Volume 96 — Georgia Reports

<p>Appeal. Before Judge Gamble. Emanuel superior court. April term, 1894.</p>

<p>1. Where the owner of a ship who has chartered out the hold, retains control of the navigation of the vessel, and bills of lading for goods consigned therein, which themselves contain the contract of affreightment, are issued by the master at the instance of the charterer to consignors, the owner is bound directly to the consignors for the performance of the contract of affreightment as contained in the bills of lading, and the consignors are not affected by provisions of the charter-party inconsistent with such contract.</p> <p>2. Where in such case the goods were consigned from Savannah to a port in Spain, under bills of lading reciting that the vessel was bound for that port, and the vessel went first, without necessity or reasonable cause, to a port in Italy not in the usual course of vessels bound from Savannah to the Spanish port, thus subjecting the goods, when delivered at that port, to an extra duty under the law of Spain, this was such a deviation as would authorize the consignors to recover in an action against the owner of the ship for loss thus occasioned.</p> <p>3. The contract upon which this action was founded being unambiguous, and there being no conflict in the evidence as to its breach or the amount of damages thereby occasioned to the plaintiffs, there was no error in directing a verdict in their favor to the extent of that amount. It not appearing, however, that the defendant was stubbornly litigious or acted in bad faith, the recovery of attorney’s fees was illegal; and accordingly direction is given that the amount of these fees be written off from the plaintiffs’ recovery.</p>

Gertiorari. Before Judge Hardeman. Bibb superior court. April term, 1894. The plaintiff' in error was convicted, in the recorder’s court of Macon, of violating the license ordinances of that city; which judgment was sustained on certiorari.

<p>1. Where goods were shipped over the lines of connecting railways to a consignee designated in the bill of lading, and on arrival at destination the receivers of the railway company which completed the transportation tendered delivery to that consignee, and he declined to receive the goods, the liability of the receivers as common carriers thereupon ceased and they became liable as warehouse-men only, and as such were chargeable with the duty of notifying the consignor of the consignee’s refusal to accept the goods, and with the further duty of holding the same subject to the order of the consignor.</p> <p>2. The action being by the-consignor against the receivers to recover the goods, or their value, and the only defense set up and relied upon by the defendants being, in substance, that they had delivered the goods as directed by a broker of the plaintiff, and that he was the duly authorized agent of the plaintiff to direct such delivery, and there being no sufficient evidence to warrant a finding that he was, in fact, such an agent of the plaintiff, the judge below, who tried the case without a jury, erred in adjudging that the defendants were not liable. The broker, under his general powers as such, had no authority either to receive the goods or to direct to whom they should be delivered, nor could such authority be conferred upon him, so as to bind his principal, the consignor, by any local custom or usage, the latter having no knowledge thereof, and consequently not contracting with reference thereto in making the shipment.</p>

<p>Equitable petition. Befoi-e Judge-McWhorter. Oglethorpe superior court. April term, 1894.</p>

<p>Under the facts in evidence, the cause was one for submission to the jury, and not for determination by the court; and therefore it was error to grant a nonsuit.</p>

Equitable petition. Before W. E. Simmons, judge pro hac vice. Hall superior court-. January term, 1894. The petition of A. D. Candler against the Farmers Loan & Trust Co. and others was dismissed on demurrer.

<p>Equitable petition. Before Judge G-ober. Eorsyth superior court. February term, 1894.</p>

<p>Levy and claim. Before Judge Milner. Bartow superior court. January term, 1894.</p>

<p>1. In a suit upon a contract made and to be executed in the State of Tennessee, in the absence of any evidence to the contrary, this court will presume that the rules of the common law prevail there.</p> <p>2. According to the rules of the common law, the indorser of a promissory note is entitled to have the same duly presented for payment, and of a failure or refusal to pay he is entitled to notice; and a failure of the holder to present for payment, or to give notice.of non-payment, discharges the. indorfeer from liability.</p> <p>3. Where upon a promissory note executed and payable in the State of Tennessee, to a named payee or order, and containing no stipulation for the payment of attorney’s fees, suit was brought by a holder against the payee, who had indorsed upon the note the following undertaking, signed by him: “I guarantee attorney’s fees up to ten. per cent, if this note has to be collected by law, on [and?] its.prompt payment,” there being no other indorsement of the paper by the payee: Held, that by the terms of this agreement, it having been made for the purpose and in the course of negotiation, the payee became and was an indorser thereof and liable as such, with a superadded liability for such reasonable sums, not exceeding ten per cent., as might be expended for attorney’s fees by the holder in the collection of the note. Held, further, that in order to bind the payee for the payment of the note, it was incumbent upon the plaintiff to prove presentment and notice of nonpayment. Held further, that in order to charge the payee with the payment of attorney’s fees, it must appear that in the effort to recover from the maker the sums due on the note, the holder had incurred a liability, or had expended for attorney’s fees the amount sought to be recovered from the payee, not exceeding ten per cent, of the debt due.</p>

<p>Although, promissory notes bearing on their face a greater rate of interest than six per cent, were executed and made payable in the State of Tennessee, and it appeared by an admission in open court that the legal rate of interest in that State was six per cent., in the absence of any further evidence as to the laws of Tennessee on the subject of usury, the courts of Georgia will not hold that these notes are absolutely void, and will sustain a verdict making a person who guaranteed their payment liable for the principal of the notes with interest thereon at six per cent.</p>

<p>“Where a manufacturer contracted to manufacture goods for another and store them in the former’s warehouse to be shipped as instructed, the purchaser to pay for the goods as fast as they were made and stored, by honoring the manufacturer’s drafts when presented with warehouse receipts attached to the same, and where the latter issued a warehouse receipt reciting that a specified quantity of the goods had been so made and stored, the facts however being that although the goods had been actually manufactured they needed some slight work to put them in merchantable condition as required by the contract and had not been removed from the factory to the warehouse, and the purchaser paid a draft for the price of these goods, to which this receipt was attached, under these facts the title to the goods passed to the purchaser as against the claim of a receiver who was appointed at the instance of creditors to take charge of the manufacturer’s assets and who had accordingly seized the goods in question before their actual shipment to the purchaser.</p>

<p>This court having, at the March term, 1892 (89 Ga. 532), decided that the pleas of the defendants in this case, taken as a whole, set forth a good defense to the plaintiff’s action, and it now appearing that at the last trial in the court below the evidence fully sustained the pleas and required a finding for the defendants, the verdict, upon the substantial merits of the case, was right, and, irrespective of the errors alleged to have been committed by the trial judge, should be allowed to stand.</p>

<p>1. Where personal property was sold, the vendor reserving the title until it should be fully paid for, and the vendee, after paying a part only of the purchase money, abandoned the property, and the vendor retook possession, having authority so to do under the contract of sale, although upon an adjustment of the equities between these parties there might be a balance due from the vendor to the vendee, these equities cannot be adjusted, nor such balance ascertained and reached, by a garnishment returnable to a justice’s court, sued out by a creditor of the vendee and served upon the vendor.</p> <p>2. It would be the right of such creditor to redeem the property by paying the balance of the purchase money and then subjecting it as the property of his debtor; and in case this creditor and the vendor could not agree upon terms, or the latter refused to accept a tender of the proper amount still due him for the purchase money, the creditor might, upon equitable proceedings in a court having equity jurisdiction, obtain suitable relief, in which event the debtor himself should be a party to the case.</p> <p>3. The court was right in sustaining the certiorari, but should also have rendered a final judgment in favor of the plaintiff in certiorari; and direction is given accordingly.</p>

Action for damages. Before Judge Henry. Floyd superior court. March term, 1894. To the petition of the M. A. Thedford Medicine Company against Curry, as amended, the defendant demurred. The demurrer was sustained, and plaintiffs excepted. The petition alleged: Plaintiffs have been in business in Rome, Ga., since November, 1890, in manufacturing and selling medicine now called M. A. Thedford’s Black Draught, which they prepared and sold for profit long before January 1, 1894.

Equitable petition. Before Judge Henry. Floyd superior court. March term, 1894.

<p>Complaint for land. Before Judge Janes. Paulding superior court. August term, 1894.</p>

<p>A person cannot by deed create out of his own property, upon his own behalf, a trust estate. A deed executed for such a purpose is void, and passes no interest, legal or equitable, to the trustees named. In such a case the whole title remains in the grantor, and the property so sought to be conveyed is subject to the payment of his debts.</p>

<p>Appeal. Before Judge ' Hunt. Spalding superior-court. January term, 1894.</p>

<p>Petition for mandamus. Before Judge Hardeman. Spalding superior court. August term, 1894.</p>

<p>Equitable petition. Befoi’e Judge Jenkins. Jones superior court. April term, 1894.</p>

<p>Traverse of sheriff’s return. Before Judge Jenkins. Putnam superior court. March term, 1894.</p> <p>To the levy of an execution issued upon the foreclosure of a mortgage, the defendant filed an affidavit of illegality for want of service of the rule nisi in the foreclosure proceeding, and traversed the return of the sheriff', which stated that he served the defendant personally with copy of the petition.and rule nisi on March 25, 1893. The testimony upon this issue was directly conflicting. Defendant testified positively that he was never served personally or otherwise; and he was corroborated in part by the testimony of his father and son. The sheriff testified postitively that he handed the copy to the defendant on the day named; and the clerk of the superior court testified that he handed the original and copy to the sheriff' on that day, and pointed out to him the defendant upon the street, and that the sheriff took the papers and started out of the court-house. Plaintiff’s attorney also testified as to the circumstances, and his testimony tended to corroborate the sheriff'. The court charged the jury as follows:</p> <p>“It is admitted in this case that the sheriff'made the entry of service as it appears on the papers. The law presumes this entry to be true, but the defendant may traverse the truth of such entry; and when this is done as it has been here, the issue for you to try in the light of the evidence is, whether or not the entry speaks the truth. If it does, you should find for the plaintiff"; if not, then you should find for the defendant. The law presumes, as already stated, that the entry speaks the truth, and the burden is on the defendant to overcome this presumption. While it may be contradicted and rebutted, it is not a mere prima facie presumption. The entry furnishes a high rank of evidence, very strong evidence of the fact of service; and the law requires the very strongest evidence to overcome the effect of such entry. You are the judges of the strength of the evidence necessary for this purpose, and you are to say whether the strength of the evidence is sufficient to authorize you to set aside this entry. The law requires satisfactory proof, the strongest proof of its incorrectness or falsity before it can be set aside, and your minds must be well satisfied that the entry is false before you will be authorized to find in favor of the traverse. • If the evidence is not of sufficient strength to well satisfy your minds that the entry is false, you should find against the traverse.”</p> <p>The jury found for the plaintiff, and defendant moved for a new trial on the grounds, that the court erred in the foregoing charge, and that the verdict was contrary to law and evidence. The motion was overruled, and defendant excepted.</p>

<p>Complaint for land. Before Judge Jenkins. Laurens superior court. July term, 1894.</p>

Petition for interpleader, etc. Before Judge Jenkins. Greene county. December 28, 1894.

<p>1. "Where one owning real estate sues out in due and legal form a dispossessory warrant against another who entered as the tenant of a prior owner, and the warrant, in the absence of a counter-affidavit and bond, is by a proper officer duly executed 'and the tenant evicted, the latter cannot, unless the warrant was sued out with malice and without probable cause, maintain against the plaintiff in the dispossessory warrant an action for damages to or destruction of his business thus occasioned, there being no direct contractual relation between himself and such plaintiff.</p> <p>2. It is not essential to the validity of a plea of justification that it should admit the existence of a right in the plaintiff which he alleges was violated by certain acts of the defendant, when the plea admits that the defendant did all the acts complained of in the declaration as wrongful, and justifies the same. Accordingly, where the declaration alleged possession by the plaintiff of certain premises under a contract of rent or lease for a given term, and that he was unlawfully and wrongfully expelled therefrom before the expiration of that term under a dispossessory warrant sued out by the defendant, a plea admitting the suing out of the warrant and the expulsion of the plaintiff under it at the time alleged, but averring that the proceeding was instituted without malice and upon probable cause, and setting out facts which, if established, would amount to probable cause, although it does not ■ admit the existence of any contract under which the plaintiff held the premises, is nevertheless a good plea of justification.</p> <p>3. Where a licensed retailer of spirituous liquors dies pending the term for which the license was granted, such license is not assets of the estate of the deceased in the hands of his administrator, nor can the latter legally continue the business under the license for the unexpired term covered by it.</p> <p>4. Even in a case where damages to the business of a retailer of spirituous liquors, occasioned by his unlawful expulsion from his place of business, are allowable^ the profits of the business.for a period to elapse after the expiration of the retailer’s license cannot be considered. Inasmuch as an existing license is limited to the time for which it was granted, and the obtaining of a new license depends upon the wills of other persons than the licensee, profits which might have been realized upon the business in case there had been no expulsion and the license had been renewed or continued are too remote and speculative.</p> <p>5. Where J., who was in possession of certain premises, informed P., who claimed the right of possession to the same, that he (J.) held under a written lease from a former owner of the property, to v 96-10 which P. was not a party, and P., upon ascertaining that such lease was of no validity in J.’s hands, gave him notice as a tenant at will or hy sufferance to quit, and thereafter sued out a dispossessory warrant to expel J. from the premises, although J., while the notice to quit was pending, in a written warning to P. not to have the warrant executed, referred to the written lease only as the source of his right to retain possession, without mentioning any other lease, yet where before the actual suing out or execution of the dispossessory warrant P. was otherwise informed of an oral lease made directly to J. hy P.’s vendor, then if this latter lease conferred upon J. the right to remain in possession of the premises, it was, under all the facts and circumstances, a question for the jury whether or not, in suing out the dispossessory warrant and having the same executed, P. acted without malice and upon probable cause.</p>

<p>1. The issue being -whether or not the defendant’s intestate, at the time of receiving from the plaintiffs’ guardian certain money, took the same with knowledge of the fact that it belonged to the latter’s wards, a surety on the guardian’s bond was not a competent witness to prove such knowledge on the part of the deceased. As a party to the case, the surety would be disqualified from testifying, and is therefore, because of his interest in the result of the case, excluded from testifying by the evidence act of 1889.</p> <p>2. In such case the guardian was a competent witness to prove the fact indicated, his interest in fixing liability on the estate of the defendant’s intestate being exactly counterbalanced by the fact that he would be liable over to the administrator for any amount which might be recovered from the latter in the action against him by the wards.</p>

<p>1. Unsupported by some such action, or motion, in a judicial proceeding as serves to manifest a purpose upon the part of a plaintiff in execution to insist upon the enforcement of his judgment, or by some other bona fide conduct on his part asserting the lien thereof, such as placing the execution in the hands of a levying officer and claiming money thereon, a mere entry by an officer upon the execution is not sufficient to save the judgment from dormancy, unless the entry be made by an officer authorized to execute and return the writ, and unless it likewise contain such a statement by the officer of some material fact responsive to the mandate of the process as would tend either to charge him with, or discharge him from, responsibility to the plaintiff.</p> <p>2. An entry in the following words: “May 19th, 1875. Directions from plaintiff’s attorney, L. T. Downing, received for the collection of this fl. fa.,” though made by an officer authorized to execute and return the writ, is a simple statement by him of a merely irrelevant fact, and is neither responsive to the mandate of the process, nor tends to charge him with, or discharge him from, liability to the plaintiff; and there having been no other entry upon or action under the execution within seven years from the date of the last preceding lawful entry thereon which would serve to keep it alive, the judgment upon which it issued was dormant.</p>

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

<p>Complaint. Before Judge Butt. Muscogee superior .court. May term, 1894.</p>

<p>Dispossessory warrant. Before Judge Butt. Muscogee superior court. May term, 1894.</p>

<p>Where, pending an action for libel, the defendant therein died intestate, the claim of the plaintiff, even if meritorious, was not such a “debt” against the estate of the decedent as would prevent his widow, as sole heir at law, from taking possession of his estate without administration.</p>

<p>Action for damages. Before Judge Butt. Muscogee superior court. May term, 1894.</p>

<p>Under the facts set forth in the plaintiff’s affidavit to foreclose his alleged lien as a laborer, the relation between himself and the defendant was not a partnership, and it was therefore error to sustain the defendant’s special demurrer, the ground of which was that, under these facts, the parties were partners. The question whether or not the plaintiff’s affidavit was for any other reason defective, was not presented for adjudication by this court.</p>

<p>Unless at the time a subpoena for a non-resident witness for the State in a criminal case is issued, it is signed both by the clerk of the superior court and the solicitor-general of the circuit, it is void; and though such witness may attend thereon, he is not entitled to compensation under the provisions of section 3845 of the code.</p>

<p>1. Where a defendant in execution, being present at a judicial sale of personal property levied upon as his own, bid off the same, and upon refusing to comply with his bid the property was again sold during the same day, the defendant being also present at the second sale, again bidding for the property and making no objection to the sale until after it had been completed, he thereby waived his right to afterwards deny the validity of the sale though it was not in all respects regular and lawful.</p> <p>2. Where the vendor of personal property had reserved title until the property should be paid for by his vendee, and the latter, before paying the purchase money, sold the property to a third party, in ■whose hands it was seized under executions against the first purchaser based upon his purchase money notes for the property, the third party is legally excused from returning or paying for the property to his vendor,.and may set up these facts in defense to an action brought against him by such vendor for the property or its value.</p>

Petition for interpleader, etc. Before Judge Lump-kin. Fulton county. November 12, 1895. The City of Atlanta filed its petition against McDaniel and Jenkins, praying that a suit brought by McDaniel against the city be enjoined, and that McDaniel and Jenkins be compelled to interplead as to their claims to a certain amount in the .hands of the city. Interpleader and injunction were denied, and the city excepted.

<p>Proceeding to establish copy-deed. Before Judge Roney. Burke superior court. May term, 1894.</p>

<p>Complaint. Before Judge Fish. Sumter superior court. November term, 1898.</p>

<p>Complaint. Before Judge Hunt. Macon superior court. May term, 1894.</p>

Bail-trover. Before Judge Bower. Decatur superior court. January term, 1894. On February 16, 1891, suit was brought against Bell for 7,590 pounds of lint-cotton of the alleged value of $664.12, further alleged to have been collected by him for plaintiff', on notes entrusted to him for that purpose; and for certain notes taken by him for sales of plaintiff’s fertilizers, and entrusted to him by plaintiff* for collection. It does not appear what plea he filed.

<p>Levy and claim. Before Judge Bower. Dougherty superior court. January 16, 1894.</p>

<p>Equitable petition. Before Judge Bower. Dougherty superior court. October term, 1898.</p>

<p>Action for damages. Before Judge Bower. Decatur superior court. May term, 1894.</p>

<p>1. Under the decision of this court in the case of Jackson v. American Mortgage Company of Scotland, IAmited, 88 tí a. 756, the notes sued on in tliis case, consideredin connection with the deed given to secure the same, the other documents in evidence and all the facts proved, were Georgia contracts; and the question whether or not these notes were affected with usury was properly determined with reference to the laws of this State.</p> <p>2. According to the decision in Hughes v. Griswold,, 82 Ga. 299, and in view of the undisputed facts disclosed by the record, the jury were amply warranted in finding that the notes sued upon were free from usury; and the court committed no error in refusing a new trial.</p>

<p>Equitable petition. Before Judge Hansell. Brooks superior court. May term,* 1894.</p>

<p>Equitable petition. Before Judge Hurt. Pulaski superior court. November term, 1893.</p>

<p>Although a witness may have no distinct and independent recollection of the details o£ a fact occurring in the course of the routine of his business, he may testify to his fixed and uniform habit in such cases, and state that he knows what he did in a given transaction was in accordance with that habit. The probative value of such evidence was for the jury to determine, and therefore it was error for the court to prevent them from giving it due consideration, by charging that “when a witness swears to a thing which he knows to be true only from his habit of doing business, such statement is not to be taken as evidence. What the jury wants is facts, not conclusions drawn from the habits of a witness.” The more especially is this error when the evidence in question was admitte without objection.</p>

Equitable petition. Before Judge Smith. Wilcox superior court. March term, 1894. The petition of Woodburn as receiver of Laurance & Jackson, against Allen W. Smith, was dismissed on demurrer, and plaintiff excepted. He alleged, that he was appointed receiver in the ease of J. G. Laurance v. Laurance & Jackson, accepted the appointment, and is still acting as receiver.

<p>Ejectment. Before E. A. Hawkins, judge pro hac vice. Montgomery superior court. April term, 1894.</p>

<p>1. Construing the “school act” of 1889 for the town of Decatur (Acts 1889, p. 1292), in connection with the act of 1893 amending the charter of that town (Acts 1893, p. 206) which confers upon the mayor and council “power and authority to provide for the registration of voters prior to any municipal election in said town,” it could not, under the decision of this court in Mayor etc. of Madison v. Wade et al., 88 Ga. 699, in the absence of any registration at all, be legally ascertained wh ether or not, at an election h eld under the act first mentioned, two thirds of the qualified voters of the town voted “for public schools.” It would have been competent for the municipal authorities, by a proper registration ordinance, to have ascertained the whole number of such voters in the town, but as no such ordinance was adopted and no other legal means of ascertaining such number existed, the fact that two thirds of those voting at the particular election cast their ballots in favor of the establishment of the school system was not a legal test upon the question.</p> <p>2. There was no error in granting the injunction.</p>

<p>Interventions. Before Judge Griggs. Bibb superior court. November term, 1893.</p>

Certiorari. Before Judge Honey. Bibb superior court. April term, 1894.

<p>■ Certiorari. Before Judge Milner. Catoosa superior court. February term, 1894.</p>

<p>Petition for injunction and receiver. Before Judge Smith. Dooly county. November 10, 1894.</p>

<p>Complaint on notes. Before Judge Bower. Decatur superior court. May term, 1894.</p>

<p>1. It is, under that portion of the constitution embodied in section 4995 of the code, essential to the validity of a judgment rendered in an attachment case for the purchase money of land, that the defendant in attachment should have notice of the proceeding. A mere entry hy the sheriff on the attachment, that he had levied the same upon the land, followed by another entry stating that he had “notified defendant of the above levy by mail,” does not amount to such notice; nor is this, without more, sufficient to constitute a legal levy of the process.</p> <p>2. It was error to sustain a demurrer to an affidavit of illegality to a judgment rendered in such a case, the affidavit alleging, in substance, that when the attachment was sued out the defendant was in possession of the land; that he had never been served with any “copy of the suit against him,” or with any process or notice; that he did not appear in the case; that he has a valid defense to the claim on which the judgment was rendered (setting it forth); that there was never any levy of the attachment, and that he had no notice, by mail or otherwise, of the levy of the same or of the attachment proceedings until after the judgment against him thereon had been rendered.</p>

<p>The act of December 29th, 1893 (Acts of 1893, p. 124), “to provide for the filing, hearing and determination of contests in contested elections in this State, and for other purposes,” does not invest tlie superior courts of this State with any jurisdiction in such cases. The provision in that act which declares that “All papers and proceedings, or copies of them duly certified by the presiding officer or agreed to by the parties in writing, must be transmitted, within five days after the closing of the testimony so taken, to the judge of the superior court of the circuit wherein the contest may arise, who shall hear and determine the same, either in term time or in chambers, after giving reasonable notice to the parties concerned, or their counsel, of the time and place of hearing,” does not confer upon the judge of the superior court the power to exercise with respect to such matters a judicial function, but simply, by reference to the office, designates that officer as the person who shall perform those duties which theretofore pertained as one of its political functions to the executive branch of the government, but which for the public convenience the General Assembly, without changing the nature of the service, saw fit to impose upon other public officials. , No jurisdiction to hear and determine such matters is conferred upon any superior court, but a duty is simply imposed upon the person who happens to be a judge of those superior courts which compose his circuit; and inasmuch as the jurisdiction of the Supreme Court is limited by the constitution to-the “trial and correction of errors from the superior courts, and from the city courts of Atlanta and Savannah, and such other like courts as may be hereafter established in other cities,”-, this court would have no jurisdiction to hear and determine, and consequently no power to direct the signing of a writ of error to the judgment of any court or functionary other than those enumerated.</p> <p>Aside from these considerations, the purpose of the General Assembly to make the finding of the judge of the superior court final as to the proceedings before him, is made evident not only by the failure of the act to provide for a review thereof, but by the failure as well to provide any machinery whatever by which the decision complained of, and the record upon which it is based, could be transmitted to this court.</p>

<p>3. The defense of insanity at the time of the perpetration of the alleged crime is included in and made by the plea of the general issue; and while, in the absence of a special plea settingup insanity at the time of the trial, it may not have been necessary for the court to explain to the jury the nature and purpose of such a plea, that this was done isnotcausefor a new trial, it appearing that the court, in this connection, also instructed the jury to the effect that the mental condition of the accused since the commission of the alleged criminal act and at the time of the trial might be considered as throwing light upon the condition of his mind at the time that act was done.</p> <p>2. The defense being general insanity, and there being no evidence of special dementia, or that the accused was laboring under any delusion as to the act committed, there was no error in charging: “ Insanity is where there is a total or partial impairment of the intellect, and to such an extent that the person who is thus affected does not know the difference between right and wrong as to the act that he is committing.”</p> <p>3. That the court undertook in a general way to explain to the jury the different forms and kinds of insanity, was not of itself an invasion of their province in passing upon the questions of fact involved in the case; and though the court’s definitions may not have been sufficiently comprehensive nor in all respects perfectly correct, they were not, in view of the entire charge, harmful to the accused.</p> <p>4. While it may not have been appropriate for the court to inform the jury, as matter of fact, that insanity in all its forms was liable to become worse; that insanity of any kind was progressive in its nature; and that, while there were some exceptions, the general rule was that it progressed till it ended in complete dementia, so doing was neither expressing an 'opinion as to the facts of the pending case, nor, in view of all the evidence and of the respective contentions of the parties, cause for a new trial.</p> <p>5. The legal presumption being that every person is sane, and that every such person remains so until the contrary is shown, it is essential to the establishment of the distinctive defense of insanity as such, that insanity at the time of the commission of the offense be proved by a preponderance of the evidence; and the burden of so doing rests upon the accused. If this particular defense is not thus established, the jury would not be authorized to acquit upon the same. The evidence bearing on the question of insanity should, however, be duly considered in connection with all the other evidence, in determining whether or not, upon a view of the whole case, there was a reasonable doubt of the guilt of the accused. The mere failure of the court in the present caseto charge as indicated in the preceding sentence, there being no request so to do, is not cause for a new trial, the charge upon the subject of reasonable doubt being sufficiently full and fair to give the accused the benefit of all the evibence rlating to his alleged insanity for the purpose of casting a doubt upon his guilt.</p> <p>6. The charges complained of and which are not covered by the rulings announced in the preceding notes, if erroneous at all, contain nothing which would justify the granting of a new-trial; there was no error in striking the special plea filed by the accused, nor in refusing to allow his counsel, because of such plea, to open and conclude the evidence and the argument; the newly discovered evidence was cumulative, and would not probably change the result; the alleged irregularities and improprieties in the conduct of court and counsel were not shown to have occurred ; the alleged misconduct of the jury in reading newspaper reports of the trial was sufficiently disproved by the affidavits of the jurors themselves, and the affidavits to the contrary, made by two of them, could not be received to impeach the verdict; the evidence, as a whole, fully warranted the conviction, and there is no good cause for a new trial.</p>

<p>On the trial of an indictment alleging that the accused forged a certain order purporting to be signed by A and addressed to B, with . .intent .to defsaud A, and uttered the same with intent to defraud B, it was error to charge the jury that if they believed from the evidence the accused “ did pass this order with intent to defraud” either A or 0, it would be their duty to find him guilty.</p>

<p>Indictment for assault and battery. Before Judge Ross. City court of Macon. March term, 1895.</p>

Indictment for misdemeanor. Before Judge Gober. Cobb superior court. March term, 1895. Anthony Crow was indicted for abandoning his child, was found guilty, and. his motion for a new trial was overruled. The evidence shows that he married Anna liussell and had not lived with her since the marriage. She had born to her a male child, now about a year old; he was begotten previous to the marriage-and born.after-wards.

<p>Indictment for opprobrious words.. Before Judge Kimsey. White superior court. April term, 1895.</p>

<p>Indictment for hog-stealing. Before Judge Sweat. Camden superior court. October term, 1894.</p>

Indictment for trespass. ‘Before Judge Akin. City court of Cartersville. March term, 1895. Holton Gilreath was tried upon an indictment charging that he and Caleb and Will Gilreath took and carried away certain rails, the property of A. M. Gaines, from his land without his consent. The Gilreath family and Gaines are adjacent landowners. A settlement road once divided their lauds.

Indictment for cheating and swindling. Before J ad ge Boss. City court of Macon. March term, 1895.

<p>'Certiorari. Before Judge Gamble. Bulloch superior court. April term, 1895.</p>

<p>Indictment for simple larceny.' Before Judge Calla-way.. Richmond superior court. April term, 1895.</p>

Petition for injunction. Before .Judge Griggs. Randolph county. March 18, 1895. The injunction was sought to prevent the issuing and selling of bonds for the erection of water-works and electric lights for the city of Cuthbert. The court denied the injunction, save as to the issuance of any bonds in excess of $36,000, or seven per cent, of the taxable property of the city.

<p>1. Where, in the administration by a court of equity of the assets of an insolvent corporation having numerous creditors whose claims had been referred to and reported upon by a master, the court, in its decree rendered thereon, fixed the rights of a particular creditor, both as to the amount of his claim and the priority of its lien relatively to other creditors, and no exception to this portion of the decree was taken by any party to the case, although the decree in other respects may have been subsequently modified by the judgment of the Supreme Court, it was not thereafter within the power of the trial court, without notice to this creditor, to so amend the decree as to change the priority of his lien by subordinating it to the liens of those others over which it had originally been given a preference ; and a motion to set aside such an amendment, filed at the next term after that at which it was made, was in time and should not have been dismissed on demurrer.</p> <p>2. In such case it was within the power of the court to render a final decree fixing and allowing the compensation of the receiver, counsel fees and other charges and expenses of administration; every party to the entire case was bound to take notice of this action of the court; and it was too late, at any term subsequent to that at which such action was taken, to except thereto or move to set it aside for mere error.</p>

<p>1. Where, as against one claiming title to land under a deceased person, the right of a judgment creditor of the estate of the latter to subject the land to the satisfaction of the judgment depends upon the validity of a deed made by the deceased for the purpose of securing the debt upon which such judgment is founded, it is the right of the person so claiming under the deceased to attack the deed in question as being void for usury.</p> <p>2. Where one was duly appointed administrator of the estate of a deceased jierson, and letters of administration were issued to him accordingly, a judgment rendered against him in proper form as such administrator was not void, although he had not, before the rendition of the judgment, taken the oath and given the bond required by law.</p> <p>3. Even if the plaintiff had, by claim, an adequate remedy for asserting her title to the land in controversy, yet, inasmuch as her equitable petition seeks to remove all alleged cloud upon her title, and contains allegations which, if duly proved, would entitle her to relief of this character, and probably to other equitable relief, her petition ought not to have been dismissed on demurrer.</p>

<p>From a judgment of the superior court overruling amotion to dismiss a writ of certiorari, sued out to review a judgment of conviction rendered in the police court of a town against a person who had been accused in that court of a violation of a municipal ordinance, the city authorities cannot prosecute a writ of error to this court; and a writ of error in such a case having been sued out, this court will not entertain jurisdiction thereof.</p>

<p>1. Although the declaration, does contain some loose allegations that the plaintiff was injured by the negligence of the employees of the defendant railway company in certain specified respects, it .shows clearly by other allegations that this negligence was not the real cause of the injury; and the true meaning of the declaration, taking together all of its averments and fairly construing them, is that the negligence which did cause the injury was that of a flagman in ordering the plaintiff to alight from a moving train in the dark at an unsafe place. This being the plaintiff’s ireal cause of action, if he had any at all, and the declaration failing to allege that this flagman had any authority to give such order, or that the .giving of it was within the scope of his duties, or that he gave it by direction of the conductor, no cause of action was set forth; and there having been no offer to amend the declaration, the demurrer to the same should have been sustained.</p> <p>2. Even if the evidence introduced upon the trial was sufficient to show that the flagman, under instructions from the conductor, in fact had authority to see to the plaintiff’s alighting from the train, and accordingly to give him the order to do so, and even if the giving of the order was, under all the circumstances, negligence, the verdict cannot stand. The declaration not setting forth a complete cause of action, the trial and its results were mere nullities.</p>

<p>Motion for new trial. Before Judge Sweat. Coffee superior court. September term, 1894.</p>

<p>Upon the hearing before tlie judge of a petition for injunction, “ the case was closed,” “ with the understanding ” that certain registered deeds, in evidence and relied upon by defendants, would be attacked for forgery, the judge at the same time remarking “that affidavits could be submitted next day.” On the next day the statutory affidavit of forgery was made by one of the plaintiffs, attacking the deeds above indicated, and handed to the judge but not submitted to defendants or their counsel. On the next succeeding day, the judge in delivering his judgment in the case re* ferred to this affidavit, and thereupon counsel for defendants, stating that they had never seen it nor until that moment been informed of its existence, made a request that they be allowed time to submit counter-affidavits in support of their deeds. It was of vital importance to the defense to establish the genuineness of these deeds: Held, that under these facts it was error to deny this request and to then and there grant the injunction without allowing the defendants an opportunity, by submitting proof as to the due execution of the deeds thus attacked, to meet and overcome the affidavit of forgery submitted in behalf of the plaintiffs.</p>

Action for damages. Before Judge Westmoreland. City court of Atlanta. September term, 1894. To the facts appearing in the opinion it is pi’oper to add only the following: The check was for $12.48, dated August 15,18931 It was sent by the plaintiff in payment of a bill due by him to a person in Tennessee.

Equitable petition. Before Judge Lumpkin. Fulton superior court. September term, 1894. To the petition of Hattie Tanner a demurrer was interposed, the grounds of which appear in the opinion. The demurrer was overruled.

Levy and claim. Before Alex. C. King, judge pro hacvice. Pulton superior court. September term, 1894. An execution against T. J. James was levied upon a parcel of land to which a claim was interposed by T. J. and N. R. Simmons. The case was submitted to the court upon an agreement as to the facts, without the intervention of a jury; and judgment was rendered for the claimants.

<p>Where an indictment for burglary alleged that the accused broke and entered a storehouse with the intent to commit the larceny of a “ five-gallon keg of whiskey of the value of fifteen dollars,” and there was ample evidence to show the breaking and entry by the accused and the actual larceny by him from that house of a keg of whiskey containing five gallons, and also that the same was of some value, the case was sufficiently made out without further proof as to value.</p>

<p>1. The principle that acquiescence or silence, when the circumstances require an answer or denial, may amount to an admission, has no application to a criminal cause where a person accused by another with the commission of an offense, immediately denies all knowledge of, or complicity in, its commission, even though such denial be in general terms and does not in detail extend to each of the minor incriminating circumstances charged against him. Such a case not being one showing silence by the accused under accusation, the court, if any charge with reference to this subject is given, should thereby withdraw entirely from the consideration of the jury the whole subject of implied admissions; and a charge which, under such circumstances, leaves open to their consideration the effect of alleged admissions by silence, is erroneous.</p> <p>2. Upon the trial of a criminal case, where the principal incriminat- . ing evidence against the accused is purely circumstantial, consisting almost entirely of a similarity between certain tracks alleged to have been discovered near the scene of the crime and other tracks at other places shown to have been made b}' the accused, all of which indicated a like peculiarity in the shape of the hoot or shoe with which they must have been made, a charge to the j ury, that in a case where there is nothing more than mere tracks, they would not be authorized to find the defendant guilty, unless there is some peculiarity about the tracks, is erroneous under section 3248 of the code, as expressing and intimating an opinion upon the weight of the evidence.</p>

<p>Indictment for burglary. Before Judge Reese. Wilkes superior court. May term, 1895.</p>

<p>It appearing from, the allegations of the plaintiff’s declaration, that the obstructions -which had been placed by the defendant in the alleged streets were common nuisances, affecting not only herself but the public generally; that no injury was thereby done to her in which the public, as such, did not share; and there being no allegation of any special injury or damage to her property, no legal cause of action was set forth, and the court erred in not sustaining the demurrer to the declaration.</p>

<p>Ejectment. Before Judge Lumpkin. Eulton superior •court. September term, 1894.</p> <p>Collins sued Mrs. Boring for a tract of land in lot 222 ■of the 17th district of originally Henry, now Eulton county, commencing on the east side of the Marietta road at a point where it crosses the south line of said land lot, running thence east 1,600 feet to a white oak stump, thence north 681 feet more or less, thence west 1,600 feet more or less, theuee along said road to the beginning point, containing twenty-five acres more or less. The defendant disclaimed title to the northern portion of the land sued for, a strip of about '250 feet in width and 1,600 feet in length.</p> <p>On October 22, 1857, Joseph E. Morris deeded to Eranees E. Burge, “in trust for Emily J. Burge and her children the issue of her body, and her present husband "William E. Burge, as well those that may be born to said Emily J. Burge and William J. Burge, also for the use, benefit and advantage of Mary M. Burge and the issue of her body by her present husband Benjamin R. Burge,” a tract of land partly described as commencing at the southeast corner of land lot number 222 of originally Henry, now Eulton county (the number of the district not being given). The boundaries of the tract were stated. The tract was stated to contain 117J acres more or less. It does not appear to have been disputed by either side that the land in dispute was a portion of said tract. The deed also conveyed other land. Collins claimed that this deed from Morris to Mrs. Burge as trustee conveyed the title to her in trust for the beneficiaries therein stated. Eranees E. Burge was the mother-in-law of Emily J. Burge and Mary Burge, mentioned in the deed, and was the mother of Benjamin R. Burge and Mrs.Boring. The children of Emily J. Burgewere William E. Jr., Matthew, John and George Burge. Mary M. Burge was the wife of Benjamin R. Burge. Her children were Harriet E. Hatcher and Mrs. Isbell. By a deed dated December 2, 1872, William E. Burge Jr. conveyed to Collins all the interest of said William F. in the lands held by Frances E. Burge, trustee, under the deed from Morris. In 1880, by an agreement between Mrs. M. J. Burge, Mrs. Mary M. Burge, Mrs. Hatcher, Mrs. Isbell, George W., John M. and Matthew Burge, and Collins as grantee of W. E. Burge Jr., a partition was made of lands covered by the Morris deed, in ■which, as claimed by plaintiff, a portion of the land containing 35 acres and covering the tract in dispute was-set apart to Mrs. Hatcher, and the other parties to the agreement for partition conveyed the same to her. By deed made October 15, 1883, Mrs. Hatcher conveyed to-Collins the land which' had been thus conveyed to her. Mrs. Frances E. Burge died in 1879 or 1880; she had lived upon the land in dispute for many years up to-within a short while before her death. Her daughter,, the defendant, claimed that a tax fi. fa. against Mrs. Frances E. Burge, trustee, issued in 1875, was levied in March, 1876, upon a part of the tract of land covered by the deed from Morris; that this levy covered the land now in question; that under this levy the sheriff' sold the property and made a deed to it to one Mackey as-trustee for his wife; that Mackey, trustee, deeded the property to defendant in May, 1877, and in 1892 Mrs. Mackey also made her a deed to the property; and that-thus she acquired a good title. She also claimed that-under the deed from Mackey she had gone into and held possession of the property, and had acquired a good prescriptive titlp. There was a verdict in her favor, an d plaintiff’s motion for new trial was overruled. For the other facts see the opinion.</p>

Action for damages. Before Judge Lumpkin. Fulton superior court. September term, 1894. The declaration alleges, that oh July 7, 1892, Nelms made affidavit and caused to be issued a peace warrant against petitioner, which was placed in the hands of Mauldin to execute; whereupon Mauldin took petitioner in his custody. By consent petitioner was allowed to go for two days without trial and without bond, upon his verbal promise to return to the “court” on the-day of July.

<p>Complaint on note. Before Judge Westmoreland. City court of Atlanta. November term, 1894.</p>

Action for damages. Before Judge Lumpkin. Fulton superior court. September term, 1894. To the petition of Margaret E. Stevens against William J. Stevens the defendant demurred generally, and the demurrer was sustained. The petition alleged: In October, 1890, petitioner lawfully married Henry J. Stevens, and they lived together as husband and wife in Fulton county until his death.

<p>1. Although the charter of a municipal corporation may confer upon it the power to construct sewers upon private property, upon payment of damages to any person whose land is thus appropriated to the public use, and also the further power to charge against such person a certain proportion of the cost of construction, the right to exercise the latter power is dependent upon the</p> <p>- lawful exercise of the right of appropriation under the former. Consequently, where under an ordinance which was void because of non-compliance with the provisions of the charter, and which therefore conferred upon the municipal corporation no authority to enter upon the land of an owner and construct a sewer, it nevertheless did so enter, it became and was a mere trespasser, and the owner was entitled to recover from the municipal corporation the value of the land thus illegally appropriated; nor did such recovery impose upon him any liability to the city for the value of the improvements thus placed upon his property without his consent.</p> <p>2. There being, at the time of the completion of the sewer so constructed, no liability on the part of the landowner to pay to the city any proportion of the expenses of construction, a statute thereafter passed authorizing the municipal corporation, by a new assessment, to impose upon the owner the payment of a portion of such expenses, was such “retroactive” legislation as is prohibited by the constitution of this State; and therefore, for want of power in the General Assembly to pass the same, it was void.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. February 4, 1895.</p>

<p>Petition for injunction. Before Judge Hart. Jasper county. March 13, 1895.</p>

Complaint. Before Judge Clark. Bockdale superior court. October term, 1894. James Benton sued H. Y. McCord to recover $137.90 as the value of “one bright sorrel horse, hind feet white, flax mane and tail, five years old.” A nonsuit was granted, and the plaintiff excepted.

Action for damages. Before Judge Eve. City court of Richmond county. November term, 1894. To the declaration of Oswald v. The Bradstreet Company, defendant filed a demurrer. Plaintiff amended the declaration, and defendant filed written objections thereto, and subject to the same, offered grounds of special demurrer. The demurrers were oven’uled, and defendant excepted.

Petition for injunction. Before Judge Turnbull. Chattooga county. May 8, 1895; Knox, Jennings and Holton, citizens of Chattooga county, subject to road duty, and owners of real and personal property, brought a petition to restrain the ordinary of that county from proceeding under the special road law for that county enacted'in 1889. Acts, p. 1228. The ordinary was restrained as prayed for, to which ruling he excepted.

<p>Indictment for keeping lottery. ’ Before Judge MacDonell. City court of Savannah. February term, 1895.</p>

Petition for injunction. Before Judge Lumpkin. Pulton county. September 3, 1894. Defendant in error sued Mountain in the city court of Atlanta, upon a note of Mountain payable to the order of Rexinger. Upon this suit garnishment proceedings issued, and were dissolved by Mountain giving bond with Owens as surety. On July 4, 1893, judgment was rendered by default against Mountain as principal and Owens as surety.

<p>Where in a contract for the sale of merchandise the purchaser reserved the right to return to the seller within a given time, at a stated price, such of the articles sold as bore a particular and definite description, it was essential to the exercise of the option of return thus reserved, either that within the time limited the specific chattels be actually tendered or returned; and if tendered by letter, it was essential that such letter should be sufficiently definite in its terms to accurately describe the particular chattels sought to be returned; otherwise, the tender by letter would not impose a duty upon the seller to accept, after the time limited, the goods then actually tendered.</p>

<p>Action oninsurance policy. Before Judge Westmoreland. City court of Atlanta. November term, 1894.</p>

<p>Actions for damages. Before Judge Gki&gs. DeKalb superior court. August term, 1894.</p>

<p>Equitable petition. Before Judge Clark. DeKalb superior court. August term, 1894.</p>

<p>Levy and claim. Before Judge Gamble. 'Washington superior court. September term, 1894.</p>

<p>Appeal. Before Judge Roney. Richmond superior court. October term, 1894.</p>

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

<p>1. It was error, in the trial of a criminal case, to permit the solicitor-general to proceed with his argument to the jury while the accused was absent and confined in jail, he not haying been admitted to bail. This is true although the presiding judge was not actually aware of the prisoner’s absence, it not appearing that any waiver of his presence, express or otherwise, had been made either by himself or his counsel. Because of such error, a new trial should be granted.</p> <p>2. In such a trial it was error to allow the introduction of hearsay evidence of messages alleged to have been sent to another person by the accused, and which in their nature tended to show the latter’s guilt of the crime with which he was charged.</p> <p>3. Although one of the contentions of the accused was that the cz’ime was committed by other persons, it was error to pez'mit a witness for the State to testify that he had neither seen zior heaz’d anything whatever indicating that those persons had any connection with the perpetratioiz of this offense, and’ had not found aziything to confirm his suspicion of their guilt.</p>

<p>Motion for new trial. Before Judge Janes. Douglas superior court. May term, 1895.</p>

Indictment for murder. Before Judge Butt. Irwin superior court. April term, 1895. Barton was convicted of voluntary manslaughter, and his motion for a new trial was overruled. From the testimony and the prisoner’s statement, taken together, the following appears: Barton and. Nasworthy had á difficulty, and both agreed to go out and settle it by having “a fair fight,” or “ a fist and skull fight,” without weapons.

Complaint on note. Before Judge Ross. City court of Macon. September term, 1894. On March 31, 1894, plaintiff sued defendant upon a note for $500 principal, dated March 11,1882, due March 11, 1887, payable to plaintiff or order at the office of Nelson, Barker & Co., Atlanta, Ga., tvith interest at eight per cent., payable annually, as per five interest notes attached.

<p>Motion for new trial. Before Judge Boss. City court of Macon. September term, 1894.</p>

<p>Trover. Before Judge Reese. Elbert superior court. September term, 1894.</p>

<p>Complaint on note. Before Judge Jenkins. Hancock superior court. August term, 1894.</p>

<p>Levy and claim. Before Judge Reese. Lincoln superior court. October term, 1894.</p>

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

<p>One who, as agent of the owner of real estate, engages an auctioneer to make a sale thereof at public outcry, cannot, as the auctioneer’s clerk, make an entry or memorandum of the sale so as to bind a bidder to whom the property was knocked off by the auctioneer.</p>

<p>1. Where the maker of a negotiable promissory note pays the same to the original payee without requiring the production and surrender of the paper, he is liable to pay it again to an innocent holder who acquired title to it in good faith and for value before maturity, unless the payee was the holder’s general agent for the collection of such papers, or had special authority to collect in the particular instance, or the money collected in fact reached the holder’s bands.</p> <p>2. There being no evidence that the defendant was in any manner misled or deceived by any act or conduct on the part of the plaintiff, it was error for the court in its charge to give the defendant the benefit of any such hypothesis.</p> <p>S. There being no evidence to authorize a finding that the payee of the note was the plaintiff’s express agent, either general or special, for its collection, the charges complained of, in so far as they deal with the question of express agency, were unwarranted, and not applicable to the issues involved. For a like reason, the charge as to ratification was objectionable.</p> <p>4. It being, under the evidence disclosed by the record, a question-for determination by the jury, whether or not the alleged course of dealing between the plaintiff and the original payee of the note established an implied agency upon the part of the latter to collect the same, it was proper for the court in its charge to deal with,, and instruct the jury as to, the law of implied agency.</p> <p>5. A written transfer-by a debtor of promissory notes “ as security for “ advances made” by the transferee to the debtor, is ambigu- - ous as to what “ advances ” were thus secured; and parol evidence having been properly admitted to explain the real meaning of the contract in this respect, the court did not err in giving to the jury appropriate instructions in this connection.</p> <p>6. If a promissory note, before its maturity, is pledged as collateral security fora particular debt, and such debt is afterwards paid, the holder of the collateral note has then no right to collect it, if the person liable for its payment has already paid it to the pledgor who was the original payee; but so long as any portion of the debt • secured by the collateral remains unpaid, the holder of the latter may collect the same, or at least enough thereof to satisfy whatever may remain due on the claim thereby secured.</p>

<p>Appeal. Before Judge Hutchins. Clarke superior court. October term, 1894.</p>

<p>Petition for injunction. Before Judge Hutchins. Clarke county. March 13, 1895.</p>

<p>1. Where a partnership is sued upon an open account, it may plead as a set-off that it has been damaged in a given amount because of the plaintiff’s wrongful refusal to return to it certain promissory notes belonging to it which had been pledged as collateral security for the payment of another debt due to the plaintiff, which debt had, before the bringing of the plaintiff’s action, been fully paid off and discharged and a return of the collaterals duly demanded.</p> <p>2. Where one of the members of a partnership composed of two persons has bought out the interest of his partner in all the assets of the firm and assumed all its liabilities, it is competent for him to plead, as a set-off to an action subsequently brought, not only against the partnership, but also in express terms against the individual members thereof, that by reason of his ownership of said assets he holds against the plaintiff a personal claim, or demand, which still remains unsatisfied.</p> <p>S. The court erred in striking'tbe special pleas of the defendants.</p>

<p>1. Where the General Assembly, upon the recommendation of the corporate authorities of a city, passed an act to establish and maintain public schools therein “for as much as six months in each year,” the act providing that “ no local tax levied and collected for said purpose shall ever in one year exceed one fourth of one per cent, on the taxable property of said city,” which act was duly submitted to and approved by the qualified voters of the city and a system of public schools was established thereunder, it was competent for the General Assembly, without another recommendation from the corporate authorities, and without providing for another submission to the qualified voters, to amend the act in question by authorizing the schools to be continued “for as much as ten months in each year,” the amending act distinctly providing that the amount of tax to be levied for school purposes should not exceed the rate authorized by the original act.</p> <p>2. Both these acts were unconstitutional in so far as they authorized the exaction of matriculation or admission fees from pupils residing in the city, and to that extent cannot be enforced ; but this does not vitiate the other portions of the acts which are consistent in their provisions with the requirements of the constitution.</p> <p>S. The judgment of the court below was correct in so far as it enjoined the defendants from charging pupils residing in the city matriculation or admission fees before admitting them to the benefits of the schools; but in so far as it enjoined the county school commissioner from making payments out of the public school fund of the State to the defendants, it was erroneous, it appearing that the plaintiffs could not be injuriously affected by the payments complained of, and also that they had no right to raise any question concerning the same. The judgment was also erroneous in so far as it enjoined the defendants from maintaining schools for a longer time than six months in each year, or from using for the purpose of so doing the funds received by them.</p>

Action for damages. Before Judge Milner. Catoosa .superior court. August term, 1894. .

Equitable petition. Before Judge Milner. Bartow ■superior court. July term, 1894. Garwood, a merchant, being about to fail in business, employed an attorney to draw mortgages on his stock of goods in favor of Lampkin, Mrs. Vandivere, and the First National Bank of Cartersville. These mortgages tvere drawn one immediately after another, or as nearly .as possible at the same time.

<p>Equitable petition. Before Judge Milner. Dade superior court. September term, 1894.</p>

<p>Equitable petition. Before Judge Milner. Catoosa superior court. August term, 1894.</p>

<p>1. Under section 2545 of the code, an administrator may, in his discretion, without an order of court and without incurring personal liability in case of loss, if he exercises due care and diligence, continue the business of his intestate for the current year in which, the latter died; but the term “current year,” as used in this section, refers to the calendar year, and not an arbitrary business year fixed by local custom or otherwise. If an administrator, without such order, does continue such business beyond the calendar year,, he acts at his own peril, and is chargeable accordingly.</p> <p>2. A widow who, as administratrix of her deceased husband, paid', out funds of his estate to creditors holding claims inferior in dignity to her year’s support, did not thereby necessarily lose her right to demand payment of the year’s support from her successor in the administration; but its payment must be postponed to the> payment of the just claims of creditors still outstanding against, the estate when the successor qualified, and which are of equal dignity with, or superior in rank to, the claims which had been paid by herseif.</p>

Action for damages. Before Judge Turnbull. City coui’t of Floyd county. September term, 1894. Mondon sued the telegrapth company, and obtained a verdict. A new trial was granted on defendant’s motion, which judgment was affirmed. 94 Ga. 716. On September 12, 1894, plaintiff obtained a verdict for $359 principal, and $75.18 interest from July 18, 1891, and entered up judgment for $434.18 and costs. Defendant’s motion for new trial was again sustained, and plaintiff excepted.

<p>1. Whether one who, in good faith and for value, purchased before its maturity a negotiable promissory note executed by a corporation chartered by a superior court and having under the charter authority to execute such notes, is or is not bound to take notice of the general powers of the corporation with a view to ascertaining whether or not in purchasing the property for which the note was given it acted ultra vires, yet where the corporation retained the property for -which the note was given, it could not set up the defense of ultra vires, even to an action upon the note by the original payee, and much less could it set up this defense to an action thereon brought by a person who had purchased the note as above stated.</p> <p>2. Where the corporation offered to rescind the contract it had made for the purchase of the property, on the ground that the property was either totally or partially worthless, but made no offer to rescind upon the ground that its action in purchasing was ultravires, the corporation under these circumstances would, as to the innocent purchaser of the note, stand in law just as if it had simply retained the property without making any offer to rescind.</p> <p>3. Irrespective of the various rulings complained of, the verdict upon the substantial merits of the case was manifestly right, and there was no error in refusing a new trial.</p>

<p>1. Where stock of an incorporated company is pledged by the owner as collateral security for the payment of a debt, the pledgee is, as a general rule, entitled to collect and receive the dividends thereon, unless this right is reserved by the pledgor at the time the pledge is made.</p> <p>2. If the company by which the stock was issued, with notice of the fact that the pledge has been made, pays the dividends to the pledgor, it is ordinarily liable to the pledgee for such dividends, although the stock has not been actually transferred on the books of the company.</p> <p>3. Where the president, secretary and treasurer of an incorporated company actually know that certain shares of stock therein have been transferred by the person in whose name the stock stands on the company’s books, to another, such knowledge is notice to the corporation itself.</p> <p>4. As a general rule, it is the right and duty of a pledgee to -whom, stock has been pledged as collateral security, to collect and receive, for the use of the pledgor, dividends accruing upon the stock pending the bailment, although the debt secured by the pledge may, after such accrual, have been fully paid off by an actual sale of the stock; and in an action by the pledgee against the company for such dividends so accruing, the company will be liable, unless it shows that it has in fact paid the dividends to the pledgor. The above general rule may, for equitable reasons, be subject to exceptions in particular cases.</p> <p>5. The verdict was not supported by the evidence.</p>

Equitable petition. Before Judge Janes. Polk superior court. August term, 1894. The petition of Mrs. Phillips alleged: R. T. Poole is indebted to her, for money had and received, $690 principal, with interest on $338.38 from January 17, 1891, and on the balance of the principal from January 17, 1892, at seven per cent.

<p>1. There being no evidence at all that the plaintiff, who had been employed as a real estate agent to sell land for the defendant, had any knowledge or notice of a defect in tb e latter’s title to the land, it was error to charge upon any such hypothesis.</p> <p>2. Although it was incumbent on the plaintiff to show that he had procured a person ready, willing and able to purchase on the terms prescribed by the defendant, yet if the plaintiff in fact procured a person who was recognized, either expressly or tacitly by the defendant.as answering all these requirements, and the failure-to complete the sale was due solely to the defendant’s inability to-make a good title to the land, the plaintiff would he entitled to his compensation as if the sale had actually taken place.</p>

<p>Action for damages. Before Judge Jenkins. Greene ■superior court. August term, 1894.</p>

Equitable petition. Before Judge Butt. Marion superior court. April term, 1894. W. T. Melton died intestate, leaving a wife and minor child, and an insolvent estate. A year’s support of $600 was set apart for the widow and child. The widow also applied for dower, and an order was taken appointing commissioners to enter upon the land and assign the same. The application made no mention of an election to take money in lieu of land.

<p>1. The presumption of law being that the holder of a negotiable instrument became such before its maturity and for value, without notice of defenses by the maker, and the evidence introduced in this case by the defendant being entirely insufficient to show that the plaintiff acquired title to the note sued on with knowledge or notice of the alleged infirmities in its consideration, and the only legitimate conclusion from the evidence, taken all together, being that the plaintiff took the note before its maturity bona fide and for value, there should have been a verdict in its favor.</p> <p>2. Upon the evidence disclosed by the record, the verdict for the defendant cannot be sustained; and therefore, upon the substantial merits of the case, irrespective of the several errors alleged to have been committed by the presiding judge, a new trial should have been granted.</p>

<p>Motion to set aside judgment. Before Judge Hunt. Dodge superior court. September term, 1894.</p>

<p>Where a homestead in land was set apart by the ordinary upon the application of the head of a family for the benefit of his wife and. minor children, and an appeal entered to the superior court by caveating creditors, pending which the applicant conveyed the land to the wife, who thereupon mortgaged it to another, after which a judgment was rendered in the appeal case adverse to the homestead right, the minor children could not thereafter, by next friend, maintain a valid proceeding, to which the wife alone was made a party respondent, to set aside that judgment on the ground that it was obtained by fraud practiced upon the applicant by one of these creditors. The applicant and such creditor would be indispensable parties to such a proceeding; and without making them parties, no judgment rendered therein could in any manner affect the rights of the wife’s mortgagee, or of a purchaser of the land at a sale had upon the foreclosure of the mortgage.</p>

Injunction. Before Judge Sweat. Charlton county. June 24, 1895. Held: and against the claims of all persons asserting title through or under him.

Injunction. Before Judge Lumpkin. Fulton county. May 27, 1895. On the petition of Holliday and Nichols, the judge granted an injunction restraining the city from removing the shade-trees standing at or near the margin of the sidewalk in front of plaintiffs’ property, on South Pryor street. It was conceded at the hearing that the fee in the street was not in the city. The petition, which was treated as an affidavit, sets forth the following.

<p>Petition for injunction. Before Judge Lumpkin. Fulton county. June 18, 1895.</p>

<p>Petition for injunction. Before Judge Callaway. Richmond county. June 11, 1895.</p>

<p>Complaint. Before Judge Reese. Wilkes superior court. November term, 1894.</p>

<p>The plaintiff below obtained a verdict and judgment against the defendant under the acts imposing penalties upon telegraph companies. The latter moved for a new trial, and the motion was overruled, December 11,1894. On the 17th of that month these acts were repealed generally, and on the 24th of that month a bill of exceptions assigning error in the overruling of the motion for a new trial was sued out by the defendant. Held, that the judgment of the court below must be set aside, because at the time the repealing act was passed the defendant still had a pending legal right of exception, and therefore the judgment below was not absolutely final nor the litigation between the parties necessarily at an end. Accordingly, the plaintiff was not, when the repealing act was passed, absolutely entitled to an enforcement of his judgment, and the case must be dealt with in this court as one which was pending when the repeal took place. This being so, the case is controlled, in principle, by the decision in Woodburn v. Western Union Telegraph Co., this term. 95 Ga. 808.</p>

<p>Petition for injunction. Before Judge Beck. Monroe county. .April 10, 1895.</p>

<p>Where one who had no interest in, or title to, a lot of land, accepted a deed thereto from others, but paid nothing for the conveyance,' and, in contemplation of litigation to be instituted ny himself,agreed “that if he realized anything from said lot lie would pay them whatever was right, and if he did not gain anything he would pay all costs and expenses,” the deed was a champertous contract and therefore void.</p>

<p>Ejectment. Before Judge Fish. Stewart superior court. April term, 1894.</p>

Equitable petition. Before Judge Fish. Sumter superior court. May term, 1894.

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

<p>Petition for mandamus. Before Judge Clark. Clayton county. January 28, 1895.</p>

Motion to set aside judgment. Before Judge Sweat. Glynn superior court. May term, 1894. A rule absolute to foreclose a mortgage, in behalf of Cunningham suing for the use of the Brunswick State Bank against Zella B. Michelson and Morris Michelson, was taken.

Action for damages. Before Judge Smith. Bulloch superior court. October term, 1894. On October 21,1889, defendants sold plaintiff certain land at the price of $500, he paying them $150 cash, and giving them his three notes for the balance, due November 15, 1890, 1891 and 1892, and taking their bond for title.

Action on contract. Before Judge Turnbull. City court of Floyd county. June term, 1894. McKee sued Morris on the following contract: “ State of Georgia, Floyd county. Rome, Ga., April 12th, 1894. “This agreement entered into this day, between L. D. McKee of the first part, and George B. Morris of the (2d) second part, witnesseth : that L. I).

Petition for mandamus. Before Judge Hardeman. Bibb county. March 15, 1895. The Genera] Assembly passed an act abolishing the office of treasurer for Bibb county, which was approved on February 23,1876. (Acts 1876, p. 313.) An amendment to this act was passed, and approved on September 26, 1883.

Quo warranto.' Before Judge Bower. Dougherty county. March 14, 1895. Hall presented his petition for leave to file an information in the nature of a quo warranto against Burks, to inquire into his right aud title to the office of county treasurer of Dougherty county. The petition was refused, and plaintiff excepted.

Petition for injunction. Before Judge Sweat. Glynn county. February 26, 1895. Max Ullman died in May, 1893, and his widow qualified as his executrix in February, 1894. On April 1, 1898, he had given to the Brunswick Title Guarantee & Loan Co. a note for $460 principal, due four months after date.

Exceptions to master’s report. Before Judge Griggs. Bibb superior court. November term, 1893.

<p>1. Upon the trial of an indictment for murder, where the evidence is sufficiently favorable to the accused to justify an inquiry into the grade of the homicide, instructions- to the jury which constrain a verdict of murder are harmful and will require the granting of a new trial.</p> <p>2. While the unlawful, intentional killing of a human being, with malice, is murder, an unlawful and intentional killing, without malice, will be voluntary manslaughter only; and while the fact that a killing was unlawful and intentional is one from which the jury may, under certain conditions, infer malice, such killing is entirely compatible with the absence of malice and of those elements of an evil purpose necessary to constitute the offense of murder. The court, therefore, should not so instruct the jury as that, finding a homicide to have been committed unlawfully and intentionally, they must necessarily find that it was committed with malice.</p> <p>3. It was accordingly error, in such a case, to charge the jury as follows: “Malice does not necessarily consist in ill-will or hatred; malice may exist without ill-will or hatred; and whenever there exists in the mind of the person that kills another one, but for one moment, an unlawful intention to take human life, if that unlawful intention exists for any length of time, it constitutes malice. If a person kills another with an unlawful intention in his mind, and is not j ustified under the principles of law which I will further give you in charge, he would be guilty of murder.”</p>

<p>1. For a tort to personal property a railroad company must, under section 3406 of the code, as amended by the act of December 20th, 1892 (Acts 1892, p. 59), be sued in the county where the tort was committed, if the company has an agent in that county; and if the action is within the jurisdiction of a justice’s court, it may be brought in the justice’s court of any militia district in which the company’s railroad is located.</p> <p>2. It was not good cause for certiorari, that a justice of the peace overruled a motion to dismiss an action, based on the grounds that “defendant was not served with a true copy of the original summons,nor served with a true copy ten days before court, as required, bylaw.” The motion to dismiss was itself defective in not pointing out the defects in the copy served upon the defendant, so that the court might determine whether they were trivial or material; and the failure to serve in time was not, under the act of October 17th, 1885, cause for dismissal, but for a continuance.</p>

Action for damages. Before Judge Yan Epps. City court of Atlanta. September term, 1894. Lovejoy brought suit against the receivers of the Richmond & Danville Railroad Co., for illegal ejection from a passenger-train which he entered at Atlanta, Ca-, to-go to “Washington, D. C. The ticket which he presented for passage was as follows: “Issued by Kansas City, Memphis & Birmingham Railroad. Crand Army of the Republic. Excursion Ticket.

<p>1. Where goods were shipped upon a through contract of shipment over the lines of several connecting railway companies, and the last of these companies accepted the goods from the next preceding carrier, with notice that the initial carrier had issued to the consignor a through bill of lading reciting that the entire freight charges had been prepaid, although the notice was also to the effect that this recital was erroneous, yet where under these circumstances such last connecting carrier paid the freight charges which had accrued up to the time it took charge of the consignment, it did so at its own risk, relatively to the rights of an innocent person wlio had taken from the consignor the bill of lading duly indorsed, in the belief that the freight had been actually prepaid, and upon the faith of such belief had accepted as cash a draft drawn by the consignor upon the consignee, to which draft the bill of lading was attached as was usual in the course of such transactions.</p> <p>2. Under the facts recited, enough information was brought to the knowledge of the last carrier to put it upon inquiry as to the fact of prepayment, and as to the then ownership of the bill of lading; and if it failed to take the proper steps to ascertain the real facts and protect itself accordingly, it cannot thereafter set up a refusal by the innocent holder of the bill of lading to pay the freight it had earned and the freight charges it had advanced, as a defense to an action of trover by such holder for the goods consigned; and this is true whether the freight charges upon the consignment had been actually prepaid or not.</p>

Affidavit of illegality. Before Judge Falligant. Chatham superior court. December term, 1894. An execution against Joseph D. Weed was levied for the amount assessed against his property as its part of the cost of paving and otherwise ■ improving Bull street in Savannah; and he filed an affidavit of illegality. The issue thereby made was submitted, upon an agreement as to facts, to the judge without a jury, and he sustained the affidavit and dismissed the execution.

Petition for injunction. Before Judge Fallisant. Chatham county. April 5, 1895. The municipal authorities of Savannah proceeded, under the city charter (Code, §4849), to extend several of the streets of the city over the right of way and railroad tracks of the railway company; and on October 10, 1894, adopted by resolution the report of five freeholders appointed in February before, to assess the ■damage which would be sustained by the company by reason of said extension.

<p>1. A gift by á debtor insolvent at the time is void as to his then existing creditors, whether made for the purpose of defrauding them or not; but a gift by such a debtor is not void as to a person who subsequently becomes his creditor, unless at the time of making the gift there was an actual intention on the part of the debtor to afterwards obtain credit from and defraud that person, and the gift was made in whole or in part for the purpose of accomplishing this result. Even if the money of the subsequent creditor was obtained by the debtor for the express purpose of paying debts existing when the gift was made, and was actually used for that purpose, these facts alone would not make the gift void as to this creditor, if the conduct of the debtor throughout the entire transaction was honest and he had no real intent to defraud.</p> <p>2. A mortgage given by a wife upon her own property in settlement of a debt of her husband is not binding upon her, although she may have given the mortgage under the impression that the creditor holding this debt could for some reason subject the property in question to its payment, and intended by giving the mortgage to effect a compromise of what she regarded as a doubtful claim against the property.</p> <p>3. The master having found that the debtor in this case neither intended nor practiced any actual fraud, and the exceptions to the master’s report, even if sufficient to call in question the correctness of this finding as to the questions of fact therein involved, having been overruled by the trial judge, who thereby approved the report, and the evidence to warrant such approval being ample, this court has dealt with the case upon the assumption that the facts were as found and reported by the master.</p>

<p>1. Though, a paper has been produced under notice, inspected by the party calling for it, and put in evidence by him, if he announced before so doing that he “ contended it was not the original ” of the paper called for, he did not lose the right to subsequently attack, on the ground stated, the paper introduced, notwithstanding he may have given no “formal notice” of an intention to do so. If the party calling for and inspecting the paper did not, at or before the time of introducing it, mention any objection to it or give any notice whatever of an intention to attack it, he could not after-wards impeach it, unless he had been in some way misled, imposed upon or deceived, after the exercise on his own part of proper diligence.</p> <p>2. If the sendee of a telegraphic message informed the manager of the company’s office in the city to which the message was addressed that he (the sendee), by reason of the company’s failure to duly deliver a message sent to him, had lost a job worth $60.00 per month and board, and intended to sue the company for damages; and the manager thereupon replied, “ Hold on awhile, and I will ¡see into it and let you know,” and also stated that he “ would arTange it,” but thereafter made no report to the sendee, it was a question for the jury whether or not this amounted to a waiver by the company of the sixty days written notice of the sendee’s claim for damages stipulated for upon the blank on which the company contended the original-message was written.</p> <p>.'3. A telegraphic message in these words: “Have work; come at once,” was sufficient to put the company on notice as to the character of the damages which would probably result to the sendee of the message from negligence on the part of the company in failing to deliver it to him in due time.</p> <p>4. The evidence in this case clearly showed that the plaintiff lost at least one year’s employment because of the defendant’s negligence; the verdict was reasonable in amount; and on the whole, there was no error requiring a new trial.</p>

<p>1. Where a promissory note is drawn toy one person for the accommodation of another, and such note, together with like papers drawn by other persons to the order of the same payee, and other choses in action upon open account due to the payee, are by him assigned to secure the payment of an indebtedness by him to yet another person, which several items of indebtedness are each before assignment severally secured by a mortgage executed by the payee of such note to such other person, upon the understanding between the mortgagor and the mortgagee that the purpose of the mortgage is to save harmless such accommodation maker as well as to secure the mortgagee, the mortgage containing no direction as to the appropriation of the moneys arising from a foreclosure thereunder, and no other direction being given as to how and in what manner such moneys shall be appropriated to such several items o5 indebtedness, the law will so direct the appropriation to such items of the secured indebtedness as to give the accommodation maker the benefit of the security afforded by the mortgage, and, to that end, will apportion the money realized from the foreclosure ratably among the several items secured. Section 2869 of the code is applicable only in cases of voluntary payments by the debtor.</p> <p>2. While one of such original debtors by accommodation note has the right to consent that the mortgagee shall apply to the discharge of the debt due by another of such original debtors that portion of the general fund which, under the rule above stated, would otherwise be appropriated to the payment of the former’s debt, yet where the evidence is silent as to any such consent, it is error for the court to give to the jury instructions based upon such theory.</p> <p>3. In a contest between creditors generally, some secured and others unsecured, if a secured creditor, who has taken a mortgage upon the property of the debtor given to secure the payment of accommodation paper drawn in favor of the debtor and delivered by the latter as collateral, in order to compound with unsecured creditors, surrenders his priority of lien upon a portion of the proceeds arising from the sale of the property of the principal debtor mortgaged to secure such accommodation paper, he will thereafter, in the settlement of his demands upon such paper held as collateral, be held to account to such debtors to the extent of his lien thus abandoned to other unsecured creditors.</p> <p>4. A draft drawn generally by a debtor to the order of his creditor in part settlement of an open account, which account, together with other debts, has been secured by a mortgage, is not of itself alone an appropriation of money in the drawee’s hands; and if, before its acceptance and payment, all funds of the drawer in the drawee’s hands are assigned to the holder of such draft, and accepted by him as additional security for the payment of the entire account of which the draft represents a part, as well as security for the payment of other debts also secured by the assignment of such fund, the amount of the account represented in the draft will not be given a preference in the apportionment of the fund among the various debts to secure the payment of which it was assigned.</p>

<p>1. While a declaration and a verdict thereon in the plaintiff’s favor, upon which no judgment was ever entered, are not admissible to show an adjudication of the matters set forth in such declaration, or as a conclusive estoppel against the defendant therein as to such matters; they are competent for the purpose of showing, as between the parties and their privies in estate, the independent fact that such a verdict was rendered in the case in which that deelaration was filed, and are admissible, if otherwise relevant, to show that the parties were at that time at issue upon the particular facts therein pleaded, and as a circumstance, in connection with other and independent evidence, tending to show acquiescence in the verdict and its consequences, to be weighed by the jury in determining whether such acquiescence was attributable to the verdict itself, or to other and distinct causes.</p> <p>2. The declaration and verdict offered in the present case were, in view of all the facts in evidence, properly admitted; but the charge of the court in this connection was erroneous, in that it gave the jury too great latitude in dealing with this evidence, and allowed them to attribute to the verdict a degree of weight not authorized by law.</p> <p>3. Where a deed conveys several distinct tracts of land lying contiguous to each other, but not covered by one general description which would embrace them all, and the grantee enters into the possession of one of such lots only, prescription will not run in his favor as to the other of such lots until after his deed has been recorded; but as to that lot into the possession of which he actually enters, prescription will run whether such deed be recorded or not.</p> <p>4. Where, under such circumstances, the defendant undertakes, by prescription, to establish the original boundary under her deed which conveys to her several separate tracts, including the one upon which she seeks to prescribe, she being in the actural possession of the latter, it is error for the court to charge generally, in effect, that where a person seeking to prescribe claims under a deed, prescription will not run in her favor until after her deed has been recorded. As to either of the several tracts of which she is in actual possession of a portion, prescription will run whether the deed be recorded or otherwise.</p> <p>5. Where, upon the trial of an action of ejectment, it appears that the plaintiff and defendant are each, respectively, in the actual possession, under color of title, of portions of tracts of land so situated with respect to the disputed premises as that the latter are claimed by each of such respective proprietors to be embraced within the boundaries of the deeds under which they respectively hold, the question becomes one of boundary, and prescription ' does not run in favor of either against the other as to such property so constructively in the possession of both; and in such a case, the question of prescription is only in the first instance involved in so far as it may be necessary to establish the plaintiff’s title, in the event that the question of boundary be determined in favor of his contention.</p> <p>6. Where coterminous proprietors settle between themselves a question of disputed boundary, either by acquiescence or otherwise, and afterwards one of them conveys his premises so as to include the premises conceded to the other in the adjustment of the question of boundary, the grantee of the latter cannot prescribe upon such premises as against his coterminous proprietor, unless he enter in good faith without notice of such settlement of such disputed boundary, and hold for the requisite period adverse possession of the same.</p> <p>7. Where the question involved is one of disputed boundary, and either of the several conveyances under which the respective parties claim is so indefinite and equivocal in matter of description as not to designate the limits of the particular tract sought to be conveyed, such conveyance may, as against the grantor and his privies in estate, be made certain by the election of the grantee; and where both parties claim from a common source, such infirmities in their several conveyances may be cured, either by the establishment of a boundary by the common grantor, coupled with the acceptance of such common boundary by the several . grantees, or by the election of the latter to locate their several tracts upon the land of the grantor with reference to a common boundary mutually recognized among themselves.</p> <p>S. The questions of prescription made by the defendant, having been concluded against her by the instruction, of the court, as stated in the 5th head-note, upon the effect of her failure to record her deed, and the evidence being closely conflicting upon the questions of fact involved in the contentions of the parties touching the disputed boundaries, a new trial should have been awarded.</p>

Equitable petition. Before Judge Hunt. Hpson superior court. November term, 1894. On February 22, 1892, W. J. Perryman executed to Mrs. Roquemore, his sister-in-law, a mortgage on a town lot in Thomaston, to secure a promissory note of that date and due one day afterwards. He was then indebted to several creditors on notes and accounts, and became indebted to others after the execution of the mortgage.

Action for damages. Before Judge Griggs. Dougherty superior court. April term, 1894. Laidley & Co., of Cincinnati, O., sold a load of meat to Ragan, of Albany, Ga., and drew upon him for the price of the same, attaching to the draft the bill of lading, and depositing the same to their credit in the Fourth National Bank of Cincinnati. This bank forwarded the same to the First National Bank of Albany for collection. It was paid by Mayer who had bought the ■meat from Ragan.

<p>Equitable petition. Before Judge Honey. Bibb superior court. April term, 1894.</p> <p>On January 6, 1892, Tom Eady bought a mule from •defendants at $150, for which be gave them, bis notes for $75 each, due November 1, 1892, secured by mortgage on the mule and a wagon. Jeff’ Eady signed the notes as surety. A few days before they fell due, Tom ■returned the mule to defendants and delivered them the wagon in payment for the use of the mule. No price was agreed on for the mule and wagon, but he was given a receipt therefor, with the understanding that they would surrender him the notes when he paid them an additional note of $30 which he owed them for supplies, but whicb was not covered by the mortgage nor signed by Jeff'. Early in 1893 suits were brought on the two $75 notes, in the 716th district G-. M. The Eadys lived in the 481st district. They appeared in answer to the summons, and upon being questioned by the justice, were told to go, which they did. Then suits were brought in the 481st district, to the August term, 1893. The Eadys appeared in response to the summons, bringing the receipt from defendants, which they claimed was given in full satisfaction, although it recited that the mule and wagon were received on account. Neither of them owed defendants any account. Jeff owed them nothing and Tom owed them only the $30 note. 0.n this latter occasion they had no conversation with the justice, but defendants’ (then plaintiffs’) attorney asked Tom if he was going to let him have judgment on the notes. Tom i’eplied that he did not know what to do, as he had nothing and had returned the mule and given the wagon for the rent of it, the mule, and owed nothing. The attorney then told him the case would not be tried that day and he could go; that the case would be tided next month. The Eadys then went home. They were ignorant and illiterate, were never sued before, and believed they would be summoned again when wanted. They had no lawyer. They were not present at the next term, when judgments were rendered against them for $150, and did not know of it until the levy was made. The mule when returned was worth $50 more than when purchased, being in much better condition. This petition was brought for injunction, to prevent a multiplicity of suits, and for an equitable set-off; alleging that in equity the proceeds of the mule and wagon should go to pay the debt; that the judgments were obtained by accident, mistake and fraud, without laches on the part of petitioners, etc. They prayed, that the value of the mule and wagon, which was $230, be applied to the payment of the debt; for judgment against defendants for the difference in value, and for attorney’s fees; that the judgments be set aside; that the notes and mortgage be cancelled; and for general relief. Defendants moved for a nonsuit. The court held, that while plaintiffs might recover the property in an independent action for its value, the only ground on which any cause for equitable relief was set out was the allegation of fraud, which not being sustained by the proof, the whole case must fall; and thereupon a verdict for defendants was directed.</p>

Levy and claim. Before Judge McWhorter. Hart superior court. March term, 1894. An execution from a judgment of September 20,1886, was levied upon 140 acres of land in Hart county, as the property of J. M. Haynes, deceased. A claim was interposed by Elizabeth A. and Sarah Gf. Haynes, daughters of the deceased. The court directed a verdict for plaintiff, and overruled a motion for a new trial.

Affidavit of illegality. Before Judge Wellborn. Habersham superior court. March term, 1894. Plaintiffs sued out a distress warrant for $350 claimed to be due for rent of a hotel and furniture. Defendant filed a counter-affidavit, and gave a bond for the eventual condemnation money, with Willbanks and others as-securities thereon.

Petition. Before Judge Wellborn. Lumpkin superior court. April term, 1894.

<p>Money rule. Before Judge Wellborn. Lumpkin superior court. April term, 1894.</p>

Certiorari. Before Judge G-ober. Cobb superior court. November term, 1893.

<p>Money rule. Before Judge Gober. Forsyth supe-, rior court. March 7, 1894.</p> <p>A rule was brought against the sheriff for the distribution of $75.40 arising from the sale of land as the property of Mary M. Bennett, the claimants of the fund being Estes on the one hand, and Drake and Howell on the other. The ease was submitted to the judge upon the following agreement as to facts Mrs. Bennett bought laud for $500, and held it under bond for title from William Garrett. On January 25, 1890, $105 of the purchase money was due, and by agreement Estes advanced $200 to Mrs. Bennett, paying her $95 and paying $105 to Garrett, taking from Garrett a deed to the land, and she surrendering the bond for title she held and taking one from Estes, and giving him her notes for $232 due twelve months after date. The deed from Garrett to Estes was properly recorded. Estes brought suit upon his notes, and obtained judgment against Mrs. Bennett on January 6, 1891. On February 2, 1892, he executed a deed to Mrs. Dennett in conformity to the bond for title, had it filed and recorded in the clerk’s office, and thereupon caused his executions to be levied on the land, which was sold by the sheriff, and brought $303. After deducting expenses, etc., the sum of $287.60 was left, of which the sum of $75.40 was held up by the sheriff under notice from Drake and Howell, who claimed the same on their executions against Mrs. Bennett; that of Drake being for $46.30, besides interest, attorney’s fees and costs, less credits of $25, founded on a judgment of December 6, 1890; and that of Howell being for $34.44, besides interest and costs, founded on a judgment of September 5, 1891. Estes claimed the fund under three executions: two for $100 each, the third for $32, besides interest and costs on all three. They were founded on judgments rendered on June 6, 1891. All five executions were issued from a justice’s court. Those of Estes were entered on the general execution docket of the superior court on August 25, 1892. Those of Howell and Drake were so entered on May 3, 1892. The land was sold on April 5, 1892, under the executions of Estes. No usury was apparent upon the face of the notes payable to Estes. Service was acknowledged of the suits on those notes; no plea was filed; and the judgments recited that they were for the purchase price of the laud. Mrs. Bennett is insolvent. ,</p> <p>The judge ordered, that Estes be first paid, counting interest at seven per cent, on the $200 advanced by him, and purging his debt of usury, and that the balance, if any, be applied to fi. fas. according to priority. He held that Drake and Howell could not attack the deed from Garrett to Estes and from Estes to Mrs. Bennett, because they claimed thereunder when they asked for this money; that the lien of Estes dated from the time of the record of the deed to him, which was prior to the date of the judgments of Drake and ITowell; and that the non-record of the executions [in time] did not affect the ease. Drake and Howell excepted.</p>

<p>Money rule. Before Judge Attaayay. City court of Cartersville. March term, 1894.</p>

<p>Complaint in trover. Before Judge Gober. Cobb superior court. May term, 1894.</p>

Certiorari. Before Judge Henry. Floyd superior 'Court. September term, 1894. Copeland rented land for 1892 to Shannon, who agreed -to furnish his own stock. At the same time (December, 1891) Copeland delivered to Shannon a wagon and two mules, with the understanding that if the mules suited Shannon they would close a trade for them at an agreed .price, and would then execute papers reserving title in ■Copeland until payment.

<p>Motion to dismiss writ of error.</p> <p>With the motion counsel for defendants in error presented written instructions of plaintiffs in error to their counsel, and to the clerk of this court, that the bill of exceptions be withdrawn or dismissed, declaring that they did not wish to prosecute the case further. The motion was resisted on the ground indicated in the headnote.</p>

<p>Action on notes. Before Judge Milner. Gordon superior court. February term, 1894.</p>

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

<p>Certiorari. Before Judge Henry. Floyd superior court. Mai’ch term, 1894.</p>

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

Action for penalty. Before Judge Janes. Douglas superior court. November term, 1893. The evidence for plaintiff' was: He delivered to the agent of defendant at Douglasville, Gra., a telegram to Price Edwards at Buchanan, Gra., on July 22, 1892, .at 11 A. m., and paid the agent the charges for transmission. Edwards, the addressee of the message in question, was in Buchanan, Gra., attending court at the time.

<p>Motion to set aside judgment. Before Judge Janes. Polk superior court. April 6, 1894.</p>

<p>Certiorari. Before Judge Janes. Haralson superior ■court. July term, 1890.</p>

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

<p>Equitable petition. Before Judge Harris. Carroll superior court. April term, 1894.</p>

<p>Certiorari. Before Judge Bartlett. Fayette superior court. March term, 1894.</p>

<p>Certiorari. Before Judge Harris. Carroll superior court. October term, 1898.</p> <p>Bill Benson was tried before the mayor of the city of Carrollton for violating an ordinance of that city, and was found guilty and fined $50 and cost. On certiorari this judgment was sustained. The bill of exceptions recites that Benson was tried upon a charge of disorderly conduct; the petition for certiorari states that he was tried on the charge of keeping spirituous liquors for illegal sale or illegal furnishing. The only evidence was given by John Laidler, who testified, that he told Benson to bring him a quart of whisky from Atlanta, and some time afterwards he went to a house where Benson was and handed him an empty bottle; and Benson went into the back room of the house and returned with the bottle filled with whisky. Witness paid Benson forty cents for it. Benson told him, at this time, he wanted the money to pay freight on the whisky.</p> <p>Benson stated that Laidler and others had asked him to bring them whisky from Atlanta, and he brought it for them. Laidler had asked him to bring a quart. When he came for it there was only a pint left; and Benson let him have it for forty cents, what it cost in Atlanta. Benson also stated that he had no whisky for illegal sale or furnishing.</p> <p>The errors assigned in the petition for certiorari are: (1) That the ordinance of said city against keeping liquors etc. for unlawful sale or unlawful furnishing, is null and void, contrary to the constitution and laivs of Georgia, contrary to the authority granted in the charter of the city, and in conflict with the act of 1880 prohibiting the sale or furnishing of liquor in the 714th district G-. M. (2) That the judgment is contrary to evidence, there being no evidence that defendant kept liquor for illegal sale or furnishing. (3) That disorderly conduct is an act calculated to disturb the citizens at the time, must be riotous or boisterous, and attract attention of the people of the neighborhood. (4) That there was no evidence that Benson was a dealer or trader in liquors, or that lie kept them for sale or other illegal purposes.</p>

Appeal. Before Judge Hunt. Spalding superior court. January term, 1894. Several executions founded on judgments rendered in a justice’s court on November 24, 1892, were levied on a show-tent and fixtures as the property of Charles Lagardo. Claims were interposed by J. P. Moore; and the cases, having been appealed to the superior court, were there consolidated and heard by the judge without a jury. He held the property subject, and the claimant excepted.

Petition. Before Judge Hunt. Spalding county. May 22,1894. Under a petition in the nature of a creditors’ bill, R. H. Drake was appointed receiver of the assets of the Farmers Co-operative Manufacturing Co., a corporation. The petition was returnable to the February term, 1893, of the superior court.

<p>Petition for injunction. Before Judge Hunt. Spalding county. December 22, 1894.</p>

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

<p>Motion for new trial. Before Judge Smith. Marion ■superior court. April 21, 1894.</p>

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

<p>Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1894.</p>

<p>Levy and claim. Before Judge Butt. Harris superior court. April term, 1894.</p> <p>An execution against W. B. Hobbs, from a judgment of October 10, 1892, was levied upon 120 acres “on north side” of lot 211 in the 18th district of Harris county. A claim was interposed by Miss A. E. Hobbs, for herself and on behalf other sister Katherine Hobbs, who she averred was non compos mentis. The court directed a verdict for the plaintiff The evidence for plaintiff was: Defendant in fi. fa. was in possession of tlie land at the time of the levy, and was served with notice of the levy. The levying officer knew that the claimant and her sister lived on the land, but he considered defendant in possession. Hardy Hobbs, father of claimant and defendant, died several years ago on this laud; defendant lives close to where his father died; the levying officer did not know whether on the same lot or not, but on a part of the Hardy Hobbs land. Plaintiff introduced a warranty deed from Hardy Hobbs to ~W. R. Hobbs, duly executed and recorded, conveying the land in dispute and other lands; also, deed from W. R. Hobbs to plaintiff', conveying the land in dispute; and deed from plaintiff' to W. R. Hobbs, filed and recorded with the clerk of the superior court. The dates of these deeds do not appear.</p> <p>The testimony for claimant was: Hardy Hobbs owed "W. R. Hobbs money, and made the deed first above mentioned to secure its payment, but before he died, had paid the money. How much it was the witnesses did not know, but he paid it at different times and in different amounts, and claimant counted a part of the money. Hardy Hobbs died about ten years ago, on the land where he lived. Defendant lives on a part of the land embraced in the deed from Hardy Hobbs to him; received the deed; and has given in the laud in dispute as.his own, and paid the taxes since he received the deed. His sisters, the claimant and Katherine Hobbs, lived with his father, and have lived at the same place since his father’s death, together with his mothei’, and since the death of his mother have still resided at the old home. Defendant and claimants are the only heirs, and the three are working the laud now and have been since defendant took the deed. Katherine Hobbs is non compos mentis. The mother of A. E. Hobbs, before her death, gave said A. E. and her sister her interest in the land, but gave no writing conveying it; and they have been in possession since, claiming it as their own.</p>

Complaint on account. Before Judge Griggs. Miller superior court. April term, 1894. Plaintiff' sued Bush upon an account for four buggies. He pleaded not indebted, and there was a verdict in his favor. Plaintiff’s motion for a new trial was overruled. The motion alleged, among other grounds, that the verdict was contrary to law and evidence.

Equitable petition. Before Judge Fish. Sumter superior court. May term, 1894. The administrator of Job Read brought a petition to marshal the assets of the estate, praying that its creditors be restrained from instituting suits, that they be made parties defendant to this petition and their rights be adjudicated hereunder, etc. It appeal’s from the petition, that there are about sixteen creditors with various and conflicting claims, and that the estate is probably insolvent.

<p>Levy and claim. Before Judge Fish. Sumter supe, rior court. May term, 1894.</p>

Complaint. Before Judge-Smith. Montgomery superior court. April term, 1894. Hancock sued Council, Grady & Company for a breach of contract. H-pon a demurrer for want of a cause of action, the declaration was dismissed, and plaintiff excepted.

Action on bond. Before Judge Smith. Montgomery superior court. April term, 1894. George N. Matthews sued James Council and five others upon an administrator’s bond, for the recovery of $84.91, with interest and costs. On demurrer for want of a cause of action alleged, the declaration was dismissed, and plaintiff excepted.

Complaint. Before G-. W. Warwick, judge pro hac vice. Irwin superior court. April term, 1894. A. B. Small sued E. Paulk & Co., a firm composed of Elbert Paulk and E. D. Paulk, for a balance of $186.43 and interest, alleged to be due upon an account, an itemized statement of which was attached to the declaration. The jury found for the defendants, and plaintiffs moved for a new trial on the grounds that the verdict was contrary to law and evidence. The motion was overruled.

<p>Petition for injunction and receiver. Before Judge Lumpkin. Pulton county. December 21, 1894.</p>

<p>Bill in equity. Before Judge McWhorter. Madison superior court. March term, 1894.</p>

<p>Certiorari. Before Judge Harris. Carroll superior ■court. April term, 1894.</p> <p>The suit was on a promissory note the amount of which had by credits been reduced to $28. Defendant pleaded the general issue, failure of consideration, and recoupment, alleging that the note was given for a mule guaranteed to him to be a good farm mule, such being the purpose for which he bought it; but that it was worthless as such. The evidence was conflicting both as to the guaranty and as to the condition of the mule. The verdict was against defendant, and by certiorari he alleged that the justice erred in charging the jury, that ■parol evidence was inadmissible to vary the terms of the contract or to get out of paying the note. To the answer of the justice the plaintiff filed a. traverse which was found true. This traverse set out the charge of the justice as follows: “Where the parties have reduced their contract or cause of action to writing, such writing is the best evidence of said contract or cause of action ; and any agreement made before or at the execution of ■the contract, such agreement or conversation is merged therein; and parol evidence cannot be introduced to vary, add to or take from the terms of said contract. In other words, parol evidence cannot be introduced to attack it in any way, unless said writing is first overthrown by proof of fraud, accident or mistake.” The certiorari was sustained.</p>

Action for damages. Before Judge Reese. Taliaferro superior court. August term, 1894. The declaration alleges, that the railroad company has damaged the plaintiff'in the sum of $6,500 ; for that he is the only surviving parent of a minor son Willie Brazier, who on January 7, 1892, became a passenger ■on the company’s train.

Action for damages. Before Judge Milner. Whitfield superior court. April term, 1894. The testimony for plaintiff was to the following effect: In January, 1898, she bought a ticket from Dalton to Ringgold. Being infirm and weak in her hands, they being drawn with ldieumatism, her son Ed. helped her on the train, and the colored porter on the train helped her on the ear.

<p>Petition for injunction. Before Judge Pish. Sumter county. August 16, 1894.</p>

<p>Action for penalty. Before Judge Westmoreland. City court of Atlanta. March term, 1894.</p>

Petition for injunction. Before Judge Beck. Butts county. March 6, 1895. On December 30,1893, a contract was made whereby Gressinger leased to Clifford a plantation for a term of five years, to be cultivated for agricultural purposes.

Dispossessory warrant. Before Judge Smith. Dooly superior court. November term, 1894. A warrant was sued out to dispossess Rape as a tenant at sufferance of a plantation owned by Gunn. Counter-affidavit was made; and the jury found for the plaintiff'. Defendant moved on the general grounds for a new trial, which was denied.

Petition for certiorari. Before Judge Eisii. Dooly county. January 5, 1895. On August 24, 1894, Broxton obtained a distress warrant against Downing for the rent of certain land for 1894, upon the ground that Downing was removing or about to remove the crop from the land.

<p>Action on bond. Before Judge Hutchins. Jackson superior court. August term, 1896.</p> <p>The plaintiff, apprehending a separation from his wife and consequent proceedings for alimony, etc., conveyed by deed to his son-in-law, the defendant, 100 acres of land worth six or seven hundred dollars, for the purpose of enabling defendant to bring about a compromise or settlement between plaintiff and his wife; or, as plaintiff said, the deed was a sham, and he wanted defendant to take it to keep plaintiff from being torn up. No money was paid therefor. Three or four days afterward, plaintiff said he wanted some showing from defendant for his land: and thereupon took from defendant a bond for title, reciting the execution and delivery of the deed, and conditioned that defendant should “ refund the said deed, relinquishing all his claims to said lands unto” plaintiff, “whenever called on so to do by him.” On the trial of .this suit for breach of the bond, plaintiff testified that he did not get the alimony case compromised, and that defendant told him he had borrowed money on the land and had paid therefrom $215 in settlement of two executions against plaintiff in favor of his wife and child. It was contended for plaintiff, that the parties were not in pari delicto, that the giving of the bond was no part of the original contract but was a separate and distinct contract made after the other was completed and ended. The jury, under the evidence and charge of the court, found for defendant, and a motion for a new trial was overruled.</p>

Complaint on account. Before Judge Sweat. Appling superior court. September term, 1894. Glauber & Isaacs sued Mann & Melton upon an account for certain goods, and obtained a verdict for the amount sued for. Defendants’ motion for a new trial was overruled, and they excepted.

Rule against constable. Before Judge Lumpkin. Fulton superior court. March term, 1894. Plaintiff sued out a distress warrant returnable November 27, 1893, for $45 rent claimed to be due from Singer & Miller. The warrant was placed in the hands of Boyles, constable, to be executed; and he made levy. Singer & Miller filed no counter-affidavit, and gave no bond for the eventual condemnation money; but the constable took from them a forthcoming bond for the goods levied on.

Action for damages. Before Judge Yan Epps. City court of Atlanta. November term, 1894. It appears, from the declaration, that the defendants had been the plaintiff’s attorneys in various matters.

<p>Complaint for land. Before Judge Lumpkin. Pulton superior court. September term, 1894.</p> <p>Rodgers sued T. J. Baker for certain land. The cause was submitted to the judge, who rendered judgment in favor of defendant, on the following facts: Oliver Baker was the owner of and in possession of the land, for thirty years before the trial. In March, 1873, he applied for and obtained a homestead under the constitution of 1868, this land being embraced therein. Green and Isom obtained a judgment against Oliver Baker on May 22, 1881, in a justice’s court, on a debt which arose in 1879 on a homestead waiver note. Execution issuing from this judgment was levied on said land, September 25, 1891; the property was advertised and sold by the sheriff' of Pulton county, bought- by Rodgers, and the •sheriff’s deed made to him. The sheriff dispossessed defendant of the land. It had no house on it, but was ■cultivated by defendant. After defendant was evicted, the land being vacant, he went back in possession and has so remained up to the present time. On April 14, 1888, Oliver Baker deeded the land to Henry Starnes as trustee for ~W. D. Starnes, with power to sell fthe same at any time, publicly or privately, without an order of court. Defendant bought the land from Starnes, trustee, on September 11, 1889, paying therefor value received. Defendant was never notified by the sheriff ■of the levy, but heard that the land had been levied on. He made no claim to the property when it was advertised and sold, nor was any claim interposed by the beneficiaries of the homestead nor by Oliver Baker. Defendant is a son of Oliver Baker, and has been of age ■some years. Oliver Baker and wife are still living, and the youngest of the children became of age in 1893. Oliver Baker has two single daughters living with him, both of age. The execution was kept alive by pi'oper ■entries, and was recorded on the general execution ■docket in July, 1890. The sheriff’s deed was regular, was dated November 3, 1891, and was recorded November 17, 1891. The advertisement for sale was legally made. The deed from Baker to Starnes was recorded August 20, 1891. The homestead was granted for the benefit of the wife and children of Oliver Baker. The deed from Starnes, trustee, to defendant was recorded September 11, 1889.</p>

Action on insurance policy. Before Judge Van Epps. City court of Atlanta. January term, 1895. The policy sued on was dated February 17, 1898; the person insured thereby died on June 4, 1898; and suit on the policy was begun on June 12, 1894. A demurrer was interposed, on the ground that under the stipulation of the policy (quoted in the head-note), the action was barred. The demurrer was overruled.

Complaint. Before Judge Clark. DeKalb superior court. August term, 1894.

Before Judge MacDonell. City court of Savannah. July term, 1894. DeLeon brought suit against Heller, Iiirsch & Company on July 2,1886. The case was tried and a verdict rendered on April 25, 1892, which was the last day of the February term of the city court of Savannah. On that day defendants filed a motion for a new trial, and an order was granted giving leave to file a brief of the evidence at any time during the next May term.

<p>Complaint. Before Judge Boss. City court of Macon. September term, 1894.</p> <p>The suit was for a balance of $176.78 alleged to be due on a promissory note attached to the declaration. The note recited that it was given for future advances-of merchandise to he made by plaintiff to defendant; and upon it were credits of “amount not taken, $113.14; sale of property, $110.08.” Defendant demurred for want of a bill of particulars of the merchandise furnished. At the April term, 1894, the court ordered that the demurrer be sustained and the declaration dismissed,, unless plaintiff should file a bill of particulars and serve defendant with a copy thereof by the first day of the next (June) term. When the case came on to be tried at that term, it appeared that no bill of particulars had been filed or served; but (as the bill of exceptions recites) the court, for satisfactory cause shown for failure to comply with the former order, revoked so much of the same as fixed the time for filing and serving the bill of particulars, and ordered that plaintiff have until June 30 to file and serve the same, and that upon compliance with this order the case stand for trial at the September term, otherwise to be dismissed. To this ruling defendant excepted. The bill of particulars was filed and served in compliance with the last order, together with an amendment to the declaration, which was allowed over objection. At the September term defendant moved to strike the amendment and dismiss the case. The motion was overruled, and plaintiff had judgment for the amount sued for. Defendant excepted.</p>

<p>Equitable petition.' Before Judge Reese. Lincoln superior court. October term, 1894.</p> <p>To the petition of Mary Ray and Delilah Elliott against 'William Boyd and the sheriff, Boyd demurred upon the ground that petitioners failed to make a continuing offer to pay the amount of money to him which they admit to be due on the debt which they claim the deed mentioned in the petition was given to secure, and did not tender said amount in court. The demurrer was sustained. The petitioners allege, that they are co-tenants in the ownership of 125 acres of land on which they live; that about 1888 they gave to George Hogan a deed to the land in consideration of $210, for the purpose of securing a debt for that sum, and about 1890 Hogan deeded the laud for said consideration to Boyd who, claiming under said deed, is proceeding to eject petitioners under §4077 of the code, and threatens to levy a distress warrant on the crops of said premises; that petitioners have filed their counter-affidavit, claiming that they are not his tenants, and offering bond and security as required by law, but the affidavit and bond were declined by the sheriff on account of the fact that the security was not worth the necessary amount over the statutory homestead; that Boyd well knew, at the time of the transfer of the title to him by Hogan, that though petitioners held no bond for titles for reconveyance, their deed to Hogan was merely to secure a debt. They have, ever since the giving of the deed to Hogan, been in open, peaceable and adverse possession of the land, which is worth $600, and is the only home of petitioners, who, owing to their poverty, are unable to give satisfactory security as required bylaw. They are aged and infirm in health, and eviction from their home would remedilessly injure their financial interest and estate and leave them helpless and dependent without anyresources. They have tendered Boyd the money that is due him on the land, and stand ready to pay it to him, and he refuses to receive it, and is proceeding as above recited. They pray that he be enjoined from having issued or levied any distress warrant against petitioners. By amendment they allege that they have a bona fide claim to said land; and pray, if a verdict or judgment be obtained finding any sum to be due Boyd, that they be allowed a reasonable time in which to pay said sum, and failing so to do, that the land be sold and the amount due Boyd be paid first from the proceeds of the land, and the balance be paid over to them.</p>

Motion to set aside judgment. Before Judge Well-born. White superior court. October term, 1894. Alley filed a petition to foreclose a mortgage against Halcombe, who interposed several pleas. Without a verdict, the court adjudged that the rule absolute be refused, it being made to appear, by the judgment both of the superior court and the Supreme Court, that the land covered by the mortgage was not subject to the debt to secure which the mortgage was given.

<p>Affidavit of illegality. Before Judge EIardeman. Chei’okee superior court. September term, 1894.</p>

<p>Action on bond. Before Judge Gober. Forsyth superior court. August term, 1894.</p> <p>In November, 1874, I. S. Clement qualified as administrator of Mrs. Medlock, who had died leaving her husband and one child, the plaintiff, who was then thirteen years of age. Clement died in December, 1891, and in October, 1893, this suit was brought on his administration bond. He had made no annual return as administrator. He had sold nearly or quite all the property of the estate. It did not appear that plaintiff had received anything therefrom. She testified that she had not, and that her mother was but little in debt when she died. Defendants introduced a number of receipts for various payments made by the administrator on account of debts claimed to be due by the estate, with proof of the genuineness of the signatures thei’eto. The evidence is quite indefinite as to the character of some of these claims, their correctness, justice or validity; though others of them appear to have been for physician’s bill for services to Mrs. Medlock, for medicine, for appraisers’ services, for legal advertising, etc. The jury found for the plaintiff $72, and defendants’ motion on the general grounds for a new trial was overruled.</p>

Complaint. Before Judge Milner. Catoosa superior court. August term, 1894.

Attachment and garnishment. Before Judge Turn-bull. City court of Floyd county. September term, 1894. Suit was brought against Pitts & Co., and garnishment served on the Rome Iron Co. The Robinson, Boylston & McKeldin Co. were made parties, claiming under a draft in their favor, made by Pitts & Co. on the garnishee. A part of the fund was awarded to the-claimants. It appears that the draft was dated November 4, 1893, payable at thirty days.

Action for damages. Before Judge Turnbull. City court of Floyd county. September term, 1894. Plaintiffs hired to defendant a horse and buggy to be used by one Dempsey in going from Rome a distance of twenty miles. They had owned the animal about two years, in which time it had not had colic nor been otherwise sick. It was sound and well when it left their stable about 9 o’clock in the morning. The next day Dempsey returned without it, saying it had died on the road.

<p>Action on insurance policy. Before Judge Willis. City court of Columbus. October term, 1894.</p>

<p>Complaint on note. 'Before Judge Jenkins. Morgan superior court. September term, 1894.</p>

Action for damages. Before Judge MacDonell. City court of Savannah. November term, 1894. Mrs. Sundy sued the railroad company for the homicide of her husband, which she alleged was caused by his being struck on the head by a pole negligently erected and maintained by defendant on a street in Savannah within a few inches of the railroad track, in dangerous proximity thereto, and where its employees were liable to come in contact with the same. The plaintiff was nonsuited.