric wire, and a consequent fall from a pole to the ground. The-case came to the Supreme Court, and it was held that the city court erred in not sustaining the demurrer to the declaration as amended. 89 Ga. 653.

<p>Action for damages. Before Judge Eve. City court of Richmond county. February term, 1893.</p>

<p>Petition for injunction. Before Judge Roney. Richmond superior court. April term, 1893.</p> <p>In addition to the facts recited in the opinion, it appeared. from the petition that the defendants in error, on December 14, 1891, tendered to the tax-collector the amounts due by them according to their original returns, which amounts the collector refused to accept in full payment, and, on refusal to pay the amounts computed from the assessments made by the board of assessors under the local act, issued the executions in question. The tender was renewed by defendants in error in their petition. The answer shows the following : At the time the returns for taxes for 1891 were made by the petitioners to the tax-receiver, petitioners and these defendants, and the tax-receiver, acted upon the belief that the act of 1885 was legal and binding. The tax-receiver, although dissatisfied with said returns, and although in his judgment petitioners’ property ivas returned for taxation far below its value, did not assess the same as allowed by the law, for the reason that he believed that the returns had to be passed upon by the board of assessors, and that he did not have the power to have arbitrators appointed under the provisions of the code, nor to assess the property himself, all of which was known to,petitioners. Por the past eight years all the taxes in Richmond county have been collected, all the returns made, and all the questions as to assessment and valuation of property have been settled, according to the provisions of the act in question, and during that period petitioners made returns which had been examined and the valuation increased by the board of assessors, and petitioners paid taxes upon such increased valuation without objection. During these years the tax-receivers did not exercise the power conferred by law, of objecting to returns or valuation of property; but the board of assessors were acquiesced in by the citizens generally, by the comptroller-general of the State, and by the officers and agents of the law charged-with the duty of receiving returns and collecting taxes;. and but for this act the receiver would have objected to the returns as valuing the property of petitioners too low, and would have insisted upon the appointment of arbitrators according to sections 840, 923(c) of the code. The tax-receiver thus acted under an honest mistake of the law, which operates as a gross injustice to him and the tax-collector, and to other tax-payers who have paid their taxes under the operation of the act of 1885; and such mistake would give petitioners an unconscientious advantage if, in consequence of the facts, they are relieved from the operation of the act, and also from the law authorizing the appointment of arbitrators where the receiver is dissatisfied with the returns. Inasmuch as petitioners seek equity, they should be required to do equity, and have their returns, so objected to by the receiver, submitted to arbitrators as provided by the code. Respondents set forth certain amounts as to the fair taxable value of the property returned by the petitioners, which amounts are in excess of those set forth in the original returns; and pray that petitioners be required to submit their returns to three disinterested persons, under section 840 of the code, and be required to pay their taxes for 1891 upon the assessment to be made by such arbitrators.</p>

<p>1. Where a deed was made under the provisions of sections 1969, 1970,1971 of the code, to secure the payment of a promissory note, and afterwards the payee transferred the note, without recourse, to another, at the same time also conveying to the assignee of the note the title to the land described in the security deed, this was no discharge of the land from the debt, and the assignee had all the rights of his assignor, and all the remedies for enforcing the same.</p> <p>,2. It appearing from the evidence that the title of the claimant, derived from the defendant in fi. fa., was older than the plaintiff’s judgment; and it not appearing that the judgment was founded on the identical debt for which the security deed was given, the verdict finding the property subject was not supported by the evidence, and the court for this reason erred in refusing to grant a new trial.</p>

<p>It appearing that if the railway company negligently erected the clanger signal post by placing it too near the track of the railway, this fact must have been well known by the deceased engineer, the plaintiff’s husband, and it also appearing by uncontradicted evidence that he unnecessarily left his place upon the locomotive and exposed himself to danger for the purpose of getting a view of a hot journal, when he could have done so safely without leaving that place, his death was caused, in part at least, by his own negligence, and his widow was not entitled to a recovery from the company.</p>

<p>Action for damages. Before Judge MacDonell. City-court of Savannah. July term, 1893.</p>

<p>Although a check upon a bank is in many respects a bill of exchange, yet as the penal code distinguishes between them, in that, while rendering the forgery of either an offence, it does not provide for the case of drawing a check in a fictitious name, but does provide for the execution of a bill of exchange in a fictitious name, it cannot be held that a check upon a bank is a bill of exchange within the true meaning and intent of section 4453 of the code. The instrument involved in the present case being a check upon a bank, there can be no conviction under that count in the indictment which describes it as a bill of exchange and charges the making of it in a fictitious name.</p>

<p>1. Where one, on a promissory note executed in his own name, borrows money from a bank for its cashier, the cashier putting upcollaterals belonging to himself, the officers representing the bank in making the loan not being aware that the money was for the use of the cashier or that the collaterals belonged to him, and not acquiring this information until after the cashier had fraudulently withdrawn the collaterals and applied them to his own use, the bank is not accountable for their value in settling its claim against the borrower for this loan and for other transactions giving rise to a general balance against him in favor of the bank.</p> <p>2. The agency of the cashier of a bank to assign its assets of which he is the immediate custodian, does not extend to assets held as collateral security for a loan made to another person for his benefit and secured, not by collaterals belonging to that person, but furnished by the cashier himself.</p> <p>S. Where one borrows money from a bank, and in the note given, therefor pledges certain collaterals for the payment of that note and for “ any general balance due or to become due ” the bank, the borrower has no right to withdraw the collaterals without the consent of the bank, on payment or tendering payment of the note only, if the bank is the holder of other just demands against him not then fully secured otherwise according to sound business principles and the rules of practical banking.</p> <p>4. Under the evidence act of 1889, the plaintiff could not testify to a conversation between himself and the president of the bank, who had since died, unless it was heard by some third person, and the burden was on the plaintiff to show that it was.</p>

Before Judge Miller. Houston superior court. October term, 1892. After verdict for the plaintiff, the defendant company moved for a new trial. The motion .was dismissed for want of an approved brief of evidence, the court certifying as follows : “ When the cause _ came on for trial, the court, as is usual, inquired, whether counsel desired the evidence taken down by the official reporter.

<p>Levy and claim. Before Judge Bartlett. Crawford superior court. March term, 1893.</p>

<p>Under the rule that notice to an agent is notice to his principal, merchants employing a broker to take orders for them for the sale of goods, which orders they fill or decline to fill according to their own discretion, are chargeable with actual notice received by such broker that a member of a partnership with whom they have previously dealt only through that broker has withdrawn from the firm, and that a new partner has been admitted ; and if after such notice the new partnership orders goods through the same broker, it is his duty to inform his principals of the change, a^nd his omission to do so will not render the retired partner liable upon such orders, though the merchants fill them in ignorance on their part of the previous dissolution. It is within the scope of a broker’s agency to ascertain the persons, whether members of a partnership or not, by whom goods are ordered of, or through, him; and his principals can have no right to bind any person who, to his knowledge, has neither ordered nor received their goods.</p>

<p>Affidavit of illegality. Before Judge Bartlett. Bibb superior court.. April term, 1893.</p>

<p>Action for damages. Before Judge Bartlett. Bibb 'superior court. April term, 1893.</p>

<p>Action for damages. Before Judge Bartlett. Bibb superior court. April term, 1893.</p>

Complaint on account. Before Judge Ross. City court of Macon. June term, 1893. Mrs. Clancy sued Mrs. Rusbing for $216.50,ten months board for self and two children at $25 per month, less $33.50 cash. The cause was heard by the judge without a jury. He found for the plaintiff the sum sued for, and defendant excepted, upon the ground that the judgment was contrary to the evidence, against the weight of the evidence, and contrary to law.

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

<p>Levy and claim. Before Judge McWhorter. Hancock superior court. February term, 1893.</p>

<p>1. An action for personal injuries against a railroad company is barred after the lapse of two years from the time the right of action accrued; and where the person injured, in consideration of a contract by the company to do certain things for his benefit and to give him employment for life, agreed not to bring suit and refrained from so doing for nearly eight years, his right of action is not relieved from the bar of the statute, although the company, in making the contract with him, did so for the purpose of deterring him from bringing his action within the time prescribed by law, it appearing also that the company had complied fully with all its undertakings other than that of giving the plaintiff employment for life, and had in fact employed him for more than seven years before he was discharged. If the plaintiff had any right of action at all against the company, it was for a breach of the contract by which his original cause of action against it was compromised and settled.</p> <p>2. The court erred in overruling the demurrer to the plaintiff’s declaration.</p> <p>3. It having been this day adjudicated, upon a bill of exceptions sued out in this case by the railroad company, that the plaintiff’s declaration set forth no cause of action and that a general demurrer to the same should have been sustained, the judgment of nonsuit will not be reversed.</p>

<p>Levy and claim. Before Judge McWhorter. Hancock superior court. February term, 1893.</p>

<p>A tenant having mortgaged his whole crop, and this mortgage being duly recorded, and his landlord having thereafter received enough of the crop, on which he had a special lien for rent superior to the mortgage, to satisfy his claim for rent in full, this claim was discharged relatively to the mortgagee and the right of the latter to collect his mortgage debt out of that part of the crop not delivered to the landlord. The tenant had no power to consent to any application by the landlord of the subject-matter of the lien for rent which would leave that lien in force to the prejudice of the mortgage, relatively to so much of the crop as the landlord did not receive.</p>

Equitable petition. Before Judge Hutchins. Habersham superior court. March term, 1893. The petition of Swift alleged, that on April 12th, 1892, he obtained a common law judgment against Susan H. Lucas, for $800.00 principal, besides interest, attorney’s fees and costs, upon a note dated April 12th, 1890. On June 7th, 1892, after paying costs, the sum of $670.97 Avas paid on the judgment from the sale of a lot in Athens, leaving the balance still' due and unpaid.

<p>An administrator will not be enjoined from.collecting an execution against a debtor of the estate, on the ground that two of the distributees are debtors of the latter by judgment, without first tendering the administrator what is due on the execution exclusive of the interest of these two distributees in the fund to be raised by the execution, it affirmatively appearing that there are several other distributees against whose interests in this fund there is no claim by the petitioner.</p>

<p>1. Without the preliminary sanction of a popular vote as required by the constitution, the public authorities of a county cannot contract for the building of a court-house on the credit of the county for an amount in excess of funds in hand and the proceeds of taxation applicable to the object for the year in which the contract is made.</p> <p>2. In so far as the case of Butts et al. v. Little et al., 68 Ga. 272, either expressly or by implication conflicts with the foregoing adjudication, the same is overruled. The constitutional power to incur a debt for a temporary loan to supply casual deficiencies of revenue, cannot be construed as authority for incurring a debt, not for a loan of any kind, but for the erection of a court-house.</p> <p>3. Whilst it might not necessarily be error to deny an injunction restraining the county authorities from incurring a debt which they have no power to create, yet where the judge expressly authorizes the making of an unconstitutional contract in .lieii of the one he has enjoined, his decision, to this extent, should be overruled.</p>

<p>Application for mandamus.</p>

<p>Motion to set aside judgment. Before Judge G-ober. Forsyth superior court. February term, 1893.</p>

<p>Bail-trover. Before Judge Gober. Cobb superior court. March term, 1893.</p>