Volume 95 — Georgia Reports

<p>Action on note. Before Judge Van Epps. City court of Atlanta. March term, 1894.</p> <p>The petition of the hank was in paragraphs, and the paragraphs which stated the cause of action were numbered. It alleged, that Wingate & Mell as partners (naming them), as makers, and Black & McIntosh as partners (naming them), as indorsers, owed the bank $200 and interest, for that Wingate & Mell on October 3, 1893, made to Black & McIntosh their promissory-note promising to pay to the order of the latter $200 sixty days after date, for value received, and then and there, for a valuable consideration and in due course of business, delivered the same to Black & McIntosh; and that on the same day Black & McIntosh, in due course of business and for a valuable consideration, transferred the note to the bank by indorsement; which note defendants refused to pay. Copy of the note was attached. It contained an agreement to pay all cost of collection, including ten per cent, as attorney’s fees. Plaintiff was allowed to amend so that the suit should proceed for attorney’s fees, as well as for the principal and interest.</p> <p>Defendants pleaded that they were not indebted to plaintiffs in manner and form as alleged. Further, it was true they signed the note sued on as makers, but the same was not given in the usual course of business to Black & McIntosh for value received. Defendants denied that plaintiff' was an innocent purchaser. Black & McIntosh, as was well known to plaintiff, were heavily indebted for investments in land and improvements. Defendants were contracting plumbers, and did a large amount for defendant Black, Porter Brothers & Black, etc.; for this said parties were indebted to them. Black & McIntosh sold grain. Defendants bought tin, gas-pipe, etc. So no indebtedness could ordinarily exist from defendants to plaintiff. Black proposed to pay a portion of defendants’ claim in this way. He would take a note from defendants, made to Black & McIntosh, to plaintiff' his bank, discount it and turn proceeds over to them, agreeing to pay the note when it fell due. Defendants, supposing he would protect the paper when due, agreed to this, and collected a portion of this bill in this way. The note fell due and was unpaid. Black came to defendants, got another similar note and renewed the loan. This note fell due and was unpaid, and Black, one of the nominal indorsers, procured the note sued on from defendants, and renewed the loan as above. Defendants never renewed same or paid interest thereon. It was a pure accommodation paper on the part of defendants. There was no consideration passing from Black & McIntosh to them, but Black & McIntosh were largely in their debt at the time. The facts above alleged put plaintiff on notice that it was an accommodation paper. Further, said agreement was entered into by J. L. Mell of the firm sued, without the knowledge and consent of J. H. Wingate his partner. Mell had no power as partner to bind the firm, and the note is void.</p> <p>Defendants by leave of the court withdrew the foregoing plea, and pleaded that they did not, on October 3, 1893, execute and deliver to Black & McIntosh their note as alleged, and did not, for any valuable consideration and in due course of business, deliver the same k> Black & McIntosh. They cannot admit or deny the allegations as to the transfer of the note by Black & McIntosh to the bank. They did refuse to pay the note. The note is an accommodation paper made by J. L. Mell of Wingate & Mell, with Black of Black & McIntosh. No consideration passed to Wingate & Mell therefor. ' On the contrary, at the time of its execution Black & McIntosh were largely indebted, by indorsements and through joint liability with Porter Brothers, to Wingate & Mell. Said parties were largely interested in building houses, and defendants were engaged in the plumbing and tin business and as such material men did a great quantity of work for said parties above mentioned. Of these facts the bank had full notice. The paper now sued on was in renewal of similar notes, made in like manner and likewise void as being made by one partner as above set out, without authority from his said firm to execute such paper. As these notes would fall due, Mell and Black would make new notes which Black would negotiate with the bank, renewing his loan, paying the discount charged, and carrying on the negotiation alone. The bank was the depository of Black & McIntosh and not of these defendants. The action of Mell in entering into said accommodation agreement was unauthorized, and the defendant firm is not bound therefor.</p>

<p>3. Where a deed of conveyance recited that it was made subject to a mortgage upon the property conveyed, given by the grantor to a third person to secure a specified sum with interest, “ which said mortgage and interest said grantee assumes as part of purchase price ” of the property, the grantee, upon failing to pay off the mortgage at its maturity, became liable to "the grantor for the amount due thereon.</p> <p>2. Although the mortgage of which the grantee had thus assumed payment, did not upon its face disclose that a given default in the payment of interest would render the principal of the note secured by the mortgage due at a date earlier than that otherwise fixed for its maturity, yet where that note, as described in the mortgage, referred to an “ interest coupons note,” which', though not so stated in the mortgage, was in fact attached to the note for the principal, and it appears that an examination of the latter note would have disclosed the terms upon which its maturity would be advanced, the grantee in the deed was chargeable with a knowledge of these facts, and in assuming payment of the mortgage became liable accordingly.</p> <p>3. The maturity of the note secured by the mortgage having been advanced because of default in the payment of interest, demand for which was made upon the grantee, and payment refused by him, and the mortgagee having exercised a power of sale contained in the mortgage, the proceeds of which sale were insufficient to pay off the debt, and the mortgagor having paid the balance due thereon, the grantee became liable to her in an action for the amount of such balance.</p>

<p>Levy and claim. Before Judge Sweat. Ware superior court. April term, 1894.</p>

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

<p>Action of libel. Before Judge Westmoreland. City court of Atlanta. May term, 1894.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. March term, 1893.</p> <p>Mary E. Shepherd by her petition alleged: She is one of the children and an heir at Jaw of Edward Harper, who on March 11, 1886, made a will and shortly afterward died. This will was afterwards probated in solemn form by Robert Todd and ~W. G. Harper, executors. By its terms all the real estate of Edward Harper was devised to his wife and children, and was not intended by him to be sold by his executors or in any manner interfered with by them, but that the same should be divided by his heirs among themselves at their election, or that they should remain tenants in common, as he made them by his will. The will required that the executors should give bond, and it was the manifest intention of the testator that they should do so before they entered upon the execution of the will; but without giving bond and without the consent of the heirs, some of them being minors and are yet minors and incapable of consenting, they illegally obtained letters testamentary, and thus illegally took charge of and proceeded to administer the estate. They proceeded immediately to have the-estate appraised and make return, all of which was unnecessary and not warranted by the will, and the expense of which was a waste of the estate. At the December term, 1888, of the court of ordinary, they fraudulently procured an order for the sale of all the realty, on the ground that it was necessary to sell to pay debts and for distribution.- The ground • alleged as to distribution was utterly without foundation, for the will itself had devised all the realty to the heirs as tenants in common, and it was no part of the power or duty of the executors to make division among the heirs. The ground as to payment of debts was equally false, for there was more than enough personal property to pay all of testator’s debts and the necessary expense of administration. A portion of the realty embraced in the order of sale was a square acre of land in Atlanta, describing it. The executors proceeded to have this land platted and largely advertised for sale, the advertisement stating that it would be sold on the first Tuesday in February, 1889. On that day when the executors exposed the land for sale, one of the heirs, John T. Harper, bought in the whole lot for the benefit of the heirs, and no money was paid on his bid or any deed made to him. A short time afterwards the executors, still contriving to waste the estate, without readvertisement and without the consent of the heirs, sold the -whole tract to one Wey at private sale for $2,500, when it was worth $5,000. In their deed to Wey the executors recited that Wey was the highest and best bidder for the premises, when in fact they knew and he knew that he was not a bidder at all at the sale and was not even there present; but he received the deed reciting that he was such bidder at the sale on the first Tuesday in February, 1889, knowing the recital was untrue and knowing that he was a purchaser at private sale, at a considerable time thereafter illegally made to him by the executors. The executoi’s well knew that the tract was rapidly improving in value,’ and that if there was any necessity to sell any portion of the realty of testator, they should have sold a portion of the farm lying in the country, the value of which was not enhancing in any near ratio to that in the city. The executors were guilty of fraud, because they knew they had not given bond as required by the will, had alleged a false ground to procure the order of sale; they knew that to sell the whole tract it would bring less than if it had been sold by the lot as platted; they knew they had no right to sell it at all, much less at private sale; they knew there was no necessity to sell the whole tract, and that in the whole transaction they were injuring the heirs and running the'estate to unnecessary expense. "Wey knew that the executors had not given bond as required by the will, that the order for sale had been illegally procured, that he had no right to purchase at private sale, that the. tract at public sale and sold as platted would bring more than he was giving the executors, that the estate was not getting the advantage of the sale by lots as platted and advertised; and yet, knowing all this, deliberately entered into the fraud which he saw the executors perpetrating, assisted them therein and derived a large profit therefrom. He was informed by them that they did not need all the purchase money for any purpose, and he agreed to pay them only one third of the purchase price ; and after all their illegal expenditures, they now have on hand two thirds of the money he paid them. Harper, one of the executors, has died, leaving Todd sole executor. Wey is in possession of the land and of the deed. Petitioner prays that Wey be required to deliver up the deed, and that he and Todd be required to show why the deed should not be cancelled and the sale set aside, and why the property should not be declared to be the property of the heirs of Edward Harper; and for general l’elief. Petitioner brings the petition because Todd participated in making the fraudulent deed and will not proceed to annul it.</p> <p>By the first item of the will of Harper, he gave to his wife certain personalty and one eleventh of his realty, for her natural life and to be equally divided between all of her children at her death. By the second item he devised to his children the remaining ten elevenths of - his entire estate, after $100 was paid to A. J. Harper and $200 to Daisy Fish, provided he remained with the family until he was twenty-one years old. In this item he named the children he wanted the ten elevenths “ divided between,” after deducting the $300, among them being Mary E. Shépherd, and appointed for her as trustees William G.Harper and Robert Todd, and provided “said trustees are to take said trust fund without bond.” The third and last item was: “I hereby constitute and appoint my son W. G. Harper, and Robert Todd, executors of this my last will and testament. This the 11th day of March, 1886, with bond.”</p> <p>After the introduction of the evidence for plaintiff, a nonsuit was granted, and plaintiff excepted. She testified : I am a daughter of Edward Harper. The land in question was sold the first Tuesday in February, 1889. I was not present at that sale. Todd told me he had sold it, and that brother John bought it in for the heirs. I never made any consent or agreement that this property be sold to Wey by John T. Harper, nor did I ever consent that the property be sold to any one. There were nine living children of my father, and one dead who had three little children. My mother is still living. There are minor children now. Father was in possession of this city property at his death. I never knew of or consented to John T. Harper transferring his bid to Wey or any one. The place had been sold some time before I heard that Wey had bought it. My property was left as trust property. I went to, Rosser in 1890 to bring suit, and went to my present attorney in 1892, directly after I found that the suit had not been brought. In the conversation with Todd after the public sale, I told him I didn’t think he had any right to sell the property and pay the debts, that I thought he ought to collect the money and pay the debts. He said he had to sell it to pay debts. The objection I had was, that he ought to pay the debts by collecting the money, and not by selling the property, and because the property was advancing every day and should not be sold that way. My husband had been acting for me in the matter and looking after my interest, and I had confidence in him. Since my father’s death my husband has not been looking after my interest. Todd was looking after my interest. My interest was left in Todd’s and my brother’s hands, as trust property. My brother didn’t have anything to do with it. My husband was there at that sale, and I knew he was going. He went through curiosity to see what it brought. He did not go representing me at all. He went because I wanted to know what they were doing; I thought he would come back and tell me, but he was not my agent or anything like that; I didn’t tell him to represent me at all; he went like anybody else would go to a sale, and I expected him to tell me when he came back what they did, but I do not see what he could have done to represent me; he and I talked over what the property ought to bring, many times, and he went there with an idea as to what I wanted it to bring, but they didn’t ask him. I was expecting Todd to take care of my interest. I was very well satisfied when they bid it in for the heirs. I thought it was still ours, and did not say anything then; if the heirs had got the proceeds of the sale, I would have been perfectly satisfied, but we did not get it. I was not satisfied with the price it brought. If he had divided it up and we could have kept it, I would have been satisfied. I thought he was going to divide it up. Todd had divided it up into ten lots, and said he was going to sell it to get it out of court, and then it would be the heirs’. It was bought in for the heirs. Todd told me that if he sold it, it would be bought in for the heirs. The last time I was talking to him before the sale, lie told me he was not going to sell the town lot but was going to hold that for an investment for the heirs, that it was advancing in value and he was going to hold it; but the next news I got, he advertised it for sale. When I had this conversation with him, he said he was simply selling it to get the title in the heirs; that is what he said he was going to do with both places. Before the sale I told him he ought not to sell the land, that he ought to collect money and pay the debts; and he told me he was going to hold that piece. He never did tell me he was going to sell it to get money to pay the debts. Afterwards he said he did sell it to pay the debts. When I was talking to him after my brother had sold it, he said the heirs didn’t pay in any money and he was obliged to have some, and he went and sold it again to get some. I never saw any of the money paid in by Wey. He said he had it in the bank. After the money came in that Wey paid, Todd told me that was all the money the estate had, and the other heirs had consented to paying the doctor’s bill for my mother, over $ 100, out of it; and I gave consent to his paying it. I thought I could not help myself. I had been to the ordinary, and he told me that Todd held my property as trust property, and I thought Todd could do as he pleased. When the home place of my father was sold by the executor, the heirs that were of age bought it in for the heirs, and I thought it would be divided among the heirs. Some of the heirs agreed to let our mother stay there, and others did not. I did not agree, but wanted it divided up. The home place and the place bought by Wey were not sold at the same time, but the town lot was sold first. The town lot had no building on it. My father owned it for some thirty years but never improved it. He died in 1887.</p> <p>The husband of plaintiff testified: I was at the sale. The lot, I suppose, is an acre. William Gf. Harper was alive at the time of the sale. James Treadwell bought the property at that sale for the heirs. I suppose John T. Harper spoke to him to buy it in for the heirs. It was sold on the day it was advertised. The reason why I know it was to be bid in for the heirs, was, that there were several of the heirs there and I heard one of them say they would protect the property and buy it in for the heirs, if it did not bring enough. I was not consulted in regard to it. They just said afterwards they bought it in to protect the heirs. I never heard Todd say anything about it, but Treadwell said'he bought it in for the heirs. His bid was something like $2,200 or $2,300. I did not pay much attention to what it brought. On the day of and before the sale, John T. Harper told me, if it did not bring what they thought it ought, they would bid it in for the heirs; he never told me anything afterwards. I do not know that there was any amount mentioned as to what it should bring. I did not see Wey there that day, and he did not make any bid on the property that I know of. If Treadwell transferred his bid to Wey, we never knew anything about it. The first announcement Treadwell made as to who his bid was intended for, was just after th e property was knocked off. W. Gr. Harper, John T. Harper, Tom Lawrence, Bill Swan and all those interested in it, and I think Todd, were present. The substance of the announcement by Treadwell was, that he had bid it in at the request of John T. Harper, for the heirs of Edward Harper. I never represented my wife as agent in any of this transaction. I was not known as her agent in this, because she had a trustee under the will of Edward Harper. I went with my wife to the ordinary,- and he told us we had to leave the will as it was, and we had no say so about it. I have never been consulted in regard to the transaction. I was present at the sale because I knew it was going to be sold that day, and my wife told me she would like for me to go up and see what it would bring. I cannot remember now what else was said in regard to it, but- think I told her I thought it a very-valuable piece of property; I thought that section of Atlanta was coming out. I did not go particularly for her, but out of curiosity and because I felt some interest in it as a matter of course. Tom Lawrence married one of the heirs, and Swan another. I don’t know that all the heirs were there who were in the State, nor that they were all represented. I did confer and talk to those present on the day of the sale. I talked the matter over, and it was perfectly agreeable. —Lawrence testified, that to the best of his knowledge Treadwell bid off’ the property for the benefit of the heirs; that Shepherd was there representing his wife’s interest, witness supposed, but did not know; that just after the sale, in the presence of John T. Harper, Treadwell said he bid it in for the benefit of the heirs, that Harper asked him to defend the property for the benefit of the heirs, and John T. Harper so stated afterwards; that witness was there watching the sale, but had no authority to represent his wife; that everything seemed to be perfectly satisfactory and no objection was made by anybody, but “we” did not think the property brought enough and witness heard some grumbling right there, but wasn’t able to make it bring more; that witness was not recognized in the sale nor was his advice asked; that J ohn T. Harper told him afterwards that his bid had been transferred to "Wey for $2,500; that John T. Harper said, “I sold it and I have got a profit on it; I have sold it to Mr. Wey and I have a profit on it; I have got $2,500 for it ” ; that witness did not know that John T. Harper told him that all that went to the executor and he did not get a cent of it, supposes he did, though witness thinks he never asked him; and that the land was platted off a week or so before the sale. Plaintiff' also put in evidence the will of Edward Harper, the order of sale, and the advertisement of the sale. The order and the advertisement recited that the sale was for the purpose of the payment of debts and for distribution. The advertisement was of the land as one parcel, and the terms of sale were stated as one third cash and the remainder in six and twelve months, with interest. Attached to the petition was what purported to be a copy of the deed by the executors to "Wey. It was in the ordinary form of such deeds, stated that Wey was the 'highest and best bidder at the public sale, and that the property was knocked off to him for $2,500.</p> <p>The answer of Todd, executor, was, in brief, as follows: The lot was sold for its full value, and the sale was made at the request of many of the legatees and heirs at law, for the purpose of division, as well as to raise funds for the payment of the expenses of administration, debts of the estate, and certain specific legacies provided for in the will; all of which was well known to plaintiff and acquiesced in by her and her husband; and though the sale was made over three years before her suit was commenced, no objection to this defendant was ever made by her or any one else. Her husband was at the sale, claiming to act for her; and when an agreement was made between the heirs then present, to protect the property from being sacrificed, he demurred to running it over $1,800. Several moneyed men were at the sale, some of whom owned property adjoining this lot and some of whom bid on it, but none would bid over $2,250. The sale was open and fair, and made after a full and clear advertisement; and neither this defendant, nor his then coexecutor so far as he knows, did or said anything to chill the sale, but did all they could to realize the highest price for the lot, which they were prompted to do because it was right and because they were interested in the result, — Harper individually, and this defendant on behalf of his wife who was a legatee under the will. The executors platted the land into ten lots, with the hope that it would sell for more if so divided; they exposed for sale one or two of these small lots, but had to bid them in; and then saw the property would sell better as a whole, as it did not lie in such shape as to be susceptible of advantageous division; and then they exposed it for sale as a whole, and the result was that it sold for its highest market value, and was bid in by John Harper upon the promise by the executors to give him a few days in which to negotiate a private sale, agreeing to make titles to such purchaser for said purpose, John Harper acting for the parties. In a very few days he- closed a trade for the lot to Wey for $2,500, which was a big price for it and which was paid to the executors; they made titles to Wey, and the $2,500 went into the funds of the estate, and plaintiff had the benefit of her full share of the same in a subsequent agi’eemeut made with the heirs and legatees. Defendant denies that the executors did not give the bond required by the will. Plaintiff with all the other accessible heirs and legatees signed the bond as sureties. After the death of Edward Harper, his wife Nancy was in bad health; all his adult heirs and legatees agreed to allow the rents of the home place to go to her for her support and nursing; consequently nothing came into the hands of the executors from rents; and said place has since been sold by the executors under order of the court of ordinary, and bid in by certain of the legatees upon the agreement .that it was to remain intact so long as their mother Nancy should live, for ■her support, said legatees agreeing to accept this land and other money in the hands of the executors, as their portion of the estate; but before the estate could be settled up and this agreement consummated, Thomas Laurence, a son-in-law of Edward Harper, sued the executors on an account for extra services for nursing and attending Edward and Nancy Harper, and has recovered a verdict and judgment amounting to $400. So long as this suit is pending, the interest of the respective legatees cannot be ascertained. Defendant denies all charges of improper conduct, bad faith and fraud, both for himself and for his coexecutor, now deceased.</p> <p>In the answer of Wey it is alleged, among other things, that the land in question adjoined some of his property; that he learned of the executors’ sale to J. T. Harper as the highest bidder, and of the land being in the hands of Leak & Lyle, real estate agents, for sale for J. T. Harper; that he called on Leak & Lyle, and after considerable negotiation, agreed to buy the property for $2,500; that he knew nothing of any arrangements between the heirs and executors of the estate, but supposed he was buying the land from J. T. Harper, and when he discovered that no title papers had been made by the executors to said Harper, he took from Harper a written transfer of his bid, for $2,500, dated March 18, 1889, and reciting that he was to stand in Harper’s place as purchaser at the sale, and four days afterwards he took from the executors their bond for title and gave them $625 in cash and his notes for the balance, which notes he paid when they matured, and on January 4, 1890, the executors made him their deed to the property; and that the price he paid was full, and was regarded as a high figure for the property at that time. He denies all allegations tending to charge him with knowledge or information of anything irregular or illegal, or that he participated in any fraudulent conduct or knew of the same, etc.</p>

Certiorari. Before Judge Lumpkin. Fulton superior court. September term, 1893. Cape sued Mrs. Asher and others in a magistrate’s court, and there obtained a verdict. Defendants presented their petition for certiorari, which was sanctioned and the writ ordered issued' on April 22, 1893; and on April 28, 1893, the writ was issued.

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

<p>Where at a regular term of the city court a case, on motion of defendant’s counsel, was dismissed upon the ground that the declaration did not set forth a cause of action, and no exception was taken during that term, the city court had no authority at a subsequent term to set aside the judgment of dismissal, even if erroously rendered, and reinstate the case. That judgment being a final adjudication upon the merits of the plaintiff’s case, mere error of law in its rendition, in the absence of irregularity, fraud, .mistake, providential hindrance or other like cause, could not, after the expiration of the term, be corrected by a motion to reinstate.</p>

<p>Where an action was brought against two persons upon a promissory note executed by them as joint makers, and one only of them was served, a motion by the latter to dismiss the action for want of service upon the other ought to have been sustained, it not appearing, and the plaintiff not offering to show in resistance to the motion, that the defendant not served was dead or beyond the jurisdiction of the court, and there being no return of non est inventus as to him.</p>

<p>1. The evidence being conflicting, and that introduced in behalf of the defendants being sufficient to warrant the verdict; and it not being at all probable that the newly discovered evidence would change the result, this court will not interfere with the discretion of the trial judge in refusing to grant a new trial.</p> <p>2. Where an equitable petition, filed for the purpose of obtaining specific performance of an alleged parol contract for the sale of land, was met by answers setting forth facts showing that the plaintiffs were not entitled to the relief prayed for, but containing no prayer for affirmative or specific relief against the plaintiffs, and there was a general verdict for the defendants, upon which a judgment for costs was entered against the plaintiffs, it was not error to deny a motion subsequently filed by the defendants to so amend this judgment as to make it adjudge that the title to the land in controversy was in one of the defendants, and direct that a writ of possession do issue in his favor.</p>

Bill in equity. Before Judge Lumpkin. Fulton superior court. March term, 1894. After the'decision of this case reported in 85 Ga. 185, the complainant died, and his executor was made a party complainant. lie amended the bill as follows: Nancy Carbine at her death left three children.

Levy and claim. Before Judge Lumpkin. Fulton superior court. March term, 1894. Execution in favor of Simmons against Mrs. Smith was levied on furniture to which a claim was interposed by Cooledge & Brother. The jury found for the claimants, and plaintiff’s motion for a new trial was overruled. The material ground of the motion arises upon the following facts; Claimants had a mortgage on furniture, given to them by Mrs. Smith.

<p>1. The plaintiff’s evidence showing that her mother, while in possession of the premises in dispute, and holding the same under a deed, had conveyed the same to another, who reconveyed to the mother for life, with remainder to her children (these conveyances being duly recorded, and the mother remaining in possession for some time thereafter), that the plaintiff was the only child of her mother, and that the latter was dead, these facts make out a prima facie case for the plaintiff in her action against the defendant for a recovery of the property.</p> <p>2. The defendant having shown that he entered the premises and claimed the same under a tax title, which was void, and having also, both by his pleadings and his evidence, set up and claimed title under one to whom the plaintiff’s mother had conveyed by a deed junior to the above mentioned conveyance made by her, the plaintiff was entitled to recover. Even if the defendant’s entry under the tax title was bona fide, yet as he virtually admitted title in the plaintiff by tracing the title upon which he finally relied to the same source as that of the plaintiff, and her title derived from this common source was better than his, her right to the property, as against him, was suffieienty established.</p> <p>3. As the evidence showed that the defendant had received in rents amounts more than sufficient to reimburse him for all improvements, taxes and other expenditures upon the property, and there was no recovery by the plaintiff of mesne profits, errors, if any, in the instructions given to the jury with respect to these matters were immaterial. The verdict upon the substantial merits of the case was right, and we find no error authorizing the granting of a new trial.</p>

Rule against constable. Before Judge Van Epps. City court of Atlanta. July term, 1894.

<p>Action on note. Before Judge "Westmoreland. City court of Atlanta. March term, 1894.</p>

<p>1. While, under section 3310 of the code, the defendant in an attachment case may appear and defend at any time before final judgment, all defenses must be submitted and disposed of in their proper order; and consequently such defendant cannot, after pleading to the merits, and a term has passed, interpose and have adjudicated special demurrers to the plaintiff’s declaration, relating only to matters of form and not vital to the plaintiff’s cause of action.</p> <p>2. The improper language used by counsel for the plaintiff in their arguments to the jury was not, in view of the rebuke administered by the presiding judge and the instructions given by him to the jury with respect thereto, of such character as to authorize the declaring of a mistrial or the granting of anew trial. Its injurious effect, if any, was doubtless counteracted by the action taken by the judge.</p> <p>8. The plaintiff, an employee of a railroad company, having been injured by a locomotive of the defendant in the State of Alabama, and the employer being, under the law of that State, liable to answer in damages for personal injuries received by an employee in the service or business of the employer, when such injuries are “caused by reason of any defect in the condition of the ways, works, machinery or plant connected with, or used in, the business of the . . . employer,” and there being evidence introduced by the defendant from which, in connection with evidence introduced by the plaintiff, the jury could reasonably infer that the track of the defendant at the place where the plaintiff was injured was full of coal and coke, in most places as high as the rails and in some places higher, and was “ dangerous for men to switch around at night,” that the track had been in this condition for some time, and that the injuries complained of were attributable to these obstructions on the track, a verdict in the plaintiff’s favor was not unwarranted.</p> <p>4. Wo error requiring the granting of a new trial was committed, either in admitting or rejecting evidence, or in the charges complained of; the requests to charge, so far as legal and pertinent, were sufficiently covered by the general charge; the verdict was not excessive; and on the whole, there was no abuse of discretion in refusing a new trial, especially as this is the second verdict in the plaintiff’s favor which has had the approval of the trial judge.</p>

Appeal, etc. Before Judge Lumpkin. Pulton superior court.. March term, 1894. Charles W. Pope as executor offered for probate the will of Thomas T. Pope.

Equitable petition. Before Judge Lumpkin. Fulton superior court. March term, 1894. The petition prayed for a decree declaring Grove avenue, as indicated on a certain plat, a street for the bene- fit of parties on Orchard' avenue, etc., and that the obstructions placed by defendants across Grove avenue be removed. The court granted a nonsuit, and plaintiffs exempted.

<p>1. Although a different rule prevails in equity, in cases at law pending in the courts of this State such costs and expenses of litigation as may be incurred abide the result of the suit, and are chargeable against the party cast therein. In such cases, the property of the defendant cannot, in any event, be appropriated to the payment of such costs or expenses until final judgment against him.</p> <p>2. Where a mortgage upon personal property is foreclosed, the mortgage execution levied an affidavit of illegality interposed, and the final result is a dismissa of the levy and quashing of the execution; and where, in the meantime, the sheriff levying the execution has incurred a necessary expense for the custody and keeping of the goods levied upon, such expense is not a proper charge against the property of the defendant, and the court has no power to order such goods sold and the proceeds, or any part thereof, applied to the payment of such expense; nor has the sheriff any lien thereon which may be enforced by retention of the property or otherwise.</p> <p>S. It having been adjudged that the year’s support of the petitioner had been lawfully set apart, and no exception by the sheriff having been taken to this judgment, it is conclusive between the parties upon this question; and the widow was entitled to an order directing the delivery of the property to her.</p>

<p>Where an ordinary draft horse attached to a vehicle is momentarily left standing in a street, adjacent to a sidewalk, and bites one passing by upon the sidewalk, the owner of the horse is not liable for the injury thus occasioned, it not appearing that the horse was, or had ever been, of a vicious nature, or that the owner had any reason to apprehend the animal would become so.</p>

<p>Petition. Before Judge Van Epps. City court of Atlanta. March term, 1894.</p>

<p>Although a traveler may know that because of the defective construction of a public bridge in a city there is some danger in driving over it, still he may recover from the city for injuries sustained in so doing, if it clearly appears that the danger was not obviously of such a character that driving over the bridge would necessarily amount to a want of ordinary and reasonable care and diligence, and if it also appears that in driving over the bridge the plaintiff did in fact observe such care and diligence. In such case the mere fact of driving over the bridge would not of itself authorize a finding that the plaintiff by so doing consented to the injuries thereby occasioned Consequently, it was error to charge as follows : “ If you believe from the evidence that the plaintiff was acquainted with the bridge, and knew of the danger of driving over it, and nevertheless did so, you should find that he consented to the injury, and, therefore, that he cannot recover; for it is a principle of law that no man can recover damage from another where he consented to his injuries.”</p>

<p>Motion for new trial. Before Judge Van Epps. City court of Atlanta. July term, 1894.</p>

Indictment for murder. Before Judge Wellborn. Hall superior court. September term, 1894. Joseph and Jack English were indicted for the murder of IT. M. Waldrep. They were found guilty, with a recommendation that Jack English be imprisoned in the penitentiary for life. Their motion for a new trial was overruled, and they excepted.

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

Action for damages. Before Judge Van Epps. City court of Atlanta. July term, 1894. On tbe sidewalk of Alabama street near its intersection with Broad street was an iron grating adjoining a building, for the admission of light and air into the basement. The grating was slightly above the level of the sidewalk, which was inclined downward from Broad street.

Complaint for damages, etc. Before Judge 'Westmoreland. City court of Atlanta. May term, 1894. Iiunnieutt & Payne sued the city for the value of land taken and damages to land by constructing a sewer through it, and obtained a verdict for $500, “as compensation for land appropriated, and no damages allowed.” The motion for new trial made by defendant was overruled.

<p>Motion for attorney’s fees. Before Judge Lumpkin. Fulton superior court. March term, 1894.</p>

<p>Petition for certiorari. Before Judge Lumpkin. Pulton superior court. March term, 1894.</p>

Petition for injunction. Before Judge Lumpkin. Pulton county. June 19, 1894.

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. March term, 1894.</p>

<p>The act of November 11th, 1889, “to fix the venue of justice courts in cities of this State having a population of over 15,000, and to locate the times and places of holding said courts ” (Acts 1889, p. 116), which was amended by the act of December 20th, 1893, so as to be applicable to cities having a population of over 5,000, (Acts 1893, p. 55), does not, by providing that justices of the peace and notaries public who are ex officio justices of the peace “may hold their courts at the same or different time or at the same or different place as they may desire,” violate either the constitutional- requirement that justices of the peace “ shall sit monthly at fixed times and places” (Code, §5153), or that clause of the constitution providing for uniformity in the “jurisdiction, powers,' proceedings and practice of all courts or officers invested with judicial powers (except city courts), of the same grade or class.” Code, §5156.</p>

Complaint on account. Before Judge Van Epps. City court of Atlanta. May term, 1894. Mrs. M. E. Beall sued the administrator of L. J. Gartrell on the following account: “ General L. J. Gartrell, to Mrs. M. E. Beall, dr. 1889-90. To one diamond finger-ring left with him, lost by him, and for which he agreed to pay the sum of $500.” The declaration was filed on July 11,1892. Defendant demurred for want of a cause of action, and the demurrer was overruled.

<p>Equitable petition. Before Judge Clark. Rockdale superior court. February 8, 1894.</p>

Action for penalty and damages. Before Judge Clark. DeKalb superior court. February 23, 1894.

<p>A will, in one item, directed the sale by the executor, either publicly or privately, of specified realty, including a dwelling-house, the conversion into cash of the choses in action and other personalty of the testator, and the investment by the executor of the funds thus coming into his hands in certain securities, “except that there shall be retained out of said amounts the sum of fifteen hundred dollars, which my executor is to invest in a house for my family, as he and my wife may think best.” In another item, the executor was empowered to change “ the investment ” mentioned in the preceding item, should circumstances render it necessary either to make a better investment or to save loss from declining securities. The will further directed that the income of the estate should be applied annually to the support of the testator’s widow and children, and that as the latter became of age or married, the executor should turnover to them their portions of the estate. The executor did not, at once, sell the dwelling-house belonging to the testator, but retained it “as a suitable residence for the family,” and so stated in a return to the court of ordinary. ■ Seven years later, he conveyed it to a married daughter of the testator, in a settlement with her of her portion of the estate, she and her mother being, at that time, the only surviving devisees and legatees.</p> <p>Held, that under the terms of this will and the facts stated, the legal title to the dwelling-house remained in the executor until his conveyance to the daughter; that it has never passed, in whole or in part, into the widow; and that she has no interest in this property which can he reached by the levy of an ordinary execution against her, although the same was based on a judgment rendered before the conveyance by the executor to the daughter.</p>

Levy and claim. Before Judge Clark. Kockdale superior court. April term, 1894. Execution issuing from a magistrate’s court in favor of Almand & George against Born, there.being no personal property of defendant to be found, was levied on certain land as the property of Born, to which John H. Almand filed a claim. The cause was submitted on an agreed statement of facts to the judge, who held the property subject, and claimant excepted.

<p>Where individuals, engaged as partners in the conduct of a given business, applied to and obtained from the superior court a charter incorporating them under the same ñame as that previously borne by the partnership, although the petition for incorporation and the order granting the charter recited in loose and general terms, but without describing any particular property, that the capital stock of “ thirteen thousand dollars in lands, machinery, water-power, money, other material and property,” had been fully paid in, yet where in fact the corporation was never organized and never actually did business as such, but the business was continued by the partnership, and the land referred to in the petition for incorporation was sold by certain of the petitioners to whom it had belonged prior to the application for a charter, to a bona fide purchaser for value, who bought without notice of the fact of incorporation, and whose title was duly recorded, such land was not subject to a judgment against the corporation obtained by a creditor upon an account for goods sold and delivered to the corporation as such after the sale of the land had been made.</p>

<p>Complaint. Before Judge Jones. City court of DeKalb county. May term* 1894.</p>

<p>Action for damages. Before Judge Jones. City court of DeKalb county. July term, 1894.</p>

<p>Mandamus. Before Judge Gamble. Emanuel superior court. October term, 1894.</p>

Indictment for burglary. Before Judge Jenkins. Jones superior court. October term, 1894. Robert Tarver was convicted of burglary, and excepted to the refusal of a new trial. The indictment charges, that on- May 9,1894, he did break and enter a certain outhouse, to wit a harness-house, the same being contiguous to and in the curtilage of the dwelling-house of George II.

Action on note. Before Judge Clark. Newton superior coui’t. March term, 1894. 1. One of the grounds of the motion for a new trial alleged that the court erred in allowing Bagby, a witness for the plaintiff, over objections of defendant’s counsel, to testify in manner stated. This ground set forth the testimony objected to, but did not show what ground of objection was presented to and ruled on by the .court below.

<p>Action for damages. Before Judge Clark. DeKalb superior court. February term, 1894.</p> <p>On October 28, 1891, the plaintiff, a girl of fifteen years, was a passenger on defendant’s accommodation-train from Atlanta to Jett’s station, a fiag-station about twelve miles from Atlanta, and about a mile beyond Clarkston. The train left Atlanta at 6.15 p.m., and reached Jett’s station at or shortly after seven o’clock, after nightfall. Plaintiff' testified: I told the the conductor I desired to get off' at Jett’s station. After leaving Clarkston the train stopped at Windom. I got-up and went out on the platform, as I knew there was no stopping-place between Clarkston and my station. The conductor motioned to me and said, “Go back; I will let you know when you are to get off,” speaking very roughly. That, I suppose, was about a quarter of a mile from Jett’s station. The reason that I went on the platform was, that I thought that was my destination. The train made no stop at Jett’s. After it had passed, Mr. McClelland told the conductor he had passed my station. The conductor said he could not help it; he could not stop the train, and that I would have to go on to Stone Mountain. That occurred about a half-mile, I suppose, the other side of Jett’s; station. I got off the train at Stone Mountain. The conductor said he would carry me back all right the next morning. I spent the night at Mr. McClelland’s. The next morning when the train stopped, Miss Maddox, a friend that I had met at the depot, and myself (Mrs. McClelland, •was going on the same train to Decatur, but was not with me at the time), attempted to get on a passenger-car. As I started to get on, the conductor came and asked me if I was the lady he had carried by her station last night. I told him, yes; and he said, come down this way, towards the baggage-car. I told him there were too many colored people there. He said, “That don’t make any difference; you can get on; come on, and I will show you how to get on.” I went with him. He took me to the baggage-car. I had to sit on a trunk in the baggage-car. Besides myself and the baggage-master, there were a colored man and one or two others whom I did not know, in the baggage-car. The colored man stayed there a while. I don’t know whether he was taken out or not. I preferred to ride in the passenger-car. I went into the baggage-ear because the conductor told me to; he spoke so roughly, and I thought •he knew better than I did how the train was crowded; and I did not think he was going to carry me to the baggage-car when I went. It mortified me very much to have to be separated from my friends and carried to the baggage-car, and for him to speak as roughly as he did.</p> <p>From the testimony of the conductor, the baggage-master and McClelland, the following appears: The time was while an exposition was being held in Atlanta, and the train was much crowded. It had six cars, two more than the usual number. The first time the conductor tried to ring the engineer down he failed to do so; the next time he stopped, but it was found to be the wrong place. It was such a dark night that the conductor could not see well, and the next time they could not stop until they had passed Jett’s station. They were passing Jett’s house when the conductor rang down the engineer the second time. • The train went about a quarter of a mile beyond the station, and McClelland, at plaintiff’s instance, spoke to the conductor about having passed it. Finally the train stopped about a half-mile or more beyond Jett’s station. Considerable discussion and some excitement ensued. With a view to helping out of the difficulty, McClelland procured a young man known to him, who agreed to escort plaintiff* from there back to her home; but she declined to go with him. Thereupon Mrs. McClelland volunteered to take care of plaintiff' until the next morning, the conductor agreeing to take her back home then. She was a stranger to the McClellands, but they took her to their home, treated her kindly and showed her every courtesy. The conductor would not run the train back to Jett’s after it stopped, because he thought it dangerous to do so; there being a freight-train following, which left Atlanta twenty-five minutes after this train left, the latter having frequent stops to make and the freight-train none. On the next morning the conductor carried plaintiff' to the baggage-car because he thought it would be more convenient for her to be there, as the baggage-master could assist her off when the train had run the three miles from Stone Mountain to her home; the train being very much crowded. He considered it a courtesy to take her to the baggage-car where she could have a seat. He denied that he mistreated plaintiff' in anyway, or having had feeling against Jett and his family for some years. When plaintiff' entered the baggage-car, the baggage-master asked the negro who was there to go into the smoking-car, which he did, leaving no' one in the baggage-car but plaintiff and the baggage-master, who turned a trunk down sidewise and asked her to have a seat upon it. When the train reached her station, the conductor being busy, the baggage-master stopped tbe train and saw her off at the crossing. During the exposition ladies often rode on the baggage-car, the train being crowded, and they being glad to get seats there. They would stand on the platform and hold to the banisters.</p> <p>Plaintiff’s father testified: The freight-train usually passed my station fifty-five minutes after the accommodation-train passed. It is up grade from Clarkston towards Stone Mountain. Often freight-trains stalled there, and had to go back west of Clarkston to get a start. On the night in question I was standing on my veranda and heard the accommodation-train stop three or four hundred yai’ds before reaching Jett’s station. When it passed my house it was working.steam, and was traveling, I should judge, not under twenty miles an hour. This conductor and I had a dispute, nearly five years previously, about a matter connected with the road. I and the members of my family, including the plaintiff, have frequently i’idden on the train since. On one occasion when I helped my wife on this train (she having a baby in her arms and leading a four year old child), as soon as she got upon the platform this same conductor waved his hand to the engineer and the train started before she got inside the car, and threw her.against the banisters. Twice before he had carried me about 850 yards beyond the crossing. Once when the train did not stop at the crossing, I went through two coaches to find him, and failing to do so, rang the bell myself and stopped the train. He then came and told me I had no right to pull the bell-line; to which I replied that he ought to have stopped for me and had not done it. I also spoke to him a time or two about stopping before reaching the platform and with the coaches back in a cut, etc.</p>

Equitable petition. Before Judge Clark. Clayton superior court. March term, 1894. The petition of Lou Achor alleged: She is the daughter of Nancy Wright who before her death owned lots 8, 9 and 24 in the 13th district of Clayton county, under deeds recorded October 16,1886, each deed conveying one of the lots and each being on a consideration of $2,000. On September 28, 1887, Nancy Wright by will devised these three lots to petitioner, her only child.

Motion to reinstate. Before Judge Van Epps. City court of Atlanta. July term, 1894. S. W. Stiles sued Sarah Ann Harrison for $150 commissions for negotiating a loan. Upon the trial, at the close of the plaintiff’s evidence, a nonsuit was granted. During the term he moved to set aside the judgment of nonsuit and reinstate the case. The motion was sustained, and defendant excepted.

<p>Ejectment. Before Judge Gamble. Bulloch superior court. April term, 1894.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. February term, 1894.</p>

Complaint. Before Judge Eve. City court of Richmond county. May term, 1894. Suit was brought by Sarah R. Bailie against the Augusta Savings Bank for $1,000 and interest, claimed to be due on account of the non-payment by the bank of the principal sum on demand, which sum was claimed to have been deposited with the bank for her by her trustee. The jury found for the bank, and the plaintiff excepted to the refusal of a new trial.

<p>1. The amendments to the sheriff’s petition were properly allowed; there was enough to amend by; the amendments were germane, and they did not set up a new and distinct cause of action. If, at the last trial, any question as to these matters could otherwise have arisen, the direction given by this court in this case when it was here before, put the right to amend beyond question, and the propriety of allowing the amendments offered was therefore free from doubt.</p> <p>2. There was no error in overruling the demurrer to the petition as amended; the verdict was in exact accord with the substantial justice of the case; and there was no error requiring a new trial.</p>

<p>1. The action being by a tenant against a landlord for the recovery of damages occasioned to goods by the falling of shelves in a store, which it was alleged the defendant had negligently failed and refused to repair, it was error to charge, in effect, that if the danger of the shelves falling was not imminent, the tenant was not galled upon to avoid it; and that if both parties knew of the condition of the shelves and the tenant notified the landlord to repair, until he did so or attempted to do so, the tenant, unless the danger was imminent, could leave the goods thereon, and in the event of damage thereto, could recover. This charge amounted to instructing the jury that leaving the goods on the shelves, under the circumstances indicated, would not be such negligence on the part of the plaintiff as would defeat a recovery; and thus deciding a question which was peculiarly one for the jury themselves.</p> <p>2. Where injury was occasioned to the property of a tenant by the negligent failure of the landlord to make needed repairs to the premises, the plaintiff, though guilty of some degree of negligence contributing to the injury, may nevertheless recover, provided his negligence did not amount to a want of ordinary care the exercise of which would have prevented the injury; but in such case the negligence of the plaintiff should be considered by ' the jury in reducing the damages.</p> <p>3. In the trial of an action for injury to property alleged to have been occasioned as above stated, it was, according to the ruling in A., P. & L. Railroad Co. v. Luckie, 87 Oa. 6, error to charge, without qualification, the following: “If the plaintiff’s negligence contributed to the damages, the jury should reduce the amount to the extent of [the plaintiff’s] contribution to it.”</p> <p>4- The requests to charge, so far as legal and pertinent, were covered by the general charge of the court, which charge, except as indicated in the preceding notes, substantially presented the law of the case.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. August term, 1894.</p> <p>Davis sued the railroad company for damages resulting from an injury received while engaged as a train-hand in the service of the company and while coupling cars, whereby his right hand was caught and crushed between the bumpers. He obtained a verdict, and defendant’s motion for a new trial was overruled. The declaration alleges, that on February 13, 1891, he was instructed to couple certain, cars, and in carrying out the order, his hand was caught by reason of the link used in coupling being too short and-the too rapid backing of the engine; that he was entirely free from fault, and the accident resulted from the failure of other servants of the company to provide links of sufficient length to permit of safe coupling, and to exercise proper care in the handling of the engine; that he had been in defendant’s service but a few days, and had ho knowledge or intimation that the place at which the coupling was ordered to be done was any more hazardous or dangerous by reason of being on a curve; that he had no knowledge that one of the bumpers was higher than the other, or that the link was so short as to make coupling dangerous and impossible, until after the accident occurred; that he was furnished with no instrument to aid him in perfecting the coupling, nor with any rule-book or direction prescribing the manner in which coupling should be done, but he was ordered by the conductor simply to do the coupling, without any direction, warning or instruction as to how it should best be done, the conductor knowing at the time that plaintiff had no instrument to aid him in the coupling; etc. The opinion states fully the grounds for new trial ruled on in the second, third and fourth divisions. The grounds referred to in the first and fifth divisions are:</p> <p>(1) Error in refusing to charge, as requested: “If it was the duty of the plaintiff’ to observe the link and the bumpers and he failed to do so, he cannot recover for any injury received by reason of such failure; or, if he observed them and formed the opinion that they were safe, he was acting for the company, and if he made a mistake in this opinion, he cannot recover for the consequences of such mistake.”</p> <p>(5) In concluding argument, plaintiff’s counsel said, he would ask the jury, in the same words of eloquence once used by eminent counsel now representing the defendant, wherein counsel had said, “ for every sigh, for every groan, for every pain he had suffered, he should have compensation equivalent to his agony.” Counsel for defendant objected to plaintiff’s attorney reading law to the jury. Counsel disclaimed reading law to the jury, but said he was simply quoting other’s eloquence, just as he would read or quote from the Bible or Shakespeare or any worthy author. The court permitted the counsel to conclude the quotation, which he did by saying, that these were to be put on one side of the scale, and on the other money* money, until both in even balance hung and the jury felt that he had been fully and adequately remunerated. Counsel for defendant then and there objected to the same as being irrelevant, improper, illegal and tending to prejudice the jury-</p>

Action for damages. Before Judge Eve. City court of Richmond county. August term, 1894. Hicks sued for personal injuries sustained by him while working in the railroad company’s shops. He obtained a verdict, and the company excepted to the refusal of a new trial. The declaration alleges, that he was a practical and experienced plumber and gas-fitter, and was directed to put on the ceiling of the car-shops a line of inch gas-pipe.

<p>Petition for injunction. Before Judge Hunt. Upson county. October 20, 1894.</p>

<p>Action for damages. Before Judge MacDonell. City court of Savannah. February term, 1894.</p>

<p>Under the facts in evidence, there was no error in denying a non-suit.</p>

<p>Garnishment. Before Judge MacDonell. City court of Savannah. November term, 1893.</p>

<p>1. The municipal authorities of a city have no right to destroy the private property of a citizen for the public good without compensating him for the loss thus occasioned, unless the property itself is a nuisance endangering the public health or safety. In that event it may be destroyed by such municipal authorities, without paying the owner its value, if the charter of the city confers upon them the power to abate such nuisances; but even then, unless the property is first condemned as a nuisance by appropriate proceedings, its destruction will be at the peril of the municipal authorities, and when sued for its value, the burden is on them of showing that it was in fact a nuisance, and that its destruction was really necessary to the public health or safety. In cases of emergency, the destruction may properly be ordered without a preliminary condemnation, but the municipal authorities will in that event carry the same burden.</p> <p>2. In the present case the evidence showed conclusively and beyond question that the property destroyed was in fact a nuisance endangering the public health, and that the mayor and aldermen of Savannah had due authority to abate it. Consequently the destruction of the property was lawful, and the owner was not en-entitled tp recover its value from the city.</p>

<p>1. A plea of misnomer should not only state the true name of the accused, but should further allege that he was not known and called by the name under which he was indicted.</p> <p>2. Section 4549(b) of the code comprehends within its terms not only the actual proprietor, but all persons who in any manner participate in the management of the lottery or in the promotion of the scheme or device for the hazarding of money, or other valuable thing, prohibited by that section. Participation in the illegal design and in the execution of the illegal purpose makes all persons engaged in the criminal enterprise principals.</p> <p>3. By the terms of section 4545 of the code, a witness in a criminal case arising under any of the sections therein designated, is compellable to testify to any matter of fact within his knowledge in connection with the offense alleged to have been committed, even though his testimony may tend to criminate himself, and he is then entitled to the protection specified in that section; but in a criminal case where a witness, though not compellable so to do, freely and voluntarily testifies to facts tending to criminate himself, his testimony may thereafter be given in evidence against him. Hence where, upon the trial of another for the maintenance of a lottery, a witness so testifies, he is not thereafter entitled to the protection afforded by the section first above mentioned, the maintenance of a lottery not being an offense embraced within any of the sections therein designated.</p> <p>4. While those portions of the charge of the court to which exception was taken, considered alone, may be subject to slight criticism, yet, viewed in the light of the entire charge, the errors assigned upon them are not well taken. The charge as a whole was sufficiently full and accurate, and in accord with the law. No substantial error was committed by the court; the verdict was supported by the evidence, and the judge properly denied a new trial.</p>

<p>1. The motion, for a continuance, on the ground of the absence of a material witness, being in all respects complete, and the expected testimony of the witness being vitally important to the accused upon the merits of the case, it was error requiring a new trial to refuse to grant the continuance because of evidence introduced by way of counter-showing, to the effect that the absent witness had on a previous occasion made a statement, not under oath, inconsistent with what the movant deposed he was able and expected to prove by this witness.</p> <p>2. The issue being whether the accused carried on, or participated in carrying on, a business made criminal by law, there was no error in ruling out the following question to a witness, and his answer to the same: Q. “You know that he does not carry on this business himself; you regarded him simply as a person checking up books ? ” A. “ Yes, sir; that was our instructions.”</p> <p>3. All other questions involved in this case which will probably arise on the next trial are, so far as material, covered by the rulings of this court in the case of Henderson v. The State, this day decided.</p>

Indictment for misdemeanor. Before Judge MacDonell. City court of Savannah. November term, 1894. William J. O’Dell was found guilty of keeping a policy lottery, and his motion for a new trial was overruled. The grounds of the motion are as follows: 1. Daniel Jenkins was introduced by the State, and testified: I was in defendant’s employment on July 4, 1893, and so continued for about nine months. I was employed to write policy tickets.

<p>1. Where, on the trial of a misdemeanor, one who had been summoned as a tales juror was objected to by the solicitor-general on the ground that the name of the person so summoned was not upon the jury list of the county, and the court thereupon, without objection from the accused, ordered another tales juror summoned, which was done and the juror stricken, it is not cause for a new trial that it subsequently appeared that the name of the person first summoned was in fact upon the jury list, especially when that list was accessible to counsel for the accused and might easily have been examined when the objection to the juror was made.</p> <p>2. It is within the discretion of the trial judge to allow leading questions to be asked witnesses whenever he “ deems it to the interest of justice, from the manner of the witnesses.”</p> <p>3. Under the act of December 24, 1890, “ to regulate the sale of spirituous, vinous and malt liquors in this State, to fix a penalty for the violation of the same, and for other purposes,” it is a misdemeanor to sell such liquors in any quantity, anywhere in this State, without a license. If the selling is done in an incorporated city, town or village, the municipal authorities of which have authority to grant liquor licenses, the license must be obtained from those authorities; if elsewhere, it must be obtained from the county authorities. In view of the provisions of this act, ah indictment alleging that a sale of such liquors was made “without first obtaining a license therefor from the authorities authorized bylaw to grant license for the sale of such liquors,” is sufficient as to the matter of negativing the possession of license by the accused; and although the indictment may further allege that the sale was made “ outside of unincorporated town,” a failure to prove that the sale was in fact made outside of the limits of such a town is of no consequence, and this latter allegation may be treated as mere surplusage.</p> <p>4. The evidence and the statement of the accused, taken together, showing beyond controversy that the alleged scheme of distilling corn into whisky for customers “on shares” was a very thinly veiled pretext for selling liquor for money, or bartering it for corn, the court was amply warranted in charging upon the hypothesis that such a pretext existed, and the jury were fully warranted in finding that it did in fact exist.</p> <p>5. The sentence was not excessive; and even if it were, this would be no cause for a new trial.</p>

Indictment for murder. Before Judge Harris. Troup superior court. November term, 1894. The indictment charged that Gates, “ with force and arms did unlawfully and with malice aforesaid kill and murder one Lee Sledge, by then and there'shooting said Lee Sledge with a certain loaded pistol.” Defendant was found guilty, and his motion in arrest of judgment was overruled. The motion was upon the grounds; (1) The crime of murder is insufficiently charged or described.

<p>Indictment for murder. Before Judge Smith. Pulaski superior court. November term, 1894.</p> <p>Prank Caruthes was found guilty of the murder of Thomas L. Caruthes. It appears from the evidence, that on the night of May 19, 1894, defendant was standing in a bar-room, talking with Joe Hendley, and picking or whittling with the larger blade of a pocket-knife on the top of a railing against which he was leaning. He had been talking about some trouble he was i-n with regard to gambling, etc., and as if he were angry; but had not spoken of deceased. Deceased came in with two ax-handles m hand, and asked for Prank Bozeman; and Hendley told him that Prank was down-stairs.-' Deceased turned to defendant and said, “I have tried to keep you out of jail all the time; they are going to get you this time.” Defendant said, “You and Mr. English have been trying to get me into it.” They were facing each other about five feet apart. Deceased said, “Frank, I could put you in the chain-gang in twenty-four hours.” Defendant said, “Do it then,” and walked toward the wall and put his hand under his coat in the direction of his hip-pocket. Deceased put one of the ax-handles on the counter, raised the other, and said, “Frank, don’t you do it.” The ax-handle was about two or two and a half feet long, and heavy enough to produce death. Defendant took his hand from his pocket and walked two or three feet toward deceased, who raised the ax-handle and struck defendant with it on the arm. The blow seemed to be a light one; it could not have been a hard one. Defendant warded it off, and stabbed deceased in the breast. The blow was very closely followed by the stab; according to some testimony they “came right together.” Defendant immediately fled, and remained concealed and at large for sometime after the killing. He was larger and stronger than deceased, and thirty to forty pounds heavier. One witness testified, that just at the time deceased struck at defendant with the ax-handle, defendant was going on to him; that deceased had done nothing to provoke him, only what he said; and that deceased first spoke to him in a friendly way, and asked him to go home with him. Deceased did not seem to have been drinking. Another witness testified, that in cotton-chopping time the same year, defendant told her that every time Mr. Caruthes came to town he picked at him, and if he kept on, it would be a killing scrape. According to the testimony for defendant, when deceased entered the bar-room, he went up to defendant and defendant walked back. Deceased claimed to have been a friend to defendant, who said he had not. When he got close to defendant he said, “I have done a great many favors for that rascal” ; to which defendant replied, “Yes, I reckon you have; for the last two or three years you and Mr. English has been trying to put me in the chain-gang.” Deceased said, “I have not been trying to put you there, but before three months I will have you in there.” Defendant replied that it would be all right; that he had never been run out of town for being drunk; and deceased said, “Dry up; none of your sauce.” He made a motion to raise one of the ax-handles; defendant started to pull his knife from his hip-pocket, and deceased said, “Loose it. If -you don’t loose it I will whale you.” “Defendant replied, “I reckon not.” Deceased struck at defendant, who knocked off the blow and stabbed deceased with the knife. Deceased started the quarrel. He had taken a drink of whisky before going to the place, but did not seem to be drunk.</p>

<p>Indictment for assault to murder. Before Judge Clark. Fulton superior court. . September term, 1894.</p>

<p>Indictment for seduction. Before Judge Gober. Dawson superior court. August term, 1894.</p>

<p>Petition for injunction, etc. Before Judge Griggs. Randolph county. July 18, 1894.</p>

<p>Petition for injunction, etc. Before Judge Griggs. Terrell county. November 23, 1894.</p>

<p>Action for damages. Before Judge Clark. DeKalb superior court. August term, 1894..</p>

Action for damages. Before Judge MacDonell. City court of Savannah. May term, 1894. This was an action against the railroad company for killing four mules and crippling another.

Certiorari. Before Judge Falligant. Chatham superior court. June term, 1894. Jackson sued in the city court of Savannah for damages resulting from the striking of a wagon he was driving, by a trolley car of the defendant. On the first trial the plaintiff obtained a verdict for $800; a new trial was granted, and he obtained a verdict for $1,000.

<p>1. Even if, after the passage of the general law (Code, §1689(a) et seq.) for the incorporation of railroad companies, the General Assembly • could not constitutionally grant a special charter to a railroad company of the kind contemplated by the provisions of that law, inasmuch as that law is not applicable to street railroad companies the General Assembly could, after its enactment, constitutionally grant a special charter to a railroad company of the latter kind, and in doing so, could authorize such a company to extend its line to a suburban terminus beyond the limits of the town or city in which the same was to be located.</p> <p>2. It affirmatively appearing that the acts complained of in the plaintiff’s petition were not done by the defendants, but by a duly incorporated company, the court was right in refusing to grant the injunction.</p>

<p>i. Where after the indorsement of a check by an accommodation indorser it was cashed by a bank and duly sent for collection to its correspondent in the city where the bank upon which the check was drawn was located, and there, together with a number of other checks, was duly presented to the drawee for payment, and the runner of the correspondent accepted in payment of all these checks a small sum of money and a check of the drawee upon another bank in the same city, which check had it been promptly presented would have been paid, but was held by the runner or the bank he represented for two or more hours during which time the drawee failed, in consequence of which the check last mentioned was dishonored: Held, that under these facts the bank which cashed the original check could not hold the accommodation indorser liable for the amount thereof; and this is true although after the drawee’s check had been dishonored the original check was reclaimed and duly protested.</p> <p>2. The facts as above stated having been agreed upon by the parties, direction is given that the superior court render a final judgment in favor of the defendant.</p>

<p>Action for damages. Before Judge MacDonell. City court of Savannah. July term, 1894.</p>

<p>1. A corporation which is a creditor of a testator is entitled to the same rights as other creditors in the selection of an administrator with the will annexed; but one who is appointed administrator, upon the selection of a creditor or creditors, must be himself a creditor. The president of such a corporation, having no individual claims against the testator, is not a creditor and cannot be thus selected as administrator.</p> <p>2. The sole devisee and legatee of a deceased person who was the sole devisee and legatee of another deceased person, is, irrespective of the question of the solvency of the estate of the last, the person entitled to that estate within the meaning of paragraph 6 of section 2494 of the code; and where the person so entitled is a minor, his guardian, in a contest for administration with the will annexed on that estate, has the right to select a disinterested person as administrator, and if that person is duly qualified, he is entitled to the appointment.</p>

<p>1. An act of the legislature incorporating a company to construct and maintain a turnpike road to be constructed and laid on and over ■ the bed of a certain designated public road then existing, did not, although it provided that all rights in the property acquired by the company, with the said road when completed, should be vested in the stockholders, their heirs, legal representatives or assigns forever, and in proportion to their respective shares, pass title in fee to the land upon which the road was constructed, but conferred only an easement in the maintenance, use and enjoyment of the turnpike road when ■ completed in accordance with the terms of the charter. Consequently, where by the extension of the corporate limits of a city, a portion of the turnpike road was appropriated to the public use as a street, or its use and enjoyment by the company as a part of its turnpike road was otherwise rendered valueless, the compensation to be paid to the company should be estimated, not with reference to the value of the land in fee, but with reference to the injury done to the company’s easement therein.</p> <p>2.. The value of the stock of a corporation and the amount at which its property is returned for taxation, though not conclusive, is competent evidence bearing upon the value of - the property owned by the corporation.</p> <p>3. The charge of the court as a whole was clear and accurate, and properly submitted to the jury the issues involved; the requests to charge, so far as legal and pertinent, were covered by the charge given; the evidence warranted the verdict, and there was no error in denying a new trial.</p>

<p>Action of trespass. Before Judge MacDoiíell. City court of Savannah. May term, 1894.</p>

<p>Assumpsit. Before Judge MacDonell. City court of Savannah. February term, 1894.</p>

<p>Under the facts disclosed by the record, there was no abuse of discretion in denying the injunction.</p>

<p>1. Where the sole ground of liability alleged in a declaration against a common carrier was, that the defendant negligently and carelessly unloaded the plaintiff’s goods in the rain and stored the same on an open, uncovered platform “ in the rain and weather,” whereby the goods wetfe rendered totally worthless, it was error to charge that if the goods were delivered to the wrong person, some one not authorized by the plaintiff to receive them, that would be a conversion by the defendant, and the plaintiff would be entitled to recover the full value of the goods; and to refuse to charge a written request to the effect that the action was not for the recovery of damages sustained by the plaintiff for the loss of his goods because of their delivery to the wrong person, but for damages resulting from the negligent manner in which the goods were unloaded and left exposed.</p> <p>2. There being nothing in the pleadings or evidence properly presenting as an issue in the case the question whether the person by whom the plaintiff’s goods were unloaded from the defendant’s car was, or was not, authorized to receive the goods for the plaintiff, and the controlling question being whether that person in unloading and storing the goods was acting as the agent of the plaintiff or of the defendant, the court erred in so shaping its instructions to the jury as to present for their consideration the question first above stated, and in so qualifying the written requests of the defendant as to submit that question for their determination in connection with, and as a part of, the question of agency above mentioned.</p> <p>3. The charge, as a whole, did not properly submit the real issues involved nor authorize the jury to pass upon the merits of the defense, which, if found true, would render a recovery for the plaintiff legally impossible. Because of the errors above indicated, and irrespective of other alleged errors, there should he another trial.</p>

<p>Motion for new trial. Before Judge Griggs. Bibb superior court. November term, 1893.</p>

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

<p>There being ample evidence to show that during the progress of the trial before the arbitrators one of them was guilty of conduct manifesting that he was not impartial, but was on the contrary a partisan of one of the parties and prejudiced in his favor, the jury were warranted in setting aside the award; and the sole issue being whether or not the arbitrator whose conduct was excepted to was fair and impartial, it was not material or necessary to have before the jury the evidence introduced before the arbitrators. There was no error in denying a new trial.</p>

<p>Certiorari. Before Judge Bartlett. Bibb superior court. November term, 1898.</p>

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

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

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

<p>Where, in a bail-trover action, the plaintiffs were nonsuited and a judgment against them was rendered in favor of the defendant for the value of the property as recited in the bond which had been given by the plaintiffs to acquire possession of the property, the defendant having failed to give bond, to which judgment no exception was taken, there was no error in dismissing on demurrer an equitable petition to restrain the collection of an execution issued upon that judgment, although, after the nonsuit had been granted, and pending action by the court upon a motion to enter the money judgment, the plaintiffs had surrendered the property to the levying officer and renewed their action of bailtrover.</p>

<p>Equitable petition. Before Judge Hardeman. Bibbsuperior court. April term, 1894.</p>

<p>1. The creditors of an insolvent mercantile corporation the corpora-tors of which, having the full and absolute control of its affairs, have wrongfully misappropriated its assets so as to put the same beyond the reach of these creditors, may, though the claim of each be separate and distinct from those of all the others,, unite in an equitable petition for the purpose of subjecting these corporators to individual liability because of such, misappropriation, and to this end, of obtaining an accounting by them for the assets thus misappropriated. The corporation itself is a proper party codefendant to such petition.</p> <p>2. The gravamen of the plaintiffs’ petition being the misappropriation complained of, and it being alleged that such misappropriation actually occurred and was in law a fraud upon the rights of petitioners, it was not essential that the declaration should set forth distinct acts of actual fraud on the part of the corporators in making the misappropriation.</p> <p>3. Averments in the petitionrto the effect that the alleged misappropriation occurred between the 24th of October, 1892, and the 29th of August, 1893, were sufficiently specific as against a special demurrer alleging that there were “no allegations of the time of the misappropriation.”</p> <p>4. The petition, alleging that the debts due the petitioners were created between the dates above mentioned, and that they bore interest from the date last named, sufficiently, for the purpose of a case like the present, set forth the time of the creation of the petitioners’ claims.</p>

<p>Certiorari. Before Judge Hardeman. Bibb superior court. April term, 1894.</p>

<p>Complaint for damages. Before Judge Ross. City court of Macon. June term, 1894.</p>

<p>It appearing that no injunction was necessary to the preservation of any alleged right of the plaintiff, there was no error in refusing to grant the injunction prayed for in his petition; nor was there any abuse of discretion in granting the injunction against the plaintiff prayed for in the defendants’ answer. As the pending litigation is notice to all the world, the effect of the action taken by the trial judge will simply be to preserve the existing status until the rights of the parties, whatever they may be, can be determined at the final hearing.</p>

<p>Indictment fop burglary. Before Judge Clark. Fulton superior court. March term, 1894. .</p>

<p>Bleckley, C. J. — A conviction for the offense of larceny from the house cannot be sustained without proof of the ownership of the property alleged to have been stolen and that the same was of some value. In the present case there was no legal proof of ownership, the only evidence on this point being hearsay, which was illegally admitted; and there was no proof at all as to value.</p>

Indictment for simple larceny. Before Judge Turn-bull. City court of Floyd county. November 29,1894. Smith was charged with larceny of six poplar saw-logs belonging to the Ilarris-Hartshorn Lumber Company. He was found guilty, and his motion for new trial was overruled. The motion was upon the grounds that the verdict was contrary to law and evidence.

<p>Indictment for simple larceny. Before Judge Reese. Wilkes superior court. November term, 1894.</p> <p>Defendant was charged with stealing a sow-hog belonging to Callaway, and was found guilty. A new trial was denied, and he excepted. He was employed by Callaway in April, 1894, when Callaway (as he testified) lost a red listed sow-shoat from his pasture. One Burns testified, that on a Sunday morning defendant told him he was going to borrow Callaway’s road-cart to go after his rations. He went away and returned, when Burns saw blood on his feet and asked him for “some of that beef” he had bought. He replied he had not bought any beef, and went on and returned the road-cart. His wife came up, passed her own house and went on to Burwell Cofer’s house. He told her Jule (defendant) “had done come,” and further told her not to “go up there.” She said, “Yes, I is going,” and went to Cofer’s house, pulled open the window and peeped in. Later in the day fresh pork was cooked and eaten at defendant’s house, he being present; and it seemed to be plentiful. About eleven o’clock of that morning, he inquired of another witness if the latter wanted to buy some fresh meat of him. Oofer testified, in substance, that at defendant’s instance he went with him into the pasture where defendant caught the hog and Cofer held a bag for him to put it in. They carried it about a quarter of a mile, when the hog got out of the bag and defendant killed it. Oofer skinned it and put it into his father’s shuck-house. This was on Saturday evening. The next morning defendant came with the road-cart and carried away his part of the hog, together with flour and bacon which Cofer had carried there for him. Cofer testified,-that “this was Mr. Calla-way’s hog; it was about a dollar and a half or two dollar size; it was a boar. I say it was a boar-hog; it was red and a list across it.”</p> <p>The indictment described the stolen hog as “ one red listed sow-hog weighing about 30 pounds, of the value of one and one half dollars.” Callaway was reintroduced after defendant closed, and on cross-examination testified: “I asked Burwell what shoat it was he killed, and he told me they killed that sow-shoat.” Defendant objected to this as hearsay. It was admitted on the statement of the solicitor-general, that he had been entrapped by the witness Burwell Cofer. This ruling is assigned as error. Callaway further testified that this shoat was one of a litter of six or seven, and somebody had killed three of them. He missed other shoats and this sow-shoat. He could not swear whether this was .a sow or a boar. "While he was inquiring about this hog in controversy, Burwell said that was the one that was killed; she was a sow-shoat; and this particular sow-hog was then missing; that witness knew of his own knowledge, and he had never seen her since. Be-■called, Burwell Cofer testified: “I told Mr. Callaway this was a boar — this one that was killed. The hog we .are talking about now was a boar-hog; it had never been altered.”</p>

Indictment for assault to murder. Before Judge Griggs. Bibb superior court. April term, 1894. Wallace was found guilty of stabbing, and his motion for a new trial was overruled. The defense relied solely on the code, §4302.

<p>• Lumpkin, J. — The language, “ I want to stay here awhile,” addressed by a man to a woman, is not, per se, either obscene or vulgar; and although the indictment charged that by the use of this language the former meant to ask the latter to have sexual intercourse with him, the evidence entirely failed to support this charge; and therefore the conviction of the accused of the offense of using obscene and vulgar language in the presence of a female was contrary to law and evidence, and the court erred in overruling the certiorari.</p>

Indictment. Before Judge Brown. City court of Carroll county. June term, 1894.

<p>Atkinson, J. — 1. Where upon the trial of a criminal case it appears that for some time previous to the trial the defendant had been confined in jail, that in due season he requested the sheriff to subpoena a witness in his behalf who resided in the county, and thereafter several times reminded the sheriff of his request, the latter promising to comply therewith; and where it further appears that the facts to which the alleged witness would if present swear were not only material but of vital consequence to the defense ; and the showing being in all other respects in perfect conformity with the requirements of the law, it is no reply to amotion to continue upon such a showing because of the absence of such witness, that on the night immediately preceding the trial the sheriff had sent a bailiff to subpmna the witness, who going to the house of the witness was unable to find him or to ascertain his whereabouts; and the refusal to grant a continuance was error.</p> <p>2. Where a motion for a new trial is made during the term and an order taken to perfect it in vacation, the court, as to that case, in contemplation of law continues in session until the time limited in the order, and a party moving for a new trial may as a matter of right, under section 3503 of the code, amend his motion at the hearing by the insertion of new and independent grounds of error; and this right is not subject to any arbitrary limitation imposed either by the practice prevailing in any particular judicial circuit or by the order of the judge in granting a rule nisi. Motions for new trial must be made during the term (unless upon extraoi'dinary grounds), but for proper reasons the presiding judge may grant such reasonable time thereafter for the preparation of the ‘ grounds and brief of evidence as the justice of the case may seem to require; and where such time is granted, the judge may not arbitrarily refuse to allow amendments to the grounds of the motion because, according to the practice prevailing in that circuit, certain classes of exceptions to rulings of the presiding j udge are required to be submitted during the term. In all such cases, however, the movant must abide the consequences of the judge’s inability to remember with such accuracy the minor happenings upon the trial as will enable him to certify the grounds as true. If he remembers, he should allow the amendment; if he does not, he should refuse to certify its truth. In this case it does not appear that the presiding judge did not remember ; and he therefore erred in rejecting the amendment offered.</p> <p>3. The office of a charge by the court is to give to the jury such instruction touching the rules of law pertinent to the issues involved in the pending trial, as will enable them intelligently to apply thereto the evidence submitted, and from the two constituents law and fact make a verdict. In delivering his charge the trial judge should carefully avoid an invasion of the province of the jury. He should refer to the evidence only so far as is necessary to present the leading issues in the cause, leaving the minor contentions of opposing counsel to the consideration of the jury under appropriate general instructions. It should contain no such summary of the evidence as might to a jury either seem to be an argument or amount to the expression or intimation of an opinion thereon. It is, therefore, error: 1st. For the presiding judge to repeat the substance of the testimony of the State’s witnesses as detailed from the stand, and submit this with the argumentative deductions drawn therefrom by the State’s counsel, as the issues in the case. 2d. It is likewise error, where the evidence shows only that the defendant and deceased went off together, to charge that if the defendant “took charge” of the deceased, he should account for him. 3d. It is likewise error to use such language, in instructing the jury upon the subject of the impeachment of a witness, as to suggest to their minds that because of his ignorance or inexperience he had been overreached or entrapped by counsel in the cross-examination; such a matter being one exclusively for the jury and appropriate to be dealt with by argument of counsel rather than by the charge of the court.</p> <p>4. Where the presiding judge by his general charge presents to the jury the law governing the substantial and controlling issues in a case, the mere failure or omission to charge upon minor points, to which his attention is not called at the time, is not ground for a new trial.</p>

<p>Simmons, C. J. — The evidence to sustain the verdict not being altogether satisfactory, there being some evidence of an alibi, and the newly discovered evidence consisting in part of the affidavit of one who deposed, after his own conviction and after the trial of the accused, that deponent and another person, not the accused, committed the crime, that the accused was not present when it was committed and had not participated in it, and these facts not having been disclosed by the deponent until after the accused had been convicted and sentenced, a new trial should have been granted.</p>

<p>Indictment for murder. Before Judge Harris. Meriwether superior coui't.. August term, 1894.</p>

<p>Equitable petition. Before Judge Sweat. G-lyim superior court. May term, 1894.</p> <p>Brobston & Company and several others, suing as depositors and as creditors of the Brunswick State Bank, for themselves and all other creditors of said bank who-might come in and make themselves parties to the petition, were the plaintiffs in the petition, which was brought April 9,1894. The defendants were C. Downing,-the Chatham Bank of Savannah, Ga., and various others, who were sued as stockholders of the Brunswick State Bank. The petition as amended was demurred to by Downing and others. The fifth ground of this demurrer was sustained, and plaintiffs excepted. By cross-bill, Downing excepted upon the ground that the court should have sustained the other grounds of his demurrer. The petition alleged: The Brunswick State Bank is indebted to petitioners in the sums set opposite their names, upon cash deposits. As a corporation, incorporated under an act of the legislature, approved October 11, 1889, it was organized and commenced the banking business in Brunswick upon a capital authorized by the act of incorporation, of $50,000 divided into shares of $100 each, and continued said banking business from its organization to May 25, 1898, when it closed its doors, suspended business, refused payment of any and all of its indebtedness, and has from that date never resumed business or paid any of its obligations. After the bank so closed its doors and ceased to do business, a petition was filed against it l)y the Brunswick Terminal Company and others, under which injunction was granted and a permanent receiver for the bank appointed, and since his appointment its assets have been in his possession, and at the hearing for the appointment of receiver and grant of injunction, by its counsel it admitted in open court its insolvency. The record in said cause is voluminous, and the proceedings therein are only referred to for the purpose of showing the facts above stated; hence petitioners do not attach a copy of said petition as an exhibit, but pray leave of reference to said record. The total indebtedness of the bank is $142,767.33, its nominal assets amount to $163,208.68, and the actual value of its assets is not exceeding $50,000. The bank is and was a State depository, the State having by law a first lien upon all its property; and the county treasurer of Glynn county, the Louisville Banking Company and the Brunswick Terminal Company (in the suit heretofore referred to) assert preferred claims, second only in liens to that of the State, for the entire amount of the indebtedness of the bank to them in the sums respectively of $1,500, $8,000 and $7,000, or other lai’ge sums, and the terminal company claims an additional sum of $3,000 due it as a general depositor. Bach of petitioners, other than the terminal company, is a general depositor without preferred lien or claim. By the act of incorporation of the bank it is provided, that the corporation shall be responsible to its creditors to the extent of its property, and the stockholders in addition thereto shall be individually liable, equally and ratably, and not one for another as sureties, to creditors of said corporation, for all contracts and debts of said corporation, to the extent of the amount of their stock therein at the par value thereof respectively at the time the debt was created, in addition to the amount invested in such shares. The following amounts of stock of said corporation were issued to the following parties, the total issue being 1,954 shares : (The petition then proceeds to give the names of the parties and the number of shares of stock issued to each, among others being the name of Downing for ten shares, and the Chatham Bank of Savannah for twenty shares. Of the persons whose names were given as having been original stockholders, several are alleged to be now dead, the administrators or executors upon whose estates being unknown to petitioners, and when discovered, they pray to make such representatives parties.) The eighth paragraph of the petition was as follows: Said issue of 1,954 shares is 1,454 shares in excess of the total capital stock authorized to be issued. Petitioners are unable, from any record of stock transactions in the bank, to discover what proportion of stock was, at the date of suspension and closing of the bank, authorized to participate in its corporate affairs as stockholders, and how many of said shares of stock had been transferred by the parties named in the last paragraph; but they aver that no one of said shares, if transferred, was transferred according to laAV, in such manner as to relieve any of the parties to whom such shares were issued from their liability as creditors of the bank, under the section of its charter heretofore referred to; and that each and all of said stockholders are liable under said section to its creditors to an amount equal to the par value of their shares, and were so liable when the claims of petitioners against the bank were created and became an indebtedness of the bank, and when all the indebtedness of the bank was created. The petition further alleged: The bank is totally insolvent. When it closed its doors it had hut $388.05 in cash in its vault to meet the demands of its depositors and other creditors, the deposits therein subject to check at that time amounting to $104,595.99. Its total assets will not realize more than enough to pay the claim of the State, which amounts to $30,522.96, and the expenses of the litigation in the petition of the terminal company against it, above referred to. Wherefore petitioners pray, that an accounting be had in this cause, and the equal and ratable liability of each and all the stockholders named above be ascertained, and that petitioners for themselves and all creditors of the bank have judgment against each and all the stockholders named, for the equal and ratable share of the amount due creditors of said bank.</p> <p>By amendment petitioners alleged the date at which each of said stockholders became a shai’eholder; and further alleged, that certain of said shareholders had not transferred their stock, that the shares of certain others were subsequently transferred, but to whom and at what dates the books of the bank did not show, and which was unknown to petitioners, and that certain others at dates mentioned transferred shares to certain numbers to persons named. As to Downing the allegation was, that he became a shareholder to the extent of ten shares on January 22,-1890, and the same were subsequently transferred to F. E. Cunningham on August 25,1890; and as to the Chatham bank, that on September 3,1891, it became the holder of twenty shares which on March 30,1892, were transferred to Lloyd & Adams. Petitioners have diligently sought for information from the records of the bank; and the foregoing is the best information that can be had. In all cases where transfers are alluded to, the same were made without complying with section 1496 of the code, and said parties are liable and remain stockholders as to third parties; and as to these creditors and all other parties who may join with them, said parties are, since the date of becoming shareholders in the bank and up to this date, stockholders therein and liable as such. Plaintiffs attach a copy of the account of each of them with the bank, giving dates of deposit, interest, amounts deposited, amounts withdrawn with dates of withdrawals, and balances.</p> <p>The demurrer of Downing et al. was upon the following grounds : (1) No proper parties plaintiff. (2) No such community of interest between the plaintiffs as would enable them to maintain a joint action against said defendants. (3) No such privity of contract between plaintiffs and defendants as would enable plaintiffs to maintain their action. (4) No such community of interest in the subject of the suit as between the several defendants, as would entitle plaintiffs to join them therein; nor are all of said alleged stockholders who would be jointly liable with these defendants, according to plaintiffs’ petition, made parties defendant to the suit. (5) The declaration is insufficient in law, and alleges no such facts as would entitle plaintiffs to recover. (6) It appears from the face of the declaration that said cause of action, if any, is vested in the receiver of this court, as in the petition stated, and not in the several parties who appear as plaintiffs. (7) No action can be maintained in the premises by plaintiffs, either individually or collectively, until final decree making distribution of the assets of the corporation to such persons as may be, under such final decree, entitled thereto. (8) The declaration does not allege how, wherein, nor in what manner they are responsible to plaintiffs, or either of them, as stockholders of the corporation, nor at what time the debts of the several plaintiffs were incurred, nor what particular shares of stock were issued to these defendants or either of them, nor how nor wherein their possession of said shares so alleged to be held by them creates a liability as against them in favor of either of the plaintiffs. (9) It appears by the petition, that there is another suit pending in the superior court of said county, instituted prior to the filing of said petition, to determine the liability of the bank to the petitioners and its other creditors, and the value of its assets, in which prior suit a receiver was appointed, who now has in his hands the assets of said bank, and is administering the same under the order of said court for the benefit of the creditors of the bank; and until said suit is disposed of, the petition of plaintiffs will not lie against these defendants.</p> <p>The Chatham Bank also demurred to the petition, and the demurrer was sustained on the ground that the petition as amended failed to show any cause of action against said bank. The grounds of this demurrer were, that the Brunswick State Bank is a necessary party defendant; that the legal representatives of the stockholders alleged to be dead are necessary pai-ties, and should be made parties before this defendant can be required to answer or plead further; that petitioners have not plainly, fully and distinctly set forth their respective causes of action, in this: each of them alleges himself to be a creditor of the bank in the sum set opposite his name, respectively, upon cash deposit, but nowhere in the petition does it appear when they made said cash deposits, or how much of the amounts thus stated were deposited at any specified time, nor is there any itemized bill of particulars showing the account of each of petitioners with said bank; that none of petitioners give the dates, respectively, at which their debt was created, nor do they allege in the petition that this defendant was a stockholder of the bank when said debt or the debts of either of them wure created; that the allegations in paragraph eight of the petition are indefinite, uncertain and ambiguous, and it is impossible to tell therefrom to what extent said shares of stock, and especially the shares alleged to be owned by this defendant, are sought to be held liable, or what number of stockholders, or the number of shares, or the time when they were liable; there is no allegation as to the time of transfer of any such shares, and said paragraph recites conclusions and inferences but does not state facts; and that the petition cannot be maintained independently of tile pending suit under which the Brunswick State Bank was placed in the hands of a receiver, the purpose of which is to marshal the assets and debts of said bank.</p>

Ejectment. Before Judge Sweat. Ware superior court. April term, 1894. On December 28,1892, Furgerson sued Bagley for lot number 443 in the 5th district of originally Appling, now Ware county. There was a verdict for defendant, and plaintiff’s motion for a new trial was overruled.

Motion to set aside judgment. Before Judge Westmoreland. City court of Atlanta. January term, 1894. The suit was filed on December 6,1892. Process was prayed, requiring defendant to appear “at the next city court of Atlanta.” The declaration was backed as a suit returnable to the January term, 1893. The process was-dated February 6, 1893, and summoned defendant to-appear at the March term, 1893. Service was made on February 18, 1893.

<p>Simmons, C. J. — The only question being whether or not the telegraph-company exercised proper diligence in attempting to deliver the message, and the evidence being sufficient to authorize the jury to find that it did not, the verdict for the plaintiff below will not be-disturbed.</p>

Action, for penalty. Before Jndge Bartlett. Houston superior court. April term, 1894. Davis sued the telegraph company in the county court, for failure to deliver a message sent by him from Macon to his wife at Perry. He obtained a verdict for the penalty of $50, which was sustained on certiorari. Prom the evidence for plaintiff' the following appeared : The message was delivered at the office in Macon between two and three o’clock on July 25th.

<p>Action for penalty. Before Judge Gamble. Washington superior court. March term, 1894.</p>

Complaint on note. Before Judge Yan Epps. City ■court of Atlanta. July term, 1894. Suit was brought on a promissory note containing the usual waiver of homestead, dated Februaiy 1,1898. Defendant pleaded: The note is illegal and void, beiug a •contract against the policy of the law, in that it contains a waiver of homestead or exemption right of defendant or his family, as against this debt or any renewal thereof.

Action for damages. Before Judge Westmoreland. City coui’t of Atlanta. March, term, 1894. Maggie Lynch sued the telephone company for damages claimed to have resulted from being tripped up by a wire and thrown upon the street pavement. She obtained a verdict for $700, and the defendant’s motion for a new trial was overruled.

Complaint on account. Before Judge Clark. DeKalb superior court. February term, 1894. Crockett employed Golucke & Foote, architects, to draw plans for houses and see that proper material was used by the contractor, Rideu, who, under his contract with Crockett, was to furnish the material and labor. He authorized Golucke & Foote to place orders for material. Their employment with Crockett did not cover the purchase of material.

Complaint. Before Judge Van Epps. City court of Atlanta. May term, 1894.

Complaint in trover. Before Judge Faleigant. McIntosh superior court. March 1, 1894. The suit was for the recovery of six head of calves,, which it was alleged the defendant marked in his own mark and branded in his own brand. The jury found, for the plaintiff, and defendant’s motion on the general grounds for a new trial was overruled. The evidence for plaintiff Kenan was, in brief: He owns cattle on Sapelo Island.

<p>Levy and claim. Before Judge Gamble. Johnson superior court. March term, 1894.</p> <p>An execution in favor of Robinson, founded upon a judgment dated in September, 1892, was levied on a house and lot in Wrightsville, to which a claim was interposed by a daughter of Linder, the defendant in execution. It appears that he conveyed the property to his wife by deed dated December 3, 1891, and recorded in the same month; that he and his wife conveyed to Mrs. E. H. Price by deed dated April 4, 1892, and recorded in the same month; and that Mrs. Price conveyed to the claimant, her daughter-in-law, by deed dated October 16,1892, and recorded in the same month. The issue in the case was, whether the deeds to Mrs. Linder and Mrs. Price were based on valuable considerations and made in good faith, or were made to hinder, delay or defraud Linder’s creditors, of which purpose his wife and Mrs. Price had notice or grounds for reasonable suspicion. The evidence was conflicting. The jury found the property subject to the execution. Claimant moved for a new trial on the grounds, that the verdict was contrary to law, evidence, and the charge of the court; and the motion was overruled.</p>

<p>Petition for injunction. Before Judge Griggs. Terrell county. September 8, 1894.</p> <p>The petition was brought by citizens and tax-payers of Dawson, to restrain the mayor and council from paying, and the water-works company from collecting, $1,000 about to become due from the city to the company for water furnished in the first six months of 1894 by the company to the city for fire purposes, etc.; and to restrain defendants from further carrying out the contract between them; and to declare that contract void. Upon the'petition, the demurrer and answer of the company, and the evidence submitted, the judge denied the injunction, but made certain rulings to which the company excepted.</p>

<p>Atkinson, J. — There is nothing in this case to take it out of the long established rule, that this court will not control the discretion of the trial judge in granting a first new trial in a cáse where the evidence is conflicting and he is dissatisfied with the verdict rendered.</p>

Before Judge Sweat. Appling superior court. March term, 1894. There was a verdict at the March term, 1893. During the term Hinson moved for a new trial, and a rule nisi was issued, returnable the second Monday in June, 1893. The judge also passed an order allowing movant until said date to make out and tile a brief of the testimony, without prej udice.

Certiorari. Before Judge Bartlett. Bibb superior court. November term, 1893. The suit was on an account for “ one black derby hat of the value of $5.” Plaintiff testified, that he entered defendant’s barber-shop to be shaved, and gave his coat and hat to a little boy who placed them on the rack with coats and hats of other men being shaved. After being shaved, plaintiff' discovered that his hat had been taken and another like it but of different size left in its place.

<p>1. The act of September 21st, 1887 (Acts of 1887, p. 57), authorizing judges of the superior courts to call special terms to grant charters to corporations, is not unconstitutional, either as being a special law enacted in a case for which provision had been made by an existing general law, or as infringing the constitutional requirement of uniformity in the jurisdiction, powers, proceedings and practice of courts. ’</p> <p>2. 'While a corporation formed under the provisions of section 1676 of the code may not begin to transact the business for which it was chartered until ten per cent, of the capital stock has been paid in, it may, before this has been done, organize and collect subscriptions to its capital stock. This is one of its methods of realizing the ten per cent, essential to its legally beginning the transaction of its corporate business.</p> <p>3. Where a number of persons sign a written contract by the terms of which they agree to subscribe to the capital stock of a company to be thereafter incorporated under a designated name for the purpose of carrying on a given business, each.subscriber to take the number of shares set opposite to his name and pay fifty per cent, of his subscription on demand, “ and the balance as the directors may direct,” the corporation, after being duly formed and organized, may maintain in its own name an action upon this contract against a subscriber thereto for the amount of his subscription thus made to its capital stock.</p> <p>4. Where such an action was brought by the corporation, there was no error in allowing certain named- persons who had been duly appointed its receivers to be made parties plaintiff, as usees.</p> <p>5. Calls for payments of subscriptions to the capital stock of a corporation which are payable “as the-directors may direct,” cannot be made by mere street conversations between the president and the directors of the corporation, in which they “ agree.” that he may call in the subscriptions as needed. Such calls must be made by appropriate corporate action on the part of the directors, and evidenced by the minutes of their proceedings as such.</p> <p>-6. It being stipulated in the original contract of subscription to the capital stock of the corporation, that it was “ to be binding upon each, party hereto when $50,000 has been bona fide subscribed, and not before,” if the subscriptions actually amounted to less than that amount, none of the subscribers were legally bound to pay; and though at the meeting held for the purpose of organizing under the charter, a subscriber, who was subsequently elected president, “verbally guaranteed the subscription to be $50,000,” without subscribing for or agreeing in writing to take and pay for the additional stock necessary to make up the $50,000, this was not such a compliance with the terms of the original contract as to make the same binding upon the other subscribers ; and it was error to refuse to so charge the jury.</p> <p>7. As the first motion for a new trial should have been granted, the proceedings had at the second trial were unnecessary, and need not be reviewed.</p>

<p>1. Where one loaned money to another, for which the latter gave a promissory note payable on a specified day in the future, and to secure its payment gave a deed to land worth considerably more than the amount of the note, at the same time taking from the lender a bond for titles conditioned for a reconveyance of the land upon the payment of the note, there being in the bond a recital of the terms of the note, followed'by the words, “ time being the essence of the contract,” these -writings, taken all together and fairly construed, did not, of themselves alone, amount to a conclusive and binding contract between the parties to the effect that if the note was not promptly paid at maturity the security deed should become an absolute deed of sale so as to prevent the borrower from afterwards redeeming the land by full payment of the note. Under these circumstances the right of redemption was not lost or defeated by the mere fact that the note remained unpaid after its maturity, and such right still existed, unless after maturity and non-payment the1 parties actually contracted to the contrary.</p>

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

Action on fire policy. Before Judge MacDonell. City court of Savannah. February term, 1894.

<p>Action for damages. Before Judge Hardeman. Bibb .superior court. April term, 1895.</p>

<p>1. Where a testator devised in fee to his widow a particular piece of property (the tract of ninety acres hereinafter described) upon condition that she relinquish all right of dower and year’s support in his estate, and after the probate of the will an agreement was entered into by certain heirs and legatees of the testator, including the widow, wherein she relinquished her dower and year’s support, and by the terms of which the following provision was made for her benefit: “ 8th. It is agreed that Mrs. M. L. Napier [she being the widow of the testator] shall have the full $1,500, the rent •of the swamp place for 1870; and for and during her natural life, the estate, use and income of all the following property, viz: the swamp place in Bibb county, near Macon; also, the income for the stock of the Macon Manufacturing Company, supposed to be twelve thousand dollars of stock therein, also of the note or debt due the estate by Mr. Joseph L. Multree of Alabama, together with any mortgage or other lien or security that has been or may be given to secure the same; also, the late residence of said Leroy Napier deceased, including about ninety acres of land, with all the improvements, furniture, carriages, horses and other personal property thereon, which is attached thereto or used as a part of said establishment; and the sum of five hundred dollars in cash, which sum, as also said fifteen hundred dollars to be paid her by said George C. Napier for the rent of the swamp place this year, is to be hers absolutely in fee.” Held, that by the terms of this agreement a life-estate only in the ninety acres of land therein described was vested in the widow.</p> <p>■2. No prescription arose during the life of the widow in favor of a purchaser to whom, after the above mentioned agreement had been recorded, she had conveyed in fee a part of the ninety acres, as against the executors who had no power of sale under the will, but who, under another provision of the agreement, were charged with the distribution, after her death, of the property in which she had a life-estate under the terms of the agreement, although one of the executors indorsed upon her deed to such purchaser his confirmation of the same as such executor.</p>

Complaint. Before Judge Hardeman. Bibb superior court. April term, 1894. • On April 16, 1889, the administrator of JR. JKJ. Hines sued the executrix of W\ JB. Johnston, alleging: Johnston on June 20, 1850, together with the firm of Scott, Carhart & Company, entered into a written agreement with Hines, that the parties thereto should purchase lands therein mentioned, for the purpose of laying the same oft' into town lots and selling them for the joint benefit of said parties.

<p>Petition for injunction. Before Judge Griggs. Bibb .superior court. November term, 1893.</p>

<p>1. A written contract for the purchase of a stated number of “cords of wood,” the contract being silent as to the lengths into which the wood was to be cut, is so far ambiguous as to render parol evidence admissible to show what was the real agreement of the parties in this respect. In such a contract the significance of the word “ cords” would, without explanation, relate to quantity, and not to the lengths or shapes of the sticks of wood. If the contract was to deliver so much “ cord wood,” the significance of the words j ust quoted would be otherwise.</p> <p>2. Where under a contract to deliver a certain number of “ cords of wood at a given point, at a time certain and upon an agreed price, the seller so far complies with his agreement as to deliver the wood, but the same is not cut into lengths required for “ cord wood,” if the purchaser have an ppportunity to inspect the wood, he must either accept or reject the whole. If he accept a part without objection, he will not thereafter, upon a suit for the contract price, be heard to object that the wood was not cut in accordance with his understanding of the agreement between himself and the seller.</p>

<p>1. Where an equitable petition was brought to set aside a conveyance of land alleged to have been procured from the plaintiff by the fraud of the defendant, and for other appropriate relief, it was error, over the plaintiff’s objection, to make the defendant’s vendee a codefendant to the action, it not appearing that such vendee was either a necessary or proper party thereto.</p> <p>2. The amendment to the petition which the court rejected ought to have been allowed; but even without this amendment, the petition, with the amendments which were allowed, set forth a cause of action not barred by the lapse of time, and it was error to sustain a general demurrer thereto.</p>

Affidavit of illegality. Before Judge McWhorter. Hart superior court. March term, 1894. Suit was brought in a justice’s court on a note attached to the summons, for $93.57 principal, with interest from maturity, and “all cost of collection, including ten per cent, attorney’s fees.” Judgment was rendered for $93.57 principal, and $1.70 costs; and execution issued accordingly.

Before Judge McWhorter. Elbert superior court. March term, 1894. A trial at the March term, 1893, of the superior court, before Judge Guerry (presiding in lieu of the judge of the circuit), resulted in a verdict for the plaintiff-.

<p>B. and M. agreed orally that M. should bid off for B. certain land about to be sold at sheriff’s sale, take the title in M’s name, and hold the same for B. until the latter could pay for the land. M., in pursuance of this agreement, bid off the land; the sheriff made out and executed a deed conveying the land to M., but it was never delivered to him. Immediately after the sheriff’s sale, B. went into possession of the land; and afterwards, with the sheriff’s consent, paid the purchase money to the attorney of the plaintiff in the execution under which the land was sold. B’s possession continued until he was subsequently evicted under another sheriff’s sale. Under these facts, the parol contract between B. and M. was fully executed, and thus taken' out of the statute of frauds, and B. obtained a complete equity in the land as against M. and all who hold under him.</p>

<p>Actio,n for damages. Before Judge McWhorter. Elbert superior court. March term, 1894.</p>

<p>Where there are mutual conflicting claims between a partnership and a third person, involving an accounting in order to reach a settlement between the parties, an agreement by the third person for one of the members of the firm to act as his agent in making the settlement, if binding at all, is certainly revocable at any time before such agreement has been executed and acted on to the detriment of the firm or any member of the same.</p>

<p>Bail-trover. Before Judge Cobb. City court of Clarke county. March term, 1894.</p>

<p>Action for dapages. Before Judge Cobb. City court of Clarke county. January term; 1894.</p>

<p>1. As to one who had been a customer of a partnership as a purchaser of its goods, but who had never been a creditor of the partnership, actual, personal notice of the dissolution of the partnership by the withdrawal of one of its members is not indispensable to the discharge of the retiring partner from liability upon a note for the loan of money executed in the firm name after the dissolution. A customer of this kind is entitled only to such notice as should be given to “the world ” of the dissolution.</p> <p>2. It is a question for the jury whether or not, under all the circumstances of a given case, the party making such a loan and taking such a note is chargeable with notice of the dissolution of the firm; and in determining this question they may take into con" sideration the lapse of time occurring between the dissolution and the making of the note, and all the evidence showing what information was received by the lender, and illustrating his knowledge, or want of knowledge, before the loan was made, as to the fact of dissolution.</p> <p>•3. The publication in a newspaper of local items of news inserted by the editor, and neither authorized nor signed by any member of a firm, to the effect that one of the partners had withdrawn, is not necessarily all that may be requisite to convey notice of dissolution, but should be given such weight as in the opinion of the jury it is entitled to receive.</p> <p>4. The fact of the circulation in the community of a general rumor that one of the partners had retired is admissible in evidence, not as being of itself sufficient to put any particular person on notice of the dissolution of the firm, but as a circumstance proper to be considered by the jury in connection with the other evidence bearing on the question of notice.</p> <p>5. If the retiring partner was not otherwise liable, the fact that the money loaned to the other members of the firm, and for which they gave a note in the firm name, was used in paying debts contracted by the firm prior to his withdrawal, would not render him so. Where all the beneficiaries of a trust estate, consisting of both realty and personalty in the hands of a trustee residing in this State, are citizens of another State, it is within the power and jurisdiction of the superior court of the trustee’s residence, exercising its equitable powers, upon the application of these beneficiaries, to render a decree authorizing them to apply to the proper court in the State of their residence for the appointment of a trustee to take charge of the trust estate for their benefit, and to provide that upon his appointment the Georgia trustee shall convert the real estate into cash and deliver the same, together with the personalty belonging to the trust estate, already in his hands, to the foreign trustee; the decree making proper provision for the giving of a valid and adequate bond by such foreign trustee in the State of his residence, and providing fully for the protection of the Georgia trustee as to his fees and commissions, and also for the protection of all creditors of the trust estate residing in Georgia.</p>

<p>Equitable petition. Before Judge Hutchins. Clarke superior court. April term, 1894.</p>

<p>Action for damages. Before Judge Hutchins. Clarke superior court. April term, 1894.</p>

<p>[Relatively to a traveler on a public road, driving an animal attached to a vehicle, and approaching a railroad crossing over which he is about to pass, the railroad company is under a duty to obey the requirements of section 708 of the code; and if, by reason of a failure to observe this duty, the locomotive conies within such close proximity to the animal that it takes fright, runs away, and injury results to the' person in consequence of being thrown from the vehicle, the company is liable for such injury, although there was no actual contact between the locomotive and the vehicle or its occupant.</p>

<p>Equitable petition.- Before Judge Wellborn. Union superior court. April term, 1894.</p> <p>On August 16, 1890,' James'S. Hamilton and John England entered into the following contract:</p> <p>“This is to certify, for and in consideration of fifty ($50.00) in hand this day paid, receipt for which is herewith acknowledged, paid by Jas. 8. Hamilton, that I have and do hereby bind myself to make deed to a certain mineral interest in a tract of land in Towns county, . . under the following conditions: Provided the said Jas. S. Hamilton shall pay the sum of five hundred dollars ($500) by or on October 1st, 1890; shall pay $1,500.00, fifteen hundred dollars, by or on March 1st, 1891. And further, that should the property be sufficiently developed and of sufficient worth on March 1st, 1891, the said Jas. S. Hamilton shall pay two thousand dollars ($2,000.00) on or by Sept. 1st, 1891, and two thousand dollars ($2,000.00) on or by March1 1st, 1892. The question of the worth of the property [to] be decided by arbitration of men of experience in corundum mining, provided the said Hamilton and myself cannot agree. It is a further condition, that the said Hamilton shall proceed at once, or as soon as practicable, to work and open the property for mining purposes. If payments are not paid at maturity, the contract becomes null and void.”</p> <p>On Mai’ch 28, 1891, Hamilton brought his petition against England for specific performance of the contract, alleging that, in addition to the $50 cash payment, he pa¿d England $500 on October 1, 1890, and that on March 1, 1891, he sought to agree with England as to the value of his interest, and failing to do so, offered to arbitrate the matter as stipulated in the contract, but England refused to do this and declined to appoint any one to act for him; whereupon Hamilton’s arbitrator proceeded to act alone, and having fully examined and investigated the property, fixed the value of England’s interest at $2,050, deducting from which the $550 already paid, left $1,500 which Hamilton tendered to England, and made the tender continuous. This petition was answered by England, who claimed that the property was fully worth $6,050, aud offered to make Hamilton & deed thereto upon payment of $5,500 which he alleged was the balance due under the contract.’ On April 4, 1894, Hamilton filed an amendment alleging, that by the terms of the contract time was of the essence thereof; that if the- payments provided for were not made at maturity the whole contract became null and void; that he tendered England $1,500 on March 1, 1891, and the same was refused; that he had fully .worked, tested and developed the mine, aud sinee said tender had expended $8,000 or other large sum on said development, and the mine had turned out to be utterly Avorthless. Therefore he withdrew his tender of the $1,500, as well as his application for specific performance, and prayed that the contract be decreed null and void and be cancelled, and that he have judgment against England for the $550 already paid him. Verdict and decree were rendered, that England execute to Hamilton a deed to the property, and recover of Hamilton $1,500 with cost. Hamilton moved for a new trial on the general grounds, and for •error in the court’s charge construing the contract; aud the motion was overruled. The charge complained of was: “I construe it to mean this: that it is conditional .as to the two last payments of two. thousand dollars each, provided for in it, and unconditional as to the fi^st three payments of fifty dollars, five hundred dollars, and fifteen hundred dollars; that the aggregate of these first named amounts represents the valuation placed by both parties on the property as it then appeared, and that Hamilton was bound to pay that much Avithout reference to how the mine might develop, and that any failure to pay these first named amounts would not make the contract void.”</p>

<p>Where the terms of a will are plain and unambiguous, they cannot he varied or explained by parol evidence showing an intention on the part of the testator at variance with that expressed in the will ! itself.</p>

<p>1. The issue being whether a bill of sale from a mercantile firm to a creditor was executed and delivered upon a bona fide contract of absolute sale, or upon a secret agreement that this creditor, out of the proceeds of the property conveyed, was to pay a debt due another creditor of the firm ; and there being both parol and documentary evidence bearing directly upon this issue, there was no error in refusing to charge a written request which limited the jury, in determining the question involved, to a consideration of the bill of sale and the parol evidence explanatory of the same.</p> <p>2. There was evidence sufficient to warrant the verdict.</p>

<p>Certiorari. Before Judge G-ober. Cobb superior court. November term, 1898.</p>

<p>Appeal. Before Judge G-ober. Cobb superior court. November term, 1893.</p>

<p>1. Where one who was a party defendant in error to a case in this court, in his representative capacity as trustee and executor of a ■ deceased testator, himself died, and upon his death being suggested the case was continued for the purpose of allowing a party to be made in his stead, the administrator of the individual estate of the deceased defendant in error could not, at the next term, properly be made a party defendant in error, it not appearing that it' was a case involving any personal or individual liability on the part of the deceased defendant in error, arising from his office as trustee and executor, or otherwise; and although this court passed an order allowing the administrator to be made a party, the case must nevertheless be dismissed for want of proper parties, the order just mentioned expressly providing that the effect of granting the same should be determined when the case came on for consideration upon its merits.</p> <p>2. Under the facts disclosed by the record in this case, there was no error in confirming the sale, or in adjudging that the plaintiff in error was bound by its bid.</p>

<p>Levy and claim. Before George R. Brown, judge prohao vice. Forsyth superior court. February term, 1894..</p>

Appeal. Before Judge Milner. Bartow superior «court. January term, 1894. Suit was brought to the April term, 1892, of a justice’s court. The names of attorneys for plaintiffs and for defendant were entered on the docket, and the case was continued to the November term, 1892, by defendant, for providential cause. She filed a plea on November 8, 1892. The case was appealed to the superior •court.

<p>Complaint for land. Before Judge Milner. Bartow superior court. January term, 1894.</p>

<p>1. It is not within the scope of the business of a law partnership to collect choses in action without charging for services rendered in so doing. Therefore, where one member of such a firm, beingthe ■ owner of a promissory note, sold it to a third person, a part of the consideration of the sale being that the seller’s firm would collect the note without charge, this contract was not binding upon another member of the firm. The seller had no power, by virtue of the partnership, to bind his partner by any such contract; and as to the latter, it was also without consideration.</p> <p>2. The verdict was demanded by the evidence, and the newly discovered evidence was not such as ought to change the result.</p>

<p>Equitable petition. Before Judge Henry. Walker superior court. February term, 1894.</p>

<p>1. Where prior to the passage of the act of 1885, amending section 2573 of the code and providing for the publication of a citation in case of an application for a year’s support, a widow applied for a year’s support for herself and one minor son, which was duly set apart by the appraisers, and their return, to which no objection was ever filed, was made and remained on file in the ordinary’s office for more than six months before the minor became of age, the title to the property embraced in the year’s support, including a'tract of land, vested in both the mother and son, and the interest of the latter was not divested because the ordinary delayed the actual recording of the appraisers’ return until after the son became of age.</p> <p>2. Where in such case the son after reaching his majority died, his administrator could not, while the mother remained upon the land using it for the purpose of obtaining a support, sell or otherwise administer an undivided one half of the land as the estate of the son.</p>

<p>1. Where the plaintiff offered in evidence a deed essential to the making out of his case, and a special issue as to the genuineness of such deed was made up and tried under section 2712 of the code, which resulted in a verdict finding that the deed was a forgery, it was the right of the plaintiff to move for a new trial of this issue, and within the power and jurisdiction of the court to grant a new trial thereon, although the main case had proceeded to trial and the plaintiff had been nonsuited. In the present case there was no error in granting a new trial.</p> <p>2. Whether granting the new trial would of itself have the effect to set aside the judgment of nonsuit and reinstate the main case or not, this court, in the exercise of the power conferred upon it by section 4284 of the code, so directs.</p>

<p>Action on notes. Before Judge Attaway. City court of Cartersville. June term, 1894.</p> <p>Waring executed to Gaskill, cashier of the Fourth National Bank of Chattanooga, three promissory notes dated May 6, June 8, and 14, 1893, for $375, $75 and $200, respectively. To secure their payment he pledged two shares of stock of the par value of $1,000 each, stipulating in the first note that the holder should have power to sell the pledge at public or private sale at the bank, in ease of failure to pay this or either of the other notes, “at any time thereafter, and without advertising the same or otherwise giving to me more than ten days notice”; and that “in case of public sale the owner may purchase Avithout being liable to account for the net proceeds of such sale.” The notes not having been paid when due, the collateral was advertised for sale, and was publicly sold to the highest bidder on October 4, 1893, the bank becoming»the purchaser for $240. This sum, less cost of advertising and interest, was entered as a payment on the first note; and suit was brought against Waring for the balance appearing to be due on the notes. He pleaded, that plaintiff sold the stock without giving him any notice; that he had no notice of the intended sale, and when informed of it, refused to ratify it; that it Avas an illegal sale and a conversion of the stock, whereby he was damaged $2,000, for, had he been given the notice provided in the contract, he could and would, by himself or friends, have prevented the stock from being sold for $240, as it was worth its face value, which amount he'pleads by way of recoupment, etc. To this plea plaintiff demurred on the grounds, that it failed to allege that defendant tendered the principal and interest due, and demanded the certificates of stock, before offering to recoup damages for the alleged conversion; and that it set out no cause of action authorizing judgment in favor of defendant. The demurrer was sustained and judgment for plaintiff rendered. Defendant excepted.</p>

<p>If there was negligence on the part of the railroad company in. leaving a portion of its track in such condition as to render coupling cars unsafe at that point, yet as it affirmatively appeared from the plaintiff’s evidence, which was the only evidence showing how and when her husband was killed, that this negligence, if it existed, did not cause or contribute to his death, and the evidence as a whole showing that in all other respects the company was free from negligence, the verdict was unwarranted, and therefore contrary to law. Atkinson, J., dissenting.</p>

<p>Action for damages. Before Judge Milner. Whitfield superior court. April term, 1894.</p>

<p>1. As railroad companies are bound to exercise extraordinary care and diligence for the safety of passengers, the presumption of negligence which the law raises in favor of a passenger in case of injury will not be rebutted by the company’s showing the exercise of only ordinary care and diligence.</p> <p>2. The “extraordinary” diligence due by railroad companies to passengers is “ that extreme care and caution which very prudent and thoughtful persons” exercise under like circumstances; and it was error to charge, without qualification, that such companies “ are required by law to observe the utmost care and diligence ” for the safe carriage of passengers, and for their delivery at destination. Even if the word “ utmost ” is synonymous with the word “ extreme,” the omission from this charge of any reference to the standard of diligence observed by “ very prudent and thoughtful persons,” rendered it too strong a statement of the law against the company.</p>

<p>Complaint for land. Before Judge Henry. Floyd superior court. March term, 1894.</p>

<p>The action being based upon alleged .fraud and deceit on the part of the joint defendants, and the allegations of the declaration not showing any liability at all on the part of one of them, or any liability arising ex delicto on the pai’t of the other, the demurrer was-properly sustained. t</p>

<p>Mandamus. Before Judge Janes. Polk superior court. February term, 1894.</p>

<p>The evidence in this case does not support the verdict. Giving to that which was introduced for the claimant its most favorable interpretation in her behalf, it is impossible to escape the conclusion that the conveyance to her was the result of a purpose on the part of her husband and herself to defraud his creditors; and consequently the jury were not warranted in finding the property not subject to the plaintiff’s execution.</p>

<p>Equitable petition. Before Judge Henry. Eloyd superior court. March term, 1894.</p> <p>Plaintiff and defendant are the owners respectively •of city lots 54 and 58, each adjoining the other, and each fronting 30 feet on Broad street in Home. Lot 53 is fully covered by the buildings on it; the building on lot 54 covers only 26 feet frontage; and the property in •dispute is a space on lot 54, four feet wide, running from the front to the rear of the lot, and being immediately .alongside lot 53. In this space is a stairway from the top of which is an entrance into the second story of the building on lot 54. There formerly was a similar entrance into the second story of the building on lot 53, but the same was closed up several years since. Plaintiff prayed for a decree quieting the title to this alleyway absolutely in her, and enjoining defendant from occupying, using or claiming title to it. It appears that both the lots were formerly owned by A. M. Sloan. In 1861 he conveyed lot 54, reserving “the right of way between lots 53 and 54, to afford convenient access to his buildings on lot 53.” Four other conveyances of lot 54, made in 1866,1867 and 1868, seem to contain no such reservation or reference thereto. All five of these deeds were duly recorded. In 1870 lot 54 was conveyed to two Gammons, the deed “making such reservation to the right.of way through the alley as arbitrators heretofore awarded' to Mr. Sloan during his lifetime, the said Sloan being the owner of the lot northeast of the lot herein conveyed.” In 1874 the Gammons conveyed lot 54 to the plaintiff, their deed containing a recital similar to that just quoted. In 1874 lot 53 was sold at sheriff’s sale as the property of Sloan. ITe died in 1880. There was testimony for plaintiff, that the Gammons bought lot 54 in 1867, taking a bond for title. The walls of an old burned building were then on that lot. They started to build thereon in 1867, intending to cover the whole front of the lot, but were stopped by a claim of Sloan that the right of way to the four-foot alley had been reserved by him. This question was settled by a somewhat informal arbitration between all the parties at interest, these being the Gammons, the former vendors of lot 54, and Sloan. The arbitration was had, and the, award was, that Sloan was entitled to the use of the alley for access to the buildings on lot 53 during his lifetime; and that the Gammons were to be credited $250 ■on the notes they had given their vendor in purchase of lot 54, on account of this reservation and their inability to build on the entire 30 feet. This credit was in fact given them. They then erected a two-story building on lot 54, in width 26 feet, and built the stairway in the four-foot alley. Nothing appears of record as to such arbitration; and those who acted as arbitrators are all dead. It seems that the tenants of both lots have continuously used the space in the alley back of the stairway, for storing coal, boxes, etc.</p>

<p>Equitable petition. Before Judge Janes. Polk superior court. May 26, 1894.</p>

<p>Appeal. Before Judge Janes. Paulding superior court. August term, 1894.</p>

<p>Action on insurance policy. Before Judge Freeman. City court of Newnan. January term, 1894.</p>

<p>1. A witness who is not an expert upon the subject of insanity cannot testify to an opinion that a given person was insane, without stating the facts upon which this opinion is based. Even a mother will not be permitted to testify that her deceased daughter was of unsound mind, although it appeared from other evidence that the two had lived together during the entire lifetime of the daughter, the mother herself not giving any reason whatever arising from their relationship or the long association between them, or stating any fact upon which her opinion as to the daughter’s mental condition was based.</p> <p>2. The evidence was sufficient to warrant the verdict, and no reason appears why this court should overrule the discretion of the trial judge in refusing to grant a new trial.</p>

Equitable petition. Before Judge Harris. Campbell superior court. February term, 1894. W. J. Ware left a will dated February 4, 1883, the material parts of which are as follows: “I give and bequeath and devise to Hester Ann Miller and her children, to wit, Richard Miller, Sissie Miller, John Miller, Joseph Miller, Robert Miller and William Miller, all my estate real and personal, to be equally divided between them share and share alike.

Appeal. Before Judge Smith. Spalding superior court. January term, 1894. Thomas Nall brought suit against the Farmers Warehouse Company, J. II. Mitchell, B. N. Barrow, J. J. Elder, PI. T. Patterson and E. M. Scott, to recover the value of four bales of cotton. The court granted a nonsuit, on the ground that there was not sufficient evidence to authorize the plaintiff to recover against any of tlie defendants.

<p>A son who enters into possession of land as a tenant of his father, thereby admits the title of the latter; and where subsequenthr to the father’s death he remains in possession in subordination to a claim of title upon the part of his mother, and occupies the premises by her permission, he thereby admits title in her. If the mother thereafter make a will devising to the son a life-estate, with remainder over to his children, the remaindermen, at the termination of the life-estate, may, upon the devise of their grandmother, supported by the presumption of title resulting from her possession by her son, who became at her death the life-tenant, recover in ejectment their respective undivided interests against any person holding adversely to them the premises so devised.</p>

<p>1. According to the decision of this court in the case of Southwestern R. Co. v. Felder, 46 6a. 433, approved in the case of Western & Atlantic R. Co. v. Camp, 53 Qa. 599, where goods are shipped by rail and arrive a.t destination within the usual time required for transportation, and are there deposited by the railroad company in a place of safety and held ready to be delivered to the consignee on demand, the company’s liability as a common earner, in the absence of a contrary custom of trade as to delivery, ceases, and its liability as a warehouseman begins.,</p> <p>2. Where goods are shipped by rail over the connecting lines of different railroads and are delayed in arriving at their final destination, and there is no evidence showing upon what contract the shipment was made or that the company completing the transportation had any connection with such contract, nor any evidence showing when, where or by which one Of the companies the delay was in fact caused, upon these facts alone a finding that the delay in question was chargeable to the fault or negligence of the last company receiving the goods would not have been warranted.</p> <p>3. There being one or more questions of fact involved in this case which, even upon the theory that the railroad company was liable as a warehouseman only, ought to be passed upon by the jury, it was error, in sustaining the certiorari, to also render final judgment in favor of the defendant.</p> <p>Atkinson, J., concurring for special reasons.</p>

<p>I. Where a father causes a deed to land, for which he has himself paid the purchase money, to be made to himself as guardian of his minor son, for whom he is neither a testamentary nor (because of his not having given bond as such) a statutory guardian, the legal effect of such conveyance is the creation of a trust in the land in favor of the minor son, and the position of the father with reference to this estate is really that oE a trustee and not technically that of guardian.</p> <p>:2. If in case of such a trust the father, during the minority of the son, conveys such land as his own property to another, who takes without actual notice of the trust, and the trust estate be, until the son attains his majority, represented by the father, then, inasmuch as the trust itself becomes executed by the majority of the son, the interest of the son is thus at all times represented by a person competent to sue, and prescription runs in favor of the purchaser continuously from the beginning of possession under the conveyance from the father; and if the purchaser, in good faith, . goes into possession thereunder and continues for a term of seven years before the institution of a suit by the son for the recovery of the property thus conveyed, he acquires as against the son a good title by prescription.</p>

<p>Levy and claim. Before Judge Butt. Harris superior court. April term, 1894.</p>

<p>, A careful comparison of the testimony reported in tlie record of the first trial of .this case with that which was introduced at the last trial discloses.no material or substantial differences; and it having been adjudged when the case was last here for review that the offense amounted to no more than voluntary manslaughter, the second conviction for murder, like the first, is unwarranted by the evidence, and is contrary to law.</p>

<p>1. Where a homestead was set apart for the benefit of a wife and her minor children out of the land of the husband and father, who died while the homestead was subsisting, the children as his heirs could, upon the termination of the homestead estate, occasioned by the death of the widowand the arrival of the youngest child at majority, sue for and recover the land which had been embraced in the homestead, from one who held under a sheriff’s sale unlawfully made before the expiration of the homestead estate.</p> <p>2. In such case no prescription ran against the children until after the widow died and the youngest child became of age.</p> <p>3. Before the homestead could be lawfully levied on and sold, it was essential for the plaintiff, his agent or attorney, to file with the sheriff an affidavit stating not only that the debt on which the plaintiff’s judgment was rendered fell “within some one of the classes for which the homestead is bound under the constitution” (specifying which class), but also that “there was no property except the homestead upon which to levy.” In order to show that the sale was legal, it was necessary to prove affirmatively that such affidavit was in fact filed with the sheriff' before the sale was made. An affidavit omitting the latter of the above quoted allegations was insufficient to render the sale legal.</p>

<p>The writ of prohibition is designed to prevent the performance of some official act unauthorized by law, and not to relieve against the consequences of such an act. Accordingly, where a county judge had declared a county office vacant and had ordered an-election to fill the vacancy, it was too late to “prohibit and direct him to abstain and desist from proceeding further to have said election.” Whether the county judge originally had authority to pass such an order or not, and if so, whether or not it was rightly passed in the given case, it is certain that after the order was in fact passed he had no further jurisdiction or control over the matter.</p>

<p>A conveyance of real estate by a debtor to a creditor, under section 1969 of the code, is an alienation of the property, operates to pass the title to the premises conveyed, and is not a mere incumbrance thereon. Hence, where a policy of insurance covering a building on the premises is issued, containing a condition that the policy shall be void if the property should be sold, or the title or possession of the property, or any part thereof, transferred or changed, whether by legal process, judicial decree, conveyance or otherwise; and where, pending such insurance, the holder of the policy thus conveys the property insured, the policy is thereby rendered void, and in case of loss the assured cannot maintain thereon an action against the insurer.</p>

<p>3. Grounds of a motion for a new trial which are expressed in terms so vague, general or indefinite as not to indicate the nature or character of the errors alleged to have been committed, or which embrace utterly superfluous and unnecessary matter, such as lengthy colloquies between counsel on opposing sides, or between counsel and the court, tedious recitals of irrelevant facts, statements taken from the stenographic notes of the trial, and other like things, to such an extent as to bury the point in question under a great mass of entirely needless phraseology and thus render it very difficult, if not impracticable, for this court to ascertain what was really the ruling or other conduct of the court complained of, will not bé considered.</p> <p>2. The charge as a whole was clear and correct, and fairly submitted to the jury the issues involved. Taken in connection therewith, the charges complained of contain no error requiring a new trial. The alleged misconduct of the jury was sufficiently explained; the evidence warranted the verdict, and the same was not excessive in amount.</p>

<p>Certiorari. Before Judge Hansell. Brooks superior court. May term, 1894.</p>

<p>Levy and claim. Before Judge Bartlett. Lee superior court. March term, 1894.</p>

<p>Complaint on note. Before Judge Fish. Sumter superior court. May term, 1894.</p>

<p>It being, under the pleading act of 189S, the duty of the judge of the superior court at each regular term, to call all cases on the appearance docket, and hear and determine all objections made to the sufficiency of petitions and pleas, it is incumbent upon plaintiffs to make at that term their exceptions to pleas filed. Consequently, where to an action upon an unconditional contract in writing a plea was filed at the first term, which set forth a good defense, but was notswoi’n to by the defendants, and no objection was then made to it because of this defect, the plaintiff will be held to have waived the same so far as that term is concerned ; and if at a subsequent term he moves to strike the plea because of such defect, the court should then allow the defendants to complete the plea by a proper verification.</p>

<p>' Action for penalty! Before Judge Smith. ’ Telfair superior court. ' October term, 1894.</p>

<p>Action for penalty. Before Judge Smith. Wilcox superior court. December term, 1894.</p>

Action for damages. Before Judge Van Epps. City court of Atlanta. November term, 1894. .From plaintiff’s testimony the. following appears: He went to the passenger depot in Atlanta to take the train for Jacksonville, Florida. He had $125 in money-anct certain plans and specifications contained in an envelope. He bought a sleeping-car ticket, went to the platform of the Pullman car, and asked the conductor of that car if. that was the car that went to Jacksonville.