Volume 94 — Georgia Reports

Indictment for murder. Before Judge Bartlett. Bibb superior court. November term, 1893. The evidence showed, that Braswell, the murdered man, went from his' home to town on a Monday morning, and on his way back early in the night bought a sack of flour and put it into his wagon. During the same day a pair of spectacles had. been given to him.

<p>1. The act of 27th December, 1890, touching the preservation and analysis of samples of fertilizers, is cumulative only and not exclusive. Unless parties to the sale elect to co-operate in depositing a sample with the ordinary, the provisions of the act have no application to the given transaction.</p> <p>2. Under the provisions of the code, gl553(b), an analysis of a fertilizer by the State chemist must be an “ official analysis ” to render a copy of it, under seal of the department of agriculture, admissible in evidence. There can be no official analysis made at the instance of a purchaser for use in litigation, except by procurement of the ordinary and compliance with the other provisions of the act of 27th December, 1890.</p> <p>8. Any analysis of a fertilizer by the State chemist which is of record in the department of agriculture is, prima facie, an official analysis, and a copy of the same under the seal of that department is admissible in evidence under section 1558(b) of the code, if relevant to the matter in issue. Unless it otherwise appears, any sample of fertilizers analyzed by the State chemist is presumed to be furnished to him officially by an inspector of fertilizers.</p> <p>4. The evidence of the State chemist taken by interrogatories was admissible in evidence to prove the chemical ingredients of the sample analyzed by him, which sample had been taken by the purchaser from the fertilizer in controversy and preserved. After the reception of this evidence, the effect, or want of effect, of the fertilizer on crops, would be admissible as tending to corroborate the analysis, or on the other hand to discredit it.</p>

<p>1. The declaration alleging a contract for the transportation of cotton by the defendant from Columbus, Georgia, to Liverpool, Eng- ■ land, and setting forth no consideration except an agreed rate of freight per hundred pounds, and the evidence showing that the actual shipment of the cotton from Columbus was made upon a bill of lading which the defendant by its agent, another railroad company which it designated to receive the cotton for it, delivered to the plaintiffs at the time of receiving the cotton for shipment, which bill of lading they accepted and used by attaching the same to a draft drawn by them upon other parties for money, this bill of lading, and not prior stipulations, must be regarded as embracing the final contract on which the plaintiffs, as well as the defendant, acted touching the business of transporting the cotton ; and it not being .produced nor its contents proved, the plaintiffs could not recover for an alleged breach of the contract of transportation by failure of the defendant’s steamship to sail with the cotton on board from an American port on a particular day.</p> <p>2. As the declaration alleged no solicitation by which plaintiffs were induced to purchase and ship, but declared upon the contract of transportation only, the court did not err in excluding evidence of conversations and stipulations, some of which occurred prior to the purchase of the cotton by the plaintiffs, and all prior to the execution and acceptance of the bill of lading.</p> <p>3. Irrespective of other questions in the case, the failure of the plaintiffs to prove the contract declared upon by legal evidence rendered the judgment of nonsuit not only proper but necessary.</p>

<p>Levy and claim. Before Judge Bower. Dougherty superior court. April term, 1898.</p>

<p>1. If, in the exercise of a power conferred by statute to erect and maintain city water-works, a municipal corporation arrests or obstructs the natural flowage of surface-water and causes it to flow upon adjacent land, whereby the market value of the land is diminished, the owner may recover compensation for this damage under that provision of the constitution which declares that private property shall not be taken or damaged for public purposes without j ust and adequate compensation being first paid.</p> <p>2. In view of the conflict and uncertainty in the evidence as to whether the depreciation in the value of the plaintiff’s property was occasioned by the -flooding incident to the erection of the water-works, and if so, to what sum the depreciation from this cause amounted, it was error to make the grant of a new trial conditional upon reducing the recovery from $1,500.00 to $300.00. The new trial should have been granted unconditionally.</p>

<p>1. When, from its contents and the facts and the circumstances connected with its execution and delivery, together with the subsequent conduct of the parties and the ordinary, it is manifest that a writing subscribed by the tax-collector and several others was intended to be used and treated as the official bond required by law of the tax-collector to entitle him to enter upon the discharge of his duties touching the collection of county taxes, the writing, though not under seal, is, by virtue of section 4 (par. 7) and section 167 of the code, whether the ordinary has approved it in writing or not, and whether he has recorded it or not, to be treated, after the tax-collector has acted upon it and received the county taxes for the year in which it was given, as though it were the official statutory bond which should have been taken, approved and recorded, and execution may issue thereon against the tax-collector and all who subscribed with him for the amount of any default in accounting for and paying over such taxes.</p> <p>2. The writing being in blank, at the time it was delivered, as to the amount of the penalty, and the ordinary having by law general authority to fix and determine the penalty of tax-collectors’ bonds applicable to county taxes, the fair, if not the necessary, inference from the execution and delivery of the instrument with a blank in the appropriate place for expressing the amount is, that the ordinary was expected by those who subscribed the writing to fill the blank with such amount as he deemed proper, and their consent and authority for him to do so was sufficiently manifested. As to the blank left for the insertion of the names of the sureties, it was immaterial, under section 4, par. 7, of the code, whether this was filled or not. From the evidence the jury could have inferred that the ordinary rightfully and properly filled both blanks before any of the county taxes for the year were received by the tax-collector.</p> <p>3. There was no error for which a new trial should be granted.</p>

<p>Complaint on note. Before Judge Yan Epps. City court of Atlanta. March term, 1893.</p>

<p>1. Where, under the evidence, the real issue as to the alleged delivery of a deed was whether the party to whom it was sent by the maker, and who shortly afterwards returned it declaring it unsatisfactory, had ever accepted it, a charge in the following words was erroneous and misleading: “ A deed is delivered in the sense of the law when the person who makes it puts it in the possession of the person to whom it is made, with the intention that it shall pass the title to such person. After such a delivery, the mere return of the deed by the holder thereof to the maker would in no wise affect the condition of the title; the title after such return would stand just where it did before the return.” And it was also error to refuse to charge as follows: “If the plaintiff never accepted delivery of this deed, but it was brought to her by a person other than the grantor, and she immediately repudiated the deed and brought it back to the grantor, saying she would not have it, there would be, in law, no delivery of the deed and it would not be effectual to pass the title to the plaintiff. Delivery to be effectual must be accepted as such.”</p> <p>2. Under section 2914(a) of the code, a defendant in an equity case who was duly served with a copy of'the bill, or acknowledged service of it, will, after the lapse of three years from the rendition of a decree in such case, be barred from instituting proceedings to set it aside. Such defendant was bound to know when the decree was rendered, and to take, within the time prescribed by law, the proper steps to set it aside, if cause for so doing existed. A defendant not served, or who did not acknowledge service, or appear and defend, is in no way affected by the decree. In the present case the evidence was not sufficient to support a finding that the plaintiff did not acknowledge service of the bill in question. It required clear and explicit proof, to show that she had not been served.</p> <p>3. The decree showing on its face that the counsel for the plaintiff in the case in which the decree was rendered claimed to have the consent of a defendant in that case to the terms of the decree, this was sufficient to put that defendant on notice that such consent was asserted of record, and require her to move within three years to set the decree aside.</p> <p>4. A decree purporting to be rendered by consent of parties is not void upon its face because it declares the title to the premises in controversy to be in a person other than one of the parties to the record, it appearing from the record, taken in connection with extrinsic evidence, that this person was a purchaser pendente lite from one of these parties. Because of his purchase pendente lite, such person is bound by the decree, and consequently entitled to take the benefit of it; and his vendee of the premises, being his privy in estate, is likewise bound and protected by the decree.</p> <p>5. Where, prior to the adoption of the constitution of 1868, an appeal in an action upon a promissory note was entered by consent from the county court to the superior court, a judgment rendered by the superior court without the intervention of a jury, after the adoption of that constitution, was not void, no issuable defence having been filed, and consequently there being nothing presented for a jury to try, and the judgment being for principal, interest and costs only. In Walker v. Bivins, 57 Ga. 322, and Birdsong v. Woodward, Ibid. 354, the rights of securites on appeal were involved. In Seibels v. Hodges, 65 Ga. 245, it does not appear from the report that the appeal was entered by consent, and therefore without giving security, as was done in the present case.</p> <p>6. The property levied upon being described in these words: “A lot and the improvements on the same (as said lot is now inclosed) on Houston street in the 4th ward of the city of Atlanta, containing a half acre more or less, adjoining the property of Francis, Haslett and Jones, it being part of land lot No. 51 in the 14th district of originally Henry, now Fulton county, Georgia, levied on as the property of Robert Yancey,” the description was prima facie sufficient, although the premises adjoined only one of the persons named, and did not adjoin the other two. And the extrinsic evidence did not raise such a latent ambiguity or disclose such a want of accuracy as would render the description too uncertain to uphold a sale made by the sheriff under the levy. As there was no mistake in setting forth the number of the 'land lot of which the premises were a part, it was error for the court in its charge to the jury to refer to any mistake in that regard.</p>

<p>Quo warranto. Before Judge Sweat. Glynn county. January 26, 1894.</p>

<p>1. An insolvent corporation, not municipal, is subject to be proceeded against under section 3149(a) et seq. of the code, and a receiver may be appointed to administer its assets, although it may have ceased to do business before the creditors’ petition against it was filed.</p> <p>2. The petition need not describe the assets of the corporation, the object being to have a receiver as to all its assets. In such case, however, the receiver in making a seizure of anything not expressly mentioned will act at his peril as against the rights of other persons.</p> <p>.3. It is not matter of error, as against an insolvent corporation, to treat as assets still belonging to it accounts, or books of account, which it has assigned to one or more of its creditors as collateral security, without having complied with the statutory requirements touching voluntary assignments by insolvent debtors, with respect to a sworn inventory of all assets and a sworn schedule of all indebtedness. While, by section 1953 of the code, a debtor, though insolvent, may give a lien by mortgage, or other legal means, or may transfer negotiable papers as collateral security, his insolvency precludes him from voluntarily assigning as mere security for a pre-existing debt anything which requires an assignment to pass the title, such as non-negotiable choses in action.*</p> <p>4. The evidence showing that under its charter the capital stock of the defendant corporation was to be $10,000.00, with the privilege of increasing the same to $50.000.00, which privilege was never exercised except to the extent of increasing the capital stock to $15,000.00, which amount was subscribed for. and fully paid in; ♦and the evidence further showing that long before the filing of the petition the corporation had parted absolutely with all of its property, other than choses in action, the whole proceeds going to the payment of its debts, and no fraud being alleged or shown, there was no case for the appointment of a receiver to sue for any unpaid stock subscriptions, or take possession of the property with which the corporation had so parted; and as some of the choses in action consisted of notes, and these were transferred as collateral security to certain creditors whose claims far exceeded the amount likely ever to be realized by collection, and the fair presumption being that the notes were negotiable, there was apparently no case for a receiver as to them.</p>

Indictment for larceny from tbe person. Before Judge Richard H. Clark. Fulton superior court. September term, 1898. Roberts was convicted of larceny of money from the person of John Wade. The indictment charged that the crime was committed with one O’Shields who had been tried and finally convicted.

<p>Indictment for murder. Before Judge Butt. Muscogee superior court. November term, 1893.</p>

<p>Practice in Supreme Court.</p>

<p>1. Nothing appears which would justify a reviewing court in ordering a new trial because the presiding judge, in the exercise of his 'discretion, applied the order for sequestration of witnesses to the brother of the accused as well as to the other witnesses in the case.</p> <p>2. The requests to charge the jury, in so far as they were legal and appropriate, were fully and fairly covered by the general charge as given. This being so, the refusal to charge in the language requested would be no cause for a new trial, even were the language free from inaccuracy.</p> <p>3. Under no fair construction of the evidence was the.element of manslaughter involved. The case was palpably one one of murder or of justifiable homicide.</p> <p>4. The correctness of the. verdict depended upon the comparative credibility of the witnesses, and the jury having credited those testifying in behalf of the State, there was no error in denying a new trial.</p>

<p>1. Merely drawing a pistol in a quarrel, though done by the person who began the quarrel, will not deprive him of the right to use it in self-defence against a deadly attack upon his own life. But drawing the pistol with intent to attack his adversary’s life, or under circumstances calculated to excite in the adversary the fears of a reasonable man that an immediate attack on him was intended, would outlaw the right of self-defence in the other. Hence, it was error to charge the jury that if “the defendant began the difficulty, and drew his pistol first, and [his adversary] drew next hut shot first, the defendant would not be justified in shooting with intent to kill.”</p> <p>2. The court erred in notgranting a new trial on account of the misdirection above pointed out; but no other ground in the motion would require a new trial, though apparently some slight errors were committed.</p>

<p>Indictment for rape. Before Judge Bartlett. Houston superior court. April term, 1894.</p>

<p>1. The record of the conviction of a witness of larceny is admissible in evidence to impeach him.</p> <p>2. As the act creating the city court of Macon (Acts 1884-5, p. 470) invests it with jurisdiction over all misdemeanors committed in the county of Bibb, it is a court of general jurisdiction as to such misdemeanors, and the requirements touching the transmission of indictments from the superior to the city court are only regulations for the exercise of that general jurisdiction. Hence, notwithstanding the requirement that when an indictment for a misdemeanor is transferred from tho superior to the city court, the order of transmission shall be entered on the minutes of both courts, a certified transcript from the minutes of the city court of the record of a conviction for a misdemeanor in that court upon a transferred indictment is not rendered inadmissible in evidence because there was a failure to enter the order of transmission on the minutes of that court, it affirmatively appearing by the minutes of the superior court that such order was in fact duly passed.</p> <p>3. The evidence fully warranted the verdict, and there was no error in denying a new trial.</p>

Petition, for injunction, etc. Before Judge Hunt. Spalding county. March 8, 1894. The petition of the bank was brought on February 16,1894, to Spalding superior court. It is alleged: For several years Shelton & Baker, a firm composed of Shelton of Spalding county and Baker of Bartow county, have been merchandising in Griffin, the business being under the immediate control of Shelton.

<p>Petition for direction. Before Judge Sweat. Glynn, county. August 9, 1893.</p>

<p>Foreclosure of lien. Before Judge Smith. Ware superior court. Api’il term, 1893.</p>

Petition for injunction. Before Judge Sweat. Ware county. At chambers, May 4, 1894.

<p>1. To an action brought by a corporation, a plea which alleges a contract made by the defendant with the plaintiff, through its officers and agents, is no basis for receiving evidence of a contract made by the defendant with individuals, setting forth certain undertakings which they as contracting parties are themselves to perform, and making no reference to the plaintiff or to any contract or undertaking by it or to any agency for it or for any one else. In this case the contracts tendered in evidence were inadmissible because-of a fatal variance from those described in the plea.</p> <p>2. Plaintiff’s case being fully made out, and no evidence being before-the jury to support the plea, it was not error to direct a verdict for the plaintiff. The striking of the plea for want of evidence to support it was a harmless irregularity.</p>

<p>1. There is no presumption of law that a minor over fourteen years of age, who applies for a position involving dangerous service, is aware of the danger and needs no instruction.</p> <p>2. The obligation to instruct an employee, before putting him to work, as to any of his duties which are dangerous, does not necessarily follow, as matter of law, from his minority when employed, his inexperience, the fact that the service is dangerous, and the fact that his inexperience is known to the employer. In a case like the present, it is a question for the jury whether the particular service was so dangerous, and its dangers so obscure, orwhether the information of the employee was so limited or his mind so immature, at the time he was injured, as to render it needful and proper that instructions should have been given when he was employed or at some time previous to the injury.</p> <p>3. On the question whether, in the particular instance, the plaintiff used due care for his own safety, evidence of his character for prudence or recklessness in the conduct of such business is inadmissible, either against him or for him.</p> <p>4. In order for a minor to recover of his employer, on account of lost time due to a permanent personal injury inflicted by his employer, damages for the whole period of his life from the infliction of the injury, he must show, so as to cover the interval .between the time of the injury and the time he would attain his majority, that his earnings for that period, if he had not been incapacitated, would have belonged to himself and not to his father.</p> <p>5. Where the mortuary table and the annuity table are both before the jury, any instruction given by the court as to their use in ascertaining present value should not leave it uncertain as to which table is to be consulted for that purpose, but the jury should be told that the annuity table alone is applicable. And the court should also put the jury on their guard against overlooking that there are two columns in the table, one applicable to six, and the other to seven per cent.</p>

Equitable petition. Before Judge Lumpkin. Fulton superior court. September term, 1893. Folsom filed Ms petition against Howell and Woodward as administrators of Clark Howell, and Alexander and Mims, to reform a deed, and for other purposes. A demurrer was interposed by the administrators, for want of a cause of action, and for misjoinder of parties defendant.

Action of libel. Before Judge Van Epps. City court-of Atlanta. March term, 1893. The publication in the Atlanta Constitution newspaper, here sued on, was as follows: “ THE PROPRIETOR HAS SKIPPED. “The Delmonico Restaurant oh Pryor street closed. “ The Delmonico Restaurant, situated at 57 South Pryor street, was suddenly closed yesterday afternoon; and before numerous creditors could ascertain the fact, the proprietors had skipped for parts unknown. Eour weeks ago Messrs.

<p>The evidence being silent as to the specific duty of the servant of the railway company, but indicating that he was acting in the capacity of brakeman, and this servant, while the train was in motion and he was upon it, having thrown a stone at a boy who had just attempted to swing to or climb upon the train, and who with others had previously been in the habit of committing or attempting similar trespasses, the stone being thrown after the hoy had ceased attempting to trespass upon the train on the given occasion and had retreated to private premises adjacent to the street and while he was there endeavoring to conceal himself behind a post; and the stone by accident having missed the hoy and hit and injured another person who was then on the same premises, no presumption arises that at the time of throwing the stone the servant was acting in behalf of the company or within the scope of his employment as to anything then done or attempted to he done with a view to injure or affect the hoy; consequently, the company is not liable for the injury thus done to the third person.</p>

<p>1. There is no provision of law for ascertaining by jury trial whether an auditor’s report of the evidence before him is deficient or incomplete by reasons of alleged omissions of some of the evidence actually submitted and heard. Therefore the presiding judge, in cases not governed by the practice in equity, is left to the exercise of his own discretion as to what means he will adopt in solving and settling such a question where it is raised by exceptions to the auditor’s report.</p> <p>2. Under the evidence submitted to the judge in this case, his finding against the exceptions was not so manifestly unwarranted as to justify a reversal of the same by a reviewing court.</p>

Action on fire policy.. Before Judge Eve. City court •of Richmond county. November term, 1898. The opinion states the allegations of the declaration .and the terms of the policy sued on, so far as material. The grounds of demurrer were : Plaintiff sets out no cause of action, but is seeking to recover upon a contract different from that contained in the policy.

<p>Action for damages. Before Judge Eve. Richmond superior court. October term, 1893.</p>

<p>Action for damages. Before Judge Honey. Richmond superior court. October term, 1893.</p>

Action for damages. Before Judge Eve. City court of Richmond county. November term, 1893.

Action for damages. Before Judge MacDonell. City court of Savannah. July term, 1893. Jake Beasley sued the railroad company for personal injuries sustained by Mm from a collision of its electric car with a wagon be was driving, and obtained a verdict for $100. Defendant moved for a new trial on tbe general grounds, and upon tboso stated in tbe opinion; and the motion was overruled. The evidence on the question of negligence, was directly conflicting.

Action for damages. Before Judge MaoDonell. City court of Savannah. July term, 1893. Ficklin sued the railroad company for damages, and obtained a verdict for $500. Defendant’s motion for a new trial was overruled. The evidence for the plaintiff' was, in brief, as follows: About ten or eleven o’clock in the morning, he rode a horse northward on Jefferson street in Savannah, and turned eastward into Bay street.

<p>Motion to enter judgment. Before Judge MacDonell. City court of Savannah. July term, 1898.</p> <p>Decker & Fawcett sued the railway company to the May term, 1891, of the city court, for failure of defendant to safely carry and deliver to plaintiffs certain cotton. The parties agreed in writing to submit the controversy to the judgment and award of Dancy chosen by plaintiffs, and "Warren chosen by defendant, “ said arbitrators so chosen having the right if they deem necessary to call in an umpire that “ when said arbitrators shall agree upon an award,” the same should be by them or either of them returned to the court and made the judgment thereof in accordance with the statute. This submission was filed in the clerk’s office. The following award was made: “ The undersigned having selected John C. Rowland as umpire, after having heard the evideuce and argument in the case, award and judge the plaintiffs recover nothing.” This was signed by Rowland “ umpire,” and Warren “ arbitrator.” It was accompanied by the following: “ I dissent from the above award, as I believe the bills of lading in the hands of innocent holders, even if fraudulently issued by an agent, should bind transportation companies under the laws of Georgia”; signed by Dancy “ arbitrator.” The award was filed in office October 6, 1891. At the July term, 1893, of the court, the defendant moved that the award be received and an order be passed authorizing the entry of a nune pro tunc judgment thereon. Plaintiffs resisted this motion and objected to the validity of the award, claiming that it should have been made the judgment of the court at the next term after it was rendered; and that it was not valid because not made by three arbitrators, but only by one arbitrator and an umpire, and the umpire was not an arbitrator. Plaintiffs have not, since the rendition of the award, made any' objections under oath to its invalidity, nor at any time filed any of the evidence produced before the arbitrators; and on the hearing of the motion to enter nune pro tune judgment, did not question the validity of the award on the ground either that the submission did not state what the duties and powers of the umpire were, or on the ground that it did not expressly appear that the umpire was called in by both arbitrators. Defendant’s motion to enter judgment was overruled, and at the same term it moved to set aside the judgment overruling said motion. This also was overruled, and defendant excepted.</p>

<p>Complaint. Before Judge MacDonele. City court of Savannah. November term, 1893.</p> <p>Shuman alleged: Renfroe as principal, and the Southern Supply Company, a corporation of the State of Florida, as surety, were indebted to him $2,345.31, for that on June 22, 1893, he entered with Renfroe into a-contract for building a portion of the railroad of the-Florida Southern Railroad Co., and the Florida Central and Peninsular Railroad Co., in the counties of Chatham, and Bryan, Georgia, copy of which is attached. By this contract petitioner, for doing the work set out. therein, was to receive from Renfroe certain sums ateertain times; that is to say, Renfroe, being a subcontractor of the Southern Supply Company (which -was under contract with said railroad company to build their railway, in course of construction between points mentioned), was to pay petitioner for the work done ninety per cent, of the amounts found to be due upon an estimate made by the chief engineer of said railroad •companies, when the Southern Supply Company paid him, Renfroe. During July petitioner did certain work and furnished certain material in the construction of the railroad, for which he should have received from Renfroe about $1,500, but was furnished with a statement giving him credit for only $520.16. Renfroe admitted the incorrectness of this statement and promised petitioner to have it corrected; and though petitioner •did not receive a correct statement of the amount due him, yet Renfroe had been paid by the Supply Company for the full amount of work done and timber delivered hy petitioner. In addition to said written contract, Renfroe from time to time promised to pay petitioner at an agreed price for all timber delivered, whether or not actually placed in structure in the railroad, as soon as the same had been estimated by the engineer of the railroad companies. On August 7, 1893, the Supply Company, by its agent duly authorized, entered into the following contract of suretyship : “Savannah, Georgia, August 7, 1893. This is to certify that we will pay for all timber delivered and work done on the line of the Savannah extension, F. C. & P. R. R., by H. S. Shuman, under contract with J. W. Renfroe, as returned by the engineer in charge of the work and O. K. by J. W. Renfroe. The Southern Supply Co. By R. C. Strother, agent for the Southern Supply Co.” The letter S in petitioner’s name in this contract is a mistake, having been intended to be A. Petitioner is now entitled to receive from Renfroe $2,345.31, hut Renfroe has positively refused to pay him anything, or to O. K. any statement showing the work done by him. The contract of suretyship was to pay the amount due by Renfroe to petitioner, the term “ O. K. by Renfroe and returned by the engineer in charge” being simply intended as evidence to the Supply Company that the work had been done. The Supply Company is well aware that the amount sued for is due by Renfroe to petitioner, but refuses to pay the amount so due. By the non-performance and absolute disregard of the duty imposed upon him by the contract, Renfroe placed petitioner in a position that he was unable to carry out his (petitioner’s) part of the contract, thus, on September 8, forcing petitioner to abandon the contract. Petitioner attaches a statement of his account with Renfroe, showing the amount now due by Renfroe as principal and the Supply Company as surety. Service in the cause was made on Renfroe personally, and upon the Supply Company by Strother, whom the officer in his return of service alleged to be the agent of the company in its office in Savannah.</p> <p>Renfroe demurred to the declaration on the grounds : (1) That it is not sufficient in law. (2) It appears on its face that the court is without jurisdiction of the parties. (3) It does not appear that either of defendants is a resident of Chatham county. (4) It is not stated that the chief engineer of the railroad company, or his assistant, had made any measurements or classification which entitled plaintiff to the sum sued for or to any sum. (5) It nowhere appears that Renfroe agreed or promised to pay any sum in lieu of the $520.16 mentioned in the declaration. (6) Misjoinder of parties defendant. The Supply Company demurred generally; and plaintiff moved to amend his declaration, by alleging that the work for which the amounts sued for are due had been measured, approved and passed by the engineers of the railroad company mentioned in the declaration, at the time of the commencement of the suit, where the contract between the parties required approval and measurement before payment, and that this fact was well known to defendants. To 'this amendment the Supply Company objected, on the ground that no cause of action was set forth.</p> <p>Plaintiff further amended as follows: The Supply Company, when the suit was instituted, had an office in Savannah within the jurisdiction of the court, in the-charge and management of officers and agents. Although, plaintiff in his declaration has described the Supply Company as surety, yet in law. and fact, by entering into the agreement of August 7,1893, it became a joint obligor and promisor with Renfroe, and plaintiff desires now and at all times to treat it as such. All the sums for which suit is entered were due and payable or became so after it entered upon said joint obligation, and the amounts then due were well known to it, and it was to the benefit of both it and Renfroe that plaintiff should perform the work stipulated in the contract. The consideration inducing the Supply Company to become a joint promisor and obligor with Renfroe was a valid and valuable one, in that it was necessary to the performance by the Supply Company of its contract with the railroad companies, as set out in the declaration, that the work contracted for by plaintiff should be performed, and plaintiff at all times, after the execution of the agreement of August 7, understood that he was to look and did look to both Renfroe and the Supply Company for payments of the amounts stipulated in the contract to be paid. Although it might appear from said contract that when the time by which plaintiff 'was to complete the work had expired, the same was not so completed, yet by subsequent verbal and written agreement both said obligors and promisors extended the time of petitioner, and at the time he was forced by their acts, as alleged in the declaration, to abandon his contract, he was well up in his work. To this amendment the Supply Company objected upon the same ground as urged to the first amendment, and because it set forth a new and distinct cause of action. The cause coming on to be heard, Eenfroe demurred orally to the declaration and amendments, upon the ground that they did not show that he and the Supply Company were joint promisors upon any promise or obligation by reason whereof the action could be maintained against him in the city court of Savannah. The court allowed "both amendments, and overruled the demurrers. Defendants excepted.</p>

Equitable petition. Before Judge Ealligant. Chat-ham superior court. December term, 1893. David R. Dillon, the father of Mildred Dillon (a child of eight years), died in New York on October 9, 1883. He left a will which was probated, and an exemplification of which was filed in the court of ordinary of Chat-ham county, Ga.

<p>Action on fire policy. Before Judge MacDonell. City court of Savannah. November term, 1898.</p>

<p>1. The obligee in a bond for titles, who has paid a part of the purchase money for the land to which the bond relates, may, when sued by the maker of the bond upon a note given for the balance, recoup his damages resulting from a breach of the bond, notwithstanding he retains possession of the land, he having at the maturity of the note offered to pay the same and demanded compliance with the terms of the bond and by his plea offering to surrender possession and to account for rents during the time of his occupation of the premises.</p> <p>2. If the obligor in a bond for titles, after delivering the land to the obligee, enters upon' the same and wrongfully appropriates wood or timber which formed a part of the consideration of a note given for the purchase money of the premises, the obligee, when sued upon the note, may waive the tort and set off in the action the value of the wood or timber so taken and appropriated.</p> <p>3. Profits which the obligee in a bond for titles would have made on a contract which he, at the time the bond was executed, had agreed upon for a sale of the premises to a third person, are not recoverable in an action upon the bond or in a plea of recoupment, unless the obligor had notice of such contract at the time of executing the bond, or certainly not unless notice came to him before he made any breach of its condition.</p>

Money rule. Before Judge Hunt. Hancock superior court. August term, 1893. On rule to distribute a fund raised by sale of mules under mortgage Ji.fa., the fund was awarded to the moi'tgagee in preference to the holder of common law fi.fas. from a justice’s court, the lien of the mortgage fi. fa. being for the purchase money of the mules sold.

Equitable petitiou. Before Judge McWhorter. Taliaferro superior court. August term, 1893. Five promissory notes, dated January 6, 1891, each for $85.74, and due respectively on the first day of November, 1891, 1892, 1893, 1894 and 1895, were given for purchase money of land (as therein recited), and the first one was reduced to judgment'in justice’s court on December 12, 1891, upon which execution issued.

<p>Complaint for damages. Befoi’e Judge McWhorter. Hart superior court. September term, 1893.</p>

<p>1. Where the caveator or respondent in a proceeding for partition introduces an affirmative pleading praying for equitable relief as against the petitioners fqr partition and touching the premises described in the original petition, no question as to the regularity or sufficiency of the new pleading can be raised by motion for a new trial. Such questions are properly made by objection, demurrer or motion before trial, and rulings of the court thereon should come to this court by direct exception to thasame, and not by exception to the refusal of a new trial.</p> <p>2. Though the application by the executors for partition was founded on the will of the testator, and was made to execute one of the provisions of the will, yet as there was no controversy touching the right of the executors to have partition if their testator had title to the land in question at the time of his death, and as the whole dispute at the trial was upon the question of an alleged previous gift by him to his son and the extent of that gift, there was no error in excluding the will from the jury when offered in evidence by the executors.</p> <p>3. The official appraisement of the testator’s estate is not admissible to illustrate the question as to whether he had, many years before his death, made a parol gift of land to one of his children.</p> <p>4. Upon a trial involving the question of a parol gift of land, evidence of declarations of the donor tending to show a motive for the gift are admissible in evidence for the donee, although they would be inadmissible if offered for the purpose of engrafting a trust upon a deed previously made by which the premises were conveyed to the donor.</p> <p>■5. Mere declarations by a donee adverse to his title, the same not having been acted upon to the injury of the donor, will not estop the former from proving and insisting upon the gift if any was made.</p> <p>■6. There being evidence tending to show a disclaimer by the son after the expiration of seven years from the commencement of his possession, and this evidence of disclaimer being confined to a part of the premises only, and having relation more to the true boundary of the parcel embraced by the alleged gift than to the making of the gift itself, the evidence was available for the purpose of identifying the land given, and distinguishing it from the land not given, and for this purpose might be as effectual as if the alleged disclaimer had been made before the seven years expired; hence, whether the doctrine of the instruction be correct or not in the abstract, it was, under the facts of the actual case, error to ■charge the jury that if the son held exclusively for seven years in the lifetime of the father, without payment of rent, the jury should find for the son’s administrator, unless the evidence shows further that wáthin that seven years the son disclaimed title or acknowledged a dominion claimed by his father.</p> <p>7. In order to enforce specifically a parol gift of land upon the ground that the donee has made valuable improvements on the faith of the gift, the allegata and the probata must correspond. Consequently, where the gift alleged was of a definite part of a tract of land, proof that the whole tract was given will not warrant a decree for specific performance.</p>

<p>Although most of the phraseology in the premises of a deed of gift conveying land, and all of that used in the habendum, be such as a person skilled in conveyancing would rightly use to pass an estate in fee simple, and the same, if standing alone, would he wholly inconsistent with an intention to convey a less estate to the do-nee, yet, where the concluding words of the premises were: “ then if the said [doneej should die, the same to goto his children”: the effect of the deed as a whole, construing all its language together, was to create an estate in the donee for his life only, with remainder in fee to his children. The same construction is applicable to a like deed, in which the concluding words of the premises were: “reserving the use myself during my life, and if the said [donee] should die, to go to the children”; the donee, in each instance having living children at the date of the gift, and it being admitted that these children were the persons referred to by the donor. As it is evident that each of the deeds was drawn by an unskilled person, there is no probability that the comprehensive technical language employed was used in its technical sense; and although, if interpreted in that sense, the words of the deed would be repugnant, it is manifest that there was no repugnancy in the intention, the purpose being that the donee’s children should succeed to his estate, and not that his heirs at law should take it by inheritance. If this was not the intention, there could be no rational object in mentioning the children or providing for them to take at all.</p>

<p>Action on contract. Before Judge Hutchins. Clarke superior court. April term, 1893.</p>

<p>Where a promissory note, signed by a principal and sureties, was further secured by a mortgage on personal property executed by the principal, and the creditor, after foreclosing the mortgage, ordered the sheriff who was about to levy on a portion of the mortgaged property then within his reach not to do so, and thereafter this property was removed by the mortgagor so that the sheriff could not again find it, and the mortgage,/?, fa. was thus rendered unproductive to the extent of the value of the property so removed, the sureties were discharged pro tanto from their liability on the note. The creditor was not merely inert or passive, but interfered actively, in preventing seizure of the mortgaged property and bringing it to sale.</p>

<p>Equitable petition. Before Judge Griggs. Bibbsuperior court. November term, 1893.</p>

Action for damages. Before Judge Hutchins. Oconee superior court. July term, 1893. Watson sued the telegraph company for damages, and obtained a verdict for $180. Defendant moved for a new trial, which was granted unless plain tiff would write off' all in excess of $129.90. This was done.

<p>1. Under section 4721 of the code, it is the duty of the sheriff who makes an arrest- under a magistrate’s warrant from, another county to carry the accused, with the warrant under which he was arrested, to the county in which the offence is alleged to have been committed, for examination before a judicial officer of that county. This he must do although the accused offers to waive examination and tenders to the sheriff a bond with security, approved by a magistrate of the county in which the arrest is made, and although the bond may in every respect be appropriate and sufficient were there any legal authority for its approval, tender and acceptance. There being no such authority, the tender counts for nothing.</p> <p>2. The mandate of the statute being imperative, the arresting officer must comply with it himself or by his deputy, and cannot legally detain the accused in jail until information of the arrest has been communicated to an officer of the county in which the offence is alleged to have been committed and until that officer can reach the place of detention and there receive the prisoner from the officer who made the arrest. 3. There was no error in excluding evidence offered by the plaintiff to show that the grand jury returned no bill touching the matter to which the warrant related; but it was error to admit evidence that the plaintiff had been indicted for another offence and was at the time of trial a fugitive from the State to avoid arrest.</p>

<p>Certiorari. Before Judge Wellborn. Lumpkin superior court. October term, 1893.</p>

<p>Motion, etc. Before "W. E. Simmons, judge pro hac vice. Hall superior court. January term, 1894.</p> <p>In the ease of the Merchants Bank et al. v. The Gaines-ville & Dahlonega Railroad Company et al., a receiver was appointed, and a sale by him made of the property of the railroad company. The fund thereby produced was claimed by Candler upon an alleged railroad contractor’s lien, and by the Farmers Loan & Trust Company upon a mortgage. The fund was awarded to Candler, which judgment was reversed by the Supreme Court. 87 6ra. 241. On November 7, 1890, after the bill of exceptions had been signed, Candler gave to the receiver an instrument as follows :</p> <p>“ $2,669.05. Received of ~W. A. Charters, the receiver in the case of the Merchants Bank et al. v. A. D. Candler et al, the sum of $2,669.05, the amount allowed me by the decree of the court in said case upon the lien and fi. fa. against the Gainesville & Dahlonega R. R. Co.,, held by me. It is further understood and agreed, that said sum now paid shall not be placed as a credit upon said fi. fa. at present; for that, whereas the Farmers Loan & Trust Co., the trustee for the bondholders of said road, has filed its bill of exceptions from the decree and action of the court, and have carried said case to the Supreme Court for review: now, therefore, should said decree be reversed or said cause remanded for a rehearing, or if said decree should be altered in the Supreme Court, then I hereby agree and bind myself to refund said sum of $2,669.05 to said W. A. Charters, receiver, or his successor, at the next term of Hall superior court after said case is heard and disposed of, to be disposed of by the court; to be without interest. But should said decree be affirmed, then said sum shall be placed as a credit upon said fi. fa., and this shall be a receipt in full to said receiver under said decree. Nov. 7, 1890.”</p> <p>On July 27,1891, the receiver made a written demand upon Candler for the return of the sum named, which demand was not complied with. At some time (the record does not show the date) after the judgment of the Supreme Court, before mentioned, was made the judgment of the superior court, Candler filed a petition alleging “that the money arising from the sale of said property is still in the hands of W. A. Charters, Esq., the receiver, and is therefore in the custody of the court undistributed, and petitioner has a special lien thereon which he is entitled to foreclose, and he is entitled to the said money on his said bill in preference to all other claims”; and praying, “ that said receiver be required to hold said funds arising from said sale till this question of petitioner’s lien and right to the funds is finally settled, and a further order of distribution is granted by the court.” To this petition the receiver filed an answer, alleging that he “ was made a party to said motion to reinstate,” and that it is not true he has the actual custody of the money arising from the sale. He further alleges, that he turned over the sum named to Candler upon the written agreement before set out, and that Candler has refused on written demand to refund the same. Wherefore the receiver prays, that Candler be required to refund the money to him instanter, and that in default thereof he be held to be in contempt of the court; uniting with Candler in his prayer that the receiver be required to hold the fund until the right to the same is finally settled. This answer was filed on January 19, 1894, and the court granted a rule that Candler show cause why the prayer of the receiver should not be granted. On the same day the receiver filed an amendment which was allowed, praying that, should the court decline to pass an order holding Candler in contempt for failing to turn over the money to the receiver, an order be granted adjudging said sum against Candler in the case of the Merchants Bank v. the G-ainesville & Dahlonega Railroad Company, and ordering execution therefor to issue against him. The plaintiffs, together with the Farmers Loan & Trust Company, also filed their motion setting up the same facts, and making similar prayers to those of the receiver. To each of the motions Candler made an answer in the nature of a demurrer upon the grounds: (1) Such proceeding is not authorized by law. (2) NO' legal cause for granting the prayers is set forth. . (3) The contract upon which it is alleged Candler holds the money, is a private contract between him and Charters, which the court has no jurisdiction to enforce upon this sort of proceeding. (4) Respondent is not an officer of the court and not a custodian of its fund, and therefore is not subject to rule. The court denied the prayers for relief against Candler, and passed an order that the sum in question be awarded to the Farmers Loan & Trust Company on the mortgage held by it, that the same be paid by the receiver to the bondholders, etc. Separate bills of exceptions were taken by the receiver and by the plaintiffs, assigning error upon the refusal to grant the orders prayed for as to Candler.</p>

<p>Where, in an action for the recovery of land, the parties went to trial, not.upon the whole case, but upon the single question of the jurisdiction of the court, the same depending upon whether any part of the premises lay in the county in which the action was brought, and the jury found in favor of the plaintiff, and the defendant, without making a motion for a new trial, brought a writ of error upon various rulings of the court made during the progress of the trial, the reversal of none of which would operate to terminate the case but would leave it still pending in the court below, the writ of error was premature, and for that reason is dismissed, with direction that the plaintiff in error be allowed to enter his bill of exceptions on the minutes of the court below as exceptions taken pendente lite.</p>

<p>1. The cases of Aim v. Ordinary, 54 Ga. 59, and Commissioners v.Newell, 64 Ga. 699, touching the validity of bonds issued by Bar-tow county to obtain means to support the indigent families of soldiers of the Confederate States in that county, reviewed and affirmed. These cases rule the present one in all essential respects as to the validity of the bonds now in controversy.</p> <p>2. The bonds reciting, and the evidence all showing, that they were issued in pursuance of an order passed by the inferior court in the year 1863, previous orders passed in 1861 were irrelevant, and for that reason were not admissible in evidence.</p> <p>3. The part taken by the person to whom the bonds were issued, or by others with his knowledge,“in encouraging or inducing persons to volunteer as soldiers, whose families afterwards became dependent on the county for support or proper objects for county'aid in supplying their necessary wants, furnishes no reason against holding the county liable on the bonds.</p> <p>4. The motive which induces a party to enter into a legal contract by which he parts with his money or property, and under which the county receives it and takes the benefit of it for a public object to which it is legally applicable, will not prevent a recovery on the contract to refund the money and pay for the property.</p> <p>5. Even if section 3479 of the code of 1863, which required claims to be presented within twelve months after they accrue or become-payable, be applicable to bonds issued by the county (which is by no means certain), that section should be treated as a statute of limitations; and so treated, it was suspended when the bonds sued upon matured, and for more than a year thereafter.</p>

Complaint on notes. Before Judge Attaway. City court of Cartersville. December, 1893. Two promissory notes were' sued on, dated January 14r 1890, one for $175 due October 1, 1890, tbe other for $139.75 due November 1, 1890. They were signed by ’W. G. Bailey and F. M. Martin.

<p>'The case having been very loosely managed by counsel for the plaintiff below as to pleading, and apparently also as to evidence, and it not appearing that a new trial may not further the ends of justice, the general rule applicable to the first grant of a new trial by the presiding judge should control.</p>

<p>1. A decree for a specific sum of money but giving time to perform partly by paying money and partly by executing a promissory note with security, may be enforced by execution, without further order, after the time limited for discharging the recovery in the way specified has expired, if the defendant is still wholly in default.</p> <p>2. A judgment or decree for alimony has only the lien of ordinary general judgments for money, as to any property of the defendant not specifically dealt with and described in the judgment or in the pleadings.</p> <p>3. A creditor of the husband who, whilst a suit is pending against the latter for alimony, takes bona fide, without fraud on his part or any notice of a fraudulent object by his debtor, or any reasonable grounds of suspicion, a mortgage upon property not embraced in the pleadings of the pending suit, to secure a pre-existing debt, has priority over the lien of the judgment or decree for alimony subsequently rendered, the same as he would have over the lien of a judgment in favor of an ordinary creditor of the mortgagor, notwithstanding he knew when he took the mortgage that the suit for alimony was pending. The mere pendency of such a suit will not disable the defendant therein from making a bona fide mortgage or conveyance of unincumbered property over which the court has not taken nor been asked to take any direct jurisdiction in order to administer or secure it for application to the claim for alimony.</p>

Action for damages. Before Judge ITenry. Floyd superior court. September term, 1893. McGinnis sued the railroad company, and obtained a verdict the amount of which does not appear in the record. The company moved for a new trial on the general grounds among others, and the motion was overruled.

Equitable petition. Before Judge Gober. Pickens superior court. September term, 1893. The petition of Manson Darnell alleged: Upon plaintiff’s land flow two streams of water, known as Barnett creek and Dock creek.

<p>1. Where it affirmatively appears both from the bill of exceptions and from the certificate of the judge thereto that no part of the ' record is necessary to be sent here by transcript, the writ of error will not be dismissed because there is no transcript.</p> <p>2. While successive garnishments may issue in a pending case commenced by attachment, yet after the case has terminated in a judgment against the defendant in attachment, no further garnishment can issue founded upon the same attachment, notwithstanding an issue may still be pending between the plaintiff and a former garnishee touching the truth of the answer made by such garnishee to a garnishment issued in due time.</p> <p>2. As the defendant in attachment, as well as the garnishee, is interested in the question of whether the garnishment has legally issued, the garnishee does not, by answering the garnishment, waive his right to have the proceeding dismissed at the hearing of an issue traversing his answer, the ground of the motion to dismiss being that there was no legal authority for issuing the garnishment because judgment had previously been rendered against the defendant in the attachment suit, and thus the suit as a basis for summons of garnishment was no longer pending.</p>

<p>1. Where one purchased promissory notes given for the purchase money of land and took a conveyance of the land itself, knowing at the time that the makers of the notes had surrendered the bond for titles to the maker thereof, and afterwards took possession of the land by his tenant, he when so doing having the title to the land in himself in consequence of the conveyance made to him when he purchased the notes, he should be treated, relatively to third persons, as having rescinded the contract of sale made by the original vendor, especially where no possesson under that contract had ever existed. If, subsequently to such rescission and while having possession of the land by his tenant, he sells the notes to others for value, and makes a conveyance of the land itself so that these purchasers may convey title to the original purchasers of the land when the notes shall be paid off, concealing the fact of rescission and the facts from which the rescission results, namely the surrender of the bond for titles and the taking possession of the land, and also representing the makers of the notes to be solvent when in truth they were utterly insolvent, the concealment and the representation, taken together, will amount to a warranty of the notes, both as to title and solvency; and in an action setting forth the warranty and alleging its breach, he is liable in damages for the amount, whether paid in money or property, which he received for the notes, the notes themselves being worthless.</p> <p>2. A recovery on the warranty is not hindered by the fact that title to the land was conveyed to the plaintiffs at the time they purchased the notes, the object of this conveyance being, not to invest them with title as owners, but as creditors of the makers of the notes, and as security merely. If these notes had been extinguished as debts against the makers by reason of the rescission of the original contract of sale and the resumption of possession by the defendant as successor in title to the vendor, there was no-debt to be secured by the conveyance made by the latter to the plaintiffs, and all that would be necessary to adjust the equities between the parties would be for the plaintiffs to recover on the warranty and reinstate the defendant in his title to the land; all of which has been provided for in the verdict, the suit being one in which equitable relief could be and has been administered.</p> <p>3. In a sale of property at an agreed price, the seller having received in payment other property at an agreed price and in addition thereto promissory notes on third persons also at an agreed price, in an action against him upon a warranty of the notes neither the market value of the property sold nor the market value of that received, exclusive of the notes, is relevant in measuring the damages, unless it appears that the prices fixed by the parties themselves in the course of the transaction were fixed, not with reference to cash as a standard, but with some special reference to-the medium of payment, and consequently that these prices were-different from what they would have been if uninfluenced by the element of barter. Where price is fixed by express contract of the parties, market value is generally immaterial.</p> <p>4. Neither upon the merits, nor upon any of the numerous small points, including the newly discovered evidence, is there any cause for a new trial.</p>

<p>Where the first order fixed the time for hearing the motion for a new trial and granted leave “until the hearing” to make out and file a brief of the evidence, and by subsequent successive orders different times were fixed for the hearing and it was expressly provided that within a time limited by each the brief of evidence should be approved, and it not appearing that any brief was presented for approval until after all these limitations had expired, a further continuance, granted at the term succeeding that to which the hearing had last been continued, did not necessarily carry with it the right on the part of the movant to have the brief of evidence approved at the time fixed for the heaping by this last order, as against an unwillingness of the judge then to exercise the power of approval. His refusal to approve the brief after a lapse of nearly eighteen months from the date of trial was. not error. Whether, as a mere question of legal power, his approval would have been valid or not, it was certainly not an abuse of discretion to decline to approve the brief after such a lapse of time.</p>

<p>1. A warrant against a father on a charge of kidnapping his own minor children, it not appearing that he had ever parted with his paternal right to their custody, is a nullity; and a writing executed by him while under arrest by virtue of such a warrant, and under the influence of a promise to discharge him from the arrest, purporting to surrender to the mother of the children his paternal authority, is not binding, the same being procured by duress.</p> <p>:2. Where husband and wife are living in a state of separation, the county of the husband’s residence is the county of the residence of the minor children, unless he has consented to their acquiring a residence elsewhere, or has voluntarily relinquished his paternal authority over them, or has been otherwise legally deprived thereof. But irrespective of residence, the ordinary of the county in which the minor children were unlawfully detained by their mother from the custody of their father had, under section 4011 of the code, jurisdiction to issue and dispose of a writ of habeas corpus sued out by the father to obtain the custody of the children.</p> <p>3. Under the evidence in the present case, the ordinary, adjudicating upon a writ of habeas corpus, did not abuse his discretion in awarding the custody of the children to their paternal grandparents; and the superior court erred, on certiorari, in reversing the ordinary’s decision.</p>

<p>Attachment. Before Judge Brown. City court of Carroll county. December term, 1893. '</p> <p>Attachment was issued in favor of H. Brewer & Co. against J. P. Moore, for the purchase money of a brick machine sold by plaintiffs to defendant. -The affidavit for attachment alleges, that “ said brick machine is at this present time in the possession of said J. P. Moore,” and that “affiant makes this affidavit that an attachment may issue against said No. 8 mold brick machine made by said H. Brewer & Co., for said purchase money.” The attachment issued upon this affidavit commands the levying officers “to attach and seize, for the purpose of making $616 and interest, purchase money, and all costs, one No. 8 brick mold machine manufactured by H. Brewer & Co., of Tecumseh, Michigan, at present in the possession of J. P. Moore,” etc. The levy was made upon the property so described, “at the old C., R. & C. depot, as the property of the defendant J. P. Moore.” The defendant filed “ a traverse of the ground of said attachment,” and for cause of traverse alleged, “that it was not true that he was in possession of said machine at the time of suing out said attachment, nor ever has been.” At the trial defendant’s counsel (his client being absent) moved to dismiss the attachment, on the grounds, (1) that it was against the machine and not against the defendant; (2) that it appeared by the sheriff’s return that the machine was not in the possession of the defendant. Error is assigned' on the overruling of this motion. Further error is assigned, in that the court charged the jury that on the traverse, “ the burden of proof is on the defendant, and you will determine from the evidence before you whether or not the traverse has been sustained.”</p> <p>Plaintiffs introduced in evidence two promissory notes executed by defendant under 'seal, dated October 5, 1892; one for $316, due January 1, 1893, the other for $300, due July 1, 1893; both payable to the plaintiffs. Also, a written order to plaintiffs, signed by defendant, dated at Carrollton, Ga., March 5,1892, for a brick machine of certain dimensions, with specified appurtenances, to be shipped to him at once by the route they consider the best and cheapest; “ for which I agree to pay you the sum of $616, on board cars at Teeumseh, Mich., as follows: $308 cash, and to execute approved notes for $308 payable on the first day of November, 1892,” etc. An agent of plaintiff's testified: I took the notes October 5,1892; they were signed in my presence, in settlement for the No. 8 machine, etc. The trucks were no part of the consideration. He refused to settle for them on the ground that he did not want them; and they being sold subject to his approval, I consented to take them back. I do not know positively how long he had been in possession of said machine when I took said notes, but about six months. He found no fault with the machine, but expressed a willingness to-settle for it if I would give him time to raise the money; and to accommodate him I extended the time as stated in the notes. He told me he had purchased another yard because there was not sufficient demand for two, and he was forced to buy the other yard; that this purchase had taken his ready money that he should have paid the plaintiffs with. I understood from the railway agent and Mr. Moore that the trucks were stored- with the machine in a warehouse belonging to the railway corn-company. Several months after the machine had been received, shipped and stored by Mr. Moore, the plaintiffs instructed me to go to Carrollton and secure a settlement from Mr. Moore. — To the last two statements defendant’s counsel objected on the ground that they were illegal. The court ruled out the testimony in reference to what the witness understood from the railway agent, blit refused to rule out the last statement; on which ruling the defendant assigns error.</p> <p>The jury returned the following verdict: “ We, the jury, find for plaintiffs, prin. $616.00, int. $58.69, and cost of suit.” Below this was a space of an inch or more on the paper, and then: “We, the jury, find against the traverse.” Then followed a similar space, and then appeared the signature of the foreman of the jury. Whereupon plaintiffs’ counsel entered up general judgment for the principal, interest and cost, to be first levied on the brick machine. Defendant excepts, alleging that there was no legal verdict on which to base this judgment; the contention being that the foreman’s signature applied only to the finding against the traverse, and that the finding of the sums sued for was not signed.</p>

Actions for damages. Before Judge Hunt. Monroe-superior court. September term, 1893. Danielly brought suit for damages against Cheeves,. the case being returnable to the February term, 1882, of the superior court. That case came to the Supreme Court twice. 74 Ga. 712; 80 Ga. 114. A recovery of $125 by plaintiff was sustained by the decision in 80 Ga.

Action on bond. Before Judge Hunt. Hpson superior court. May term, 1893.

Certiorari. Before Judge Jenkins. Morgan superior court. September term, 1893. Clack made affidavit to eject Miss Durden as an intruder upon 50 acres of land. She made a counter-affidavit, and tbe issue was tried in the county court, where the judge gave judgment for plaintiff.

<p>Complaint on note. Before Judge Griggs. Randolph superior court. November term, 1893.</p>

<p>1. Where goods are sold to a firm and shipped by a common carrier,, but before the goods are actually received into the firm’s custody it is dissolved by one of the members retiring, and the remaining members form a new partnership, and the retiring member, for his own protection, prevents a delivery of the goods by the carrier to the new firm until the seller has consented to look to the new firm for payment, and the seller, upon being notified of these facts, accepts acceptances of the new firm upon drafts drawn for the price of the goods on the old firm, and the goods are thereafter delivered by the carrier to the new firm, the retiring member is thereby discharged from all further liability for the price of' the goods.</p> <p>2. In the light of the evidence, there was no error in denying a new trial upon any of the grounds stated in the motion.</p>

<p>1. Although a minor of very tender age may, at the time of his father’s death, be temporarily residing 'with another person in a county other than that in which the father was domiciled and in which he died, and may continue to so reside after the father’s death, the ordinary of the county of the deceased father’s domicile had jurisdiction, upon the application of the person with whom the minor was thus residing, to appoint him guardian of the minor, there being nothing to show that the minor’s domicile had, during the father’s lifetime, become different from that of the father by reason of a relinquishment by the latter of his parental authority to the other person, and the applicant for the guardianship, by applying to the ordinary of the county in which the father died, recognizing and conceding that no change in the minor’s domicile had taken place.</p> <p>2. Where a lot of wild land was sold for taxes by virtue of an execution issued by the comptroller-general under the provisions of the act of February 28th, 1874 (Acts of 1874, p. 105), the presumption, in the absence of sufficient evidence to the contrary, is that the comptroller-general complied with his duty as to advertising as required by the 6th section of that act, as amended by the act of March 2d, 1875 (Acts of 1875, p. 119); and this presumption is not overcome by exhibiting three copies of a newspaper dated, respectively, in three successive weeks, and published at the capital of the State, in each of which appears a proper advertisement that the lot in question was in default for taxes, without also exhibiting other copies of the newspaper printed during the weeks immediately before and immediately after the three weeks mentioned, and not containing such advertisement, or else showing that no such copies were issued. The mere fact that the files of the newspaper, kept in the office in which it was printed, contained no copies of given dates, would not, of itself, be sufficient evidence that no copies of the paper were in fact printed and issued on those dates.</p> <p>3. Irrespective o£ the various questions raised in the motion for a new trial, the verdict, for the reasons indicated in the foregoing' notes, was wrong on the substantial merits of the case, and the-court erred in refusing to grant a new trial.</p>

<p>Complaint for land. Before Judge Fish. Dooly superior court. March term, 1898.</p>

Complaint. Before Judge Bower. Dougherty superior court. October term, -1893. The bank brought suit against A. W. Tucker upon three drafts. The court granted a nonsuit on the ground that plaintiff’s evidence did not make out its case. The-drafts are in the form of ordinary bank-cheeks, drawn on the plaintiff', July 7, 8 and 9, 1890.

<p>There was no abuse of discretion in refusing to remove the attachment on the petition of the defendant in the attachment proceeding.</p>

Equitable petition, etc. Before Judge Gamble. Bibb superior court. November term, 1893. This litigation was begun by petition in the nature of a creditors’ bill filed by J. S. McTighe & Co. against the Georgia Southern & Florida Railroad Co., the Macon Construction Co., and others; under which petition a receiver of the defendant companies was appointed.

Equitable petition. Before Judge Pish. Sumter superior court. November term, 1893. The Americus, Preston & Lumpkin Railroad Company was chartered and organized in 1884, under the general law for the incorporation of railroad companies. Code, §1689(a), et seq. In 1886 resolutions were adopted and filed in accordance with this law, authorizing extensions of the road.

<p>This case involving nothing but questions of fact which were solely for determination by the jury, and the jury having fbun;! in favor of the plaintiff, and the verdict having been approved by the trial judge, this court cannot interfere.</p>

<p>Ejectment. Before Judge Smith. Dodge superior •court. September term, 1893.</p>

Action for damages. Before Judge Griggs. Dodge superior court. September term, 1893.

<p>Practice in Supreme Court.</p>

<p>.A. telegraphic company does not incur liability for the statutory penalty because of delay in transmitting or delivering a message, unless the delay occurs after actual payment or tender of the charges. Where, by mutual agreement of the sender and the company’s agent or operator, the charges are held open as a debt to be subsequently paid by the sender, or by him and a third person jointly, this is neither actual payment nor any substitute therefor, with reference to the penal element of the statute; and it makes no difference that the message is forwarded over the wire nominally as a prepaid message.</p>

Action for penalty. Before Judge Fish. Sumter superior court. November term, 1898. The defendant pleaded specially, that no claim in writing was presented within sixty days after the filing-of the message for transmission, as required by the stipulation on the back of the blank upon which the message was written.

<p>Petition for certiorari. Before Judge Sweat. Appling county. September 9, 1893.</p>

<p>Ejectment. Before Judge Sweat. Pierce superior court. October term, 1893.</p>

<p>By two witnesses who knew the facts with absolute certainty, the . presumption of negligence was fully overcome; and apart from the presumption, there was no proof whatever of negligence. Consequently, the verdict was without evidence to support it.</p>

<p>1. One who sold standing timber of a certain description upon a tract of land, the purchaser having died before he severed the timber and removed it, is not concerned with the question whether persons authorized by the administrator of the purchaser to cut and appropriate .the timber, did so as legal purchasers from the administrator or only as his licensees. Relatively to the vendor of the timber, they stand as the administrator himself would have stood had he in behalf of the estate which he represented done the work in person or by his servants or employees.</p> <p>2. Timber while standing on land on which it grew being realty, a written contract made in the spring of 1885 by which the owner of the land sold to another “all of the saw-timber measuring twelve inches and over in diameter at the stump on lot of land ninety-three (district and county) . . . timber to be cut off the land by December 25th, 1886, passed title to only so much of the timber described as was cut before December 25th, 1886, unless this limitation as to time was subsequently waived by the seller. If it was waived by expressly fixing another limit, whether orally or in writing, this new limit took the place of the former one, but there was no right to act after the new limit expired. The controlling question in the present case is, whether the fund in controversy was produced by timber cut before the new limit had expired or not until afterwards. Let the new trial as to the ownership of the fund be confined to a determination of this question.</p> <p>3. Where a defendant having been sued separately by two plaintiffs, causes them to interplead, the losing party in the interpleader may be charged with the costs of the interpleader and of the action brought by himself, but cannot be charged with the costs of the other action to which he was no party.</p> <p>4. When the last day for tendering a bill of exceptions is Sunday, the following day is superadded by code, §4, par. 8.</p>

Complaint. Before Judge Roney. Richmond superior court. October term, 1893. This case was formerly before the Supreme Court. 88 Ga. 333. At the last trial the verdict was for the bank, and plaintiffs excepted to rulings of the court in admitting evidence, and in the charge to the jury. These are sufficiently indicated in the opinion.

<p>1. The action being against several defendants, and some of them having demurred severally to the petition as presenting no cause of action against them, and the court having overruled their demurrers, they were entitled by virtue of the act approved October 16th, 1891, amending section 4250 of the code, to bring that decision by a direct writ of error to this court for review, although the suit was still pending below as to a defendant who did not demur.</p> <p>2. A floating policy of insurance which declares that it does not cover cotton on which there is any more specific insurance, does not embrace or apply to any cotton which is specifically insured in another company, and therefore is not subject to share with the other company the burden of loss sustained by the latter or by the insured in respect to the cotton covered by the more specific insurance; and for this reason, the company issuing the floating policy cannot be called upon to contribute to a loss resulting from destruction of the cotton covered by the more specific insurance, although the policy touching the latter contain a clause declaring that “ in case of any other insurance upon the property hereby insured, whether made prior to or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, whether by specific or floating policies.”</p>

<p>1. The well established rule that independent facts discovered in consequence of a constrained confession made by a prisoner are admissible in evidence against him, is of force in this State unless it appears that criminal violence was used in procuring the confession or making the discovery. And where such independent facts are admissible, so much of the prisoner’s acts and declarations as are necessary to account for the discovery and explain the manner of it are admissible also,' but solely for this purpose. They count for nothing as confessions, and as such are to be wholly disregarded.</p> <p>2. Where counsel for the accused objected to evidence of an incriminating admission on the ground that the same was made under coercion, and at the same time stated they wished to interrogate the State’s witness to show that the accused had been whipped by the witness and others, and the State’s counsel replied that the “ confession ” was not sought but merely the information disclosed by it, after which there was no further effort to examine the witness as to the alleged whipping and no further objection to the admissibility of the evidence, failure to reject the same was not error, there being no proof by any witness that the prisoner was whipped or that any criminal violence upon him was committed.</p> <p>3. The evidence as to the identity of the money stolen, and in other respects, was sufficient to warrant the verdict of guilty, and there was no error in denying a new trial.</p>

<p>1. Where, in the year 1847, before the adoption of the code, the superior court of the appropriate county entertained the petition of trustees praying that they be discharged from their trusteeship and that another be substituted in their place, and where the court in acting upon the petition undertook to guard and protect the interest of remaindermen, all of whom were minors at the time, and for that purpose exacted bond and security of the newly appointed trustee, and where the creator of the trust, who was the father of the remaindermen, expressly assented in writing to the discharge and to the appointment of the particular person who was selected to fill the vacancy, the infant remaindermen were not indispensable parties to the proceeding, but it was discretionary with the court to require them to be made parties or not, and to proceed with or without having them notified and with or without an express order appointing a guardian ad litem to represent them. And the court, in the exercise of its discretion, having granted the prayer of the petition and appointed a new trustee, and he having given the bond and security required, the judgment or decree, even if irregular, was not void, and when attacked collaterally more than forty years afterwards, will not be disregarded or treated as a nullity but will be upheld as good and valid so far as necessary to protect third persons in rights of property fairly acquired under it or in consequence of authority which it was intended to confer upon the court’s appointee. Under all the circumstances, the father of the minors should be treated as their guardian ad litem recognized by the court, though not formally appointed as such. As to the substance of the matter, lie was their guardian ad litem.</p> <p>2. The power of sale conferred by the trust deed upon the original trustees passed to and could be legally exercised by the newtrustee appointed by the court, the order of appointment expressly providing that he was to be clothed with all the powers which they possessed. The power.of sale, being not merely unilateral hut matter of express covenant in the deed between the parties thereto, •was not one involving personal trust or confidence, but was a power pertaining to the trusteeship or the office and character of trustee, and was moreover a power coupled with an interest, the trustees ás such being clothed with the legal title and estate in the trust property, which estate was the entire fee, inasmuch as the beneficiaries consisted of a married woman as tenant for life and of minor children in remainder, and the holding in trust being expressly declared by the deed to be for the remaindermen as well as for the life tenant, and some of the objects of the trust clearly indicating that they were to be executed irrespective of whether she were alive or dead.</p> <p>3. No extinction of the power of sale resulted from the payment, prior to the exercise of the power, of all the debts of the creator of the trust, the power being broad enough to comprehend all the trust property and to embrace a sale for reinvestment as well as a sale to pay debts.</p> <p>4. On the facts in evidence there was no error in directing a verdict for the defendant.</p>

<p>An indictment for forgery which does not allege the making or fabrication of anything, but which sets out the fraudulent uttering of a forged bank check in the terms of 24447 of the code, is founded upon that section and néed not allege an intent to defraud any particular person. If any holding to the contrary is deducible from the case of Williams v. The State, 51 Ga. 535, a decision by two judges only, such holding is unsound and will not be followed. Judgment affirmed.</p>

<p>Indictment for simple larceny. Before Judge Sweat. Camden superior court. November term, 1893.</p>

<p>Indictment for aiding escape. Before Judge Sweat. Pierce superior court. October term, 1893.</p>

<p>Indictment for burglary. Before Judge Honey. Burke superior court. December term, 1893.</p>

<p>Indictment for assault with intent to murder. Before Judge Richard II. Clark. Fulton superior court. September term, 1893.</p>

<p>Action on bond. Before Judge Milner. Dade superior court. March term, 1893.</p>

<p>Action for damages. Before Judge Milner. "Whitfield superior court. April term, 1898.</p>

<p>Certiorari. Before Judge Milner. Bartow superior-court. January term, 1893.</p>

<p>Certiorari. Before Judge Milner. Catoosa superior court. August term, 1893.</p>

<p>Attachment. Before Judge Janes. Chattooga superior court. March term, 1893.</p>

<p>Petition for injunction and receiver. Before Judge Lumpkin. Pulton county. December 23, 1893.</p>

<p>Equitable petition. Before Judge Henry. Walker superior court. August term, 1892.</p>

<p>The action being upon an account for lumber sold and delivered, and the verdict being for the plaintiff in these terms: “ We the jury-find for plaintiff forty-one dollars and four cents principal and interest,” the verdict is ambiguous, inasmuch as it does not clearly disclose whether the interest referred to was interest to be computed on the amount specified, or was interest already computed and included in that amount. For this ambiguity the court was warranted in granting a new trial, and the judgment granting it is affirmed. But inasmuch as the only prejudicial result to the defendant below would be that he might be charged with interest on interest as well as interest on the principal of the debt, and as this result can, at the option of his adversary, be avoided, direction is given that if the plaintiff will, during the term at which the remittitur from this court shall be entered, vacate the judgment he has heretofore entered up on the verdict, and in lieu thereof will enter judgment for the specific amount named in the verdict, with costs in the court below, with an express renunciation of any interest thereon and an express declaration in the face of the judgment that it shall bear no interest whatever, then no new trial shall be had, but the verdict, thus limited in its effect, shall stand.</p>

<p>1. The evidence showing that the plaintiff was injured at night by getting his foot fast in a hole which had existed for two weeks or longer in a plank crossing upon one of the most frequented streets of the city, the plaintiff at the time using the crossing as one of the public for a footway in passing over it, the case was one for submission to the jury on the question of negligence by the city authorities in having and leaving the crossing in that condition.</p> <p>2. The evidence further showing that the hole extended longitudinally along the crossing and was about ten or fifteen inches long, three inches wide and two or three inches deep, and that the plaintiff had observed it a week or two before he was injured, and that at the time he stepped into it he “ had his hands in his pants pockets, was walking very peart and wasn’t paying any attention,” it was a question for the jury whether, under these circumstances, he was negligent in not thinking of the defect in the crossing, looking out for it and taking care for his own safety. It was error to grant a nonsuit. Judgment reversed.</p>

<p>1. Where a railroad company, by contract express or implied, admits another company into the possession, use and occupation, jointly with itself, of its depot, yards, yard-tracks, and other terminal facilities, the relation of landlord and tenant is established between the two companies and continues, if no term be fixed by contract, so long as such joint possession, use and occupation may last. And if no amount of compensation be agreed upon, the law will imply an undertaking to pay such amount as may appear to be fair and reasonable. Under the statutory system established by the code, this compensation is, in its nature and character, rent, and may be collected by distress warrant sued out by the landlord company on affidavit setting forth and claiming a specific amount as due for rent, the tenant having, of course, a right to controvert the claim by counter-affidavit, as may be done in other cases of distress for rent.</p> <p>2. If, in the arrangement between the two companies, it was contemplated and understood that, as part of the means of enjoyment of the rented premises, the tenant should have the use upon the premises of some of the landlord’s servants and rolling-stock, whether continuously or only occasionally, and these were let with the premises in one and the same contract, the compensation for the whole in one gross sum, the realty element being the main consideration and the other elements only incidental, may be treated as rent and collected by distress warrant.</p> <p>3. It is not manifest that the price paid by another company for a similar occupation of the premises, after the occupation of the outgoing tenant company had ceased, would be admissible evidence upon the question of the amount of rent which this company ought to pay. Judgment reversed..</p>

<p>Certiorari. Before Judge Henry. Floyd superior court. March term, 1893.</p>

<p>Motion to distribute money. Before Judge Henry. Floyd superior court. March term, 1893.</p>

<p>Certiorari. Before Judge Henry. Bloyd superior •court. March term, 1893.</p>

<p>In an action by the sendee of a telegram against the company for special damages, the case being one in which the contents of the telegram sent are material, the loss by the plaintiff of the telegram received will not lay the foundation for introducing parol evidence of its contents, without accounting, by notice to produce or otherwise, for the non-production of the telegram written and delivered by the sender for transmission. If the case of Cincinnati &c..Railway v. Disbrow & Co., 76 Qa. 253, is to be construed as at variance with this ruling, it is in conflict with sections 3767, 3768, of the code, as well as with the established law as it existed prior to the code. For this reason the case mentioned should be treated as colored and controlled by its own peculiar facts, including the circumstance that the party whose duplicate of the contract was not lost was probably put upon notice prior to the trial that the duplicate of the other party had been lost, this notice resulting from the examination of a witness by interrogatories before the trial to prove the loss and verify a copy of the instrument.</p>

<p>1. In an action against a telegraph company for the statutory penalty for failure to transmit and deliver with due diligence, the message actually delivered by the company to the sendee is admissible as original evidence, and is not secondary in its nature. Conyers v. Postal Teh Cable Co., 92 Ga. 619; Western Union Telegraph Co. v. Bates, 93 Ga. 352.</p> <p>2. The pleadings raising no issue as to any stipulation with reference to the time or mode of presenting a claim for the penalty, and the record furnishing no indication that any question on that subject was raised or decided in the court below*; and the evidence applicable to the issue tried fully warranting the verdict, it is not apparent to this court that there was any error in denying the motion for a new trial. Judgment affirmed.</p>

<p>Action for penalty. Before Judge Jenkins. Morgan •■superior court. March, term, 1893.</p>

<p>Action for penalty. Before Judge Butt. Marion superior court. April term, 1893.</p>

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

<p>The code, section 3333, fixes the filing of the declaration as the commencement of the action. Therefore, where no new cause of action is introduced by an amendment, but the amendment simply completes the statement of the cause which the pleader meant to set forth when the declaration was prepared and filed, the statute of limitations is satisfied if the declaration was filed before the action was barred. See Augusta Railway Co. v. Andrews, 92 Ga.- 706, and cases thei’e cited. Judgment reversed.</p>

<p>1. Nothing in interstate law, whether constitutional or statutory, offers any impediment to enforcing the statute of Georgia imposing upon telegraph companies a penalty for not transmitting messages, the message involved in the given case not having been even started to its destination, and thus the whole of the negligence by which the statute was violated having occurred within the territory and jurisdiction of the State.</p> <p>2. Any question as to complying with special contract terms touching presentation of claim or making demand, or the time of so doing, does not arise where the default sued for is failure to start the message. A contract which one party abandons without excuse or justification cannot be enforced against the other.</p> <p>3. The settled rule that the objection to evidence which was made and decided below must appear, and that the evidence improperly admitted must be set out either in the motion for a new trial or the bill of exceptions, applies to several of the grounds of the motion in this case, and therefore these grounds are not considered. The charge of the court was free from error, and there was no error in denying a new trial. Judgment affirmed.</p>

<p>Action for penalty. Before Judge Hutchins. Jackson superior court. August term, 1893.</p>

<p>1. Where, at one of its minor offices, a telegraph company does not directly employ an agent of its own, but by some arrangement with a railroad company obtains the services of its agent in the business of sending, receiving and delivering telegraphic messages, the office hours established by the railroad company, if reasonable, are upon the same footing as if they were established directly by the telegraph company. Although the operator so employed may voluntarily, and as matter of accommodation, habitually return to his office after the office hours have expired, and in this way may be more attentive to the interests and wishes of the public than his duties require him to be, the company will not be bound to keep the office open on all occasions because the operator has done so habitually on most occasions.</p> <p>'2. It is a question for the jury, and not for the court, to determine whether the condition of the operator’s family on a particular occasion would justify him in closing his office and absenting himself therefrom somewhat earlier than usual. And although he may have foreseen that his duty to his family would probably require him to do this on that occasion, it was not obligatory upon him, as matter of law, to forewarn the telegraph company, nor upon the company to employ a substitute for him at that time.</p> <p>3. In the absence of a special contract to transmit immediately, or of an express request for information, it is not obligatory upon a telegraph company to acquaint a customer with the office hours of the company at the point to which a message delivered by him for transmission is directed. Judgment reversed,.</p>

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

<p>Certiorari. Before Judge Janes. Haralson superior court. January term, 1893.</p>

<p>Complaint. Before Judge Janes. Paulding superior court. January term, 1893.</p>

<p>1. An appeal from a justice’s court to the superior court does not exist, and therefore cannot be transmitted, until after the law has been complied with by making an affidavit in forma pauperis or giving security; and if the magistrate transmits the papers before one or the other has been done, expecting the appellant to give security afterwards, not before him but before the clerk of the superior court, and no security is in fact given until the time for appealing has expired, there is an attempted evasion of the law, and the appeal should be dismissed upon these facts being made to appear to the superior court by parol or any other evidence. The entry of the clerk on the appeal bond as to the date of filing the same in his office will not preclude an inquiry into the real facts, whether the entry be traversed or not. Unless the bond was complete when the clerk received it, he had no legal power to file it.</p> <p>2. There being no appeal, there was no supersedeas or suspension of the prior judgment by the pretended appeal, and consequently an execution issued by the magistrate on the judgment rendered in his court was legal, and an affidavit of illegality thereto was properly overruled. Judgment affirmed.</p>

<p>Appeal. Before H. T. Lewis, judge fro hac vice. ’Putnam superior court. March term, 1893.</p>

<p>Appeal. Before Judge Hunt. Henry superior court. April term, 1898.</p>

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

<p>A donee of land having two children, and the conveyance made by the donor being to him by name and to his children without naming them, passed to the father and each of the children an estate for the life of the father, with remainder to the children; and the father’s life-estate in the premises was subject to levy and sale for his debts, the terms of the conveyance, so far as material, being as follows: “I, . . . do give, grant and convey, unto [B] and his lawful'children [certain lands], to have and to hold ... to them, the said [B] children, their heirs and assigns, to be for the use, support and maintenance of the said [B] and for the support and education of his children during the said [B’s] natural life, and at his death to be equally divided amongst his lawful children ; and should it become necessary for the interest of said children at any time, or for the interest of said [B], to sell or dispose of the said lands, the proceeds therefrom shall be invested in negro property, to be for the use of the said parties hereinbefore named; and at his the said [B’s] death, to be divided equally amongst his the said [B’s] children; the right and title to all of which I hereby relinquish and convey unto the said [B] and his children, free from the claims of myself and all other persons whatsoever.” . Judgment affirmed.</p>

<p>Petition for direction. Before Judge Harris. Campbell superior court. August term, 1893.</p>

<p>Levy and claim. Before Judge Boynton. Upson superior court. July term, 1892.</p>

<p>1. It is not apparent that the court erred in admitting evidence, the motion for a new trial not disclosing any ground of objection, nor setting out any of the evidence objected to</p> <p>2. An agent employed to sell a commodity in a given State, or in several given States, at a fixed percentage on the amount of sales, with astipulation in the contract that he is to pay all his own expenses, has no authority, merely by virtue of his power as agent, to employ others at the expense of the company, either to act as sub-agents or to advertise and commend the commodity in a particular locality or to a particular community. Persons employed by him for such service must look to him for compensation, and cannot charge the company with the same without its consent. The finding of the judge was not warranted by the evidence, and the court erred in not granting a new trial. Judgment reversed.</p>

<p>It not affirmatively appearing from the record that the creditors who commenced their suits before the creditors’ bill was filed, the judgments thereon being rendered after the receiver was appointed, acquired any legal lien upon the assets which produced the money to be distributed under the decree on the creditors’ bill, inasmuch as this money may have been derived from choses in action on which an ordinary judgment at law would have no lien, or if it was the produce of goods sold by the receiver, those goods may have been sold before the judgments were rendered, so that no lien upon the goods had been acquired, this court cannot hold that the court below erred in distributing the fund pro rata among all the contesting creditors, instead of giving these judgments priority.</p>

<p>The record of a contract of conditional sale of personalty delivered to the purchaser, the instrument being attested by one witness but no probate being made to prepare it for record, is without effect, and a judgment against the conditional purchaser after-wards rendered, even upon an antecedent debt, will bind the property; nor will a rescission of such contract of sale by the parties thereto, after the judgment lien attached, affect the lien. Code, 21955(a); Cohen v. Candler, 79 Ga. 427. Judgment affirmed.</p>

<p>There being no plea of the non-joinder of another person as codefendant, nor of the statute of frauds, the evidence, though conflicting, warranted the verdict. Nor was there any error in charging the jury that if they believed defendant opened an account with plaintiff for Hood to buy the goods sued for, then it was the duty of the defendant to notify the plaintiff when to stop and sell no more; there being evidence on which to base the charge.</p>

<p>1. Where one holding a bond for titles executed by a partnership, binding the firm to convey land upon the payment of the purchase money, renews the purchase money note after the death of one of the partners, making the new note payable to his executors, who, by a settlement with the surviving partners, had acquired full ownership of the original note, these executors, at the time of taking the new note, giving to the maker their bond for titles, stipulating in the bond to convey to him with warranty upon the payment of that note, the executors, after obtaining a judgment upon the note and filing a warranty deed and having it recorded as prescribed in section 3654 of the code, may have the land levied upon and sold to satisfy the judgment, without obtaining, or causing to be made, any conveyance by the surviving members of the firm, or by the heirs of the deceased member.</p> <p>2. Inasmuch as executors, in their representative capacity, have no legal power to warrant the title of land conveyed by them, a bond in which they are merely described as executors, without stipulating that they are to convey as such, and which obligates them to warrant the title, should be construed, in such a case as the present, as their personal undertaking; and a deed executed by them as individuals and containing the stipulated warranty, whether it describes them as executors ór not, is sufficient, when duly filed and recorded, to enable them to enforce a judgment already obtained for the purchase money.</p> <p>3. An executory agreement by the plaintiff in execution with the defendant, to accept in payment less than the whole amount of the debt, is not obligatory without a fresh consideration to support it, and mere payment of a part of the sum agreed on will not serve as a consideration.</p> <p>4. Applied to the pleadings and facts, it results from the foregoing rulings that the first and third grounds in the affidavit of illegality were insufficient in law, and that the second ground, under the evidence admitted, together with that which ought to have been admitted, was without substantial merit. Judgment reversed.</p>

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

<p>1. Where a mortgagor, owning at the time of executing the mortgage a tract of land lying all in one body, describes the same in the mortgage as containing one thousand acres more or less, and all the contiguous owners are mentioned save one, and the mortgagor himself is not named as a contiguous owner, nor any division of the tract into two parts is indicated or hinted at, and nothing appears to show or suggest that the mortgagee understood or suspected that it was the purpose of the mortgagor to except or reserve any portion of the tract, the mortgage is rightly construed as embracing the whole tract, although upon an actual survey afterwards made, the contents are found to be seventy-one and seven tenths acres more than one thousand. The omission of the name of one of the contiguous owners should be treated as casual or accidental.</p> <p>2. The omission of the words “more or less,” after the words one thousand acres, from the execution founded on the judgment of foreclosure, and from the entry of levy as made thereon by the sheriff, will not vitiate the sale as a sale of the whole tract, nor limit the quantity sold and rightly to be conveyed by the sheriff, to one thousand acres of the tract. A deviation from the mortgage and from the judgment of foreclosure in so slight an element of description, the other terms of the description being substantially adhered to and being apparently sufficient to locate and identify the premises, is of no real moment or consequence.</p> <p>3. It is only when a description of premises is manifestly too meager, imperfect or uncertain to serve as adequate means of identification, that the court can adjudge the description insufficient as matter of law. In the present case the adequacy of the description as applied to the whole tract, was a question for the jury. It was also a question for the jury whether the description in the declaration could be applied, under the facts in evidence, so as to identify any definite part of the whole tract as the premises sued for, and as excluding land covered by the mortgage or by the sale under the mortgage ft. fa.</p> <p>4. Where the question of homestead or no homestead is immaterial, the head of a family can recover upon his own title without urging the homestead right. On the pleadings as ultimately shaped in the present case, the exclusion of the homestead papers when offered in evidence was harmless. The verdict was correct, and there was no error in denying a new trial. Judgment affirmed.</p>

<p>1. In an action of complaint for land, the plaintiff being an administratrix cum testamento annexo and being also devisee of the land, a disclaimer of title made by her in both characters, pending the action, no consideration therefor being recited or otherwise appearing, cannot be used to defeat the action, she at the trial resisting the disclaimer and showing that it was obtained from her in the absence of her counsel and without advice from him or any one else learned in the law.</p> <p>'2. The owner of land having mortgaged or conveyed the same as security for a debt, and the secured creditor having, at her instance, procured another person to advance the money to pay off the debt and having surrendered to her (the debtor) the deed or mortgage made as security, the person so advancing the money not taking or, so far as appears, requiring any security, the latter obtained no title to the land and had no right to take possession of it after the death of the owner, as against the legal representative of her estate; nor did a deed to him from her husband made after her'death, although the land was devised to him by her for the term of his own life, entitle the grantee in the deed to retain possession after the death of his grantor, the tenant for life. But if it affirmatively appeared that the devise for life was assented to by the executor or by the administratrix cum testamento annexo, this assent would inure to the devisee in remainder, and might serve to defeat the present action to which such devisee is not a party in that character but only as administratrix with the will annexed. Judgment reversed.</p>

<p>Petition for injunction. Before Judge Butt. Muscogee county. July 1, 1893.</p>

<p>X. Where machinery is bought for a certain purpose, and after its reception it proves, upon trial, not to be adapted to the purpose, but. the purchaser nevertheless retains it, an action for the price cannot be defeated upon a plea of total failure of consideration, unless the evidence shows that the machinery was wholly valueless-for any purpose.</p> <p>2. The evidence being silent as to any representation, stipulation or inquiry touching the kind of horses which would be requisite to-operate the machinery manufactured by the plaintiff and sold by him to the defendant, it was error to instruct the jury that if the defendant was to use such stock as was ordinarily used for farm purposes and none other, and if it took horses of greater capacity or heavier weight than ordinary horses, it was the duty of the plaintiff to put the defendant on notice of that fact; and if he concealed it, or represented that the machinery could be used ordinarily upon farms, the defendant would not be bound to use other than ordinary farm horses; and if horses Of greater capacity were required, and the plaintiff concealed thatfact, this was afraud on his part, and he could not recover. Judgment reversed.</p>

<p>1. A city which is under no statutory obligation to light its streets, is not, as matter of law, bound when lighting them voluntarily to do it in such a manner as to enable persons using them to see any obstruction that the city may have placed in the street, irrespective of whether the obstruction, such as a water-plug, was a reasonable and proper one, or not.</p> <p>2. Taking the whole charge of the court together, it was free from substantial error save in that part of it which related to lighting the streets. Judgment reversed.</p>

<p>Petition for injunction. Before Judge Butt. Muscogee-county. July 6, 1893.</p>

<p>Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1898.</p>

<p>1. According to Speer v. Athens, 85 Ga. 49, the question of the preliminary advertisement of a local bill is for determination by the General Assembly before passing the bill.</p> <p>2. An act which does not purport to amend or repeal any particular-law or section of the code, hut which by its title undertakes in general terms “ to amend the county court laws as regards Taylor county, and to provide for the appointment of a county solicitor for said county, and for other purposes,” is not within the inhibitory words of the constitution declaring that “ no law, or section of the code, shall he amended or repealed by mere reference to its title, or to the number of the section of the code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.”</p> <p>3. Under the title above recited, it was competent for the legislature in one and the same act to provide that the judge of the county court of Taylor county shall discharge all the duties that formerly devolved on the justices of the inferior court as to county business, and have the exclusive control and management of all public buildings and property belonging to the county; also that he might appoint one or more bailiffs to serve writs, precepts, warrants, executions, summonses, and all orders issued by the county court or the judge thereof; also that the governor, with the advice and consent of the senate, should appoint a county solicitor to represent the State in all cases in the county court, the act prescribing his duties, fixing his fees and providing for their payment. Inasmuch as all these provisions of the act are pertinent and appropriate to a scheme or system of county court law for Taylor county, there is but one subject-matter, and the title is comprehensive enough to embrace all the provisions of the act, and none of these provisions are different from or at variance with anything expressed in the title.</p> <p>4. Although it may be true that the constitution, of its own vigor, does not confer power to borrow money by temporary loans to supply casual deficiencies of revenue, yet where the money of a. lender has actually been applied to the legitimate uses of a county, that is, to objects to which county revenue may rightly be devoted, it is lawful to repay the loan out of the county treasury when funds for the purpose are on hand, with seven per cent, interest thereon. In this case no question as to the rate of interest was raised. Judgment affirmed.</p>

<p>On the allegations in the petition, and on the facts set forth in the answer and in the affidavits submitted at the hearing for temporary alimony, there was no abuse of discretion in granting a monthly allowance for such alimony, and a stated sum for attorney’s fees. Judgment affirmed.</p>

<p>Where a husband and wife were dependent upon their own labor for support, and she voluntarily and -without cause abandoned and refused to live with him, and it affirmatively appeared that the husband was in debt and destitute of property or credit, and that unaided by her his earnings were small and not more than sufficient to obtain a bare living for himself, it was error to require him to pay the wife monthly a stated sum as alimony, and an additional sum for counsel fees incurred in her proceeding for such alimony. Judgment reversed,.</p>

<p>Petition, for injunction and receiver. Before Judge Butt. Talbot county. November 23, 1893.</p>

<p>1. It appearing that the petitioners delayed for more than seven years after attaining their majority to assert any right or title to the land in dispute, and the circumstances being such that with the least diligence they might, upon becoming of age, have ascertained that their father’s administrator was himself the purchaser of the land at his own sale, and no reason or excuse for their failing to ascertain this fact being shown, their election to set the sale aside was not made within a reasonable time. Candler, executor, v. Clarke et al., 90 Ga. 550; Kelly v. Walker, 91 Ga. 199, 17 S. E. Rep. 118.</p> <p>■2. Although the land may have been sold by the sheriff pending a claim duly interposed under the statute, and in consequence no title passed to the purchaser, this would be no cause for enjoining the purchaser from conveying or encumbering the premises pending a suit to set aside his purchase. The Us pendens would charge with notice those who might deal with him on the faith of his title.</p> <p>.3. It was error to grant the injunction as to any or all of the defendants. Judgment reversed.</p>

<p>The policy of insurance not being set out, nor any undertaking or promise by the company alleged or described, there was no cause of action, legal or equitable, in behalf of the plaintiffs set out in the petition against the company; and as the promissory note alleged to be the contract of Mrs. Grier was not mature when the suit was brought, there was at that time no cause of action as to her. For these reasons there was no error in sustaining the demurrer and dismissing the petition. Judgment affirmed.</p>

<p>1. A joint note and mortgage being executed by husband and wife for a consideration in money afterwards to be advanced by a creditor, the wife is bound only to the extent of so much of the consideration as she afterwards received; and in order to charge her with advances made to her husband on drafts drawn and signed by him individually and not as agent for her, the creditor must show, not only that he was authorized to act as her agent, but that he so acted in drawing the drafts and receiving their proceeds, or else that the proceeds were actually used for her benefit in the business to which his agency related.</p> <p>2. A power of attorney by which a wife appoints her husband to act for her, reciting that she has this day nominated and appointed and does by these presents nominate and appoint and authorize him to transact all and any business for her, make for her all necessary purchases for cash or on credit, and execute and sign such notes, mortgages, deeds and other papers as to him may seem proper and right for the advancement and proper management of her business of every sort, and declaring that she ratifies and confirms all his acts made for her “in pursuance of the aforesaid purposes from and after this date, as fully and completely as if done by” herself, is no authority for or ratification of drafts previously drawn by the husband in his own name, and consequently this power will not of itself justify any charge against her for the amount of such drafts; nor will she be chargeable -with the amount of similar drafts drawn by him after the execution of such power, without extrinsic evidence showing that he acted as her agent or attorney in drawing the drafts and receiving the proceeds, or, if he did not, that he actually applied the proceeds to her use and not his own use.</p> <p>3. The action being upon a joint promissory note made by husband and wife, evidence that in point of fact the credit was given to the wife only is not competent. This would contradict the written contract on which the action is founded.</p> <p>4. One of the plaintiffs, testifying as a witness, having stated in his evidence that he was not personally acquainted with the defendant when she shipped certain cotton and that all communication between them had been by letter, and the letters themselves being in evidence, it was not competent for him to testify that she shipped the cotton for a specified purpose, inasmuch as this purpose could not be known to him except from the correspondence or by hearsay.</p> <p>5. In an action against the wife upon a joint promissory note made by her and her husband, evidence is relevant which shows that a part of the consideration went directly from the creditor to the husband on a draft or check drawn by him individually, and was used by him or by a firm of which he was a member. As to money obtained by a husband on the joint credit of himself and wife and applied to his own use, he is the real primary debtor, and the wife is in the position of a surety. Judgment reversed.</p>

<p>1. The plea being that all the work in controversy was worthless, and the evidence adduced in support of the plea being to that effect and none of it disclosing at what value the work should be estimated if not at the value established by the evidence for the plaintiff, there was no error in not instructing the jury on the subject of partial failure of consideration. Both the plea and the evidence of the defendant manifest that his contention was one of total failure and that alone</p> <p>2. There was no error in the charge complained of, and the evidence warranted the verdict. Judgment affirmed.</p>

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

<p>1. One who subscribes to the capital stock of a railway company chartered under the general law for incorporating such companies, must take notice, notwithstanding any representations made to the contrary, that the railroad company has no power to issue or deliver to its stockholders any stock in an existing or future construction company. It follows that oral representations made touching the construction company, its resources or the value of its stock, are not pertinent as a defence to an action by the railroad company against a subscriber to enforce payment of his subscription.</p> <p>2. In subscribing for the capital stock of a railroad company, it is not matter for settlement or stipulation that the company will retain for a given time the control and management of its railroad and the conduct of its business. This is for regulation by the charter and by the law applicable to like corporations.</p> <p>3. Acts done in violation of the charter, such as issuing preferred stock or changing a terminus of the railway line or the principal office of the company, will not defeat the collection of subscriptions to the capital stock.</p> <p>4. That the real ownership of the note sued upon is not in the railroad company but in a construction company, is no answer to an action brought and prosecuted by the former company; nor is it any defence that the railroad company, together with another company, has bought a railroad in Alabama, created an indebtedness therefor and issued bonds on the same; nor is it any defence that there has been an over-issue of stock as an aggregate of stock in two companies, the railroad company and the construction company, there being no allegation that this over-issue applies to the stock of the railroad company separately.</p> <p>5. The vice-president of a railroad company has no power to make a contract and a deal with other companies by which all the franchises, road-bed, track and other property of the former will pass into the hands of the latter; nor can such contract operate to disable the former to issue stock to subscribers to its capital stock. In an action to compel payment of a subscription to capital stock, it is not competent to inquire whether the plaintiff, by a traffic arrangement or otherwise, has placed its entire business and management in the hands of other companies and has thereby defeated competition, in violation of its charter.</p> <p>6. That plaintiff (the railroad company), “ without the consent of defendant, instructed its canvassers for subscription to its capital stock to take the names and notes of insolvent and worthless parties, which they did to the injury and in fraud of defendant,” is too general and vague to present any matter of fact upon which to take issue, and should be disregarded. Judgment affirmed.</p>

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

<p>Levy and claim. Before Judge Bower. Calhoun superior court. June term, 1893.</p>

<p>1. Where a motion to rule out evidence is too broad, comprehending both admissible and inadmissibie evidence given by the witness named, and not distinguishing the one from the other, the motion should be denied.</p> <p>2. The court may decline to rule out inadmissible evidence after it has been received without objection in response to a question propounded by the party making the motion.</p> <p>3. One who, on the parol request of another, purchased in themarket and paid for checks issued and signed by a third person, may recover on account what the checks cost him, as money laid out and expended for the other’s use, but the checks thus acquired should be delivered or tendered in due time to the party for whom they were purchased, and if this was omitted, they should be produced and surrendered at the trial, or it should at least appear that they are held subject to the owner’s order.</p> <p>4. Where one, in authorizing a merchant to furnish goods to a third person and charge the same to the account of the person giving the authority, stipulates with the merchant that the latter is to notify him when the account in each month reaches a certain sum, such notice must be given conformably to the stipulation, or there will be no liability on the account for more than that sum in any one month.</p> <p>5. In order to prove a book account without introducing the books or accounting for their non-production, it is requisite that the evidence shall establish the correctness of the account irrespective of knowledge acquired by witnesses from the books, inasmuch as the books themselves, when properly authenticated as correct, are the primary evidence, and information derived from them is only .secondary. Judgment reversed,.</p>

<p>1. A deed which conveys 184 acres on the north side of a lot of land, described by its number, district and county, the lot being by statute a square, is sufficiently certain to embrace such a parallelogram as would result from drawing a line across the lot, parallel with its northern boundary, so as to cut off 134 acres.</p> <p>2. A. lease which specifies that it is to embrace as many as fifty lots- • of land within certain described boundaries, may be applied by parol evidence to particular lots within those boundaries, notwithstanding the boundaries may comprehend more than fifty lots, the assignee of the lessee having entered under the lease upon the-premises now in controversy, and the lessor, so far as appears, not-contesting his right so to enter-.</p> <p>3. Deeds and other writings applicable to the matter in issue and broad enough in their terms to comprehend the premises in dispute, though not describing them specifically, were admissible in evidence in connection with the parol testimony offered therewith.</p> <p>4. Had the defendant proved that the plaintiff’s predecessor in title had, before the plaintiff purchased, sold and conveyed the timber upon the premises, the plaintiff’s knowledge of the fact at that-time would have been relevant testimony, but for lack of this preliminary evidence it was irrelevant when offered.</p>

<p>1. As the request to charge the jury concluded with the proposition that if the plea of failure of consideration was sustained, the finding should be for the defendant, it was properly refused, because the action was upon a negotiable promissory note and the plaintiff claimed to be a bona fide purchaser before maturity for a valuable consideration and without notice of any infirmity in the consideration of the note, and this was one of the contested questions in the case.</p> <p>2. Although there were some slight errors in admitting evidence, they were too inconsiderable to warrant the granting of a new trial. Judgment affirmed.</p>

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

<p>The evidence of the plaintiff in his own behalf being in conflict with, that of the sole witness for the defendant as to a physical fact somewhat material, to wit, whether there was a curve, or whether the line was straight at the scene of the injury, there was no abuse of discretion in overruling the motion for a new trial, the jury having found consistently with the plaintiff’s evidence, and that, together with the legal presumption in his favor, arising under section 3033 of the code, being sufficient to warrant the verdict.</p>

<p>Equitable petition. Before Judge Smith. Twiggs superior court. April term, 1893.</p>

<p>1. Where a tenant is proceeded against as holding over, and he files a counter-affidavit denying the tenancy, he may be charged with double rent for the time he held over, up to the date of the trial, although nothing is said of rent in the plaintiff’s affidavit to obtain the warrant. The statute annexes this incident to a wrongful holding over.</p> <p>■2. Although when double rent is allowed no interest can be computed, yet a charge to the contrary will not justify a new trial where it is manifest from the evidence and the verdict that no interest was allowed by the jury.</p> <p>S. The jury having allowed the full value of the improvements actually made, any error in the charge of the court on that subject was immaterial. There was no error in denying a new trial.</p>

<p>'Where a judgment is against a partnership, and against the individual members, naming each of them and describing them as members of the firm, an execution founded thereon -which directs the seizure of the property of the firm and of each person named in the judgment as members thereof, is not materially variant from the judgment, although it omits to add the statement that they are members of the firm. Ti-eadwell, Abbott & Co. v. Beauchamp, 82 Ga. 736. In Clayton & Webb v. May, 68 Ga. 27, the judgment was against the firm only, and for that reason that case is distinguishable from the present ease. Judgment reversed.</p>

<p>Ejectment. Before Judge Sweat. Irwin superior court. April term, 1893.</p>

<p>The evidence showing that the danger of the work in which the plaintiff was voluntarily engaged must have been as obvious to himself as to his employer; that there was no emergency requiring him to expose himself to the danger; and that, if free from fault himself, the negligence, if any, which resulted in his injury was that of a fellow-servant, he was not entitled to recover, and the court was right in granting a nonsuit. Judgment affirmed.</p>

<p>Under the facts disclosed by the record, there was no error in granting a nonsuit. Judgment affirmed.</p>

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

<p>1. A deed which bounds on one side the property conveyed “ by the Savannah, Albany & Gulf railroad, or Atlantic & Gulf railroad as otherwise known,” the deed being made after that road was constructed, is to be construed primafacie as not embracing any premises which belonged, at the date of the deed, to the railroad corporation, whether its title comprehended the whole fee or only the right of way. But no presumption arises from the bare fact that the corporation was authorized by its charter to acquire along its ■whole line a right of way extending seventy-five feet on either-side from the center line of its track, that it actually acquired that much or any more than it occupied with its track and what was necessary for the construction, maintenance and use thereof, or so much as was actually used by the exercise of exclusive dominion over it.</p> <p>2. Under the evidence in the record, it was a question for the jury whether the deed on which the plaintiffs relied covered the premises in dispute or not, taking into consideration the acts of ownership exercised by the parties respectively, and all the circumstances attending the same.</p> <p>3. While the personal representatives of a plaintiff in ejectment who dies pending a suit, and not his heirs, are the proper persons to-succeed him in that suit, yet after the heirs have been made parties by order of the court, so long as this order is not reversed or vacated the heirs may recover if the personal representatives-could, had they been made parties. Judgment reversed.</p>

<p>As sheriffs’ sales for taxes, and deeds founded thereon, are, under the code, governed by the same rules that apply to ordinary sheriffs’ sales, a deed made by a sheriff reciting a tax fi. fa. and the sale thereunder, is admissible in evidence with the fi. fa. to which it refers, although the deed be blank as to the day and month of the levy, and also of the sale, except that the sale was on a first Tuesday, and although the deed itself be undated except as to the year. If necessary, parol evidence is admissible to supply the omitted dates and to prove the amount for which the property sold and the actual payment 'thereof by the purchaser to the sheriff. Judgment reversed.</p>

<p>1. The laws of Georgia furnish to suitors no remedy or process which operates purely as a proceeding in rem; consequently, that principle in the law of salvage which allows bounties and rewards for perilous service in addition to the actual value of the service, cannot be recognized and applied by the courts of the State, but should be treated as matter belonging exclusively to the admiralty jurisdiction of the United States. But the peril of the service both to life and property, and .the value of the property saved, may be taken into consideration in arriving at the value of the service, where there was no express agreement touching the amount of compensation.</p> <p>2. The plaintiffs suing now for services rendered in saving a vessel, and seeking to recover upon principles of the law of salvage and for the value of the services without reference to any express con-contract, the record of a previous action brought by the plaintiffs • jointly with another plaintiff, whether a corporation or not, is receivable for the admissions contained therein tending to show, in connection with parol testimony, that the services then sued for were the same, so far as the present plaintiffs are concerned, as those now sued for, and were in fact rendered upon an express written contract, which was joint as to all the plaintiffs in the former action, and which fixed a lump sum to be paid to and received by them jointly. Though theadmissions might not operate as an estoppel, yet they would be relevant evidence bearing both upon the right to recover and the measure of the recovery.</p> <p>■3. Where three render services without request, and another takes the benefit of th e general result, thereby rendering himself liable on an implied undertaking to pay for the services, the three are not bound to sue jointly merely because they co-operated in rendering the services and had an understanding amongst themselves as to a division of the compensation. Each one is entitled to stand upon his right as against the defendant to recover for himself the value of his own services, unless some other reason for implying a joint rather than a several contract appears. Even where the right is several, it may be necessary, or at least proper, to consider the value of all the services in arriving at the value of those rendered by the plaintiff in the action. Judgment reversed.</p>

<p>Action for damages. Before Judge Sweat. ■ Glynn superior court. May term, 1893.</p>

<p>A creditor cannot without the assent of his debtor, but with such assent he may, cut up into several parcels an open account resting on one and the same entire contract, so as to maintain thereon several ' actions in a justice’s court. The debtor’s assent should be presumed where the actions were simultaneously brought in the same court and duly served, and no express objection to the severance appears to have been made by plea or otherwise until after appeal to the superior court and after judgment on appeal was rendered in one of the actions. It was then too late to raise the question by pleading this judgment asa former recovery on the non tract, in abatement of one of the actions still pending on appeal, the defendant admitting on the trial of the plea that the part of the account thus resisted is just and unpaid, and it being manifest that none of the items therein were embraced in or covered by the suit in which the judgment was rendered. The facts showed that while the judgment may have been based on the same original contract involved in all the cases, it really decided nothing as to any items of the account except those embraced in the one suit, and this was virtually admitted in open court. Effect should not be given to general rules of technical law, where to do so would defeat the admitted justice of the particular case, these rules being intended to secure justice or guard doubtful cases, and not to work palpable and manifest injustice in any instance. Ho question of jurisdiction was raised, the jurisdiction of the justice’s court being conceded by pleading the judgment of the appellate court as a binding adjudication. If the jurisdiction was sufficient as to one of the cases it was sufficient as to the others, each case not involving more than one hundred dollars principal.</p>

<p>Petition for injunction. Before Judge Sweat. Appling county. February 6, 1894.</p>

<p>Petition for certiorari. Before Judge Richard EL Clark. DeKalb county. July 19, 1893.</p>

<p>A contract under seal to convey land to another upon the payment by him of a stipulated price, provided sueh payment be made within six months of the date of the contract, is obligatory if supported by a consideration of five dollars actually paid by the obligee to the obligor. After the former' has made his election to pay the stipulated price and has actually tendered the same within the time specified in the contract and demanded a conveyance, there is no want of mutuality, but both parties are bound absolutely, and specific performance may be enforced at the instance of the obligee suing in behalf of a third person to whom he has sold all his interest in the premises or in the contract sought tobe enforced, such assignee being a co-party plaintiff as usee.</p>

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

<p>1. In chartering a town or amending its charter, the legislature may give such extent and boundaries to the incorporated territory as it may choose, and all the inhabitants and their property within the corporate limits so fixed are alike subject to taxation to raise municipal revenue for all legitimate purposes, without respect to the time when some of the liabilities arose to which the revenue is to be applied. Thus, binding debts of the corporation contracted before the limits were extended, unless otherwise provided in the new or amended charter, are chargeable upon the territory added, as well as upon that comprehended by the boundaries before they were altered and extended.</p> <p>2. Inasmuch as the petition, fairly construed, rests the alleged non-liability of the petitioners to taxation upon the theory that they were not legally and constitutionally made citizens of the town of Douglasville, and that theory being incorrect, the court did not err in dismissing the petition; but inasmuch as other questions are loosely indicated by the petition, which, if properly raised, might lead to an adjudication that some of the taxes assessed and sought to be collected are not such as could be enforced against any of the citizens of Douglasville without some preliminary election by the qualified voters and the adoption of some system of public schools by the corporation, direction is given that the judgment dismissing the petition be so modified as to provide that the dismissal is without prejudice to the rights of the petitioners to bring another action setting up the want of power in the municipal government to impose and collect any taxes whatever on account of education, educational facilities, or the cost of the same, past, present or future ; this court, however, not intimating any opinion as to whether such power exists or not. Judgment affirmed, with direction.</p>

<p>Action for damages. Before Judge Ross. City court of Macon. September term, 1892.</p>

<p>Complaint on bond. Before Judge Cobb. City court •of Clarke county. June term, 1898.</p>

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

<p>1. Where one is induced to make a loan of money by the fraud of the borrowers and their confederate, and as a consequence of the fraud the security for the loan, taken at the time of the lending, is essentially inadequate and insufficient, the lender, on discovering the fraud, may, without surrendering the security or offering to surrender it, follow the money lent, or its proceeds if they can be identified, in the hands of the borrowers, their confederate or any one for whom, the confederate acted as agent while aiding in the commission of the fraud. In such case, the court having jurisdiction of the matter, with power to administer equitable remedies and relief, would control both the security and the proceeds of the loan so as to administer appropriate redress to the creditor and at the same time protect the legitimate interests and rights of the wrong-doers.</p> <p>2. Where a person acting as agent for his wife commits a fraud in her behalf and she takes the fruits thereof, although in ignorance of the fraud, she cannot retain them as against the person defrauded, if the agent himself could not have retained them had they been his own and his fraud had been committed for his own benefit. Notice to the agent is notice to the principal.</p> <p>3. Where the written title to land is in the husband, although he may have paid for it with his wife’s money so that he holds it in trust for her, yet if no trust appear on the face of the title, purchasers for value from him or from his vendee are protected against her equity unless they had notice of it, actual or constructive, when they acquired their interest and parted with their money. There was not enough evidence (even including all that was offered and ruled out) tending to show notice, to make notice a substantial issue in this case.</p> <p>4. Agents to inspect land offered or about to be offered as security for a loan, the inspection being for the sole purpose of ascertaining its character and value, are not agents of the lender to receive notice of an adverse title or an outstanding equity.</p> <p>5. An agent to examine, form an opinion and report to his principal, with no duty to express his opinion to others, cannot, by his declarations, affect the rights of his principal or of those in whose behalf the principal was acting.</p> <p>6. The fraud attributed to certain of the defendants, in the plaintiff’s petition, being: that for the purpose of procuring a loan they represented to the plaintiff that they had bought the land in question from another of the defendants for the sum of fifteen thousand dollars; that they made oath before a notary public that the terms of their purchase were eight thousand dollars cash and seven thousand dollars payable when they obtained the contemplated loan; that the representations and oath were false; that the defendants who bought and the one tvho sold conspired together to defraud the plaintiff by falsely representing that the purchase was for fifteen thousand dollars, so as to procure a loan on the security of the land for $8,062.50 ; that to effectuate their object they collusively resorted to the artifice of a pretended sale and conveyance by one of the defendants to some of the others for the nominal sum of fifteen thousand dollars expressed in the deed, pretending that eight thousand dollars of it had been paid in cash, when none of it was so paid but only a very insignificant part was paid at all and this payment in land ; the petition not alleging that the plaintiff did not examine or inspect the land or have it examined or in■spected, nor that the plaintiff in making the loan and taking the .security relied upon or was influenced by the representation, nor that the oath taken before the notary was ever seen or read by the plaintiff (a corporation) or by any of its officers or agents, and the evidence produced at the trial showing that there was an actual inspection made of the land by persons whose report as to its value the plaintiff had strong reasons to trust and in the nature of things probably did trust on the faith and credit of a certain corporation who employed these inspectors, and there being no evidence that the plaintiff reposed any trust or confidence whatever in the representations made by the defendant as to the value of the land or •as to the cost of it, or the payment of the purchase money, and the value of the security not being affected either with respect to title or any other matter by the question of payment or non-payment of the purchase money, — it was error to charge the jury in effect that if certain of the defendants conspired to borrow the money upon representation that the land was worth the amount represented, when in fact it was worth “a great deal less,” and the representation was false, and the money was procured by fraud, the finding on the issue of fraud should be for the plaintiff. This instruction was defective in two respects: it left out the question whether the representation was trusted and acted upon by the plaintiff, and also the question whether the deficiency in value was so great as to render the land inadequate security for the loan.</p> <p>7. It is no cause for dismissing a motion for a new trial, that the brief of evidence, filed in due time under the approval of the court, consisted of a stenographic report of the trial, no motion being made to vacate the judgment and entry of approval. And it is competent at the hearing of a motion for a new trial to allow the document previously approved asa brief of the evidence to be amended even by substituting therefor a more condensed statement of its contents, together with additional matter improperly omitted from the document when it was approved as a complete brief.</p> <p> Judgment on main bill of exceptions reversed. </p> <p> On cross-bill of exceptions affirmed. </p>

<p>1. Where land is rented for one year without any conveyance of an interest in the land itself, the right to possession and use for the year is disposed of, but under section 2279 of the code no estate whatever passes out of the landlord into the tenant. On the death of the landlord intestate, within the year, the land descends to his heirs encumbered with the right of possession previously disposed of by their ancestor to his tenant. They acquire no right to the possession and consequently have no title, merely as heirs, to the rent accruing for that year, whether the crops were planted before or after their ancestor’s death. The rent is personalty, and the rightjto collect and distribute is in the personal representative of the decedent.</p> <p>2. As to lands left by the intestate with the right of possession and use undisposed of, the heirs take not only the land itself, but the right to immediate possession, subject to the quarantine and dower rights of the widow, if any, and to the power of the administrator to administer according to law. If there are no creditors, and the administrator rents out the land, the accruing rents, when not needed to pay the expenses of administration, belong to the heirs as such, although the legal right to collect is in the administrator. He is a mere trustee for them.</p> <p>3. A conveyance by an heir to a purchaser of all his interest in the land of the intestate, which is silent both as to rents and the time of giving possession, passes no title to rents to become due from tenants who at the date of the conveyance are occupying for the year in which the intestate died, if such tenants occupy under contracts with the intestate himself; but if they occupy under contracts made with the administrator, it is otherwise — unless creditors or the expenses of administration are unsatisfied. When the heir, as such, would be entitled to money collected by the administrator on account of rent had he retained title to the land, his unconditional vendee will succeed to this right as to rents accrued and collected after the change of ownership.</p>

<p>Equitable petition. Before Judge Butt. Marion county. June 30, 1893.</p>

<p>Equitable petition. Before Judge Smith. Dodge superior court. March term, 1893.</p>

<p>Accusation of adultery and fornication. Before Judge Westmoreland. Criminal court of Atlanta. January term, 1894.</p>

<p>Indictment for attempting to wreck a railroad train. Before Judge Richard H. Clark. DeKalb superior court. August term, 1893.</p>

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

<p>Indictment for misdemeanor. Before Judge Richard H. Clark. Clayton superior court. March term, 1894.</p>

<p>Indictment for using opprobrious words. Before Judge Turneull. Oity court of Floyd county. December term, 1893.</p>

<p>Indictment for murder. Before Judge Fish. Sumter superior court. November term, 1893.</p>

<p>Indictment for cheating and swindling. Before Judge Smith. Irwin superior court. April term, 1894.</p>

<p>Accusation of cheating and swindling. Before Judgé "Westmoreland. Criminal court of Atlanta. December term, 1893.</p>

<p>A defendant in an action of trover requiring bail, cannot be discharged from legal imprisonment on the ground of his inability to produce the property sued for or to give bond and security according to law, without pursuing the remedy pointed out in £3420(a) of the code. He cannot obtain his discharge for this cause on petition for the writ of habeas corpus ; and at the hearing, on the return of such writ, evidence to show the existence of such cause is inadmissible, notwithstanding the facts relied upon may be alleged in the petition for the writ, and notwithstanding the plaintiff in the action of trover may have voluntarily appeared on the hearing of the writ and had himself made a party to the proceeding. The hearing could be conducted only in conformity to the law applicable to proceedings by habeas corpus, whether the judge who issued and heard the writ was the judge of the court in which the action of trover was pending, or some other judicial officer empowered to issue and entertain jurisdiction over writs of habeas corpus.</p>

<p>Petition for mandamus. Before Judge Smith. Dodge county. April 30, 1894.</p>

<p>Action for damages. Before Judge Van Epps. City court of Atlanta. January term, 1894.</p>

<p>A citizen of the Kingdom of Belgium, duly accredited hy the government of that kingdom to the government of the United States as a consul of the former, is subject to the jurisdiction of the courts of the State of Georgia, in which State he resides, in a civil action to recover an alleged debt due upon an account for articles purchased by him to furnish his opera-house. No treaty between the two governments has exempted the consuls of either from suits of this nature in the country of their residence, nor are they exempt by the principles of international law. And neither the constitution nor the statutes of the United States confer exclusive jurisdiction in such cases upon the Federal courts, where a foreign consul is to be sued in this country, and since the repeal of the eighth clause of the 711th section of the Revised Statutes of the United States, concurrent jurisdiction is not denied to the State courts. Judgment affirmed.</p>

<p>1. Where one residing in Atlanta, Georgia, who was already a member of a beneficial society having its headquarters and principal office in Baltimore, Maryland, and who was the holder of a certificate of membership which embodied and embraced a policy of insurance by the society upon his life, made at different times two written applications for membership in the same society, and in each of them made several material representations, amongst them that he was not a member of that society, and thus obtained on each application a separate certificate of membership and policy of insurance upon his life, which declared upon its face that if the representations upon which the certificate was granted were not true the certificate should be void, both these certificates should, after the death of the member, be treated as void and of no effect, unless the company had notice, at some time before receiving the last dues upon some one of the three certificates, that the same identical person was a member when he applied for and procured one or both of the additional certificates and the cumulative insurance which they provided for.</p> <p>2. Notice to the society’s local agents at Atlanta who received the applications and collected the dues on all three of the certificates of membership, but who, so far as appears, had no power to represent the company in making contracts or waiving conditions expressed therein, the applications having separately and at different times been forwarded to Baltimore for acceptance and the certificates of membership having there, separately and at different times, been issued by the society’s general officers, would not be notice to the society of the falsehood of the representation as to non-membership contained in the applications, unless it appeared that no such representation was actually made to the agent who received and filled out the applications, but that he inserted the false statement without authority from the applicant and without his knowledge.</p> <p>3. Where two writings are in evidence, their construction being for the court, it is no invasion of the province of the jury for the presiding judge to announce that the writings are or are not necessarily inconsistent in substance and meaning as to a particular element, such as the representations they respectively make touching a person’s age. Judgment reversed,.</p>

<p>1. The title of the act of September 19th, 1891 (Acts of 1890-1, p. 74), amending 23831 of the code, is sufficient, and the body contains no matter different from what is expressed in the title. The law to be amended, being set out in the body of the act, though with a few words omitted therefrom, is adequately described, and the new matter which the amendment introduces is clearly and correctly set forth. None of the objections urged to the constitutionality of the act are sustainable</p> <p>2. As between attachments and an ordinary suit, the latter being commenced on the same day during which the attachments were levied, there is no fraction of a day. The date of levy and the date of commencing ordinary suit being one and the same, the two events are to be regarded as contemporaneous.</p> <p>'3. Where an ordinary suit is commenced, not after but concurrently with the levy of an attachment, that is on the same day, and judgment in the former is rendered before judgment in the latter, the older judgment has priority, and this priority is unaffected by the amending act above referred to, because consistent with its provisions.</p> <p>4. For an attachment creditor to take the benefit of the said amending act, as against a judgment older than the one founded on the attachment, he must make it appear that the suit in which the elder judgment was rendered was commenced after the attachment was levied. The general rule being that the relative dates of judgments control the order’and rank of their liens, the party who asserts that an exception applies in a particular instance must prove it.</p> <p> Judgment on the main bill of exceptions reversed in part; judgment on the cross-bill affirmed. </p>

<p>Action for damages. Before Judge Westmoreland. City court of Atlanta. November term, 1898.</p>

<p>It is manifest that by the exercise of ordinary care on the part of the servant of the plaintiffs, the consequences of the alleged negligence of the defendant could have been avoided. This plainly appears from the evidence relied upon for a recovery. There was no error in granting a nonsuit. Judgment affirmed.</p>

<p>1. To obtain fraudulently a contribution of clothing suitable for use in preparing the corpse of an indigent person for burial, on the pretext and false representation that a certain person known to the contributor and in whose interest the latter would be likely to feel a benevolent interest, is dead and unburied, when in fact he is alive, would not necessarily be simple larceny even if the wrongdoer solicit and obtain the contribution with intent to retain the clothing for himself and convert it to his own use, and should ‘ subsequently carry the intention into effect. Were the contribution made as an immediate gift of the clothing to the impostor, the latter would, on receiving possession, acquire the title, which would vest in him subject to be divested at the election of the donor upon discovering the fraud. A trust ex maleficio would arise by operation of law for the benefit of the contributor. As the impostor would have a title derived from the contributor, though procured by fraud, he could not steal the goods so long as the title remained in him. Were the contribution made, on the contrary, as a bailment of the clothing to be applied to the specific charity as the property at that time of the contributor, the title would remain in the contributor, and the execution by the impostor of his preexisting purpose to appropriate the goods fraudulently to his own use would constitute simple larceny.</p> <p>2. It results from the foregoing that in a given instance of a fraudulent attempt to obtain such a contribution by such means, it cannot be known whether the attempt in question was to commit-simple larceny or only to cheat and swindle, unless it can be ascertained from the evidence to which class the solicited contribution, had it been made, would have belonged, that is, whether it would have been a gift to the impostor consummated i-n order that he might gratify his supposed benevolent inclinations, or a bailment for application by him, as agent of the contributor, to the charitable object. In this respect the facts of the present case are too meager and too indeterminate in their bearing to warrant a conviction for the alleged attempt to commit simple larceny. Whether the clothing would have been given to the accused or merely bailed to him had his representations been credited and had delivery been made accordingly, is not ascertainable. Most probably his design was to obtain the articles as a.donation, and not as a mere bailment. Th e person of whom the contribution was solicited had no intention that the would-be impostor should become either donee or bailee, but took care not to trust his representation as a basis for delivering possession, whether with title or without it. Judgment reversed.</p>

<p>On the element of law this case is controlled by the prior decision made in the same case and reported in 87 Ga. 870. Upon all the essential elements of fact the evidence was sufficient to warrant the jury in finding that the plea of the defendant involved iu the last trial was true; and the court committed no error in excluding evidence^ in charging the jury, or in overruling the motion for a new trial. Judgment affirmed,.</p>

<p>1. The title of the act of March 5th, 1875 (Acts 1875, p. 165), touching the city of Forsyth, is sufficiently comprehensive to embrace all the provisions of the act in relation to the imposition and collection of taxes; and the act relates to one subject-matter only, to wit, the municipal government of the city.</p> <p>2. The amendatory act of 1879 (Acts 1878-9, p. 269) is not unconstitutional for any reason specified in the assignments of error.</p> <p>3. The imposition of an ad valorem tax upon property, either under the constitution of 1868 or that of 1877, would not hinder the imposition of a specific tax on business as such, though the property taxed be used in the conduct of such business.</p> <p>4. An act authorizing the municipal authorities of a city “ to make such assessments and levy such taxes on the inhabitants of said city who transact or offer to transact business therein, and on such persons as live without the limits of said city, but who transact or attempt to transact business within the limits of the same, as said mayor and aldermen may deem expedient for the safety, benefit, convenience and advantage of said city,” is sufficiently comprehensive to authorize the imposition of a special tax on all business occupations carried on in the city; and one class of such occupations may be taxed without taxing other classes.</p> <p>5. The local act of 1875 authorizes the issuing of executions for unpaid taxes, whether ad valorem or specific, due the city of Forsyth, and the collection of the same by levy and sale; and the amending act of 1879 expressly provides that the taxes on occupations thereby authorized may be collected in the manner and by the means pointed out in the act of 1875. Where the same person in that city carries on two separate and distinct occupations liable to taxation in different amounts, an execution may issue for a gross sum including the amounts of all special taxes for which such person is liable and in default.</p> <p>6. It cannot be ruled as a matter of law that carrying on both a livery stable business and a sale stable business is not two occupations but one only.</p> <p>7. The execution not being attacked in the pleadings for failure to specify on its face the particular occupations on which the tax was imposed, this question is not one for adjudication.</p>

<p>Attachment and claim. Before Judge Lumpkin. Fulton superior court. September term, 1893. '</p>

<p>Certiorari. Before Judge Richard II. Clark. Rock-dale superior court. October term, 1893.</p>

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

<p>An officer who levies an execution founded on a general judgment upon personal property in the custody of the defendant therein, with notice that her children are the owners and that the apparent possession of the mother is really their possession, is liable to the children in an action for damages; and the plaintiff in execution is also liable for causing the levy to be made, with like notice on his part. Jones v. Lamon, 92 Oa. 529, 18 8. E. Bep. 423.</p>

<p>1. Where a husband and wife filed a joint claim to land which had been levied upon, and the court thereafter allowed each to file an amendment alleging ownership of an undivided half of the land, and passed an order reciting that these amendments were allowed “so as to stand as separate claims, each for one undivided half-interest in the property,” and no exceptions pendente lite were filed and allowed, it was too late twelve months afterwards to move to dismiss the original claim affidavit or the amendments to the same, it not appearing that the motion to dismiss was based upon any alleged inapplicability or insufficiency of the claim bond relatively to the claim as amended.</p> <p>2. In view of the above recited order, there was no error in ordering, over objection of plaintiff’s counsel, a trial of the claim of the husband separately from that of the wife.</p> <p>3. There was no error in rejecting evidence of declarations alleged to have been made by the grantor, before conveying to the claimant and his wife the land in dispute, to the effect that the grantor had given one half or all the land to his daughter, the claimant’s wife, it being strongly inferential from the evidence as a whole that at the times these alleged declarations were made the claimant and his wife were in possession of the property, and that the grantor was not; and there being no clear and positive evidence that the latter was in possession at any of the times when the alleged declarations were made, and the conveyance reciting a valuable consideration, and not purporting to be founded in whole or in part upon any other.</p> <p>4. A deceased witness, whose testimony was taken on a former trial and is reproduced through another witness who heard it, and is thus before the jury on a present trial of the same case, cannot be impeached by contradictory statements made by the deceased witness before he testified, no foundation for such impeachment having been laid by interrogating him as to such statements.</p> <p>■5. Where one honestly and in good faith purchased property from another who was at the time in failing circumstances, the mere fact that the consideration paid for the property was inadequate, would not authorize a creditor of the vendor, who afterwards obtained judgment against the latter, to subject the property to the satisfaction of his judgment by tendering, after a levy upon the ‘ whole, and pending the trial of an. ordinary claim case, the price the claimant had paid for the property.</p> <p><6. Where a conveyance is attacked by a creditor of the grantor as fraudulent, and the claimant, his son-in-law, stands upon a conveyance purporting to be made to him as a purchaser for value, evidence tending to show that the grantor was liable, at the date of the conveyance, as surety upon a tax-collector’s bond, and that an execution for a large amount was, after the conveyance, issued thereon by the comptroller-general against him together with his principal and cosurety, is material; and the execution is admissible as prima facie evidence of the liability.</p> <p>7. After the loss of account books in which the claimant kept accounts against his vendor of the 'land in controversy, evidence that the accounts were still open on the books until the present controversy had arisen was relevant evidence upon the question whether the land was paid for in whole or in part by extinguishing the accounts; and the fact whether the accounts remained open or were closed, or credited, not appearing from an abstract of the books preserved and put in evidence, it was error to exclude the offered testimony of the actual condition of the accounts on the books in this respect.</p> <p>5. The requests to charge, so far as legal and pertinent, were covered by the general charge of the court; the charge excepted to was substantially correct; and there was no impropriety in the conduct of court or counsel, of which complaint is made in the motion for a new trial. Judgment reversed.</p>

<p>Equitable petition. Before Judge Richard H. Clark. DeKalb superior court. August term, 1893.</p>

<p>Equitable petitiou. Before Judge Gamble. Bulloch superior court. October term, 1893.</p>

<p>Action on insurance policy. Before Judge Eve. City court of Bichmond county. November term, 1893.</p>

<p>There being evidence to warrant the jury in finding that the defendant’s motorman, after seeing that there might be a collision with the wagon in which the plaintiff and his driver were riding, negligently approached the crossing without having his car under complete control; and also in finding that there was some negligence on the part of the plaintiff or his driver in going upon the crossing, but that after getting upon the same they could not then, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence; and the recovery being manifestly for a less amount than that to which the plaintiff would have been entitled had there been no fault with which he was chargeable, the verdict, after its approval by the trial judge, will not be disturbed. Judgment affirmed.</p>

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

<p>One wbo, at the instance of a vendee of land who was in possession under a bond for' titles with none of the purchase-money paid, bid off the land at a sheriff’s sale, under a parol agreement with the vendee, the defendant in execution, that he would buy in the land, advance the money, and take the sheriff’s conveyance to himself for the benefit of such vendee, and who, while the bidding was in progress, discouraged bidding by another by stating that he was bidding in behalf of the vendee, holds as trustee for the latter such title as he derived from the sheriff, and on being paid or tendered in due time the amount of his bid and all other money advanced by him in consequence of his purchase, with interest thereon, may be compelled by decree to convey the premises to said vendee by release or quitclaim deed.</p>

<p>Complaint in trover. Before Judge Eve. City court of Richmond county. November term, 1893.</p>

<p>Certiorari. Before Judge Roney. McDuffie superior court. September term, 1893.</p>

<p>1. Though the amount of the verdict is large, it is not so large as to justify the imputation of bias or prejudice; and the presiding judge having approved the finding, this court, while not fully concurring, has no legal power to interfere.</p> <p>2. Though the evidence was directly conflicting, it was the function of the jury to settle the conflict. Judgment affirmed.</p>

<p>Equitable petition. Before Judge Smith. Bibb su■perior court. November term, 1893.</p>

<p>Interpleader. Before Judge Bartlett. Bibb superior court. November term, 1893.</p>

<p>Affidavit of illegality. Before Judge Hunt. Hancock superior court. August term, 1898.</p>

<p>1. One .who gives to a constable by whom personal property has been duly seized under an execution against a third person, a bond for the-production of such property at the time and place of sale, and in consequence of so doing is intrusted by the constable with the possession of the property, cannot, when sued upon the bond for a breach of its condition, set up title in himself to the property and thereby defeat the action. He and his sureties are estopped ■ from contesting the constable’s title.</p> <p>•2. A recital in the bond that the principal obligor claimed the property would indicate that he intended to interpose a statutory claim with a view to making an issue with the plaintiff in execution as to the title, but no such claim having been in fact interposed, the bond is to be treated as a voluntary bond executed and delivered by a bailee to bis bailor. Judgment affirmed.</p>

<p>Persons contracting with a public officer, such as an ordinary, must take notice of the limitations imposed by law upon his power to contract. Hence where, upon its face, a written contract for the hire of misdemeanor convicts, made between the ordinary and the hirers, is legal, parol evidence is inadmissible, in an action to enforce the contract, to show that by private understanding with the ordinary the hirers were to be allowed to work the convicts in some illegal manner or in some avocation in which they could not, under the law, be worked or employed. That the hirers, with or without the consent of the ordinary, violated the law in the working or treatment of the convicts, would furnish no reason for not paying the hire at the rate stipulated in the contract.</p>

<p>Certiorari. Before Judge Hutchins. Walton superior court. August term, .1893.</p>

<p>Action on notes. Before Judge McWhorter. Hart superior court. September term, 1893.</p>

<p>Ejectment. Before Judge Hutchins. Gwinnett superior court. September term, 1898.</p>

<p>Appeal. Before Judge Hutchins. Gwinnett superior court. September term, 1893.</p>

<p>Certiorari. Before Judge Hutchins. Gwinnett superior court. September term, 1893.</p>

<p>Complaint. Before Judge Hutchins. Gwinnett superior court. September term, 1893.</p>

<p>Affidavit to ejfect'intruder. Before Judge "Wellborn. Bab mi superior court. August term, 1893.</p>

<p>Equitable petition. Before Judge Wellborn. LumpTrin superior court. October term, 1898.</p>

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

<p>Certiorari. Before Judge Milner. Catoosa superior court. August term, 1898.</p>

<p>Attachment. Before Judge Henry. Walker superior court. August term, 1898.</p>

<p>The plaintiff showing by his own evidence, that although he had requested the driver of the street-car to stop at a designated place and had received a rude and profane answer, yet upon failure of the driver to stop plaintiff had jumped from the car while it was in motion, and without again requesting the driver to stop or noti- • fying him of his purpose then to alight; and it not appearing that the driver, when he struck the team, kn'ew that the plaintiff was attempting to alight, or that there was any such emergency as would justify the plaintiff in alighting from the moving car, the court committed no error in granting a nonsuit.</p>

<p>Equitable petition. Before Judge Milner. Gordon superior court. August term, 1893.</p>

<p>Action on bond. Before Judge Henry. Floyd superior court. September term, 1893.</p>

<p>1. An action against a railroad company by a material man to enforce a statutory lien upon the railroad for the price of material sold, not to the company but to a contractor, is not amendable so as to charge the company as a debtor to the plaintiff for the value of the material as goods sold and delivered, or as goods of the plaintiff used and appropriated by the company in constructing its railroad. Such an amendment would introduce a wholly new and distinct cause of action.</p> <p>2. In respect to the dismissal of the action afterthe proposed amendment was disallowed, the case is ruled by Lombard v. The Trustees, etc., 73 Ga. 322, and Castleberry v. Johnston, 92 Ga. 499,17 S. E. Rep. 772. Judgment affirmed.</p>

<p>After the defendant in a suit upon a promissory note, brought and tried in a justice’s court, has established in that court the defence of payment, failure to reduce the defence to writing before the jury is stricken in the superior court to try an appeal taken by the plaintiff, will not preclude the filing of a proper plea of payment then tendered, unless it affirmatively appears that some injustice will be done the plaintiff by allowing the plea to be filed. Where, on the contrary, it affirmatively appeared that the same defence sought to be set up by the plea was litigated in the justice’s court, it was error not to permit the plea to be filed. This ruling is made in full view of the acts of Sept. 26tb, 1883 (Acts 1882-3, p. 103), Oct. 15th, 1885 (Acts 1884-5, p. 97), and Oct. 16th, 1891 (Acts 1890 1, p. 111). Judgment reversed.</p>

<p>Levy and claim. Before Judge Harris. Heard superior court. September term, 1893.</p>

<p>Certiorari. Before Judge Harris. Carroll superior court. October term, 1898.</p>

<p>Action on bond. Before Judge Hunt. Spalding superior court. January term, 1893.</p>

<p>The suit being founded upon a sealed note or single bond and brought within twenty years after the maturity of the instrument, and there being no plea of non est factum, and no evidence that the words “ witness my hand and seal ” were not a part of the instrument when executed, it was error to charge that if these words were inserted after the execution and without the knowledge or approval of the maker, the presumption of law is that it was paid.</p>

<p>Where tenants in common agree by parol upon a partition, defining in the agreement the boundaries of the part assigned to each in severalty, and each enters into possession, thus executing the agreement, the partition clothes each with a perfect equity and is thus the equivalent of legal title; and on such title recovery may be had in ejectment, or in a statutory action for land, against one who subsequently enters without a better title.</p>

<p>1. Where a plaintiff suing as administrator in an action pending in the superior court, makes a joint motion with another to substitute the latter as party plaintiff in the case, on the ground that the former has been dismissed from his trust as administrator and the latter has been appointed and qualified as his successor, and this motion was denied, a writ of error brought by the former to reverse the judgment may be amended in the Supreme Court by . adding the latter as a co-party plaintiff in error.</p> <p>2. On review of the case of Jones et al, administrators, v. Lamar et al, 77 Ga. 149, holding that an administrator de bonis non appointed in another State cannot be made a party plaintiff in an action brought by his predecessor in the trust, it is affirmed, inasmuch as it is not absolutely clear that the ruling in that case was incorrect, and the legislature having acquiesced in the same from the year 1886 up to the present time.</p> <p>3. There is no provision by statuté for making a domestic administrator a party to a suit brought by an administrator appointed in another State. Judgment affirmed.</p>

<p>Certiorari. Before Judge Griggs. Early superior court. October term, 1893.</p>

<p>Certiorari. Before Judge Griggs. Early superior court. October term, 1893.</p>

<p>Equitable petition. Before Judge Fish. Dooly superior court. August 10, 1893.</p>

<p>Levy and claim. Before Judge Smith. Macon superior court. November term, 1898.</p>

<p>Money rule. Before Judge Fish. Sumter superior court. November term, 1893.</p>

<p>Complaint. Before Judge Wellborn. Habersham superior court. September term, 1893.</p>

<p>Complaint on note. Before Judge Smith. Wilcox superior court. September term, 1893.</p>

<p>Equitable petition. Before Judge Fish. Wilcox superior court. September term, 1893.</p>

<p>1. If a parol gift of land was made in 1849 by a father-in-law to his son-in-law, and the son-in-law entered, made valuable improvements, continued in possession more than seven years while the father-in-law was in life, claiming the land as his own and (so far as appears) not paying rent or otherwise acknowledging ownership in. the latter, then sold and conveyed to a purchaser for value, the legal representative of the father-in-law could not, in an action brought more than thirty years after the gift, recover the land from one in possession whose title was derived from the son-in-law by conveyances through successive vendees. Parol evidence to prove the gift and the admissions of the father-in-law that he had given, and to prove all the facts and circumstances tending to establish the donee’s equitable right to stand upon the gift and to retain and transmit possession under it, is admissible in resistance to the action. ,</p> <p>2. One who has actual possession of land under color of title does not, relatively to strangers, part with or lose such actual possession by contracting orally to sell the land to another and putting him in possession under such contract. While the strict relation of landlord and tenant does not result from such arrangement, the relation of principal and agent, or that of a quasi tenancy, in respect to the occupancy of the land, does result; by reason of which the actual occupant holds under and for him who has the color of title, so long as the agreed purchase money is unpaid. And the same rule prevails with respect to a second purchaser by parol, admitted into possession by the first, where such change is acquiesced in by such holder of the color of title. All who come in successively and are accepted or not objected to by him represent him in the possession, and his color of title will inure to their benefit as well as to his own, in case any one of them with the consent of the others should ultimately satisfy his claim for purchase money and take from him a conveyance of the premises-Thus where A, having entered under color of title, contracted by parol to sell to B, put him in possession, and B, failing to pay, restored possession, and then A contracted by parol to sell to C, and put him in possession, and C contracted by parol to sell to D, and put him in possession, after which and pending this possession A, with the consent of all parties, conveyed to D, there being no-evidence that any purchase money was paid previous to the execution of this conveyance, all the connected and continuous possession of the premises up to that time should be treated as the possession of A relatively to the statute of prescription. And this possession may be tacked by D, and by others coming in after-wards under color of title derived from him, to complete the statutory term of prescription in behalf of the present occupant. If A received his purchase money when he contracted to sell, or at any time afterwards previously to executing a conveyance to D, he would hold his color of title up to the latter time in trust for his vendee or such successor to him in the possession as would at any time be entitled equitably to a conveyance on account of such payment and the stipulations in the various parol contracts of the successive occupants.</p> <p>3. Theft, fa. with the levy thereon and entry of sale, offered in evidence, was admissible because a part of the color of title relied upon, and because the entry of levy was material as tending to explain a patent ambiguity in the sheriff’s deed affecting the identity and quantity of land sought to be conveyed by the deed.</p> <p>4. It was competent to aid the levy by parol evidence that the lot of land described by number and district, without mentioning the county, lay in Telfair county. Judgment reversed. .</p>

<p>Motion to set aside sale. Before Judge Sweat. Hlynn county. August 8, 1893.</p>

<p>‘Where the service in a statutory proceeding to foreclose a mortgage-on realty was regularly returned by the sheriff as made upon a special agent of the mortgagor, a creditor of the mortgagor whe had a general judgment junior to the mortgage could not dispute the legality of the service by showing, on a rule to distribute money, that the person served was not in fact a special agent of' the mortgagor at the date of the service, it not appearing that the mortgagor had repudiated the service, or taken any steps to traverse the sheriff’s return, or to have the judgment ' of foreclosure set aside. In rendering the judgment of foreclosure the superior-court necessarily adjudicated upon the fact of service and its sufficiency, the mode of service being one of those expressly enumerated by statute. Code, §3962. Judgment reversed.</p>

<p>Certiorari. Before Judge Henry. Walker superior court. August term, 1893.</p>

<p>Certiorari. Before Judge Janes. Haralson superior court. January term, 1893.</p>

<p>There being sufficient evidence to . sustain the verdict and no question of law being involved, there was no abuse of .discretion in refusing to grant a new trial. Judgment affirmed.</p>

<p>Certiorari. Before Judge Milner. Bartow superior court. January term, 1894.</p>

<p>The evidence warranted the verdict, and there was no error in deny, ing a new trial.</p>

<p>Complaint on note. Before Judge Eish. Sumter superior court. November term, 1893.</p>

<p>The verdict was warranted by the evidence, the jury having credited the witnesses for the plaintiff; and there was no error in denying a new trial. Judgment affirmed.</p>

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

<p>There was no abuse of discretion by the trial court in denying a con- ' tinuance. The evidence of general custom was admissible, and the verdict of the jury was not without evidence to support it. The superior court did not err in overruling the certiorari.</p>

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

<p>Appeal. Before Judge Hunt. Upson superior court. November term, 1893.</p>

<p>1. There was no error in refusing to allow an amendment to a motion for a new trial by adding a ground which was palpably without any merit whatever</p> <p>2. The evidence warranted the verdict, and there was no error in denying a new trial. Judgment affirmed,.</p>

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

<p>There was no error in allowing the amendment to the petition, nor in refusing to grant a new trial. Judgment affirmed.</p>

<p>Complaint on notes. Before Judge Pish. Schley superior court. October term, 1893.</p>

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

<p>There was no error in granting á second new trial in this case.</p>

<p>A written agreement of counsel entered upon a brief of evidence, the agreement being expressed in such terms as necessarily to imply a waiver of objection that the day fixed by order of the court for presenting the brief, having it approved and filing it, had already passed, together with subsequent co-operation with counsel for the movant and the presiding judge in having the brief corrected (the judge having approved it before correction with a reservation that it was subject to correction), will estop such counsel and his client from subsequently taking the position, for the first time, and insisting by a motion to dismiss the motion for a new trial, that the brief was presented, approved and filed too late because done after the time limited by the order had expired. Judgment reversed.</p>

<p>js apparent that the judge abused his discretion in refusing to approve the brief of evidence, but on the contrary as his memory, by reason of the lapse of time since the trial, had failed in respect to what the evidence really was, he was well justified in his refusal. And there being no brief of evidence, the motion for a new trial was properly dismissed on motion based upon that defect in the proceedings. Judgment affirmed.</p>

<p>Motion for a new trial. Before Judge Boney. Taliaferro superior court. August term, 1893.</p>

<p>The undisputed evidence showing that at the time the petition was filed the debtor had ceased to be a trader, and also that the mortgages attacked were made to secure bona fide and genuine debts, it was error to grant the injunction and appoint a receiver.</p>

<p>1. The public, whether as jnany or one, whether as a multitude or a sovereignty, has no interest to be protected or promoted by a correspondence between discharged agents or employees and their late employers, designed, not for public, but for private information as to the reasons for discharges and as to the import and authorship of all complaints or communications which produced or suggested them. A statute which undertakes to make it the duty of incorporated railroad, express and telegraph companies to engage in correspondence of this sort with their discharged agents and employees, and which subjects them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is violative of the general private right of silence enjoyed in this State by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information, cannot he coerced by mere legislative mandate at the will of one of the parties and against the will of the other. Compulsory private discovery, even from corporations, enforced, not by suit or action, but by statutory terror, is not allowable where rights are under the guardianship of due process of law.</p> <p>2. It follows from the foregoing, that the act of October 22d, 1891, entitled “ An act to require certain corporations to give to their discharged employees or agents the causes of their removal or discharge, when discharged or removed,” is unconstitutional, and that an action founded thereon for the recovery of $5,000.00 as penalty or arbitrary damages fixed by the statute for non-compliance with its mandate, cannot be supported. Judgment affirmed.</p>

<p>Equitable petition, etc. Before John L. Hopkins, judge pro hac vice. Eulton superior court. September term, 1893.</p>

Equitable petitions, etc. Before Judge Ealuigant. Chatham superior court. June term, 1898. Boykin, Seddon & Company and numerous others, on behalf of themselves and all other creditors of Epstein & Wannbacher who might come in and join with them, filed their petition against Epstein & Wannbacher and the members -of that firm, and against S. Herman, Eanny Joseph, Sophie Lehman, I. G-.

<p>Indictment for selling and disposing of personal property held under conditional sale. Before Judge Milner. Catoosa superior court. February term, 1894.</p>

<p>A crop of cotton and com mortgaged in May and sold in November is, when sold, personal property under mortgage; and if the sale be such as violates section 4600 of the code prescribing a penalty for fraudulently selling personal property, the offense is punishable under that section.</p>

<p>1. The written request to charge the jury not being in its terms adapted to the facts in evidence or even to the statement of the accused, but being more comprehensive than either, there was no error in denying the same.</p> <p>2. Under the statute prohibiting the carrying of a pistol concealed about the person (Code, §4527), so carrying a broken and inefficient pistol, even though it be carried for the purpose and with the intent of having it repaired, is an offense; certainly so if, while on his way to or from the shop, the individual superadds to his original purpose and intention a resolution to produce the pistol suddenly and use it in making a hostile demonstration against one whom he happens to encounter whilst he has the pistol concealed.</p>

<p>Inasmuch as the interstate commerce act prohibits not only contracting for, but also collecting, a less rate of freight on interstate shipments than that specified in the schedule of rates in force at the time (such schedule being required by the act to be printed and kept in every station for inspection and use by the public), a common carrier who has complied with the terms of the act in respect to providing and keeping the schedule' is not precluded from collecting from a shipper the full schedule rate, because by mistake a less rate was named to him by the carrier at the point of shipment and also inserted in a bill of lading signed both by the carrier and the shipper, no fraud or willful deception having been practiced or attempted. On discovery of the mistake, after the shipment 'but in time to correct it at the point of destination, it may there be corrected by the exaction of the full schedule rate and payment of the same by the shipper, he being also the consignee, as a condition to surrendering the goods to him, the transportation being fully completed. Should he refuse to comply with the condition, the detention of the goods by the carrier to enforce payment of the correct charges is no conversion.</p>

<p>1. A petition cast in the form of a bill in equity and addressed to the judge of the superior court by name, and also to the superior court of the county, is amendable by expunging from the address everything but to the superior court of the county,- and by striking out the word “orator” wherever it occurs, and inserting the word “ petitioner,” and by changing the prayer for subpoena to a prayer for process.</p> <p>2. The absence of process is immaterial where the defendants have appeared and demurred generally to the merits of the petition. After the hearing and overruling of such demurrer, it is too late to move to dismiss the action for the Avant of process or service.</p> <p>3. As to the cases provided for by section 3406 of the code, the residence of a railroad corporation is, for the purjmses of suit against it, whether the cause of action be legal or equitable or partly one and partly the other, no less in the various counties in which its-line of railroad is located than in the county in which it keeps its principal office or place of business, and it acquires this breadth of residence so soon as its line is permanently defined and the work of construction commenced; nor is its residence in any given county, after being once acquired, lost by abandoning Avork in that county, or even abandoning the whole enterprise and suspending operations throughout the entire line.</p> <p>4. Where the consideration of a deed conveying a right of way to a railroad company was, as expressed in the deed itself, the benefits which were expected to accrue to the landowner from the construction of the contemplated railroad, and there was an express promise on the part of the company to construct the road, by virtue of which promise the conveyance was procured, and also a parol license to cut cross-ties induced, a breach of the contract by failing to construct the road, abandoning work upon it and selling out to a rival company with intent that the whole enterprise should be suppressed and forever abandoned, constitutes a cause of action in behalf of the landowner, to the extent at least of having decreed a cancellation of the conveyance and of having awarded to him compensation for any damage done to the land by severing timber and cross-ties therefrom, and digging up the soil, or by other means, whilst the work of construction was in progress; and inasmuch as the alleged purchase made by the second company of the first would render the second company interested in any decree of cancellation which could be made, this company is a proper party defendant to the action, and under the act of 1885 may rightly be made a party out of the county of its residence, the suit being appropriately located with reference to jurisdiction over the other company.</p>

Action on insurance policy. Before Judge Sweat. Ware superior court. November term, 1893.

<p>Action on contract. Before Judge Van Epps. City court of Atlanta. May term, 1894.</p>

<p>Actions on notes. Before Judge Van Epps. City court of Atlanta. January term, 1894.</p>

<p>Where, by an order duly passed, the movant in a motion for a new trial was granted a given time in which to file a brief of evidence, there being in the order no limitation as to the time of approving the same, and the brief was actually filed but not approved within the time fixed by the order, it was in the discretion of the judge to approve it afterwards or refuse to do so, and this court will not control him in the exercise of that discretion unless it is manifestly abused.</p>

<p>Action for damages. Before Judge Richard H. Clark. Clayton superior court. March term, 1894.</p>

Appeal. Before Judge Gamble. Bulloch superior court. April term, 1894. John E. Mallery as executor propounded a paper for probate in solemn form' as the will of James Ellerbee, who died on April 11, 1893. This paper was dated April 22,1892. The first item of it provides for the payment of debts, and for burial.

<p>Equitable petition. Before Judge Gamble. Johnson county. November 6, 1894.</p>