Volume 93 — Georgia Reports

<p>1. By virtue of the act of October 19, 1891, a city court comes into legal existence as soon as a recommendation is made by the grand jury; and should this occur during a recess of the senate, and should the governor appoint and commission a judge of the court, who qualifies and enters upon the performance of his duties, he is a judge de facto, if not de jure, although his appointment has not been confirmed by the senate; and the court over which he presides may exercise such jurisdiction as is conferred upon it by law, as effectually as if confirmation had taken place.</p> <p>2. Where drunkenness was set up, not as an excuse for an admitted act, but to show physical inability to do the act at all, there was no error in charging: “ While drunkenness is no excuse for crime, it is a fact which may be proven as any other fact, to throw light on other facts or circumstances in the ease.”</p> <p>3. The evidence of guilt was barely sufficient; but the verdict having been approved by the presiding judge, this court will not reverse the judgment refusing a new trial.</p>

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

Action for. damages. Before Judge Van Epps. City court of Atlanta. March term, 1893. The Atlanta Beef Company by its petition alleged: It is a partnership composed of certain citizens of Illinois and Missouri, doing business in Atlanta and elsewhere in Georgia, and doing no other business in Georgia except to sell dressed meats.

<p>Ejectment. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1893.</p>

<p>Action for damages. Before Judge G-amble. Johnson superior court. March term, 1898.</p>

Equitable petition. Before Judge Smith. Tattnall superior court. April term, 1893.

<p>1. The act of 1879 (Acts of 1878-9, p. 334), which confers upon the commissioners of roads and revenues of Putnam county exclusive jurisdiction in fixing the amount of the license for the sale of spirituous liquors, and which, after conferring powers touching the road laws, declares that the commissioners “shall exercise such other powers as are granted by the code of the State ” to the justices of the inferior court, or to that court, with the restriction that they shall have no jurisdiction save and except such as pertains to county matters, invests the commissioners with power to grant or refuse licenses to retail spirituous liquors in the county specified, the code referred to being that which was of force when the constitution of 1868 was ratified, and which, in section 1432 (Irwin’s Rev. Code), vested this power in the justices of thatcourt. By the general law of 1890 (Acts of 1890-91, vol. 1, p. 128), a license to sell in any quantity is requisite, and power to grant the same is lodged with the same officer or officers having power to grant licenses to retail.</p> <p>2. The jurisdiction to grant such licenses in Putnam county being exclusively in the commissioners of roads and revenues, and the authorities of no town or city in that country having any power over the subject, an indictment for unlawfully selling spirituous liquprs in that county, which negatives the granting of any license by the commissioners, is sufficient without making any reference to the corporate authorities of any town or city.</p> <p>S. The evidence warranted the verdict, and there was no error in overruling the certiorari.</p>

<p>Certiorari. Before Judge Jenkins. Putnam superior ‘ court. September term, 1893.</p>

<p>1. The question raised by the demurrer in this case is ruled in Mathis v. The State, this term.</p> <p>2. A druggist who has no license to sell spirituous liquors cannot knowingly sell them for use as a beverage, even after they are compounded with other ingredients into medicines; and where the evidence clearly shows that he must have known the purchasers bought them for consumption as a beverage and for the sake of their intoxicating property, it was not reversible error for the court to charge the jury that “ the party selling must use an ordinary degree of caution and diligence in ascertaining for what purpose they [the medicines] are wanted.”</p> <p>3. The evidence was sufficient to warrant the verdict, and there was no error in overruling the certiorari.</p>

Indictment for misdemeanor. Before Judge Turnbull. City court of Floyd county. September term, 1893. The defendant was convicted of selling liquor without license, and his motion for a new trial was overruled. The only witness, Copeland, testified as follows; Defendant was a blacksmith in Cave Spring, Floyd county. Within the last two years witness gave him thirty cents and asked him to obtain some whisky for witness.

<p>Action for damages. Before Judge McWhorter. Burke superior court. May term, 1893.</p>

<p>As the principal corporation owning the railroad was created by the State of South Carolina, and as all the railroad, except a small part, is located in that State, and was in the hands of a receiver by virtue of legal proceedings instituted in that State and still pending when the same receiver was appointed, by the order now excepted to, to take charge of so much of the property as is situated or found within this State, there was no abuse of discretion by the judge in passing this order. It is best for the interests of all concerned, that the control and management of the whole railway should be in the same hands, and that the small fraction of the line located in this State should continue to be used and worked in connection with the main body of the road. So long as courts exercising jurisdiction in South Carolina continue in possession of the main body by the hands of a receiver, it would be wise and judicious to invest that receiver, and allow him to remain invested, with authority to manage the part of the road located in this State, also. If the company should be hereafter reinstated in the possession of that part of its property located in South Carolina, application can then be made to the superior court of Richmond county, or to the judge thereof, for a like reinstatement of the company in the possession of so much of its property as is located in Georgia.</p>

<p>Petition for injunction. Before Judge Roney. Richmond county. June 19, 1893.</p>

Indictment for murder. Before Judge Milner. Whitfield superior court. October term, 1893. George Robinson was convicted of the murder of Russell Powell, and his motion for a new trial was overruled. The following appears from the evidence: On July 24, 1893, a warrant was issued for the arrest of the defendant, by a justice of the peace of Floyd county, upon the affidavit of Sam.

Complaint for damages. Before Judge MacDonell. City court of Savannah. May term, 1893 “ On November 9th, 1891, Coleman and Bay, of Macon, Ga., entered Into the following written contract with the Commercial Guano Company : ‘ Georgia, Bibb county.

<p>1. The court erred iu admitting evidence of the declarations of the defendant’s husband, made to the plaintiff when the defendant was not present, to the effect that the defendant was, or had agreed to become, a copartner of the plaintiff in the business in lieu of her husband.</p> <p>2. In order for the verdict of the jury finding for the plaintiff to be reached, it was essential that a partnership between the plaintiff and the defendant should appear; and on that question the verdict, so far from being warranted by the legal evidence, was contrary thereto, that evidence being such as, if duly considered and regarded, would constrain a finding for the defendant.</p> <p>3. In the matters dealt with by the cross-bill of exceptions, there was no error as against the plaintiff below.</p>

<p>1. The vendor of land who has given bond to convey is entitled to enforce payment out of the land in the manner prescribed in section 3654 of the code, not only as against the immediate purchaser from him, but as against any one holding under such purchaser, and the state of accounts between the purchaser and his vendee will raise no equity in favor of the latter on which to enjoin, at his instance, a sale of the land under the execution in favor of the original vendor for the purchase money; and this is true notwithstanding the debt for the same may have been subject to the bar of the statute of limitations when the suit for its recovery was brought, this defence, if it existed, having been waived by the defendant in that action.</p> <p>2. Neither the possession of one holding under a bond for titles, nor a possession derived from him by another person, is adverse to the maker of the bond, so long as any of the purchase money remains unpaid.</p>

<p>Irrespective of the question whether a dog is or is not “ private property,” the willful and malicious killing of one is not an indictable offence under section 4627 of the code. That section relates to the injury or destruction of inanimate property, and does not apply to injuring or killing animals of any kind.</p>

Indictment for assault to rape. Before Judge Butt. Muscogee superior court. May term, 1893. At the time of the offence defendant was, and had been for several months, in the employment of the prosecutor as a servant at his store.

<p>Indictment for murder. Before Judge Richard H. Clark. DeKalb superior court. August term, 1898.</p>

Equitable petition. Before Judge Wellborn. Hall superior court. January term, 1893. On January 14th, 1891, the administrators of James M. W. Cody, brought an equitable petition against John L. Palmour, H. H. Bean, the First National Bank of Gainesville, and Jeptha M. Cody. The last'named filed an answer in the nature of a cross-bill, and made common cause with the plaintiffs. The suit was defended by the bank.

Indictment for assault with intent to rape. Before Judge Richard II. Clark. Fulton superior court. March term, 1893. After conviction, defendant moved on the general grounds for a new tidal, which was denied, and he excepted. The testimony of the girl alleged to have been assaulted was to the effect that the crime was committed by defendant between two and three o’clock in the-afternoon. He introduced four witnesses whose testimony tended to prove an alibi.

Indictment for selling spirituous liquor. Before Judge Williamson. City court of Monroe county. March adjourned term, 1893. After conviction, defendant’s motion for a new trial was denied. The material ground of the motion is, that the court erred in charging the jury §3875 of the code, there being no evidence to warrant such a charge, and the court not explaining what was meant by proof of general good character.

<p>Indictment for assault with intent to murder. Before Judge Richard H. Clark. Fulton superior court. March term, 1898.</p>

<p>Indictment for burglary. Before Judge Richard H. Clark. Fulton superior court.- March, term, 1893.</p>

<p>1. On a trial for perjury, a witness for the State, after reciting what the accused testified when the alleged perjury was committed, may say that it was false, at the same time stating facts which conclusively show that it was false.</p> <p>2. Unless it appears from the motion for a new trial or the bill of exceptions what the evidence was which was admitted, or what the fact was which was proposed to be proved, the admission of the one, or the rejection of the other, is no cause for a new trial.</p> <p>5. There was no error in allowing the articles of clothing to which the testimony related, to go in evidence, and afterwards to be delivered by the sheriff to the jury with the caution not to lose them. Nor was it error to allow evidence that the pants had been cut off after they were stolen.</p> <p>4. The evidence warranted the verdict, and the motion for a new trial was properly overruled.</p>

<p>Indictment for murder. Before Judge Harris. Fayette superior court. March term, 1898.</p>

<p>1. That a bailiff attending.upon the city court privately advised the accused to go to trial without counsel and not to demand a jury, and expressed the opinion that he would not be convicted, is no causé for a new trial, the court having offered the accused to furnish him counsel, which offer was declined, and having fully informed him of all his legal rights.</p> <p>2. The newly discovered evidence was cumulative, of little probative value, and would not probably have produced a different result.</p>

<p>Indictment for disturbing divine worship. Before Judge Williamson. City coui’t of Monroe county. Special tei’m, April 25, 1893.</p>

<p>1. Clear and undoubted evidence of the corpus delicti will serve to corroborate a confession made by the accused, and his confession thus supported will serve as sufficient corroboration of the evidence of an accomplice.</p> <p>2. The evidence warranted the verdict, and the newly discovered evidence would not be likely to change the result. There was no error in denying a new trial.</p>

<p>There was no element of voluntary manslaughter in the case. The ■ evidence warranted the verdict, and the court did not err in refusing to grant a new trial.</p>

<p>1. Objections to the admission of evidence, not statingwhat the evidence objected to was, cannot be considered.</p> <p>2. The evidence was sufficient to sustain the conviction, and there was no error in refusing to grant a new trial.-</p>

<p>Indictment for burglary. Before Judge Bichaba» H. Olabic. Fultou superior court. July, 1893.</p>

<p>1. Where there is no affidavit by the accused or his counsel that the alleged newly discovered evidence was unknown at the time of the trial, a new trial will not be granted on the ground of newly ' discovered evidence.</p> <p>2. The evidence warranted the verdict. There was no error in any of the rulings or charges of the court complained of, nor in denying a new trial. •</p>

<p>1. An allegation in an indictment that the offence charged was committed in the “ 714th district, Georgia Militia,” is sufficiently-established by proof that the offence was committed in the “ 714th district, G. M.” The initial letters “ G. M.” are commonly recognized and employed in this .State as a proper abbreviation of “ Georgia Militia.” Indeed, the act under which the indictment wás found itself makes use of this identical abbreviation. Acts of 1880-81, p. 591, sec. I;</p> <p>2. It was unnecessary, in order to justify a conviction, that the State should show that the accused did not come within the exception, “ That the provisions of this act shall not apply to any licensed physician in the regular practice of his profession, who may use liquors in making up his prescriptions, or compounding his medicines in cases of actual sickness.” Proof of justification under this exception was a matter which, properly devolved upon the accused, it being within his power to readily and easily establish the truth in this regard. Amos v. State, 34 Ga. 531.</p> <p>3. Due diligence was not exercised to procure the evidence alleged to. have been newly discovered.</p>

<p>1. The only effect the newly discovered evidence could possibly have would be to impeach the evidence of one of the State’s witnesses, and therefore, under the oft repeated rulings of this court, a new trial cannot be granted on this ground.</p> <p>2. Alleged error in admitting oral evidence cannot be considered unless the evidence objected to is itself set out in the motion for a new trial or in the bill of exceptions.</p> <p>3. The evidence, though far from satisfactory to this court, is sufficient to authorize the verdict, and there being no error of law for correction, the discretion of the trial judge in refusing to grant a new trial was not abused, though the case was one in which it might well have been exercised in granting a new trial.</p> <p>Lumpkin, J., concurring with great doubt.</p>

Indictment for assault and battery. Before Judge Guerry; motion for new trial before Judge McWhorter. Elbert superior court. March adjourned term, 1893.

<p>Accusation of misdemeanor. Before Judge "Westmoreland. Criminal court of Atlanta. September term, 1893.</p>

<p>There was no error in any of the charges complained of; the verdict was fully warranted by the evidence, and the refusal of a new trial was undoubtedly right. ’</p>

<p>The identical question made in this case as to the form of the verdict in a case of capital homicide, was ruled in West v. The State, 79 Ga. 773.</p>

<p>1. The indictment being for assault with intent to murder, and the verdict finding the offence of stabbing, and there being no evidence as to the general character for violence of Vaughn, the person stabbed, it is no cause for a new trial that the court declined to charge, as requested: “ If you believe from the evidence that the defendant prepared any weapon, but that it was done simply to defend himself from an anticipated assault of Vaughn, he had a right to do this; and in determining 'this, you can take into consideration the relative strength of the parties, the character of Vaughn for violence, and all other facts in evidence showing whether' defendant' got' the knife and weight to make an attack on Vaughn, or to defend himself against'an attack he expected from Vaughn.”</p> <p>2. The evidence warranted the verdict, and there was no error in denying a new trial. .</p>

<p>Indictment for riot. Before Judge Hunt. Henry superior court. October term, 1893.</p>

<p>Indictment for murder. Before Judge Bartlett. Terrell superior court. May term, 1893.</p>

<p>A letter addressed to and served upon the defendant in certiorari, in the following words.: “I have been waiting for an answer from you as to whether you will agree to set aside the judgment in the Yignaux case. The certiorari has been granted and returned to the J. P. court. I have also paid the judge the cost which have accrued to date, and, of course, the jury fee paid out by you will be given back. I think, in view of all the circumstances, that you will be none the loser to set .this aside and let us have a final trial before a jury. I saw Mr. Kosser and submitted the matter to him, and I am certain he is in favor of it. We can try it tomorrow before a jury, or next month, just as you please. Please answer ”: is not a sufficient compliance with section 4059 of the code, which requires written notice to the defendant, not only of the sanction of the writ of certiorari, but also of the time and place of hearing, at least ten days before the sitting of the court to which the same is returnable.</p>

<p>Equitable petition. Before Judge Richard H. Clark. Fulton county. At chambers, July 19, 1893.</p>

<p>1. It is no cause for setting aside a judgment rendered by the city court of Atlanta, that the court was characterized in the plaintiff’s petition as the city court of Fulton county, the process correctly describing it as the city court of Atlanta, which court is the only city court held in Fulton county, and its jurisdiction extending to all residents of the county. Nor is it any cause for setting the judgment aside, that the property alleged to have been converted was vaguely and loosely described in the petition, and that some of it was stated therein to he the clothes of plaintiff’s father.</p> <p>2. That the same inaccuracy in designating the court was also in the bail-bond, is no ground for setting aside the judgment; nor is the omission to date the bond, or the failure therein to describe the property, the bond fully identifying the action in which it was given.</p> <p>3. The bond given in this case corresponded substantially with that prescribed in section 3419 of the code, and the judgment was properly entered thereon against the principal and surety for the amount of the recovery in the action. It was not incorrect to designate the surety as such in the judgment, although he was not expressly described as surety in the bond and did not add the word “ surety ” or “ security ” to his name in executing the same. In an action for the conversion of personal property, the election of the plaintiff to take a money verdict is sufficiently apparent from the mere fact of the rendition of such a verdict, together with entering up judgment thereon payable in money only.</p>

<p>1. Bytheact of October 8th, 1885, a justice’s court may hold from day to day until its business is disposed of. No limit upon this power results from a publication by the magistrate that his court will continue in session fifteen days. Ballard Transfer Co. v. Clark, 91 Ga. 234.</p> <p>2. When a pending case is suspended to give opportunity to the parties to settle, and a settlement is attempted but fails, both parties knowing of the failure, neither is entitled to notice when the case will afterwards come up for trial.</p>

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

<p>The question as to whether the plaintiff could have avoided the consequences of the defendant’s negligence was one of fact for determination by the jury; and taking the evidence most favorably for the prevailing party, there was enough to warrant a finding for the plaintiff, though there was also enough in the whole evidence to warrant a finding against him.</p> <p>Lumpkin, J., dissenting. It being, to my mind, conclusively shown by the evidence that the plaintiff was guilty of negligence in driving his wagon on the track of the railroad at a public .crossing while tlie railroad was in progress of construction, that it was obviously dangerous to cross the same in this manner, and that the exercise of ordinary care and diligence upon his part would have prevented his so doing, the verdict in his favor was contrary to law, although the railroad company may have been guilty of negligence in leaving the crossing in a dangerous condition, and in failing to warn the plaintiff of this fact.</p>

<p>It appearing from the plaintiff’s evidence, fairly construed, that before the telegram offering his son employment was sent, the son was under contract to work for another, consistently with which he could not have entered the employment of the sender of the telegram, the non-delivery of the telegram did not cause a failure by the son to obtain the employment to which it related, and there was no error in granting a nonsuit.</p>

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

<p>Petition for injunction and receiver. Before Judge Poney. Burke county. May 27, 1893.</p>

<p>Petition for injunction. Before Judge Ealligant. Chatham county. August 23, 1893.</p>

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

<p>The evidence was conflicting and there was no abuse of discretion in denying a new trial.</p>

<p>Distress warrant. Before Judge Bartlett. Bibb superior court. April term, 1898.</p>

<p>Whether or not the services of a stenographer in “ taking down ” the testimony in the trial of criminal cases includes services rendered in writing the stenographic notes out in longhand, there is no law authorizing the judge of the superior court to grant a stenographer an order upon the treasurer of the county compensating him for writing out such notes at so many cents per hundred words. The only legal order which the judge can grant to the stenographer for any service in criminal cases must he for a specified time at the rate of fifteen dollars per day. (Acts 1884, p. 150.)</p>

<p>Action for damages. Before Judge Miller. Bibb superior court. October term, 1892.</p>

<p>1. Where a valid municipal ordinance, broad enough to cover the running of locomotives in yards of railroad companies within the city, limits the speed to five miles an hour, it is negligence per se relatively to employees whose duty requires them to cross or be upon the tracks within these yards, to violate the ordinance by running at a higher speed.</p> <p>2. If such violation caused the death of such an employee, and if he was not at fault and could not by ordinary care and diligence have avoided the consequences to himself which resulted from such violation, his widow would, under the statute applicable to negligent homicide, be entitled to recover.</p> <p>3. Though there are no degrees in ordinary care, yet as more or less care is required under different circumstances to amount to ordinary care, it was a mere verbal inaccuracy to submit to the jury the question of what degree of ordinary care would be requisite under the circumstances of the particular case; and the court having plainly referred to the jury for their determination what diligence under all the circumstances would amount to ordinary care, the inaccuracy was harmless.</p> <p>4. As a general rule, an employee of a railroad company, while engaged in the performance of his duties, has the right to act upon the belief that the other employees will observe the rules of the company prescribed for the safety of such employees, and municipal ordinances applicable to the situation. This, however, does not absolve him from caring for his own safety in so far as every prudent man would do so under like circumstances.</p> <p>5. Reading the charge of the court all together, there was no material error in instructing the jury; and the evidence warranted the verdict. '</p>

<p>1. Taking the charge as a whole, it did not assume the existence of the alleged defect in the sidewalk of which the plaintiff complained as the cause of her injury, and the jury must have understood from the charge that it was incumbent on her to prove the existence of the defect before she would be entitled to recover.</p> <p>2. The evidence, though conflicting, was sufficient to authorize the verdict, and there was no error in denying a new trial.</p>

<p>Petition for injunction. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1898.</p>

<p>Affidavit of illegality. Before Judge Van Epps. City court of Atlanta. July term, 1893.</p>

<p>A public sale of land by an administrator, under the description of “a certain tract or parcel of land situated in the 9th district of originally Fayette, now Campbell county, Ga., being one hundred and sixty-five acres of lot of land No. 129, being all of said lot of land except thirty-seven acres in the northeast corner of said lot,” is a sale by the tract and not by the acre; and a deficiency in the number of acres specified, there being no fraud alleged, is no ground for making any deduction from the amount of the purchaser’s bid, that amount being a gross sum for the whole tract or parcel sold.</p>

<p>Levy and claim. Before Judge Richard 3EL Clark. Rockdale superior court. April term, 1893.</p>

<p>Levy and claim. Before Judge Gamble. Washington superior court. March term, 1898.</p>

<p>Distress warrant; Before Judge Gamble. Washington superior court. March term, 1893.</p>

<p>1. Where a broad scheme of manufacturing by the use of waterpower embraces the duty on the part of the owner of the water to furnish an adequate and continuous supply to numerous separate and distinct manufacturing establishments, and to keep the canal, its races and the openings of such races in proper condition for that purpose with reference to the ordinary stages of the water, anything in the way of removing obstructions to the free flow of the water, which is necessary or proper to be done in order to perform these duties, may be rightly done, although the doing of it will render the canal and one ormoreof its races more subject to overflow in times of high and extraordinary freshets, and one or more of the manufacturing establishments may thereby be exposed to serious damage on these extraordinary occasions.</p> <p>2. No diligence on- the part of the water owner to anticipate and provide against extraordinary floods is due to its patrons, except such as is consistent with a right performance of the main, constant and regular duties above referred to. If, in the present case, the removal of the structure at the head of the race was necessary or reasonably proper as a means of furnishing at ordinary stages of the water a continuous and adequate supply to the establishments located along the race, the removal of the structure was not wrongful as against the plaintiff and he could not recover. But if the removal was not necessary or reasonably proper for this purpose, and if the defendant in the exercise of ordinary diligence could and should have foreseen that it would expose the plaintiff’s establishment to damage by any freshet not higher than some which were known to have previously occurred in the history of the same general manufacturing enterprise, then the removal would be wrongful, and the plaintiff, if injured thereby, might recover.</p> <p>3. The court erred in charging the jury thus: “If, however, the gates were not originally put there for the purpose claimed in plaintiff’s suit, but were afterwards used by the city for that purpose and so known to the plaintiff, and defendant knew plaintiff relied upon the gates for the protection of his property and they were really necessary to protect his property, and the removal of the same was the direct or proximate cause of the damages claimed, then the city would be liable for such damages as ha\*e been shown to flow from said causes.”</p> <p>4. All evidence as to freshets subsequent to that by which the damage complained of in the declaration was done, was irrelevant and inadmissible.</p> <p>5. The mere opinion of a witness that the damage would not have been .done if the conditions had remained unchanged, is not admissible; but his opinion, together with the facts on which it was founded, would be admissible. The same rule holds as to the opinion of a witness that the current by which the damage was done, came down the race and not from another direction.</p> <p>6. That the plaintiff, if he had known the act complained of would thereafter be done by the defendant, would not have engaged in business where he did and where the damage was sustained, was irrelevant, as there was no stipulation between the parties touching the matter, and nothing was said on the subject before the plaintiff did engage in business at that place.</p> <p>7. The court erred in not granting a new trial.</p>

<p>1. Where negotiable securities were transferred in general terms, “for value received,” the writing not expressing the purpose of the transfer, parol evidence is admissible to show that the purpose was to secure the payment of a particular debt, and that the parties agreed that the proceeds, when collected, should be applied to that debt, and not to debts generally at the election of the creditor.</p> <p>2. The creditor’s general manager was such an agent as would have power to stipulate for the application of the proceeds of particular collaterals received by him to the payment of a given debt, even though this might modify a previous executory contract made by his principal with the debtor.</p> <p>3. A subsequent written agreement between debtor and creditor, touching further indebtedness and security therefor, in which it was provided that the creditor should have the right at his own election to place payments as credits on any demand he might have against the debtor at the time of the payment, would not abrogate the previous contract touching the collaterals and their proceeds, no express mention or reference thereto being made in the subsequent agreement.</p>

<p>Equitable petition. Before Judge Roney. Richmond superior court. April term, 1893.</p>

<p>Merely passing through an alley two feet wide, in a city, belonging to the owner of adjacent property and kept open by him for his own use or the use of his tenants, will not ripen into a right to continue such passing by any lapse of time, no repairs being made nor any other acts being done so as to give notice to the owner of a claim of right to pass as distinguished-from amere license or permission.</p>

<p>Certiorari. Before Judge Bartlett. Bibb superior court. .April term, 1893.</p>

<p>As the evidence in behalf of the accused, if true, showed that an actual assault was committed upon him by the deceased, and that the homicide took place whilst that assault was in progress, the law of voluntary manslaughter was involved in the case, and it was error not to give it in charge to the jury.</p>

<p>Indictment for murder. Before Judge Henry. "Walker superior court. August term, 1893.</p>

<p>Indictment for murder. Before Judge Griggs. Terrell superior court. Special term, September, 1893.</p>

Indictment for breaking and entering railroad car and stealing therefrom. Before Judge Jenkins. Morgan • superior court. September term, 1893.

<p>The evidence showing that in approaching the point at which the injury occurred the driver of the wagon was engaged in the viola- , tion of a city ordinance by driving ata prohibited speed, and the circumstances being such as that, if this violation had not occurred,, the negligence of the defendant would not have produced the injury if ordinary diligence had been observed by the driver, there was no error in granting á nonsuit.</p>

<p>Petition for injunction, etc. Before Judge Falligant. Chatham county. December 5, 1893.</p>

<p>1. The discretion of the court in denying a continuance will not be overruled, the motion therefor being based on the ground that the party was providentially absent on account of the sickness of his wife, and the only proof of the providential cause being the affidavit of a physician, made five days before, in which the opinion was expressed that the husband could not safely leave her more than five or six hours at a time during the next week without danger to her, and it appearing by a counter-showing that two or three days after the affidavit was made the husband had gone on business to a city in an adjoining county about eight miles from his home and that his home was not exceeding ten miles from the place where the court was sitting.</p> <p>2. The action being upon an unconditional promissory note, to which no defence was filed except a sworn plea of the general issue* it was within the discretion of the court to call the case for trial out of its regular order on the docket, and there was no abuse of discretion in so doing; nor was there any error in directing a verdict for the plaintiff. .</p>

<p>Action for damages. Before Judge Roney! Taliaferro superior court. February term, 1893.</p>

<p>Equitable petition. Before Judge Wellborn. Hall superior court. ' January term, 1893.</p>

<p>1. The evidence showing that the contract sued on was made with the plaintiff by a special agent of defendants’ testator in the lifetime of the latter and under express authority from him, and that the services of the plaintiff were rendered under that contract, there was no error in refusing to admit evidence tending to prove that another person, at or about the time the contract was made, was the general agent of the testator and had charge of all his business, this evidence being offered to disprove the fact of special agency, a fact to which it was irrelevant.</p> <p>2. The evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>1. Under the evidence act of 1889, a party is not incompetent as a witness by reason of the death of a person whose estate is to he affected by the result of suit, unless the suit is prosecuted or defended by the personal representative, and the widow is not such in a proceeding in behalf of herself and minor children to obtain a year’s support. By the terms “personal representative” the statute embraces only an administrator, executor, or other person entitled to represent the decedent in the ownership or management of his general estate. It follows that one contesting with the widow the title of the decedent to property set apart or sought to be set apart for a year’s support, is not incompetent as a witness against her because of her husband’s death.</p> <p>2. According to Cheney et al. v. Cheney, 73 Ga. 66, the applicant for a year’s support is, upon the trial of an appeal in the superior court from a judgment of the ordinary, entitled to open and conclude, where the contest is with the representative of the estate. But according to Robson v. Harris, 82 Ga. 153, where the contest is with an adverse claimant of the property, the burden of proof is upon the latter, from whence it follows that he is entitled to open and conclude when both parties introduce evidence.</p> <p>3. As to some of the hay set apart in this case, the uncontradicted evidence indicates that it was the property of the caveator and was never the property of the decedent nor claimed by him.</p> <p>4. On the trial of objections to a year’s support, as provided for by the act of Oct. 9th, 1885, where the sole issue is as to title to the property set apart, a verdict finding for the applicant against the caveator a sum of money is contrary to law. The only legal finding in such a case is for or against the applicant on the question of title to the property in controversy.</p>

<p>1. Under the facts set out in the bill of exceptions, the presiding judge was under no disability to preside in the case.</p> <p>2. The terms of a will made in 1865, conferring a power of sale, being in this language: “ I will that all my just debts be paid, and for this purpose I invest my executors with power in their discretion to sell such portion of my estate, real or personal, as may be deemed by them necessary for this purpose, either at public or private sale as may be best for the interest of my estate,” and one of the executors having renounced and failed to qualify, the other, after qualification, could exercise the power alone. A conveyance of land by the executor made in 1862, reciting the power, and “that it is for the interest of the estate . ... to sell the property hereinafter described, in order to pay the debts of the same,” passed title to the purchaser as against one claiming under the will as a general devisee of a contingent remainder.</p> <p>3. In order for the purchaser to be affected by a fraudulent exercise of the power on the part of the executor, either participation in the fraud or notice of it by the purchaser would have to appear.</p> <p>4. The evidence offered by the plaintiff and excluded by the court, even if admissible, does not affirmatively appear to this court as material, the same not going far enough to affect the purchaser with notice, and no intention to offer additional evidence as to notice being announced.</p> <p>5. Treating the excluded evidence as admitted, a proper legal valuation of all the facts would necessarily result in the conclusion that, by reason of the sale and conveyance by the executrix, the plaintiff’s right in remainder was cut off; and hence there was no error in directing a verdict for defendants.</p>

<p>Ejectment. Before Judge Gamble. Bibb superior court. April term, 1893.</p>

Garnishment. Before1 Judge Marshall J. Clarke. Fulton superior court. March term, 1893. Ware & Owens sued Laird in a justice’s court, and ■caused process of -garnishment to issue and be served on the E. T., V. & G. R. R. Co. Laird interposed an affidavit and bond, the affidavit alleging: “that he is a laborer for wages, employed by the E. T., C. & Ga.

Action for penalty. Before Judge Westmoreland. City court of Atlanta. ' May term, 1893. . Timmons obtained a verdict against the telegraph company for the statutory penalty for failure to deliver a prepaid message dated February 3, 1891, with impartiality, good faith and due diligence. The company excepted to the overruling of its motions for nonsuit and new trial.

Action for penalty. Before Juge Van Epps. City court of Atlanta. March term, 1893.

Action. for penalty and damages. Before Judge 'Westmoreland. City court of Atlanta. January term, 1893. Bates sued for failure of the telegraph company to deliver with due diligence a message sent to him to Atlanta, G-a., hy his wife from Slielbyville, Tenn., advising him to delay a contemplated trip to Shelbyville. He alleged, besides his claim for the penalty, that, the message not having.been duly delivered, he left on the trip and incurred expenses and-damages.

Action for damages. Before Judge Eve. City court of Richmond county. May term, 1893. Mrs. Phillips sued the railroad company for a wrongful ejection from one of its trains on which she was a passenger. A nonsuit was granted, and she excepted. The evidence made the following ease : On June 14th or 15th, 1890, her husband applied to the defendant’s ticket-agent in Atlanta for round-trip tickets for himself and wife to Augusta at the reduced rate of $5.13 each.

Foreclosure of mortgage. Before Judge Bartlett. Houston superior court. April term, 1893. Defendant demurred to the rule nisi and moved to dismiss it, upon the grounds that it did not show by what authority the mortgage sought to be foreclosed was created by the trustee, nor did it show the trust estate was liable for the payment of the note which the mortgage was given to secure. Plaintiff amended his declaration, but the demurrer was sustained.

<p>It appearing from a full review of all the pleadings and evidence that the court below was right in sustaining the plea of “res adjudicatei," there was no error in withdrawing the case from the consideration of the jury or in dismissing the same.</p>

<p>1. There was no error in admitting the evidence of a witness introduced upon a former trial of the same case, when it appeared that the witness, since testifying, had removed to the State of Texas. Whether or not a witness beyond the jurisdiction of this State is “ inaccéssible” in the sense in which that word is used in section 3782 of the code, is, under all the circumstances of the particular case, a question for determination by the trial court in'the exercise of a sound discretion.</p> <p>2. Where a boy eleven years old, whose labor was worth six dollars per month, and who resided with his parents, worked with his father on a farm and rendered services to his mother about the house in the performance of her household duties, the benefit of his labor and services being thus realized by the parents in the support of themselves and their family, they being laboring people and mutually dependent upon the labor of one another for a support, the mother was dependent upon the boy, and he contributed substantially to her support.</p> <p>3. Where a father entrusts his minor son, a youth of tender years, to the care and custody of another, such person becomes the legal representative and agent of the father in discharging the duty which the law imposes upon the latter, of guarding and shielding the child from injury. Accordingly, if the child, by reason of the gross negligence of his custodian in taking him upon a high and dangerous trestle, is run over by a passenger-train and killed, such negligent conduct is, in law, imputable to the father himself. V 93-21 Such, custodian could not, however, properly be regarded as likewise the representative or agent of the child’s mother. By express statute, in this State, the father is vested with the control of his minor child, and the mother is not accountable for'the conduct of a custodian for him chosen by the father. Nor, in a suit by the mother in her own right, as authorized by special statute,' is she chargeable with the negligence of thef ather, merely because of the conjugal relation existing between them.</p> <p>4. Relatively to a person who, without license from the company, is walking upon a railway track on a trestle, though such trestle be situated between a blow-post and a public crossing, the' omission of the engineer to comply with the statutory requirements as to giving signals and checking the speed of the train, is not negligence, inasmuch as these requirements raise no duty as between the company and strangers who may be upon the track elsewhere than at a public crossing.</p> <p>5. The duty to observe all ordinary and reasonable care and diligence towards such person arises when his presence becomes known to the engineer, and not before. A failure in such care and diligence after that time, from which injury results, unless it could have been avoided by the use of ordinary cafe on the part .of the person hurt or killed, will render the company liable.</p> <p>6. Although omission of the statutory requirements, when a part of the res gestx, may be considered by the jury in passing upon the question of negligence relatively to the person injured or killed, yet, where the evidence as a whole shows there was no negligence imputable to the company or its servants except failure to observe these requirements, the company is not liablefoi-results occurring upon the track of its road elsewhere than at a public crossing.</p> <p>7. The mere opinion of a locomotive engineer that a heavy passenger-train consisting of a locomotive and six cars, running down grade at forty-five miles an hour, could be stopped within a distance of one hundred yards, is not sufficient to overcome the positive and uncontradicted evidence of the engineer and fireman upon the identical train, that all was done which could possibly be done to stop ity and that nevertheless it was not stopped within a distance of over four hundred yards, especially when the evidence of these witnesses was strongly corroborated by others who were experts in such matters.</p>

<p>Complaint in trover. Before Judge Richard Ii. Clark. DeKalb superior court. August term, 1892.</p>

<p>1. Where one hires another in the State of Tennessee to commit a trespass in Georgia, and the person hired does commit the trespass and in so doing acts in a manner reasonably to be anticipated by the person who employed him and thereby commits a misdemeanor, both are principals in the misdemeanor and subject to1 indictment and punishment in Georgia. Thus, a constable in Tennessee, wishing to levy upon a horse which was in Georgia, hired a person to bring the horse into Tennessee without specifying how it was to be brought, and the person employed rode the horse in Georgia without the consent of the owner and by this means executed his commission : Held, that the constable, as well as his agent, was guilty of a misdemeanor under the statute making it penal to willfully ride or drive the horse of another without the consent of the owner.</p> <p>2. There was no substantial error in the charge of the court, and the evidence warranted the verdict.</p>

<p>Since the passage of the act of December 24th, 1890 (Acts of 1890-91, vol. 1, p. 128), rendering it unlawful to sell spirituous liquors-in any quantity whatever without first obtaining a license, the phrase “dealers in spirituous liquors,” when used in a statute, comprehends all persons who sell such liquors in any quantity. Consequently, the 15th clause of the second section of the general tax act of 1892 is to be construed as imposing the tax therein specified upon dealers who sell by wholesale in the original packages corn whisky of their own manufacture in this State, the same as upon other dealers in such liquors.</p>

<p>Complaint for land. Before Judge Richard H. Clark. DeKalb superior court. February term, 1893.</p>

<p>Action on note. Before Judge Smith. - City court of Hall county. May term, 1893.</p>

<p>Complaint on note. Before Judge Wellborn. Habersham superior court. March term, 1893.</p>

<p>Appeal. Before Judge Milner. Catoosa superior court. February term, 1893.</p>

<p>1. The presiding judge was not obliged to allow the power of vision of a witness under cross-examination to be tested by requiring the witness to go to the window and look at an object on the street, which object was not visible to the judgeand jury from their positions in the court-room.</p> <p>2. The charge of the court to the jury being full as relates to murder, involuntary manslaughter and justifiable homicide, it was not error to charge on the subject of voluntary manslaughter substantially as laid down in the code in the definition of that offence, the instrument of the homicide being a long-handled shovel and the mortal blow having been stricken therewith under circumstances which left the proper grading of the homicide open to some question.</p> <p>3. There was no error in denying a new trial.</p>

Indictment for arson. Before Judge Sweat. Irwin superior court. April term, 1893. 1. Dan Fussell was convicted of arson, and his motion for a new trial was overruled. The first special ground of the motion, and the facts concerning the same, are set out in the opinion. 2.

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

Action for damages. Before Judge Marshall J. Clarke. Fulton superior court. March term, 1893. Walker sued the railroad company for personal injuries, and obtained a verdict. The company’s motion for a new trial was overruled. Plaintiff alleged, that he was employed as a drayman to haul a heavy piece of machinery, and in so doing, was proceeding out Peach-tree street in Atlanta, in the center of which ran defendant’s track.

<p>1. Under the grant of power in the charter of the City of Atlanta “to open, lay out, widen, straighten or to otherwise change streets, alleys and squares in said city,” the corporate authorities may condemn for the public use the whole or any part of the right of a private corporation to maintain one or more bridges across one of the public streets, and, after condemnation and payment of adequate compensation, may remove a bridge already erected and prevent the erection of any other at any place to which the right of the private corporation to bridge the street extends or applies. This is true although the easement sought to be appropriated or extinguished in whole or in part may be grounded upon a contract heretofore made between the city as one party and the private corporation as the other, in which the city fully recognized the easement and agreed that it might be perpetual.</p> <p>2. A resolution of the mayor and general council which provides for the appointment of assessors to ascertain and fix the damages which will accrue to a private corporation by the appropriation of its property to municipal purposes, is not sufficiently certain and definite as to the interest in the roadway of Hunter street which is to he appropriated, the description being in these terms: “ whatever property rights the Atlanta University has in the roadway of Hunter street and in the privilege heretofore exercised of bridging Hunter street within its grounds.” But this description is sufficiently certain and definite as to the privilege already exercised of bridging the street. Condemnation of this privilege, however, would leave untouched any privilege of bridging the street elsewhere than at the particular location of the existing bridge.</p> <p>3. In view of the law above announced and of the limited scope of the resolution of the mayor and council, the judge did not err in denying the injunction prayed for, the resolution being nugatory as to rights in the roadway of the street, silent as to the bridge privilege not as yet acted upon, and lawful as to that privilege so far as exercised heretofore.</p>

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

Action for damages. Before Judge Roney. Columbia superior court. September term, 1892. Gilmore sued the railroad company on March 15th, 1891. The company filed a plea in abatement. In evidence appeared the record of a suit by the same plaintiff against the same defendant for the same cause of action,filed in the same court on March 3d,1888,together with a judgment of nonsuit granted at the September term, 1890.

Garnishment and claim. Before Judge Falligant. Chatham superior court. December term, 1892. The contest was over a fund in the hands of Warren & Axson, garnishees in a suit against Maddox. Jones filed a claim to the fund.

<p>Action foi’ damages. Before Judge Jenkins. Bibb superior, court. November term, 1892.</p>

Levy and claim. Before Judge Bartlett. Bibb superior court. April term; -1893.- ' Two executions issued upon judgments of June 8, 1892, were levied on. four barber chairs and other barbershop furniture, as the property of Giannone Brothers and Nelson Giannone. The property was claimed by Joseph Giannone. It was found subject, and his motion for a new trial was overruled.

Action for penalty. Before Judge Gober. Cobb superior court. November adjourned term, 1892. W. E. Moss sued the telegraph company for the penalty prescribed for failure to transmit and deliver the following message : “ Oakdale, Ga., October 10th, 1891. To Ur. T. J. Moss, Mableton, Ga. Come to Oakdale at once to see my child.” ' According to plaintiff’s testimony, this message was written and signed by him, and he delivered it to Walker, the company’s operator at Oakdale.

Equitable petition. Before Judge Roney. Richmond superior court. April term, 1893. The facts of the case are stated in the opinion.

<p>The court committed no substantial error in admitting evidence, or in charging the jury, or in refusing to charge as requested. The evidence warranted the verdict, and there was no error in denying a new trial.</p>

Action for damages. Before Judge Bartlett. Bibb superior court. April term, 1893. Golden sued the railroad company for damages, and obtained a verdict. Defendant’s motion for a new trial was overruled. The plaintiff was a boy of twelve and a half years.

Action on note. Before Judge McWhorter. Hancock superior court. February term, 1893. The opinion states the facts.

<p>1. Under the laws of Alabama, in the absence of express statutory authority, there can be no consolidation of the stock of one corporation with that of another so as to create a consolidated compány composed of the stockholders of both corporations; and to attempt such a scheme over the objection or anticipated objection of a minority of the stockholders in either corporation, is illegal and contrary to public policy.</p> <p>2. Where, in contemplation of such an illegal scheme and for the purpose of carrying it into effect, some of the stockholders in one corporation'sell their stock to some of those in the other, and are to be paid therefor in part by a transfer of stock of the consolidated company when such company shall be formed, the sale is tainted . with the element of illegality on the part of the sellers as well as the buyers; and if the consolidated company is not formed and never issues any stock, and because, the buyers are thereby unable to deliver the stock they execute to the sellers their notes or bonds promising to pay a sum of money in lieu of making a delivery of the stock, these notes are tainted with the illegality which attached to the contract of sale, and for that reason are not collectible. The legal principle applicable to the case is, that where both parties to an illegal contract are to share in the fruits thereof, and the contract fails to bear some of the' anticipated fruits, an undertaking, by way of compromise, of one of the parties to compensate the other for his disappointment, is illegal and therefore void.</p> <p>3. One who purchases promissory notes or bonds founded upon a consideration illegal and contrary to public policy, with full knowledge of the facts, takes them subject to all the defences which might be' urged against the original payees.</p> <p>4. The court erred in striking the defendant’s special pleas, in so far as they rested on the element of illegality.</p>

<p>Complaint. Before Judge Eve. City court of Richmond county. May term, 1893.</p> <p>Supplementing the statement of this case appearing in 89 Ga. 349, it is proper to add, that at the last trial plaintiff further amended his declaration, alleging that after the organization of the Electi’ic Light Company of Augusta, plaintiff and his associates acquired a charter and put their apparatus and machinery into operation ; that after defendant refused to pay his subscription, the amount to which plaintiff’ was entitled was set apart to him, also that subscribed for by defendant, plaintiff holding the latter for defendant’s account, and he continues to hold defendant’s interest in said company; that the company subsequently sold out its property to the Augusta Electric Company for one sixth of the capital, or thirty shares, and in the subsequent distribution of its assets plaintiff’ has received about $100 to which defendant is entitled when he pays the amount of the obligation in question, plaintiff’ being willing to give him credit on the verdict to be rendered in this case.</p> <p>One of defendant’s special pleas set up, that his agreement to take an interest in the patents was based on the terms and conditions of the deed of the American Electric Light Company, which expressly provided that plaintiff was to organize, within a year from the date of the deed, a corporation to succeed to his rights thereunder; but said corporation was not formed as conditioned by the deed, and plaintiff’ is without any title to the property therein specified. The other special plea alleges, that whereas plaintiff’ sues on an alleged promise made in February, 1882, to pay him $500 for an interest in patents and property sold him on December 10,1881, by the American Electric Light Co., yet on November 3, 1884, he and his associates sold the patents and property to the Augusta Electric Company for one sixth of the capital stock of that company, thirty shares. In the .case of the Fuller Electrical Company against Graham et al., a bill filed in the superior court of Richmond county July 22,1885, plaintiff was one of the defendants, and answered under oath, September 29, 1885, that he and his associates had made said sale of November 3, 1884. By the final decree in that cause, August 20, 1886, all persons interested, plaintiff among them, consenting, it was adjudged that all the patent rights, franchises and electrical property belonging to Barrett and his associates November 3,1884, and then sold as above mentioned, belonged to and were vested in the Augusta Electric Company, free from any lien or encumbrance in favor of plaintiff’ and his associates, and that as the purchase price thereof plaintiff and his associates were entitled to the one sixth of the capital stock mentioned above. On October 8, 1888, the stockholders of the Augusta Electric Company, the corporate name of which had at that time been changed to the American Illuminating Company, sold their stock to the Thomson-Houston Electric Company, at the rate of four shares of the stock of the illuminating company for one share of the stock of the Thomson-Houston company, the Thomson-Houston company agreeing to pay the holders of said stock $90 per share two years after the sale. Plaintiff and his associates were at the time of this sale stockholders in said illuminating company, participated in the sale, and received, for their thirty shares of the illuminating company’s stock, seven and one fourth shares of the Thomson-Houston company’s stock, Clarke, one of plaintiff’s associates, holding said seven and a half shares as agent, and continuing to do so for the two years. On March 10, 1891, the Thomson-Houston company paid Clark, as agent, for the seven and one fourth shares $675, and on March 18,1891, Clarke paid plaintiff $459 in full of the amount due him out of the $675, the same being for seventeen twenty-fifths of said patents, etc. Wherefore, if ever any contract such as is sued on existed between plaintiff' and defendant, the obligation thereof has ceased.</p> <p>For the other facts see the decision.</p>

Indictment for assault to rape. Before Judge Henry. Floyd superior court. September term, 1893. The accused was 13 years and 2.7 days old, according to the testimony of his father.

Equitable petition. Before Judge Wellborn. Hall superior court. January term, 1893. To tbe statement of facts appearing in tbe opinion, it is only necessary to add, that the charges requested and refused were as follows : “ A sale attacked by creditors must be made bonajide, and with no purpose, known to or suspected by the creditors taking the deed, to hamper and entangle the property as against other creditors for the sake of hindering or delaying them.

<p>Levy and claim. Before Judge Wellborn. Ilall superior court. July term, 1893.</p>

<p>Money rule. Before Judge Wellborn. Lumpkin superior court. April term, 1893.</p>

<p>Action for penalty. Before Judge Gober. Cobb superior court. March term, 1893.</p>

Accusation of cheating and swindling. Before Judge Westmoreland. City court of Atlanta.

<p>1. On a motion in arrest of judgment, none of the evidence introduced in support of the indictment is relevant, ox can be considered.</p> <p>2. The indictment charging Charles Herron with .the murder of “ Lula Herring his wife,” judgment will not be arrested on a verdict of guilty because the name of the wife was spelled “Herring” instead of “ Herron.”</p>

<p>1. A statement by the accused that he knows who committed a crime and that he was present when another person (naming him) committed it, is not a confession, direct or indirect, of his own guilt, nor is his failure to deny, during a legal investigation before a judicial officer, a statement imputed to him by another accused person, equivalent to an admission that the imputation is true, silence on such an occasion being, if not required, at least justified as matter of decorum, in the presence of a tribunal.</p> <p>2. The evidence being entirely circumstantial, and, though consistent with the guilt of the accused, not inconsistent with every other rational hypothesis, and being insufficient to show guilt beyond a reasonable doubt, a new trial is ordered.</p>

<p>There was no abuse of discretion in granting a first new trial.</p>

Action for damages. Before Judge Milner. Whitfield superior court. April term, 1893. The declaration alleges as follows: At the time defendant took possession of its road and right of way, plaintiff was in possession of land lot No. 98 in the 13th district and 3d section of Whitfield county, and the. road runs through that lot for nearly three fourths of a mile.

<p>It was error for the court to direct a verdict for the defendant on the facts in evidence, the parol evidence having been admitted without objection, and the statute of frauds not being pleaded. It was , not so clear that, the plaintiff was not entitled to recover at least nominal damages as to exclude all reasonable inference to the contrary.</p>

<p>Although the coming apart of the train, and the running back of a portion of it, may have- been the result of the engineer’s negligence, and have made it necessary for ihe conductor to go back and flag an approaching train, yet, as the immediate and proximate cause of his injury was his'slipping and falling upon a cross- ■ tie forming a part of a trestle, the injury was a mere casualty in- . cident to the business in which the plaintiff was engaged, and he was not entitled to recover. This is true, although there was upon the edge of the cross-tie a small bit of decayed sapi the breaking of which from the tie itself ‘caused the plaintiff’s fall. There was' no negligence of the company, relatively to the plaintiff, in having a defective cross-tie, the purpose of having ties not being to make a way for employees to walk upon, but to make a safe road-bed for the running of trains.</p>

<p>1. Where, by the judgment oE the court, a person convicted of a misdemeanor is sentenced to pay a fine and the costs, including the fees of the witnesses, and the clerk issues an execution for such fees, based upon the judgment, section 3842 of the code is not applicable. That section applies where a witness verifies his subprena and has it countersigned, and thus makes it, together with the affidavit, in effect an execution against the property of the party at whose instance he was subposuaed.</p> <p>2. Where the clerk of th'e superior court issues an execution for the costs due witnesses, and the defendant meets it with an affidavit of illegality on the ground that the witnesses have claimed, and procured the execution to issue for, more fees than they are entitled to receive, specifying in the affidavit the alleged excess as to each witness, it is incumbent upon the defendant to pay the amounts appearing to be due, in order to authorize the levying officer to stay further proceedings. When the execution and the affidavit of illegality are returned to court, the issue thus made is in the nature of a motion by the defendant to have the costs re-taxed, and upon the trial it is error to refuse to allow each witness to prove the whole number of days he attended court upon his subpcena, and thus establish the correctness of the amount in his favor for which the execution was issued.</p>

<p>Petition for injunction, etc. Before Judge Milner. Bartow .county. October 28, 1893.</p>

<p>The holder of several bonds for titles from various persons, binding them to convey to him certain undivided interests in land, with parts of the purchase money paid, is not entitled to institute proceedings for a partition of the premises by sale; nor does he, after instituting such, proceedings, obtain a right to such, partition by obtaining from one only of his vendors a deed conveying to him an undivided interest in the land, none of his other vendors being parties to the proceedings.</p>

<p>Equitable petition. ' Before Judge Henry. Walker superior court. February term, 1893.</p> <p>The Union Cotton Mills brought its .petition against N. C. Napier for specific performance. Defendant’s demurrer thereto was overruled, and he excepted. The petition alleges, that soon after the organization of plaintiff under its charter, defendant’ made to it the following proposition in writing:</p> <p>“ State of Georgia, Walker county. I, N. C. Napier, agree to donate ten acres of land No. 28 in the 7th district and 4th section of said county, bounded as follows: on the east by the railroad,, on the north by original line, on the south by Mitchell hollow, and on the west by my land. I also further agree to give an option on twenty acres of land lying west of the land to be donated, at $25 per acre, to be paid for in stock if the co. prefers. I also bind myself to furnish all the water to the factory to be built under the present charter, for manufacturing purposes, provided said company will build a suitable and sufficient reservoir to hold the water as it gathers. It is further agreed that, in case said company should ever want all the water so as to stop my mill, that.I will sell the said -factory company my mill with its fixtures and my good will for the sum of $3,000. This Oct. 3d, 1891. In addition to the within, it is a pai’t of my offer, if accepted by the directors of the Union Cotton Mills, to furnish all the needed right of way to and from the factory and to and from the residences of the operatives, through any land I may own at the time of signing this paper, lying on the west side of the C., R. & C. R. R. (Signed) N. C. Napier.”</p> <p>Said proposition was fully accepted by the directors of plaintiff immediately after it was submitted to them by defendant, and said land was surveyed, laid off and marked and the boundaries 'made by him, and the possession thereof turned over by him to plaintiff, which at once commenced to erect its factory and operatives’ homes, storehouse, etc., on said land. It has now (January 23, 1893) constructed a factory and has the same in operation; it has also built its storehouse, operatives’ houses, shops and other buildings on said land, and constructed a sufficient reservoir to hold all water needed • for the factory, and. has fully complied with all the conditions of the contract on its part; but defendant upon demand refuses to make to it titles to said laud with water privileges as stipulated by him in the contract, he knowing that but for the reason of the proposed donation and sale of said land and. water privileges, the factory would not have been located on the land. Plaintiff is ready and willing to issue to him stock in the company as agreed in the contract, and now tenders the same to him. He owns the water privileges with power to control the water in the stream north of the factory, and the same might be cut off entirely from the factory, to its great damage and almost entire destruction. Hefendant also owns the land lying east of the factory, and a mill on the stream southeast of the factory; and should the same be transferred with water privileges by defendant to an innocent purchaser, the right of plaintiff to water would be. destroyed, to the destruction of the value of the factory. Plaintiff under its charter has the right to build a $500,000 factory, which was well known to defendant .at the time he induced plaintiff to locate its factory on his land by his proposition aforesaid ; and while plaintiff' has commenced operations with a capital stock of $100,000 as it had a right to do under its charter, it was well known to defendant at the time that the company intended to increase its capital stock as rapidly as it could, and if possible erect a $500,-000 factory; and but for the fact that,the company had, under the contract or proposition of defendant, a right to a sufficient amount of water to operate a factory to be built to the extent of the charter, plaintiff would never have accepted the proposition of defendant, which was well known and understood by him at the time; and the proposition was made with that understanding on the part of plaintiff and the directors of the company. Plaintiff' has reason to apprehend that defendant will sell oi’ dispose of his lands adjoining the' factory, his mill and water privileges, and thus defeat plaintiff in its right under the contract; in such event he is wholly unable to answer in damages for the injury which would be done to the company. Plaintiff is informed that, since the execution of the contract, defendant has created a lien on the property, or conveyed title to secure a debt, and has to a certain extent complicated the matter; and on account of his inability to answer in so great damages, he is in that sense insolvent.</p> <p>By amendment plaintiff alleges, that said proposition was made by defendant to induce plaintiff to locate its mill on said land, in order that the remaining lands of defendant would be enhanced largely thereby; and that his lands have been largely enhanced in value by the location of the mill. Further, before the commencement of any work by plaintiff- on-the land, and after the proposition of defendant had been made and accepted by plaintiff, defendant had the land laid off and mai’ked, showing the exact boundary, to wit: commencing on the north line of said lot at a point where the right of way of the O., R. & O. railroad crosses said line, thence south to a pine stump (with said railroad right of way), said stump being in the Mitchell hollow, thence west to the west boundary of said lot of land No. 28, thence north to northwest corner of said lot, thence east to the beginning, said tract of land containing 30 acres more or less. The cotton mill was located on said land wholly on account of the proposition of defendant; and but for the fact that the proposition had been made and the land laid off and marked, defendant would not have located its factory on the land. Said location was made on account of the contract for land and water; and plaintiff proposed to deliver to defendant stock for the land as stipulated in the contract, upon the delivery of deed for said land with water privileges and right of way as stated in the contract, and has always stood, ready to deliver said stock upon the delivery of the deed. Defendant had subscribed to the capital stock of the company in the sum of $1,000, but has never paid any of said stock except $250; and it was the direction of the directors of plaintiff that the defendant should have credit on his subscription for the amount of the value of said land. The stock in payment of said twenty acres was tendered to defendant prior to the filing of this suit; plaintiff has at all times been ready to deliver said stock to defendant, and it has been subject-to his order since the date of the tender; and plaintiff-makes the same a continuing tender, etc. The prayer of the petition is, that defendant be required by decree to make deed to the lands and water privileges and rights of way as shown in his proposition aforesaid, etc..</p> <p>The grounds of demurrer are as follows :</p> <p>(1, 6) The alleged contract is too vague, uncertain, indefinite and doubtful on its face to be acted upon by the court, and is not capable in its nature of being the subject of a decree for specific performance; and plaintiff-does not present in his petition a case which entitles him to the relief he seeks, or any other relief which a-court of equity can afford. (2) The agreement set out, in addition to the uncertainty of its terms as to the volume or quantity of water to be furnished, is also uncertain as to the time at which it is to be furnished, which uncertainty is such as could not be settled by decree. Countless questions of dispute might afterwards arise, which cannot now be determined. (8) The alleged agreement does not define the boundary of the twenty acres of land named therein, nor furnish such description of the property as will authorize the court to decree title to the same. (4) The alleged agreement only provides for an option upon the twenty acres of land, but fixes no time for its execution, nor the terms of the option; and plaintiff’s prayer is for a deed and not for an option, ■which, prayer is at variance with the charges in the petition, as well as with the terms of the agreement. (5) The petition admits that plaintiff took possession of and improved the real estate referred to, with ■ no other authority than that set out in the agreement; and also admits that plaintiff has paid no consideration to defendant, for the land, and that the ten acres referred to was to be a donation. The agreement nowhere refers to any deed or time for option. Therefore plaintiff, having of its own motion, by its own laches and negligence, and with full knowledge of all the facts upon which it asked relief, entered on the lands as it admits, cannot now be heard in a court of equity to complain as to matters, conduct, acts or agreements untainted by fraud on part of defendant, and in which it voluntarily took part and risk, but is estopped from complaining against its own acts, and will be left to its remedy at common law, if any. (7) The agreement establishes, if anything, a relationship which could have been revoked by plaintiff at any time. As to the twenty acres of land, an option was given to plaintiff', if anything; as to the water privileges, plaintiff' has never sustained any relation to defendant that could not be revoked at any time by plaintiff;. and as to the ten acres of land, the donation may or may not be refused.</p>

<p>1. Where a bill of exceptions assigning as error the granting of a non-suit, and setting out the evidence introduced upon the trial (there being no brief of evidence approved and filed as part of the record), has been signed and certified, and counsel for defendant in error afterwards presents to the judge a petition alleging that certain oral evidence, specifying it, was omitted from the bill of exceptions, which petition the judge certifies to be true, and directs the-clerk to send up such oral evidence as a part of the record, but which the clerk fails to do for the reason that there is nothing of file-in his office which he can certify and send up in obedience to this order, the oral evidence set out in such petition is no part of the-record, and cannot be considered by the Supreme Court.</p> <p>2. It appearing, upon the trial of an action on an open account for goods sold and delivered, that there was a written contract between the parties as to what was to be the quantity, quality and price of the goods, it was competent for the plaintiff to amend his-declaration by setting forth the existence and contents of the written contract, not for the purpose of counting upon it as a distinct cause of action, but to disclose and allege the pertinent facts and circumstances under which the sale and delivery were made.</p> <p>3. Upon the trial of such case it was error, with or without the amendment, to reject the written contract when offered in evidence by the plaintiff for the purpose of showing that his proposed oral evidence as to the quality of the goods delivered was in conformity to the description of them contained in the contract.</p>

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

<p>A “ commercial traveler,” whose business it is to travel and sell goods for his employer, though employed and paid for his services by the day, is not a “ day-laborer ” in the sense in which these words are used in section 3554 of the code, and his wages are not exempt from the process of garnishment.</p>

<p>1. The issue being whether the plaintiff delivered to the defendant the kind of policy of insurance for which the latter had stipulated and which the plaintiff had agreed to deliver, evidence of the value of the policy actually delivered was irrelevant, and therefore inadmissible.</p> <p>2. One. who orders a policy of insurance of aparticular class, and gives his note for the amount of the premium which the agent of the company had advanced, has a reasonable time within which to discover that a policy sent to him by mail is not of the class ordered, and to object to and return the same.’ If his offer to return, made in due time, be rejected, his retention of the policy thereafter, without appropriating it or making any use of it, will not subject him to pay the note.</p> <p>3. Although the evidence was decidedly conflicting, and seemingly predominated in favor of the plaintiff, yet the jury being the sole judges of credibility, and the court below having approved the finding, the judgment denying a new trial will not be reversed.</p>

<p>1. Where one member of a mercantile partnership, in due course of the partnership business, executes and delivers in the name of the firm a promissory note in which all rights of homestead and exemption are expressly waived, the waiver is binding on all the members of the firm, so far as the personal property belonging to the firm is concerned, and no member is entitled to an exemption out of the money arising from a sale of such property by a duly appointed receiver, as against a judgment or decree founded on such a note.</p> <p>2. Where the ordinary is made a party to a pending petition filed under the “trader’s act” against an insolvent partnership, and claims, by virtue of an exemption allowed one of the partners and for the purpose of investment under the provisions of section 2016(a) of the code, money in the receiver’s hands, the same being some of the proceeds of personalty belonging to the partnership, such ordinary is not entitled to any of the fund before the payment of all the expenses of raising the cash, including the reasonable fees and clerk hire of the receiver, and the reasonable fees of the attorneys by whose services the fund was brought into court.</p>

<p>Where by a written contract the owner of a tract of land stipulated to convey to the other contracting party a half-interest in all the minerals that the latter might find, open and develop “to the extent that it will justify the employ of labor,” with timber and water for mining purposes, the other party stipulating in the writing to prospect the land within a specified time at his own expense, and the latter having complied with this stipulation and discovered, opened and developed a minei’al of unknown name but of sufficient value to justify the employment of labor in mining the same, equity will, at his instance, compel the former to specifically execute his contract to convey in accordance with its terms. There was no want of mutuality in the terms of the contract as set forth in the writing, and the failure to sign the writing by the party who performed his undertaking is of no consequence, after full performance on his part.</p>

<p>Equitable petition. Before Judge Henry. Eloyd superior court. March term, 1893.</p> <p>M. A. Sullivan filed Ms petition against Jack King, J. O. Clements, O. T. Clements, J. B. S. Holmes, J. W. Cavender, S. S. King, Park Harper, W. T. & O. H. McWilliams, R. T. Eouché, J. H. Rhodes, E. L. Culberson, J. C. Wardlaw, J. D. Williamson, and the Rome & Carrollton Construction Company, a foreign corporation which was made a party defendant by order passed after the filing of the original petition, and which was served by publication only. A demurrer was filed by the defendants other than Williamson and the construction company. Sullivan and others offered amendments to the petition, which were allowed over objections, and the demurrer was overruled.</p> <p>The original petition alleged: Petitioner holds a judgment for a sum named, rendered December 10, 1889, in the city court of Eloyd county, against the Rome & Carrollton Construction Company, a corporation chartered outside of Georgia;- upon which execution has issued, and the sheriff’ of that county has returned the same with entry of nulla bona. The principal business of the construction company in Georgia was the building of the Chattanooga, Rome & Columbus railroad, extending from Chattanooga, Tennessee, through Eloyd and other Georgia counties to Carrollton. Its principal office in Georgia is in Floyd county. Williamson, who was president when petitioner’s debt was created, and is now one of its stockholders, resides in Floyd county. Jack King, J. C. and C. T. Clements and Holmes, all citizens of Floyd county, and Cavender of Walker county, Georgia, are also stockholders and were when the debt was created. It incurred the debt in building the road, for work and material done and furnished by petitioner in the building under a contract with it. He has been unable to find any property of it upon which to levy thej^. fa. The persons above named have subscribed to large amounts of its stock, the exact amount of which is unknown to him, but which he is informed, believes and charges have not been paid up by them, such payments as were made being only colorable and not in good faith. On information and belief he charges, that whenever it made a call upon the stockholders for all the money paid in by them, each of them received bonds and stocks of the railroad company named above, assets of the construction company, of equal or greater value than the money paid in, which bonds and stocks were used for their private benefit and not for the benefit of the construction company. Large sums of money are still due and unpaid by them upon their stock subscriptions. The construction company is insolvent unless the subscriptions to its stock can be made subject to its debts; and he prays that each of said stockholders be compelled to answer how much stock he subscribed for, what was the date of his subscription, how much money he has paid in on the subscription to the construction company, giving dates and amounts, what, at the time of any such payment or prior or subsequent thereto, he received from the person to whom he made the payment or from any one acting for him or acting for the construction company, whether at any such time he received any bonds or stocks of said railroad company or anything of value, and from whom did he receive whatever was paid or delivered to him. Also, to state the names and residence of the subscribers to the stock, the amount subscribed by each, the amount paid in upon each subscription, and how it was paid, and all the details attending the payment, including the distribution of the bonds or securities of any kind. He prays also for a receiver to take charge of the assets, including the subscription books of the construction company, and for authority and direction to the receiver to sue the stockholders for such unpaid stock as may be due, and to sue for and to collect other debts due the company; that when recovered, the receiver be ordered to pay over to petitioner the amount obtained, or so much as may be necessary to pay his claim with costs, etc.; that should the court refuse to appoint a receiver, then defendants be ordered to pay in severally and jointly enough to pay his claim and costs. He charges that the amount due by each of said stockholders upon stock subscriptions is largely in excess of his claim, and that the officers of the company refuse and fail to collect and call in said subscriptions either for its benefit or that of its creditors. He amends by alleging: He sues in behalf of himself and such other creditors of the company as may properly come in and be made parties plaintiff.' At the time his debt was created and his judgment obtained, the defendant stockholders had subscribed and contracted for, and owned, stock in the construction company, and had received assets from it in various amounts here set forth. All of the shares of stock were of the par value of $100, and the shares subscribed for by defendants have not been paid for by them, but the amounts of subscription are still due and unpaid. The bonds and'stocks alleged to have been delivered to said stockholders were improperly and illegally delivered, and such delivery was without consideration. Said stocks and bonds were the assets of the construction company and were property to be used for payment of its debts; their delivery to its stockholders was illegal and void as against its creditors, and they are liable to be followed in the hands of the stockholders so receiving them. The construction company, at the time of filing the original suit, had no place of business, office, officer or agent in Georgia, and therefore personal service could not be made upon it. Petitioner prays for the same relief against it that was prayed against the defendants to the petition, so far as applicable, for process, and that service be perfected upon it by publication. He further prays that the defendant stockholders be ordered to pay into court the sums found to be unpaid on their subscriptions, and to deliver into court the assets of the construction company received by them, or pay in the value of such assets or so much thereof as may be necessai-y to pay the indebtedness to all parties who maybe plaintiff', and reasonable attorney’s fees; and for general relief.</p> <p>Carter & Company alleged that they had obtained a judgment against the construction company in Ployd superior court at a certain time and for a certain amount, upon which execution had been issued and which had been returned with entry of nulla bona. They adopted the allegations made by petitioner, and asked to be made parties plaintiff-, and for judgment against defendants, and for general relief. A similar amendment was offered by Glenn for the use of Dreunon.</p> <p>Sullivan further amended by alleging that all the stockholders declared against are residents of Georgia and are all the resident stockholders that he knows of in Georgia; that at the time the securities and assets of the corporation were so delivered to said stockholders, they were delivered for the purpose of avoiding the liabilities of said stockholders, upon their subscription to the stock, by reason of the contracted indebtedness which was contemplated and arranged to be created and incurred by the corporation, which intention and purpose was known to all of them when they received said assets; and that the assets so received were necessary to pay the debts of the company, and when so received impaired its capital stock to the extent 'of rendering it insolvent.</p> <p>The grounds of demurrer, so far as material, are sufficiently shown in the decision.</p>

<p>Action for damages. Before Judge Henry. Eloyd superior court. March term, 1893.</p>

<p>Petition for certiorari. Before Judge Henry. Floyd county. April 25, 1893.</p>

<p>Action for damages. Before Judge Henry. Floyd superior court. March term, 1893.</p>

<p>■ Action for penalty. Before Judge Turnbull. City court of Floyd county. March, term, 1893.</p>

<p>1. A recovery in ejectment by the consent of the surviving defendant in the action is not sufficient evidence to establish failure' of consideration of a promissory note previously made by him to his codefendant in the action for the purchase money of the premises, although the latter, at the time of taking the note, conveyed to the former by deed with warranty of title, such codefendant (the warrantor) not having consented to the recovery, but having died pending the suit and leaving undisposed of a plea to the merits.</p> <p>2. Where the “real plaintiff” in-an action of ejectment is not the grantee from the State, he cannot rightly recover on a demise from such grantee without showing some privity of title or estate, legal or equitable, with him, or some representation or agency in his behalf which would render such recovery allowable and proper according to the true spirit of the law governing actions of ejectment.</p> <p>3. In an action upon a promissory note given by the vendee to the vendor for the purchase money of land, paramount outstanding title relatively to the title of the vendor, whatever that may be, is not shown by producing in evidence a copy grant from the State and a deed of conveyance from one stranger to another stranger.</p> <p>4. The plaintiffs below were competent as witnesses in their own behalf.</p> <p>5. The evidence warranted the verdict, and the court erred in granting a second new trial.</p>

<p>1. A term of the superior court not held at the time appointed by law but legally adjourned over to a later time, is, when held according to the adjournment, the same term with reference to process and pleading as it would have been had it been held at the time fixed by statute.</p> <p>2. Where a declaration in attachment is filed at the first term, and written notice of the attachment and of the proceedings therein is afterwards served personally on the defendant at least ten days before final j udgment, as provided for by section 3309 of the code, the right of the plaintiff to judgment on his declaration, as in other cases at common law, upon the merits of • the ease, is not affected by a dismissal of the levy during the pendency of the declaration, whether that dismissal was the act of the levying officer, by reason of an order of the magistrate who issued the attachment requiring the plaintiff to give further security on the attachment bond and failure of the plaintiff to comply with that requirement, or the act of the court in which the attachment was pending; and whether the dismissal took place before or after the service of notice on the defendant. It was consequently error to dismiss the declaration because the levy had been dismissed by the levying officer on the magistrate’s order made after the declaration was filed, although the order was made and the levy was dismissed before the defendant was served personally with notice. Dismissal of the levy, without more, left the attachment and the déclaratión founded thereon pending in court to be disposed of by some proper judgment, final in its nature, “terminating the proceeding.</p>

<p>1. If the proceeds of a check or draft be rightfully the property of a ward, and they reach the hands of his guardian in consequence either of the collection or the negotiation of such check or draft, it matters not as to whether the draft itself or the indorsements upon it were regular or irregular; and no proof of signing or indorsement is requisite.</p> <p>2. Where two guardians jointly appointed for the same ward execute a joint bond for the faithful performance of their trust, each of them isa security upon the bond for the other; and both they and their sureties upon the same bond are responsible for a devastavit committed by either.</p> <p>3. In an action upon the bond for a breach thereof, the suit being ■ brought by the ordinary for the use of the ward, after the latter had attained his majority and after demand made by him, proof that either of the guardians received assets of the ward during his minority and while the letters of guardianship were in force, will cast upon the defendants in the action the burden of accounting for a legal disposition of such assets, either before or after the ward arrived at majority.</p> <p>4 Admissions made by one of the guardians after the letters of guardianship were revoked would not affect the other guardian or the sureties upon the bond; and the particular admission made in this ease was not rendered admissible against them upon the ground that the guardian who made it was dead at the time of the trial, the admission as a whole not being against his interest, inasmuch as his entire statement, if taken as true, would discharge him from one debt by charging him with another, thus leaving his interest balanced as a result of the admission.</p> <p>5. The knowledge of an attorney at law of the contents of an insurance policy, ’ the identity of the beneficiaries named therein, the collection of the money and the payment of the same to his client, having been acquired while acting in his professional capacity under employment to collect the policy, and by reason of this relationship, he is an incompetent witness to testify to these facts, and it was error to admit his evidence.</p> <p>6. A letter is not admissible in evidence without proof of its being genuine, and this proof cannot be supplied solely by what appears on the face of the letter itself, to wit the contents, the letterhead, etc.</p>

Petition for injunction. Before Judge Harris. Carroll county. January 10, 1894. Marcliman alleged: On June 21,1892, Brannon & Co. obtained judgment against Mm for $46.96 principal, with interest and cost, in a justice’s court of Carroll county. From this judgment execution issued against him and his security on appeal, and has been levied on Ms property.

<p>Action for damages. Before Judge Hunt. Butts superior court. March term, 1893.</p>

<p>1. Under the evidence in the record, the debt in controversy was apparently infected with usury. Without some explanation from the payee of the notes, either as to the value of services rendered or as to some agreement in respect to the amount of compensation therefor, the gross sum mentioned by him in his testimony as covering his charge for the services and for interest on the loan, together with his telling the borrower that she would have to pay a high rate of interest, and his naming 12 per cent, as the rate which others would charge him, would indicate that he intended to, and did, charge more than 8 per cent.</p> <p>2. While the transfer of negotiable promissory notes secured by an absolute conveyance of land made under section 1969 et seq. of the code, although the transfer be made by indorsement of the payee without recourse upon him, will not discharge the land from the incumbrance placed upon it by the deed, yet a mere written transfer, indorsed upon the deed, of the deed itself and the rights of the grantee therein (the payee of the note) will not pass title to the land out of him and into the indorsee of the notes, so as to enable the latter to convey the land back to the debtor who executed the deed to secure the notes. Consequently, under such circumstances, a verdict in a suit upon the notes, and judgment thereon, should not find and declare unconditionally that the plaintiff has, or shall have, a special lien on the land for the payment of the judgment, but only that he shall have such lien provided he shall procure a proper conveyance to be made by the grantee in the security deed conformably to his bond for titles, and have the same duly filed and recorded before causing the land to be levied upon. In the present case, no bond for titles is either alleged or proved, and consequently, it is uncertain Whether the provisions df the code were pursued in taking the security deed.</p>

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

<p>1. Where a testator devised and bequeathed to his wife for life, land, horses, mules, cattle, hogs, plantation tools, vehicles, and other personalty, without any restriction whatever upon the right or the use, save that his son was to have all the necessary expenses of his education, board and clothing paid out of the proceeds of the farm and stock; and the will directed that after the death of the widow all the property thus given to her for life be sold by the executor, and the proceeds of the sale divided among the testator’s children, the executor had no right to sell the natural increase of any of the animals so bequeathed, but did have the right to sell horses and mules received by the widow in exchange for horses and mules which the testator left to her, the executor electing to toeat exchanges made by her as investments of the capital which.would or might have come to him specifically for administration under the will in behalf of the remaindermen. Although her conversion of the remainder estate in the corpus was tortious, yet the executor could waive the tort, ratify the exchanges and take the proceeds, if to do so would be beneficial to the estate which he represents.</p> <p>2. As to the tools, vehicles, and other personalty found upon the land after the death of the widow, the executor would have the right to sell such of them as were the identical articles disposed of by the will, or received in exchange therefor, or purchased with the proceeds of the sale thereof; but would have no right to sell such articles as were otherwise acquired by the widow, or the person in possession after her death and claiming the same.</p>

<p>Complaint for land. Before Judge Butt. Marion superior court. April term, 1893. •</p>

Appeal. Before Judge Butt. Harris superior court. April term, 1893. Heirs at law of Elijah Brakefield cited Truett as his administrator to a settlement.

<p>1. Where'one having an offer of employment at a specific compensation per month, properly delivered to a telegraph company for transmission a message accepting the offer, and the company failed to transmit and deliver the message, in consequence of which the offer expired by reason of non-acceptance within the time limited in its terms, and thus the opportunity of employment was lost, the sender of the message may recover of the company for its breach of duty such damages as he actually sustained by reason of the failure to transmit and deliver his message of acceptance. Prima facie such offer of employment would cover the term of at least one month; and if he remained unemployed for that length of time and could not obtain employment elsewhere, he would be entitled to recover at least one month’s wages.</p> <p>2. The penalty provided by statute for failure to transmit and deliver messages promptly is a separate and distinct cause of action from the damages recoverable under the general law for like default; and while the statute allows both causes to be joined in the same action, there is no authority, where one is omitted, for introducing it by way of amendment to the declaration pending the action.</p>

<p>1. Where an attachment has been issued, and the defendant, before the term of the court to which the same is returnable, files an affidavit under the provisions of section 3271 of the code, for the purpose of having the attachment bond strengthened, this proceeding should not be dismissed because the levying officer was not able to find the magistrate who issued the attachment until after the first day of that term.</p> <p>2. When the issue presented by the affidavit of the defendant is heard before the magistrate, the burden of proof is on the defendant to show the insufficiency of the bond.</p> <p>3. Evidence that the surety on the bond returned no property for taxation in the county of his residence, while it might authorize, would not necessarily require, an inference that he was without sufficient property to make the bond good.</p>

<p>1. One who sells a mass of timber, consisting of trees suitable for firewood which have been cut down and are still lying upon his land, receiving a gross price therefor, upon an estimate that the quantity will prove to be so many cords of wood, and warranting that the quantity shall consist of that number of cords, is liable upon his warranty for any deficiency in the estimated quantity; but the measure of damages for a breach of the warranty is not the market value of the wood, but a due proportion of the purchase money, with interest thereon.</p> <p>2. In such case, if some of the wood was actually received by the buyer and no act remained to be done by the seller to complete delivery of the residue, title to the residue, as well as to the part received, vested immediately in the buyer; and if after the death of the seller his executors, whether acting professedly in their representative capacity or not, prevented the buyer by any wrongful act from entering upon the land and converting the trees into cord-wood and removing the same therefrom, this would be a mere personal tort by the executors -for which they would be liable personally but not in their representative capacity. If they merely objected to an entry, without doing or threatening tq do any violent act to prevent it, the objection could and should have been disregarded, as the license of the testator to enter for removing the wood was not revocable either by himself or by his personal representatives.</p> <p>3. If the delivery of the residue was incomplete at the death of the • testator, it was the duty of the executors to complete the delivery, and they were subject to an action in their representative capacity for refusing so to do, and the measure of damages would be the market value of the trees as they lay upon the ground at the time delivery ought to have been made. As to any deficiency in the quantity, the breach of warranty would be the basis of action, and the measure of damage the same as indicated above in the first head-note.</p>

<p>Distress warrant. Before Judge Fish. Lee superior court. September term, 1892.</p>

<p>Complaint on note. Before Judge Bower. Decatur superior court. November adjourned term,-1892.</p>

<p>Under the act of 1879 (Code, ?3420a), touching the liberty of the citizen in proceedings requiring bail in actions for the recovery of personal property, while no discharge is warranted unless the reasons shown for the non-production of the property are satisfactory, it is not requisite that an existing physical impossibility to produce the property should be the result of misadventure or of blameless conduct on the part of the defendant, but if it existed at all when the process was sued out, and continues to exist without any fault or misconduct committed by the defendant since that time; it should be deemed satisfactory. Inasmuch as by'section 3418 of the code a plaintiff, in order to require bail, must make affidavit “ that the property is in the possession, custody or control of the defendant,” anything which shows with full certainty that this affidavit was not true in fact should be deemed a satisfactory reason for not producing the property, unless it affirmatively appears that since the plaintiff’s affidavit was made, the defendant has acquired the power to produce it.</p>

<p>One who was not in possession of land when the same was sold for State and county taxes by the sheriff, and who has no interest in the land as owner, or as being in privity with or a creditor of the owner, but who is amere stranger to the title, has no right to attack the sale because of excessiveness in the levy or failure to advertise legally, or for other irregularities; and the burden of proving ownership, or the necessary privity with the owner, is upon the person making the attack.</p>

<p>1. Where the levy of a mortgagees. fa. embraced numerous articles of personal property, itwas no cause for quashing the fi. fa. or for excluding it from evidence, with the entry of levy thereon, that the description of a few of the articles varied in the entry of levy from the terms of description embraced in the fi. fa. and mortgage, The levy may have been bad as to some of the property) but was undoubtedly good as to the residue, since the levy conformed to the descriptive terms used and set forth by the defendant himself in the mortgage.</p> <p>2. A plea of payment may be supported by parol evidence that promissory notes were delivered and accepted in payment, without producing such notes or accounting for their non-production.</p>

<p>Complaint on account. Before Judge Smith. Dodge superior court. March term, 1893.</p>

<p>1. A declaration against the administratrix of a decedent for the recovery of money alleged to have been received by the defendant’s intestate as trustee for the plaintiff’s intestate, alleging that the former intestate was trustee for the latter and as such managed her business and. collected rents due to her, etc., specifying amounts, sets forth a cause of action, and is not barred by the statute of limitations if filed within ten years from the time the plaintiff’s intestate had the right to sue, with the addition of one year for the time during which the defendant’s intestate was by statute exempt from suit. It not appearing upon the face of the declaration that the plaintiff’s intestate became of age, or that the alleged trust ceased to be active, more than eleven years before the suit was brought, the declaration was not demurrable on the ground that the action was commenced too late.</p> <p>2. The suit was not founded on the memoranda or writings set forth in the declaration, but upon a claim for accounting touching an alleged trust; and these papers were alleged as matter of evidence or inducement. Consequently it was immaterial whether or not they constituted a cause of action in and of themselves.</p> <p>3. The demurrer on the ground that the declaration failed to allege that the defendant was of the county was sustainable, as the omitted allegation was necessary to show jurisdiction over the person. For-this defect, the judgment dismissing the action is affirmed, but with leave to reinstate if the plaintiff below will amend by supplying this allegation before the remittitur from this court is entered on the minutes in the court below.</p>

<p>Equitable petition. Before Judge Fish. Pulaski superior court. May term, 1893.</p> <p>The petition of J. M. Williams as administrator of J. C. McCormick, alleged that he was so appointed in February, 1887. The.estate was appraised, including both solvent and insolvent choses in action, at $6,985.42, and a large amount has been paid put in payment of just debts of deceased, and in paying necessary expenses of administration, as will appear by reference to returns and vouchers attached. J. C. McCormick and L. B. Wilcox were joint administrators on the estate of M. D. Wilcox. McCormick died in November, 1886, leaving L. B. Wilcox sole surviving administrator of M. ,D. Wilcox. L. B. Wilcox was then perfectly solvent. The assets of M. D. Wilcox’s estate had been converted into money, and L. B. Wilcox had in his possession $3,470.99 thereof. When McCormick died both he and L. B. Wilcox were each fully able to respond for any just claims against them, for all amounts due the creditors of M. D. Wilcox, If there has been any mismanagement or devastavit of the estate.of M. D. Wilcox, it was after the death of McCormick and by L. B.' Wilcox, for which McCormick’s estate is not responsible. McCormick was always ready and willing to account for and pay over all the assets of M. D. Wilcox in his possession or power, to those entitled, and since McCormick’s death petitioner as his administrator has always been. Said amount is $1,551.76, with interest from June 1, 1886, and this amount petitioner is willing to pay over and be discharged from further liability. To avoid a multiplicity of suits and unnecessary expense, it is needful that the matters embraced in the suits hereafter named shall be determined in this petition. All said suits involved the same legal propositions and the same defences. All the matters pertaining to the estate of M. D. Wilcox were refered to an auditor, who made his report to Pulaski superior court, April 3, 1886, and according to the report there was found in the hands of the administrators $5,022.75. The report was made the judgment of the court, and decree rendered thereon against L. B. Wilcox, surviving administrator, at the November term, 1889, but no judgment or decree thereon has ever been made against the estate of McCormick, nor against petitioner as his administrator. There are now pending in the superior court various suits upon the administration bond given by McCormick and L. B. Wilcox as administrators (describing them). Under said decree L. B. Wilcox claims $349.70, Lewis, Leonard & Company claim $140.55, C. P. Brown claims, upon a judgment rendered in Houston superior court (the validity of which petitioner denies), $127.65 with interest, and petitioner owes, attorney’s fees for the management of said estate. Mary E. Williams, as next friend and mother of Rebecca McCormick and others, has applied for homestead, and exemption out of the estate of J. C. McCormick, which is now pending in the court of ordinary of Pulaski county. These claims are largely in excess of the whole of the assets of McCormick’s estate. Petitioner prays that he be allowed to marshal the assets of said estate; that the several equities of the various claimants thereto be inquired into and determined, as also the rights of said estate, and proper direction be given him as to the distribution thereof, to save himself and securities harmless and insure a proper distribution of the estate; that all of said parties interplead and have their respective rights adjusted under this petition ; that all said common law suits, as well as the application for homestead, said ji.fas. and claims, be enjoined from proceeding until further order and decree; that if any necessary parties have been left out, upon ascertaining them they may be made parties hereto; that the auditor’s report and decree referred to may be considered part of this petition; and for general- relief. Lewis, Leonard & Company hold against the estate of McCormick a fi.fa. for $466.82 with interest, and another for $87.10 with interest, claimed to be a prior lien upon the assets of said estate, but may not be if the homestead is granted and said suits sustained. These fi. fas. were obtained against McDuffie and McCormick during the life of McCormick, and McDuffie is insolvent. Among said complications and conflicting claims petitioner does not know how to pay out the assets of the estate with safety to himself and sureties. All the claims due the estate have not been collected nor all the real estate sold, and he does not know the amount that will be realized out of the estate for distribution. He attaches exemplification from the court of ordinary, the application for homestead, and asks leave to attach other exhibits should they become necessary.</p> <p>The case proceeded in the name of Lancaster as administrator de bonis non, as plaintiff. Defendants demurred on the grounds: (1) No equity. (2) Adequate common law remedy. (3) Assets not in condition to be marshalled.- (4) No allegation that petitioner has collected the debts or sold the property of the estate, and no reason given for not doing so. The demurrer was sustained, and the plaintiff excepted.</p>

<p>Complaint on account. Before Judge Smith. Dodge superior court. March, term, 1893.</p>

<p>Upon a rule against an officer to distribute money, the court, under a misapprehension, having proceeded with the trial and allowed contesting claimants to introduce evidence when there was really no issue of fact on the record, should, upon discovering the mistake, have allowed an issue to be written out, tendered and filed, instead of ruling out all the evidence received and directing a verdict in favor of some of the contestants and against another, solely on the apparent merits as shown by the documents presented by the respective parties as the foundation of their liens on the fund.</p>

Judge Lumpkin, of the Atlanta circuit, was appointed to preside in the stead of the Chief Justice, who was disqualified. Action on bond. Before Judge Henry. Bartow superior court. July term, 1893. On February 19th, 1867, C. B. Conyers, executor of B. H. Conyers, brought suit against the inferior court of Bartow county, and subsequently M. L. Pritchett, administrator de bonis non of B. H. Conyers, was rüade a party plaintiff in lieu of C. B. Conyers, executor.

<p>1. A wife while living in a state of separation from her husband who has abandoned and failed to provide for her and their minor child, having the entire care and custody of the child, is entitled to maintain an action against a railway company for injuries negligently inflicted upon the child since the separation took place, by reason of which she is deprived of his services.</p> <p>2. Where a declaration filed in due time failed, for the want of vitally essential allegations, to set forth a cause of action, but such'allegations were afterwards by leave of the court supplied by amendment, and at a subsequent term an order was passed striking the amendment, whereupon the plaintiff dismissed her action, and afterwards, within six months, brought another action which substantially set forth the same cause of action contained in the original declaration as amended, this second action was a renewal of the first, and was not barred by the statute of limitations, although filed more than two years after the cause of action accrued.</p> <p>3. On the trial of an action against a railway company for personal injuries to a child nine years of age, it was not pertinent and appropriate to charge the jury that “a child under the age of ten years is not presumed in law to have arrived at the age to discern between right and wrong, and of sufficient capacity and knowledge to make him responsible for his acts, and would not be chargeable of knowledge of right and wrong, unless it be clearly shown that he had such knowledge and capacity. If you find from the testimony that this plaintiff was injured, that he was nine years old or less, the law does not presume that he has arrived at that age so as to have the proper discretion in judging between right and wrong, unless it is shown by proof that he had.” The child being before the jury as a witness, the jury should have been left free to determine for themselves, from his own and other evidence, what his capacity was for exercising care for his own safety at the time of the injury.</p> <p>4. In view of the entire charge as given, there was no error as against the company in charging as follows: “If you find that the defendant company contributed to this accident or to this injury, and the boy also contributed to it, in that event you would diminish' the amount of the recovery in proportion to the amount of the negligence that he contributed to the injury.”</p>

Petition for specific performance. Before Judge Sweat. Glynn superior court. May term, 1893. In July, 1890, ~W. R. Dart made with W. E. Ray, then the vice-president and attorney for the defendant corporation, a contract for the purchase of a lot of land on St. Simon’s island for $200, no condition or restriction upon a fee simple title being mentioned at the time of the agreement.

<p>Action on note. Before Judge Sweat. Ware superior court. April term, 1892.</p>

<p>The word “heirs,” in a policy of life insurance payable to the “ heirs or assigns ” of the assured after his death, he never having had a wife or child, is to be construed as meaning his next of kin according to the statute of distributions, which in Georgia, when the decedent leaves no widow, is the same as the statute of descent or inheritance. Although the heirs, as beneficiaries of the policy, are to be ascertained by reference to the statute, they become beneficiaries and take their interest by virtue alone of the contract in their behalf embraced in the policy, and not in any respect by virtue of the statute; wherefore, on the death of the assured intestate without having assigned the policy, they take its proceeds as purchasers, and not as heirs or distributees. This being so, these proceeds are no part of the estate of the assured, and are not subject to the claims of his creditors, unless, by reason of some fraud, actual or constructive, committed by the assured upon their rights in taking out or keeping up the policy, the creditors are equitably entitled to follow and reclaim money invested in the policy which ought to have been used or reserved for use in satisfying their demands.</p>

<p>The general rule is that co-principals in a bond are sureties for each other. On an appeal bond executed by three persons as principals and one as security, judgment may be entered by the creditor against all three of the principals, notwithstanding the verdict finds against one of the principals only. The two principals against whom the appellant failed to recover having joined in an appeal bond with a co-principal in that bond against whom there was a recovery in the action, they stood in the relation of sureties for him, and as such were liable for the condemnation money according to the terms of the bond and the provisions of the statute applicable thereto. The security for all the principals being dead when the judgment was entered on the bond, failure to include him in the judgment is legally accounted for.</p>

Certiorari. Before Judge Henry. Bartow superior court. January term, 1893. A suit on an account for $147.49 was brought, February 17th, 1885, to the April monthly term of the-county court of Bartow. At that term defendant appeared and moved to dismiss the case on the ground that said term had no jurisdiction.

<p>Trover. Before Judge Hunt. Henry superior coui’t. April term, 1893.</p>

<p>To an action on a promissory note which, expresses on its face that it was “ given for the purchase money for a lot in ” a named city, it is a good defence that by the contract of sale, which was in parol, the vendor undertook and agreed to build upon the premises a house of a certain description and value, and to open a street so as to afford access to the property; that without these improvements the premises would be of no value; that before the note was given and the bond for titles taken, the plaintiff represented to the defendant that the house was in process of construction and the street would be opened according to contract; that these representations were fraudulently made, and the defendant, relying upon them, paid a part of the purchase money and gave several notes for the balance, one of which is the note now in suit; that the street has not been opened, and that the house is not suchas the contract stipulated for, but of less size, inferior quality, and of less than one half the value; and that for these reasons the defendant refused to accept the premises and has never entered into possession or taken control of the same, but immediately upon discovering the plaintiff’s failure to perform, offered to rescind the contract, which he refused to do. The plaintiff having fraudulently procured the notes for the purchase money, he cannot enforce them in violation of the terms of the real contract between the parties, although that contract was in parol and depends for its establishment upon parol evidence.</p>

<p>Making every concession as to the fullest possible scope of the first section of the act of 1889, providing when transfers and liens shall take effect as against third persons, it is certain that the lien of judgments, to which the second section of the act applies, dates, as to bona fide conveyances by the debtor to third persons, only from the time the executions issuing thereon shall be entered upon the general execution docket, unless such entry be made within ten days after the judgments were rendered. lienee, such conveyances made by absolute deed, whether intended to secure a debt or for full ownership, and whether made before or after the judgment in question was rendered, are not affected by the judgment if the deed was actually recorded before the execution based on the judgment was entered on the general execution docket, such entry having been delayed until after the ten days limit had expired. A deed for value, made and taken bona fide before a judgment against the maker was rendered, may be filed for record and recorded after rendition of the judgment and with notice of the same, without subjecting the property conveyed to a lien of the judgment, where that lien dates only from a subsequent entry of the execution on the proper docket.</p>

Action on contract. Before Judge Sweat. Glynn superior court. May term, 1893. The declaration alleged: Pusey & Co., of Avondale, Pa., are indebted to plaintiffs $713.70, with interest from April 25, 1891, which they refuse to pay.

Mandamus. Before Judge Richard H. Clark. Newton county. December 23, 1893. Mandamus was made absolute against the county treasurer, requiring him to pay to the official stenographer of the circuit the sum of $45 as required by a previous order of the judge of the circuit; and the treasurer excepted.

<p>Mandamus. Before Judge Butt. Talbot county. March 14, 1894.</p>

<p>Action on account. Before Judge Westmoreland. City court of Atlanta. January term, 1894.</p>

<p>Illegality. Before Judge Marshall J. Clarke. Fulton superior court. March, term, 1893. 1</p>

<p>Action for damages. Before Judge Yan Epps. City court of Atlanta. January term, 1893.</p>

<p>The phrase, “ fraud in its procurement,” as used in section 2785 of the code, has no reference to fraud in the contract out of -which a negotiable security arises, or in the consideration for which it was given. Hence, fraud in these respects does not affect a bona fide holder for value, who receives a negotiable promissory note before it is due, and without notice of any defect or defence.</p>

<p>Judgment having been rendered on an open account, there being personal service on the defendant but no appearance when the case was called, although the name of counsel was marked on the docket; and there being no suggestion in the transcript of the record that the case was called out of its order, and defendant’s counsel having had knowledge on the following day that the judgment had been rendered, and having waited almost three months and until the last day of the term before making a motion to set the judgment aside and reinstate the case; and on the hearing of that motion, no evidence whatever as to the existence of a meritorious defence having been submitted, but on the contrary, the plaintiff having then proved by the affidavits of witnesses that the account was just and unpaid, the court committed error in ordering the judgment set aside and the case reinstated. In the exercise of a sound discretion, on all the facts and circumstances, especially the delay to move, the court should have overruled the motion.</p>

<p>Certiorari. Before Judge Roney. Burke superior court. December term, 1893.</p>

Action for damages. Before Judge Eve. City court of Richmond county. November term, 1893. ■Moss sued the City Council of Augusta, alleging: Several years ago he bought a fine young collie dog, for which he paid $25, and which he took to his home and carefully raised as a pet in his family.

<p>1. There being sufficient evidence to warrant the jury in believing that the agent of the defendant in charge of its baggage room refused to deliver the plaintiff’s trunk to her upon her demand for the same on arrival at destination, and that he informed her it could not be delivered until the following morning; and the trunk having been destroyed by fire during the night, the following charge was warranted: ‘‘ If the plaintiff demanded her baggage of the company immediately after reaching her destination, and the railroad refused to deliver until morning, and before morning the baggage was destroyed by fire, then and in that event you should find for the plaintiff.”</p> <p>2. The evidence warranted the verdict, and there was no error in denying a new trial.</p>

Action for damages. Before Judge Hansell. Lowndes superior court. May term, 1894. An action was brought by the consignee of a barrel of whisky which had been shipped from Baltimore, Maryland, to Valdosta, G-eorgia, against the terminal carrier.

<p>Where household goods were, shipped by rail under a special contract in writing, expressed in the bill of lading, whereby, in consideration of a reduced rate of freight, the liability of the railroad company, in case of loss, was limited to an arbitrary valuation of $5 per hundred pounds, and a portion of the goods were stolen after arrival at destination, but before the carrier’s responsibility as such was terminated, there being no evidence showing how or under what circumstances the theft occurred, presumptively the loss was occasioned by the company’s negligence, and this being so, it was liable for the full value of the goods so lost. The contract would exempt from the insurance liability imposed by law, as to loss not occasioned by negligence. The contract of shipment was1 not one limiting value by express agreement, but one in which there was no attempt to estimate the value.</p>

<p>The will of the testator containing a direction that, in case his devisee of a specified tract of land “sees cause to send my wife to the asylum, then the land to be sold and the proceeds to be equally divided,” etc., and the devisee, having elected to send the widow to the asylum and having procured an adjudication that she was insane and that she be sent to the lunatic asylum, and an order to sell the land having afterwards been duly granted by the ordinary on the application of the executor, the power of sale became fully operative, although the widow was not actually sent to the lunatic asylum. And a sale made in pursuance of the power and of the leave granted by the ordinary, if regularly made and without fraud, passed the title to the purchaser; the devisee, so far as. appears, not having previously to the sale revoked or changed her election, and not having directed or requested the executor not to execute the power.</p>

<p>Indictment for misdemeanor. Before Judge Milner. Gordon superior court. February term, 1894.</p>

<p>Action for damages. Before Judge Yan Epps. City court of Atlanta. March term, 1893.</p> <p>The suit was to recover the value of the life of Hudson, a son of plaintiff, eighteen years old, unmarried and childless, who contributed to her support, she being dependent on him for the same. Defendant moved to dismiss the declaration as setting forth no cause of action. The court announced that he would sustain the motion; whereupon plaintiff offered an amendment. This the court refused to, allow, on the ground that there was nothing in the declaration to amend by ;■ and dismissed the case. Plaintiff excepted.</p> <p>The declaration alleges, that on February 25, 1891, Hudson was in defendant’s yard where he had been working for several days to learn the yard, by the license, permission and consent of defendant. He was not employed by defendant, but was allowed and permitted by it to stay in the yard that he might learn the yard and do odd jobs without pay, and had been promised a regular job by defendant. He had just stepped off of one track in the yard to avoid a moving train, and had stepped upon another track, and was watching a train of the Atlanta & Florida railroad that was moving through the yard, when defendant’s servants in charge of a switch-engine, suddenly and without notice or warning to him, “kicked” a freight-car back on the track on which he was standing, and it ran over him and produced such injuries that he died in a short time. Defendant’s servants were negligent in “ kicking ” the car back instead of moving it in the regular manner by pushing it with the engine; and in not seeing Hudson on the track when they ought to and could have seen him if they had looked. Neither the conductor, engineer nor fireman of the engine was on the lookout, and had put no one else on the lookout. The train-hand whose duty required him to be on the front or forward end of the train when moving, was out of his place and on the end of the car nearest the engine, and did not try to look to see whether any one was standing on the track. All of said acts and omissions constitute gross and criminal negligence, and show a wanton disregard of the life of Hudson, who was entirely free from fault and in no way contributed to the cause of his death. He was standing, when the car was “ kicked ” back, -sfifiiciently far from the end of it for the crew of the engine to have seen him, and had been standing on the track long enough for them to know that he was on the track. He did not know, and could not have known, that it was their intention to move said car or “ kick ” it over the ground he occupied. The spot where he was killed was adjacent to the stopping-place of the Atlanta & Florida and defendant’s passenger-trains, and was the public landing-place where the passengers of said trains embarked and disembarked; and there was a constant by-path used by the public, with the knowledge and acquiescence of the defendant, over the track at the spot where Hudson was killed. At the time he was killed an Atlanta & Florida passenger-train was at said point; and by reason of all the foregoing facts, a greater duty was imposed on defendant to exercise care and caution in moving trains along at this point.</p> <p>The amendment alleges, that when Hudson stepped upon the track on which he was killed, to avoid the Atlanta & Florida train, his attention was attracted by said train and the din and clatter in the yard and the hissing of steam on said train, and he was looking at it; and that the employees in said yard constantly walked or stood on said track, and the public frequently stood there; and the servants of defendant in charge of the train that killed him knew these facts.</p>

Equitable petition. Before Judge Marshall J. Clarke. Eulton superior court. March term, 1893. The petition was brought on June 29, 1886, by Mary W. Blacker for herself and her three minor children, against her husband Charles B. Blacker, Mrs. Blankenship, his daughterly a former marriage, and H. C., Dunlop, to recover possession of seven acres of land with, mesne profits. This land is part of 13.77 acres conveyed to Blacker and Martin on April 5, 1873.

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. September term, 1893.</p>