Volume 97 — Georgia Reports

<p>1. The fact that one corporation owns the entire capital stock of another, does not vest in the former the legal title to the property of the latter, nor render the two corporations identical. On the contrary, they are separate and distinct legal entities.</p> <p>2. Accordingly, though one who lends money to a corporation which owns all of the capital stock of a railroad company, may, under some circumstances, subject to the payment of the loan the property of the railroad company as equitable assets of the borrower, the lender in such case cannot, in preference to the lien of a valid mortgage executed by the railroad company to secure an issue of bonds, even in'equity, have his claim paid out of money realized by a receiver from the sale of the property of that company.</p> <p>3. Nor, under the facts recited, can the lender, as a party to an equitable proceeding, be allowed, by virtue of his rights as an alleged creditor of the railroad company, under a decree disposing of the assets of the latter alone, payment of the loan out of earnings of the railroad company which came into the hands of the receiver while it was being operated by him; and this is so, although the receiver may have previously used portions of such earnings in paying interest to the bondholders secured by the mortgage, and in making betterments and improvements upon the railroad property which largely increased the value of the bondholders’ security,</p> <p>Argued at the last term.</p>

<p>Action on contract. Before Judge Hunt. Pike superior court. March term, 1894.</p> <p>Mrs. M. E. Burr, administratrix of the estate of H. R. Chambers, brought suit against J. J. Rogers and a number of others, upon the following contract: “Georgia, Pike County. The undersigned parties, recognizing the importance to our town and community of a speedy and successful completion of the subscription to the capital stock of the Barnesville Manufacturing Company, and it being known to us that there is a balance of about five thousand dollars of said capital stock untaken and unsubscribed for, and having confidence in the success and profits of the enterprise, it is therefore agreed by us, that for the purpose of inducing any one or more persons to subscribe for said untaken balance or any part thereof, we will guarantee to them the payment of an annual dividend on the amount of their stock equal to eight per cent, per annum on the money paid into said company on said stock. This agreement and guarantee for the payment of eight per cent., as aforesaid, is to run for the space of three years from the first day of December, 1889; and if at the expiration of said three years the stockholders or holders of said stock desire and wish not to carry the same any longer, we hereby further agree, with thirty days notice from any or all of them, to pay each holder par value or fifty dollars for each share of stock held by them, their heirs or assigns. And if said amount of par value is not paid promptly, we hereby consent that the agreement and guarantee to pay eight per cent, dividend, above set forth, shall continue of force until the same is fully paid up. Witness our hands and seals, this the 27th day of April, 1889.” This was signed by the defendants, after which signatures appeared the following: “We the subscribers consent and agree to take the amounts of stock in the Barnesville Manufacturing Company, opposite our names below, respectively, upon the terms and conditions set forth in the above agreement.” This was signed by J. <1. Rogers and twenty-one others, including “R. J. Powell, adm’r TI. R. Chambers, 60 shares, $3,000.”</p> <p>Plaintiff alleged: The defendants are indebted to her $3,000 principal, besides interest from April 27, 1889. After the expiration of three years from December 1, 1889, she demanded payment of both principal and interest, of the parties to the contract, and payment was refused. In pursuance of the proposition made by the defendants, as set out in the contract, R. J. Powell, former administrator of II. R. Chambers deceased, agreed to take 60 shares of stock of the Barnesville Manufacturing Company, paying therefor $3,000, and did so take said stock on the representations and guarantee of all of defendants, and all of defendants had notice that he subscribed for the stock on said representations, and the manufacturing company received the $3,000 and issued the 60 shares to him, which fact was known to all of defendants, and they approved and indorsed the same. Plaintiff now has said stock and has been ready to turn it over to defendants upon their paying the principal and interest due on the same, in accordance with the terms of the contract sued on; and has the- stock now in court to tender to defendants whenever they comply with their contract; and she asks the court to decree a surrender and transfer of the 60 shares to defendants when they shall pay the amount due her. R. J. Powell, former administrator, and petitioner, have received no dividend on the stock from the manufacturing company since the same was taken. All of the defendants knew, at the time plaintiff accepted the proposition 'of defendants on their said contract, that Powell, administrator, did accept the same on April 27, 1889, and all of defendants had full knowledge of plaintiff’s acceptance on or about the same time they signed the contract. Powell died before the expiration of said three years, and plaintiff was appointed administratrix de bonis non, and as soon as she knew or ascertained the terms of the contract, and as soon as- she had the opportunity, she made the demand of all of defendants. All of the defendants were stockholders in the manufacturing company, interested in its erection, and have sustained no loss by reason of the delay of the demand so made, and said demand was made by plaintiff in a reasonable time after the time fixed, if any is fixed, in the contract.</p> <p>Defendants demurred on the following grounds: (1) No cause of action is set out. (2) Plaintiff cannot recover interest or dividends (if entitled to recover) except from December 1, 1889. (3) Plaintiff gave defendants no notice of the fact that she had subscribed for stock on the faith of the alleged agreement. (4) She does not allege that she notified them, at the expiration of three years from December 1, 1889, that she did not wish any longer to carry the stock. (5) If she has any right to recover, it is for the specific performance of the contract, and then only upon the showing that she has complied strictly with its terms. (6) She does not offer to comply with the contract by offering to surrender and transfer the stock to defendants. (Y) She does not allege that she notified defendants of the nonpayment of dividends and demanded payment thereof from defendants. (8) She does not allege that the manufacturing company failed to pay dividends or that she has sought to collect them from said company.</p> <p>The demurrer was overruled, and defendants excepted.</p>

<p>1. By invoking equitable relief, such as the appointment of a receiver and the administration of the mortgaged property by equitable means and agencies, mortgagees submit themselves to do equity relatively to any creditor of the mortgagor who may rightly intervene in the foreclosure proceedings in which such relief is sought. Mortgages upon a railway and the income from the same, the mortgagor being left in possession, are, as to the income, whether produced before or after the appointment of a receiver in' foreclosure proceedings, subject to be postponed in equity in favor of a claim for damages resulting from a tort committed by the mortgagor while and by reason of operating the railway after the execution of the mortgage. The tort now in question consisting of negligence in running a train upon the railway whereby damages accrued, and judgment therefor against the mortgagor having been obtained before the mortgages were foreclosed or the receiver was appointed, such damages, so reduced to judgment, should be regarded as operating expenses charged by the judgment upon income as against the mortgages and all their incidents. So long as such a charge is unsatisfied, the mortgages cannot justly and equitably divert income from its payment and take the benefit of such diversion, whether directly or indirectly.</p> <p>2. In the present case when the court adjudicated finally upon exceptions to the master’s report, it was, according to recitals in the bill of exceptions, matter of authentic fact of which the court should have taken judicial notice, that, counting income expended by the receiver for new steel rails, iron and cross-ties, and the sums applied by the court to fees of the receiver and his counsel, about double as much income as would be required to satisfy the judgment for damages had been thus used up while the case was in progress. It is manifest that the mortgagees cannot take all the fruits of the case without incidentally profiting by this income to the detriment of the judgment creditor. For this reason, if for no other, the court erred in approving and sustaining the master’s report in so far as it ranked the judgment below the mortgages as a claim upon the fund in court for distribution, that being all the fund there was for distribution, the mortgages being more than sufficient to exhaust it, and the common debtor being insolvent. The court, under the special circumstances, should have ranked the judgment as superior to the mortgages. Let this be done by properly modifying the decree.</p> <p>S. The evidence taken by a master and duly reported by him to the court appointing him, is a part of the record in that court of the case to which it appertains, and, when -specified in the bill of exceptions as material, is properly brought to the Supreme Court in the certified transcript. This being so, the motion to dismiss the writ of error is denied.</p> <p>Argued at the last term.</p>

Action on insurance policy. Before Judge Hunt. Bibb superior court. April term, 1894. C. C. Clay sued the insurance company upon a policy of insurance, and for damages and attorney’s fees alleged to be due him on account of the bad faith of the company in refusing to pay loss he alleged he sustained by the burning of a house and certain furniture covered by its policy of insurance.

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

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

<p>1. Where a man was arrested -on a warrant for bastardy and brought before a magistrate, who after a preliminary hearing made and signed an entry upon the warrant in these words: “After hearing evidence and argument, defendant required to give bond in conformity with statute,” this of itself, and without more, was a sufficient requirement of the accused to give bond for the maintenance and education of the child; and if he did not thereupon give such bond, the magistrate was warranted in making out a commitment reciting that the accused had failed “to give bond as required by law for the support of the child,” etc., and directing his imprisonment in jail in default of a bond for his appearance at the trial court to answer the charge of bastardy.</p> <p>2. The accused in such case was bound to take notice of and act upon the requirement made of him as recited in the above quoted entry; and hpon the trial of an indictment subsequently returned against him for the offense of bastardy, there was no error in refusing to allow him to prove that no such entry was made by the magistrate at the time of the commitment trial, nor in refusing to allow him to prove that, if it was in fact made, no demand was afterwards made upon him to give a bond for the support of the child, that he had no notice of the action taken by the magistrate, and that his attention was not called to the same.</p> <p>3. Under' tlie facts of this case, the charges complained of, if erroneous at all, were harmless to the accused. The evidence warranted the verdict, and the court was right in refusing to grant a new trial.</p>

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

<p>1. The State is not bound to prove tbe commission of tbe offense charged in an indictment on tbe precise date alleged therein, but may prove its commission on any day within the statute of limitations.</p> <p>2. Whether or not it would be competent for the State to prove a particular act done by the accused which would constitute the offense charged, if it affirmatively appeared that the grand jury had never passed upon, or indicted him for, that act, but had predicated the indictment upon an entirely separate and distinct transaction, this is not made so to appear by the testimony of a witness, not a member of the grand jury, and who. manifestly could not know, except by hearsay, if at all, upon what particular act of the accused the indictment was really founded.</p> <p>3. The charge complained of, to the effect that if the jury believed beyond a reasonable doubt that the accused unlawfully beat the person alleged in the indictment to have been assaulted, at the time charged in the indictment, or at any time within two years before the date of the filing of the same, they would be authorized to convict, even if under any circumstances objectionable, was not, in view of the evidence in this case, erroneous.</p> <p>4. If in the present case the State proved two separate and distinct beatings, at different times and places, there was no motion to require the State to make any election, or direct its. evidence to, and ask a conviction upon, either one of such beatings. Whether or not, in a misdemeanor case, such a motion would in any event be well founded, there was no error in admitting the evidence complained of, even if it related to a beating different from that referred to by a witness previously introduced; and the evidence so admitted was in rebuttal of the statement of the accused, in which he denied generally that he had ever at any time beaten the person alleged to have been assaulted.</p>

<p>Appeal. Before Judge Falligant. . McIntosh superior court. November term, 1894.</p>

<p>Complaint. Before Judge Lumpkin. Bulton superior court. March, term, 1894.</p>

<p>Ejectment. Before Judge Gamble. Washington superior court. September term, 1894.</p>

<p>1. Where documents are attached to interrogatories for the purpose of proving their execution, the party at whose instance the answers thereto are put in evidence is not hound to offer also such documents; and it is improper practice for the court to require him to do so. If, however, any portion of the answers read by such party are unintelligible without the documents or a part of them, the court may require the party reading the answers to offer also the documents, or such part of them as may be necessary to the understanding of the answers, upon penalty, in case of refusal, of excluding those answers to the understanding of which such documents are necessary.</p> <p>2. Where, in the trial of an action, the liability of a partner for a debt incurred by a copartner in the firm name for the account of a third person, depends upon the ratification of the unauthorized act of such copartner by the partner sought to be charged, the burden of proof is upon the plaintiff to establish the fact of ratification by a preponderance of the testimony; and a written request to that effect should have been given.</p> <p>3. Actual knowledge of the character of such a debt aryl of the circumstances under which it was incurred, are not necessary to bind by a subsequent ratification the partner sought to be charged. If he ratify the unauthorized act of his copartner and assume personally to pay the same, with notice of such facts only as would put a reasonably prudent man upon inquiry, he is thereby charged with knowledge of all such facts as he might have discovered if inquiry had been pressed with due diligence; and hence a request to charge, which makes actual knowledge the test of the binding force of such ratification, leaving entirely'out of consideration the effect of such constructive knowledge as might have been acquired by inquiry, was properly refused by the court.</p> <p>4. All persons liable as endorsers upon a note or bill of exchange, as distinguished from mere sureties by endorsement, if the paper endorsed be payable, or intended to be negotiated, at a chartered bank, are entitled to protest and notice of non-payment. A person who merely writes his name on the back of such a paper to guarantee its payment, but whose endorsement is neither essential to nor proper in the due transmission of title in the course of negotiation, is a surety only, and is not entitled to notice as an endorser.</p> <p>By two Justices.</p>

Trover. Before Judge Bower. Decatur superior court. * November term, 1895. Roddenbery brought trover and bail against Dollar et al. The case was submitted to the judge on the facts hereafter stated, and he decided that plaintiff should recover the value of the property sued for. Defendants excepted. Plaintiff offered in evidence deed to the land on which the crop in dispute was grown.

<p>1. The above stated eases are controlled by tbe decisions of this-court in the cases of Henderson v. Walker et al., receivers, 55 Ga. 481, and Thurman v. Cherokee R. Co., 56 Ga. 376, holding that when a railroad company is in the hands of and being operated by a receiver, neither the company nor the receiver is-subject to suit by an employee for personal injuries occasioned. by the negligence of a coemployee.</p> <p>2. As the rule announced in the above stated cases has stood as good law for about twenty years and the General Assembly has passed no act changing the same, and a majority of this court are of the opinion that they were correctly decided in the first instance, they are, upon a review of the same, hereby affirmed.</p> <p>Atkinson, J., being bound by the rulings in the cases cited, concurs in the judgments rendered, but dissents from the majority opinion declining to overrule those cases.</p>

Action for damages. Before Judge MacDonell. City court of Savannah. July term, 1894. The plaintiff, a boy of seven years and nine months, was caught under a moving car of the railroad company, and his right leg was so crushed as to render necessary an amputation just below the knee.

<p>1. One who deals with a special agent, knowing at the time the limits within which the agent, under the terms of his appointment, has authority to hind his principal, is bound to act with reference to this knowledge, and cannot hold the' principal liable for loss occasioned by acts of the agent in excess of, or contrary to, the latter’s authority in the premises.</p> <p>2. Where an agent to buy had no authority to make his principal directly liable to the seller for the price of the goods purchased, but was required to ship the same to the principal, draw upon the latter in favor of a specified bank, with bills of lading attached to the drafts, which drafts the principal had arranged with the hank to cash so as to supply the agent with money to pay for his purchases, one who, with knowledge of these facts, sold and delivered goods to the agent for his principal, and, without seeing to it that the agent complied with the above stated requirements, accepted in settlement for the goods the agent’s individual check on the bank in question, which was dishonored, could not recover from the principal the value of the goods without proving affirmatively that he actually received them; and even then, the latter would not be liable if he in fact paid for the goods by honoring the agent’s draft in pursuance of the terms under which the agency was created.</p> <p>3. In view of the law as above announced, the evidence in this case did not warrant the verdict in the plaintiff’s favor, and it was error to refuse a new trial.</p> <p>AtMnson, J., dissenting. — 1. Where the relation established between a principal and agent is that of a general agency upon the part of the latter to purchase cotton upon the credit of the principal, the seller of cotton to such an agent for the account of the principal is not affected by private instructions of the latter to a third person, not affecting the power of the agent to purchase, but only directing how, in what manner and upon what terms such third person would be authorized to pay drafts drawn by the agent for the purchase price of such cotton, even though such private instructions be known to the seller.</p> <p>2. If the agent have competent authority to complete the contract of purchase, and, in pursuance of -such authority, the purchase be completed and delivery to the agent thereunder be effected, the seller is entitled to be paid the purchase price, notwithstanding the infidelity, negligence or disobedience of instructions by the agent in his further dealings with his principal respecting the delivery to the principal of the cotton so purchased.</p> <p>3. According to the principles above announced, under the evidence submitted in this case, the court committed no error in refusing to grant a new trial.</p> <p>Brought forward from the last term.</p>

<p>Indictment for rape. Before Judge Beck. Fulton superior court. March term, 1895.</p>

<p>Indictment for assault to rape. Before Judge Clark. DóKalb superior court. February term, 1895.</p>

<p>Indictment for riot. Before Judge Hutcbins. Gwinnett superior court. September term, 1894.</p>

Indictment for forgery. Before Judge Sweat. Charlton superior court. April term, 1895. Tbe indictment charged, that on July 1, 1894, Bawls forged and altered an order for money, reading originally: “Mr. J. P. Stallings pay Charle Bauls 2 dollars for dipen B. A. Chesser”: by substituting the figure 3 for the figure 2, with intent then and there to defraud Stallings and Chesser.

Indictment for murder. Before Judge Janes. Paulding superior court. February term, 1895. . Jack Abney, Wyley Abney and I. P. Davis were indicted for the murder of J. L. Williams. Jack Abney was found guilty of voluntary manslaughter, and his motion for a new trial was overruled.

<p>Indictment for murder. Before Judge Fish. Sumter superior court. November term, 1894.</p>

Indictment for adultery and fornication. Before Judge Gobetr. Oobb superior court. November term, 1894. After verdict of guilty, defendant moved for a new trial on tlie grounds, that tlie verdict was contrary to law and evidence, and without evidence to support it. The motion was overruled. The case made by the State was: Frank Wilmoth, the husband of Lulie Wilmoth, sent for his sister, Amanda Kendrick, to come to his house.

Accusation of adultery. Before Judge Proffitt. City court of Elbert county. March term, 1895. Rachel Eldridge, a married woman, was convicted of adultery committed with Anderson Starlce, a married man. She moved for a new trial on the grounds that the verdict was contrary to law and evidence; and the motion was overruled.

<p>Accusation of adultery. Before Judge Proffitt. Oity court of Elbert county. March term, 1895.</p> <p>Anderson Stárlte was tried upon an accusation sworn to by Alice Starke, charging him with adultery with Bachel Edwards, a married woman. Ampy Eldridge testified that he and Bachel Eldridge were man and wife, but were living separately; and that defendant claimed Alice Starke, the prosecutrix, as his wife, and they did live together as man and wife. Wilhite testified, that he had defendant and Bachel Edwards (pointing out Bachel Eldridge, and saying he thought her name was Bachel Edwards) employed on his place; that there was but one room on the place for them to stay in, a cabin twelve feet square, which was given to Bachel Edwards to live in, but defendant lived there with her; that his duties called him to be on the place; that he had frequently gone into the house at night and come out in the morning; and that there was only one bed in the house.</p> <p>Defendant introduced no evidence, and made no statement. After conviction he moved for a new trial on the general grounds; and because the court overruled his demurrer to the accusation, and his motion in arrest of judgment, each upon the ground that the accusation was not based upon a legal affidavit, the law prohibiting husband or wife from swearing against each other in any action or proceeding instituted in consequence of adultery.</p>

' Indictment for robbery. Before Judge Gober. Cobb-superior court. November term, 1894. According to the testimony of Mrs. Bellah and her daughter, they were driving home from Marietta on the public road outside of the town, when they were overtaken by a negro man walking, lie walked by the side of the wagon for a few moments; then suddenly ran to the wagon and seized the satchel which was hanging on the “front gate” of the wagon.

Indictment for assault and battery. Before Judge Kimsey. Rabun superior court. February term, 1895. The indictment was against 'W. F. Roane and his sons Alex, and Marvin. Marvin was acquitted; the other two found guilty.

Indictment for murder. Before Judge Butt. Muscogee superior court. November term, 1894. Ed Walker was indicted for the murder of Carrie Armstrong. The theory of the defense was, that the killing was accidental, and upon this question the evidence was conflicting. It appeared, that the defendant and deceased were not married but had been living together for some years.

<p>Accusation of cheating and swindling. Before Judge "Williamson. City court of Monroe county. May term,. 1895.</p> <p>The accusation charged, that on February 13, 1895, in. Monroe county, McGee unlawfully and falsely represented, to B.. B. Stephens, of the firm of Stephens & Ensign, that, at the time he executed and delivered a mortgage to that-firm, on a red cow three years old, a bay mare pony eight, years old, and a white painted buggy, there were no other-liens upon said property, when he knew there were other' liens upon it, and by said false representations obtained a. credit of said firm, and thereby defrauded said firm of rent-on Frank Smith amounting to $17.17. Indictment and trial by jury were waived. The judge found defendant-guilty, and he excepted on the grounds that this judgment was contrary to law and evidence, etc.</p> <p>Stephens swore: lie received from defendant a mortgage-for $22.70, on the property described in the accusation. (The mortgage, dated February 13, and recorded February-16, 1895, states that the property is unincumbered, and not subject to homestead and trust funds.) Defendant stated expressly that the property was unincumbered, and. upon the faith of this representation Stephens, for the firm of Stephens & Ensign of which he is a member, cancelled the debt against one Smith, defendant’s brother-in-law, for-rent, who was at that time proceeding against the property of defendant by attachment, and at the time of the execution of the mortgage had the same under levy. ■ Stephens & Ensign have not been paid the amount of the mortgage, but it has been foreclosed and the property mentioned therein is now in the hands of the officer under foreclosure; it has not been sold but is to be sold. Witness has gone to-considerable expense in finding defendant and the property. lie has foreclosed the mortgage and furnished a horse to the levying officer. Tie has spent about $11 in getting defendant and finding the property. Up to the present time he has paid out nothing in such pursuit. The property mortgaged, if sold, might pay his mortgage, but would not pay off it and the Ashworth mortgage; this is his opinion, he has no personal knowledge of the value of the property. Ashworth testified: Defendant executed him a mortgage note for $19.45, dated and recorded January 31, 1895, covering one Brewster spring buggy gear, body black; also, one red cow three years old named Dolly; also, one black mare pony about ten years old. Since his arrest defendant told witness that he had disposed of the property named in this mortgage, and that the reason he did so was because the mortgages given both parties were due on October 1, 1895 (the mortgage note to Stephens & Ensign appears to have been due one day after date, and that to Ashworth on October 1, 1895), and that he expected to pay them off before that time; that the value of the horse mortgaged was from $15 to $20, and that of the buggy $19.45 at the time he sold it in January. Henry Tison testified, that he bought a black horse from defendant in Monroe county, and paid $7 for it. John Abernatha testified, that he bought a black bodied buggy with running gear painted white, for which he gave a silver watch; that buggy was worth $12 to $15; that the horse sold Tison was more black than dark bay; that he did not think defendant had any other horse and buggy, never saw him with any other, and lived not far from him; and that the trade was made in Monroe county. R. S. Britt testified, that the cow was worth $12 or $15; that he would not have the horse, but did not know what it was worth; that he had not seen defendant with any other horse or cow since January, 1895; that he had seen the buggy named in the Stephens mortgage, that it was white running gear with black body; and that he did not know how many horses defendant had; lived close to him, and never saw any other than this one on his place. J. "W. J ackson testified, that he bought a red cow from defendant, which filled the description in the mortgage, and its value was $10. lewis Carson testified that he had bought a black horse from Tison in Monroe county, for which he paid about $3.</p>

Indictment for cheating and swindling. Before Judge Willis. City court of Columbus. April term, 1895.

Indictment for larceny. Before Judge Reese. Hart superior court. March term, 1895. Rucker, Evans and Craft were indicted for stealing a bale of cotton from McMullan. Rucker was tried and convicted, and his motion for a new trial was overruled. Mc-Mullan testified, that he lost a bale of cotton from his premises at the time charged, and never found it. It was missed about a week after it was taken.

<p>Indictment for larceny. Before Judge Kimsey. White superior court. Special term, May, 1895.</p>

<p>Indictment for larceny after trust. Before Judge Clark, Fulton superior court. March term, 1895.</p> <p>The indictment charged, that the defendant, having been entrusted by Matilda Gilbert with two bank checks for $75 each, for the purpose of getting them cashed and applying the money to the building of a house for her in Washington, Ga., did get the money on the checks, and fraudulently converted it to Ms own use, and failed and refused to return it to lier on demand made therefor. Defendant was found guilty, and moved for a new trial on the general grounds. The motion was overruled, and he excepted. According to' the testimony of Matilda Gilbert, defendant agreed with her to build for her a house at Washington for $150, he to furnish the material and to do the work for that sum; She thereupon caused to be drawn and delivered to Mm two bank checks for $75 each, payable to his order. He was to leave these checks with Y. L. Smith in Atlanta and go to Washington, and when he got everything there prepared, he was to send her a telegram, and then Smith was to send him the money as needed for the work. He was to have fifteen days in which to complete the same. In three or four days after the checks were delivered to him; she ascertained that he had drawn all the $150 from the bank and gone off with it; whereupon she caused him to be arrested in Washington and brought back to Atlanta. Just before his arrest he sent her a telegram which she received, stating that he had made no arrangements about building, could not buy lumber cheaply enough at Washington, and would not leave there until he heard from her. On his return to Atlanta, she demanded that he return the money to her, which he refused to do, stating that he had left $65 of it with her aunt in Washington, and had spent the balance, which he would work for and pay back. He further stated to her that he had spent none of it for lumber or other material. She never got back any of the money. He did not tell her he had left $87 with her aunt. Her aunt wrote her that she had the money. He told her before leaving Atlanta, that he was going to draw some of the money to buy lumber. Smith testified, among other things, that on the day the checks were shown to have been cashed, defendant came and asked him to go to the bank and identify defendant. This Smith did, and defendant then and there endorsed one of the checks and got the money. He seems to have got the other check cashed later on the same day. That afternoon he came into Smith’s office wearing an entirely new outfit of clothing, and exhibited money to the amount of $100 or more. On being asked where he got it, he replied that he had been at work as fireman on a railroad, and this money represented his earnings. Smith seems to have known nothing about any agreement to leave the checks with him, and for him to draw the money and remit tire same to defendant in amounts as needed for the work. Defendant' stated, in substance, that he agreed with Matilda Gilbert that she should let him have the $150 for1 which he was to complete the job of building in fifteen days; that he was to carry one of the checks with him, which she gave him, and he went and got Smith to identify him; that he went back and told her he would take the other.check, and would leave the money with Smith; that he got to thinking about it, and as he knew nobody in Washington and could not get the check cashed there, and Smith would have to send him the money by postal order and he would have to get some one there to identify him, he carried the money to Washington and gave Matilda’s aunt $81 for safe-keeping, and he could use it as called for on the building; and that he expended the remainder as follows: $46 paid for material; $11.50 for railroad fare and tools; $3.20 for lime and drayage; 35 cents for telegram; and $2 for provisions for himself. He added, that he bought the new clothes with his own money.</p>

Indictment for arson. Before Judge Williamson. Monroe superior court. February term, 1895. Wells, a negro preacher, was convicted of burning a church which he had served as pastor. It was seen burning between twelve and one o’clock on the morning of the-first Sunday in July.

Indictment for arson. Before Judge Sweat. Early-superior court. April term, 1895. Jerry Nix was convicted of burning a scboolbouse in Arlington. The fire occurred about eleven o’clock on the night of December 26th. It appeared to have started in a little closet near the chimney.

<p>By two Justices.</p>

<p>Indictment for selling liquor. Before Judge Brown. City court of Carrollton. March term, 1895.</p>

<p>Indictment for robbery. Before Judge Clark. Rock--dale superior court. April term, 1895.</p>

<p>Indictment for illegal voting. Before Judge Brown. City court of Carrollton. March term, 1895.</p>

<p>Indictment for larceny. Before Judge AVestmoreland. Criminal court of Atlanta. January term, 1895.</p>

<p>Indictment for seduction. Before Judge Smith. Montgomery superior court. April term, 1895.</p>

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

<p>Indictment for murder. Before Judge Griggs (motion for new trial before Judge Bower). Oallioun superior court. December term, 1894.</p>

<p>Indictment for rape. Before Judge Reese. Warren superior court. April term, 1895.</p>

<p>Indictment for opprobrious words. Before Judge Brown. Oity court of Carrollton. March term, 1895.</p>

Illegality. Before Judge Smith. Dodge superior court. September term, 1894. On April 16, 1883, Frick & Company brought suit upon two promissory notes for $500 each, dated March 17, 1881, due January 1 and July 1, 1882, with interest from date.

Petition for injunction and receiver. Before Judge Hutchins. Clarke county. February 4, 1895. Oh December 7, 1894, Yonderau & Co., a firm composed of W. P. Yonderau and A. S. Parker, executed and filed for record an assignment for creditors, to A. W. Yess. On the same day they filed a mortgage on their stock of goods in favor of some of the preferred creditors mentioned in the assignment deed, this mortgage being dated November 28, 1894.

<p>By two Justices.</p>

Complaint on account. Before Judge Jones. City •court of DeKalb county. November term, 1894. H. GK Randall sued J. O. Reynolds for a balance of $82.26 upon an account for material furnished for building a house, etc. The account was attached to the declaration, which, as originally brought, claimed an indebtedness of $100 and sought to foreclose a lien therefor in favor of plaintiff as a contractor and material man.

Motion to set aside judgment. Before Judge Eve. City court of Richmond county. November term, 1894. J. M. Hull sued Mark Silver on an open account for $327.50, for medical services rendered. The action was brought to the August term, 1891, of the city court of Richmond county, and the defendant was served by the sheriff leaving a copy of the petition and process at his residence.

Petition for specific performance. Before Judge Beese. Hart superior court. September term, 1894. • W. T. Looney, for himself and as agent and next friend of, his minor daughter, brought a petition against Elizabeth C. Watson to compel specific performance of a parol agreement to convey certain land.- The court granted a non-suit,1 and plaintiff excepted.

Complaint on notes. Before Judge Hunt. Hancock superior court. August term, 1894. The American Mortgage Company of Scotland, Limited, alleging itself to be a company incorporated under the laws of the State of New York and doing business in the State of Georgia, brought suit against Miss O. A. Underwood on certain promissory notes. One of the notes attached to the petition is for $137 principal, with interest from date at eight per cent.

Complaint. Before Judge Cobb. Clarke superior •court. April term, 1894. Suit was brought against Orr & Hunter for $1,606.30, upon a check dated November 19, 1892, on the National Bank of Athens, payable to the order of plaintiff, signed by defendant. They pleaded,' that they drew and der livered the check to plaintiff in part payment for cotton purchased of plaintiff.

Bail-trover. Before Judge Wellborn. Hall superior court. July term, 1894. Tbe Durham Fertilizer Company sued Palmour to recover certain bags of guano, alleged to be of tbe value of $416.10. Palmour, being imprisoned under tbe bail process, presented bis petition for release from custody, on tbe ground that be was unable to give tbe bond and security required, and unable to produce tbe property sued for.

<p>Ini unction. Before Judge Gober. Forsyth county. April 30, 1895.</p> <p>Puett having made return of his property for municipal taxation at a valuation of $3,000, the mayor and council of the town raised the assessment to- $6,000, and upon failure to pay the tax based on the increased valuation, issued an execution which was levied by one Howard as marshal of the town, elected by the mayor and council. Puett thereupon brought his petition for injunction, alleging the assessment and levy to be illegal for the reasons appearing in the first two head-notes, and on other grounds. On the hearing the judge ordered that the levy be restrained upon payment or tender to the clerk of council or the proper levying officer of the amount of tax based on the original assessment, holding that Howard had no authority to make the levy, etc.</p>

Equitable petition. Before Judge Janes. Paulding superior court. August term, 1894. Mrs. Parker brought her petition against W. C. Cochran and M. M. &. O. C. Phillips & Company, to which Eranklin Parker, husband of plaintiff, was afterwards made party defendant. A demurrer was sustained, and the petition dismissed as to M. M. & C. C. Phillips & Company, and a restraining order previously granted as against Cochran was dissolved. Plaintiff excepted.

<p>Complaint. Before Judge Janes. Paulding superior court. January term, 1895.</p>

<p>Ejectment. Before Judge Janes. Haralson superior court. January term, 1894.</p>

<p>Foreclosure of mortgage. Before Judge Hunt. Butts superior court. August term, 1894.</p>

Foreclosure of mortgage. Before Judge Hunt. Butts superior court. August term, 1894.

Dispossessory warrant. Before Judge Hunt. Pike superior court. October term, 1894. Burr and Daniel sued out a warrant to dispossess Wilson, as a tenant holding over, of certain described land. By counter-affidavit Wilson claimed that plaintiffs never had title to the dwelling-house and premises occupied by him, containing about twenty acres and included in the tract described in the warrant, and that he never held said twenty acres as their tenant.

Injunction and receiver. Before Judge Beck. Henry county. May 8, 1895. On February 28, 1895, M. IT.

Certiorari. Before Judge Hunt. Monroe superior-court. August term, 1894. A case was tried in the mayor’s court of Forsyth on May 4, 1894. On Monday, June 4, defendant presented a petition for certiorari, which was sanctioned, but the petition was not filed until the next day. A motion to dismiss the writ, because the petition had not been filed within the-time required by law, was sustained.

Complaint for land. Before Judge Jenkins. Morgan, superior court. September term, 1894.

Equitable petition. Before Judge Butt. Talbot superior court. September term, 1894. Tbe case of D. B. Weathers against J. McFarland, administratrix, and Ada McCrary, coming on to be tried, •defendants demurred orally to tbe petition. Plaintiff objected to tbe demurrer being entertained, upon tbe ground that it came too late. Tbe objection was overruled, and tbe demurrer was sustained. Plaintiff excepted.

Equitable petition. Before Judge Butt. Talbot superior court. September term, 1894. The case of Mrs. S. J. McClung against George W. Amos et al., was dismissed for want of equity. The petition alleged: On December 23, 1888, petitioner’s father Samuel Amos died intestate, leaving a considerable estate of realty and personalty, worth $4,000.

<p>Complaint on account. Before Judge Butt. Talbot superior court. September term, 1894.</p> <p>Suit was brought against Mrs. Carter for $147 as the • price of a “two-horse power with two belt-wheels, one the regular 42 inch wheel, and the other 24x6, for cotton-gin use.” She pleaded, that the power was sold to her as first class, perfect and complete, whereas it was worthless; and that it was sold to her for running a gin, plaintiff represent- • ing that it was suitable for that purpose, but, though used as directed by plaintiff, it was not so suitable and could not be used for running the gin. ■ The jury found for defendant. Plaintiff moved on the general grounds for a new trial, and the motion was overruled. From the evidence in his behalf it appeal’s, that the machinery was sold and delivered in August, 1890, to be paid for in the next-October. It was sold for thrashing and sawing, as well as for ginning cotton; and both parties so understood. During that fall season defendant wrote letters to plaintiff, complaining that the machinery was worthless to her and could not be used. In February, 1891, an agent of plaintiff’ visited defendant’s place, examined the machinery and found that it had been improperly put up, causing it to run heavily and lessening the force it would otherwise have produced; also, that defendant was using horses that were thin and of light weight, and so improperly shod that in treading the bridge they slipped, thereby becoming frightened, worried and tired. He adjusted the machinery in a. proper manner, and together with defendant’s employees-ran it and ginned cotton with it; and it worked well, just, as plaintiff said it would work, and accomplished good results and ginned as much cotton as could be expected with such horses as defendant had. She thereupon expressed herself as satisfied, and proposed to pay for the machinery-on the next day. She did not do so-, but later in the month wrote a letter to plaintiff, stating that she had been sick and that her house had been burned, but promising to send him New York exchange. In another letter after the agent’s-visit, she renewed her complaint of the machinery. She-never refused to pay for it nor tendered it back. From her testimony and that of another witness, it appears that the machinery was worthless for ginning cotton; and that the horses she used were of medium size. She denied having-expressed satisfaction or promised the agent to pay for the machinery, and claimed to have tendered it back by a letter to plaintiff; that she tried repeatedly to run it, obeying his instructions, and being anxious to succeed with it. The agent knew nothing of ginning cotton, and did not improve the machinery so as to gin satisfactorily, etc.</p>

Equitable petition. Before Judge Smith. Johnson superior court. September term, 1894.

Complaint on note. Before Judge Griggs. Early superior court. October term, 1894. Morris Mayer sued T. B. McDonald on a promissory note for $150, payable- to J. M. Cox or bearer.

Equitable petition. Before Judge Bower. .Worth superior court. October term, 1894. Johnson brought his petition against Davis et al., the object of which was to recover possession of land. On the admitted facts the court directed a verdiet for the defendants, and overruled plaintiff’s motion for a new trial. It appears, that in 1881 Johnson made notes and a mortgage to Greenfield to secure a usurious debt, with a waiver of homestead, the mortgage covering the land in dispute.

Levy and claim. Before Judge Griggs. Calhoun superior court. December term, 1894. On October 2, 1882, one Hightower obtained judgment in Pike county against W. T. Respess, maker, and Mrs. Atwater, endorser.

Action on draft. Before Judge Bower. Decatur superior court. November term, 1894. Smith Brothers sued Russell upon a draft for $102.58, drawn upon a bank, signed by Russell. Written above the draft on the same piece of paper, and bearing the same date, was a receipt from Smith Brothers to Russell for $102.58 “in payment of account of A. F. Prevatt & Co.” The court directed a verdict for the plaintiffs, and Russell excepted.

Inirmction. Before Judge Lumpkin. Fulton county. April 16, 1895. The Seaboard Air-Line Belt Bailroad Co. was chartered to build a short line of railroad from a point on the Ga., O. & N. railway to Howell’s station on the W. & A. railroad, tbe real object being to afford to tbe Seaboard Air-Line system of railroads an entrance into the city of Atlanta, said system being composed of tbe Seaboard & Roanoke, Raleigh & Gaston, and Ga., O. & N. railroads.

Action for damages. Before Judge Eve. City court •of Pichmond county. November term, 1894. A demurrer for want of a cause of action was sustained, and plaintiff excepted. The declaration alleges, that plaintiff was employed by the railroad company as a section hand to work on the line of the road in building and repairing tracks, bridges and trestles used and necessary in the running of the trains of the company.

<p>By two Justices.</p>

Action for damages. Before Judge Ross. City court of Macon. December term, 1894. Cain was going slowly across Elm street in Macon, at right angle to the car-track on which a street-car was coming at the rate of about six miles an hour. This car had no conductor, and the motorman was receiving a fare and making change for a passenger. His face was turned from the lookout in front, and his hands were off the handles by which he controlled the movement of the car.

Action for damages. Before Judge Reese. Taliaferro superior court. August term, 1891. Cosby sued the railroad company for an injury received by him while in its employment as a track-hand, by the negligence of a coemployee. He obtained a verdict, and defendant moved for a new trial.

Appeal. Before Judge Harris. Troup superior court. November term, 1894. The plaintiff obtained a verdict for tbe value of two bead of cattle killed by a passenger-train. Tbe railroad company moved on tbe general grounds for a new trial, and tbe motion was overruled. According to tbe testimony for plaintiff, tbe train was running about 30 or 35 miles an hour, and did not decrease speed. Tbe engineer blew tbe whistle before striking tbe cattle.

Action for damages. Before Judge Turnbull. City court of Eloyd county. September term, 1894. Butler sued tbe railway company, and obtained a verdict for $1,100. Defendant moved for a new trial on tbe grounds that tbe verdict was contrary to law and evidence, and tbe motion was overruled. Tbe evidence was conflicting.

Action for damages. Before Judge Henry. Floyd superior court. September term, 1894. Ashworth sued the railway company. Two verdicts in his favor have been rendered, both of which were set aside by the court below. To the grant of a second new trial plaintiff excepted; and the Supreme Court held said ruling not error (94 Ga. 715). On'the third trial the court granted a nonsuit, and plaintiff excepted.

Action for damages. Before Judge Griggs. Quitman superior court. September term, 1894. John W. Lee with his wife and others went to the railroad station at Georgetown, just before daylight on November 1, 1892, to fake the train for Columbus. This train did not stop at Georgetown, unless waved down. There was a road crossing at the station, which was kept up by the railroad company.

Action for damages. Before Judge Westmoreland. City court of Atlanta. September term, 1894. Suits were brought against the railroad company by Thomas J. Morris for personal injuries sustained by him,, and by his father for the loss of his services. The cases were tried together, and a nonsuit was granted. The evidence showed, in brief, the following: Thomas J. Morris was eighteen years of age at the time he was injured.

<p>By two Justices.</p>

Action for damages. Before Judge Hutchins. Gwinnett superior court. September term, 1894. The widow of Hallman sued the railroad company for his homicide, and obtained a verdict. The company moved on the general grounds for a new trial, and the motion was denied.

Action for damages. Before Judge Hardeman. Bibb superior court. November term, 1894. The suit was for personal injuries sustained by plaintiff by the derailing of a car in which she was a passenger, when the train was running at a high rate of speed over a defective portion of defendant’s track, of which defendant had previously been put on notice and had neglected to repair the track. She obtained a verdict, and defendant’s motion for a new trial was overruled.

Action for damages. Before Judge Hardeman. Houston superior court. October term, 189J. For former reports of this case, see 90 Ga. 83; 93 Ga. 256. At the last trial the plaintiff obtained a verdict for $1,079.68.

<p>By two Justices.</p>

<p>By two Justices.</p>

<p>Complaint for land. Before Judge Wellborn. White-.superior court. October term, .1894.</p>

<p>Complaint. Before Judge Wellborn.. Habersham superior court. September term, 1894.</p>

<p>Complaint for land. Before Judge Henry. Eloyd superior court. September term, 1894.'</p>

<p>Complaint for land. Before Judge Jenkins. Baldwin superior court. July term, 1891.</p>

<p>Bail-trover. Before Judge Van Epps. City court of Atlanta. September term, 1891.</p>

Complaint on note. Before Judge Janes. Polk superior court. August term, 1894. Tbe Commercial Bank of Cedartown sued Thompson as administrator of A. G. West, deceased, and John Postell, upon a promissory note for $3,000 principal, dated July 6, 1892, and due sixty days after date, made by the Coal City Mining Company, indorsed by West and Postell, and payable to plaintiff or order.

<p>By two Justices.</p>

<p>Foreclosure of mortgage, Before Judge Wellborn. White superior court. October term, 1894.</p>

<p>Affidavit of illegality. Before Judge Jenkins. Hancock superior court. August term, 1894.</p>

<p>Complaint on notes. Before Judge Gober. Forsyth superior court. August term, 1894.</p>

<p>Complaint. Before Judge Gober. Cobb superior court. November term, 1894.</p>

<p>Complaint on account. Before Judge Turnbull. City court of Floyd county. September term, 1894.</p>

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

<p>Garnishment. Before Judge Henry. Floyd superior court. September term, 1894. •</p>

<p>Ejectment. Before Judge Hardeman. Bibb superior court. April-term,' 1894.</p>

<p>Action on contract. Before Judge Reese. Wilkes superior court'. November term, 1894.</p>

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

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

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

<p>By two Justices.</p>

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

<p>Petition for injunction, etc. Before Judge Lumpkin. Pulton county. March 30, 1895.</p>

<p>Petition for injunction. Before Judge Milner. Whitfield county. June 10, 1895.</p>

<p>By two Justices.</p>

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

<p>Lumpldn, J., heard the argument, but declined to participate in deciding this case, because of relationship to one of the parties.</p>

Indictment for misdemeanor. Before Judge MacDon•ell. City court of Savannah. May term, 1895. There were two counts, the first charging that the defendant did unlawfully keep, maintain, employ and carry on a certain lottery known and called a nickel-in-the-slot-machine. The second was in the language stated in the first head-note. The defendant was acquitted on the first, and convicted on the second count; and his motion for a new trial was overruled.

<p>Indictment for murder. Before Judge Harris. Coweta, superior court. March term, 1895.</p>

Indictment for assault and battery. Before Judge Kimsey. Hall superior court. July term, 1895. The defendant was white; the prosecutor colored. He had done some work for the defendant, who, on being applied to for the pay, said that the work had not been done as he directed and that he ought not to pay for it.

<p>Indictment for misdemeanor. Before Judge Brown. City court of Carroll county. June term, 1895.</p>

Indictment for trespass. Before Judge Brown. City •court of Carroll county. June term, 1895. After conviction, defendant’s motion for new trial was •overruled. The material ground of the motion is, that the court erred in refusing to allow counsel additional time for argument, they stating in their place, before argument commenced, that they could not do justice to their client in thirty minutes, and asking for that much additional time.

<p>Indictment for perjury. Before Judge Gober. Milton superior coru’t. August term, 1895.</p> <p>Tbe indictment charged, that Mack Baker on February 9, 1895, in Milton county, did “wilfully, knowingly, absolutely and falsely swear, both with and without laying his hand on the Holy Evangelist of Almighty God, and offense in a matter material to thé issue'and point in question in a judicial proceeding, to whom a lawful oath or affirmation was administered in the superior court of said county of Milton, on and during the trial of a case then and there pending, to wit: ‘The evidence you are to give the court in the trial of this case shall be the truth, the whole truth and nothing but the truth, so help you God/ said oath having been administered to said Mack Baker on and during the trial of a case then and there pending and being tried in said court, by one Newton A. Morris, an attorney at law in said court and representing one side of the issue or case then and there being tried, and the said Mack Baker was then and there a witness and testifying after having been sworn as aforesaid, in a case in the superior court, of said county of Milton, which came on to be tried at the February term, 1895, between Gilford Landrum as next friend of Jennie Landrum, Allen Landrum, Jonnie Landrum, Dessa M. Landrum, Dissie L. Landrum and Eula Landrum, minor children, against John Walker, West Walker and Abi Grant, the same being a suit against them as executors de son tort for the recovery of one thousand dollars in money which the plaintiff -in said case alleged by his writ the said defendant had wrongfully taken charge of and converted to his own use without authority of law, the same being money that James Walker, father of said defendants and grandfather of said minor children, parties plaintiff, had and owned and was in possession of when he died intestate on or about March 1st, 1891, to which charge defendants as aforesaid filed their plea in said case then and there pending, denying their guilt, and on the trial of said case the said Mack Baker, after being sworn as aforesaid, testified as follows, the same being evidence material to the issue then and there being tried, to wit: ‘The day after old man Jimmie Walker was buried I passed-the house where old Jimmie Walker lived and died, and saw John Walker, West Walker, Calloway Grant and Abi Grant dividing out and distributing among themselves a lot of money. Calloway Grant had a box in his hands handing out the money to John Walker, West Walker and Mrs. Abi Grant. It was a little square box nearly full of money. This was next day after old man Jimmie Walker was buried, and it was soon that morning just after sun up’ ;• when in truth and in fact the said John Walker, West Walker, Calloway Grant and Abi Grant were not all together at any one time, and that there was no box of money among them, and Calloway Grant did not hand out to them or any one of them any money from a box or from anything else, and that there was no money divided among them or any of them, and that the said Mack Baker never saw Calloway Grant give them or any of them any money from a box or from anything else at the time and place testified to by him or at any other time. The jurors afore-' said do say that the said Mack Baker did knowingly, willfully, absolutely and. falsely swear, and did then and there wilful and deliberate perjury commit.” Defendant demurred upon the grounds: (1) That the allegations in the indictment are insufficient and do not constitute the offense of perjury. (2) It does not sufficiently show and charge that the evidence given and sworn, by defendant was material to the issue being tried when defendant is alleged to have committed perjury. (3) It does not show that the court, before which the defendant is alleged to have perjured himself, was lawfully in session, or had lawful authority to try the case before it. (4) It does not show that a lawful oath was administered to defendant before he committed the perjury alleged. (5) It does not aver or show that the superior court had jurisdiction to en.tertain and determine the issue, or power or authority to administer an oath in the trial thereof. (6) It does not show that plaintiffs in the case in which defendant is alleged to have committed perjury were heirs of Jimmie Walker who were entitled to sue the defendants as executors de son tort; therefore said testimony was not material to the issue.</p>

<p>Motion to reinstate. Before Judge Gamble. "Washington. superior court. March term, 1895.</p>

<p>Indictment for receiving stolen goods. Before Judge Hardeman. Bibb superior court. April term, 1895.</p>

<p>Indictment for assault to murder. Before Judge Hart. Fulton superior court. March term, 1895.</p>

<p>Indictment for carrying concealed weapon. Before Judge Akin. City court of Cartersville. September term, 1895.</p>

<p>Indictment for furnishing liquor to a minor. Before Judge G-ober. Milton superior court. August term, 1895.</p>

<p>Accusation of carrying, concealed weapon. Before Judge Westmoreland. Criminal court of Atlanta. August term, 1895.</p>

<p>Accusation of gaming. Before Judge Westmoreland. Criminal court of Atlanta. August term, 1895.</p>

Affidavit of illegality. Before Judge Smith. Dodge superior court. March term, 1895.

Ejectment. Before Judge Smith. Wilcox superior court. IVIarcb term, 1895. The laud sued for was lot 92 in the 5th district of Wilcox county. The plaintiff, A. C. Fulghum, showed a complete chain of title, beginning with an original plat and grant from the State to Robert Greer’s orphans, dated September 3, 1841.

<p>Bill iu equity. Before Judge Smith. Pulaski superior court. February term, 1895.</p>

<p>Equitable petition. Before Judge Smith. Twiggs superior court. April term, 1895.</p>

<p>Indictment for attempting to set fire to a gin-house. Before Judge Hansell. Brooks superior court. May term, 1895.</p>

Accusation of cheating and swindling. Before Judge Williamson. City court of Monroe county. August term, 1895. McGee was tried and found guilty of cheating and swindling. See the report of the case made under the former accusation (ante, 199), where .the judgment was reversed because the court below erred in adjudging the defendant guilty.

Indictment for assault to murder. Before Judge Hart. Morgan superior court. September term, 1895. Taylor and Matliews were indicted for assault with intent to murder Bowman. Taylor was tried and found guilty of ■unlawful shooting, and his motion for a new trial was overruled.

<p>Indictment for assault and battery. Before Judge Reese. Hart superior court. September term, 1895.</p>

Indictment for simple larceny. Before Judge Reese. Glascock superior court. August term, 1895. Willis Hart was convicted of hog-stealing, and his motion for a new trial was overruled.

<p>Certiorari. Before Judge Sweat. Wayne superior court. May term, 1895.</p>

<p>Indictment for misdemeanor. Before Judge Freeman. Oity court of Newnan. July term, 1895.</p>

Ejectment. Before Judge Butt. Irwin superior court. April term, 1895. There were two demises, one from Lucinda Gasset, sole heir at law of Jose V. Gasset deceased; the other from Lucinda, T. H., J. T., and E. L. Perry, heirs at law of O. H. Perry. The land sued for was lot 55 in the 3d district of Irwin county, containing 490 acres.

<p>By two Justices.</p>

<p>Complaint for land. Before Judge Sweat. Glynn superior court. May term, 1895.</p>

<p>Complaint on account. Before Judge Westmoreland. City court of Atlanta. March, term, 1895.</p>

<p>Claim. Before Judge Lumpkin. Fulton superior-court. September term, 1894.</p> <p>An execution in favor of Appling against T. H. Austin, A. D. Boylston, W. E. Dobbs and the Fulton Lumber &r Manufacturing Company, based on a judgment of July 3, 1891, was, on January 26, 1893, levied on an undivided half-interest in an estate for years in certain described land in Atlanta, “said term of years having been transferred to W. E. Dobbs and J. M. Dobbs on the 8th day of November, 1889, for the term of ten years,” the undivided half-interest levied on being the property of W. E. Dobbs; “also, attached to said estate for years, certain described machinery and one building used as a planing-mill. The whole half-interest levied on as the property of W. E. Dobbs to satisfy the fi. fa. of Appling vs. The Fulton Lumber & Manufacturing Company, composed of Walter E. Dobbs at the date of the cause of action.” James M. Dobbs made affidavit that he was a member and owned the principal interest in a partnership doing business under the firm name of Dobbs Lumber Company, and that the half-interest levied upon was not the property of W. E. Dobbs but was the property of the Dobbs Lumber Company. The claim, was withdrawn, and the case tried upon an issue tendered that the claim was interposed for delay only. The jury found for plaintiff $125 damages. Claimant’s motion for new trial was overruled, and he excepted.</p> <p>Upon the trial plaintiff testified: At the date of the levy James M. and W. E. Dobbs were in possession of the property levied upon. I saw W. E. Dobbs frequently about the place seeing to the business, and at one time bought from him a bill of lumber. I do not remember the particular thing I saw James M. Dobbs doing, but he was about the mill. There was a wooden shed on the lot under which the machinery was placed. The machinery was attached to the floor in the building. There was lathing machinery and the belting for running the machinery. There was a dry kiln also upon the lot. The business carried on was that of planing lumber, buying and selling lumber, and building houses. The value of the machinery and houses, I think, was $2,500, and I think the property was worth for rent about $300 a year. I saw on the premises printed the name “Dobbs Lumber Company.” There were quite a number of others besides W. E. and J. M. Dobbs working about the mill, but W. E. Dobbs seemed to be directing the work. I did not see J. M. Dobbs doing other work than that done by "W. E. Dobbs. — In evidence was a writing signed by T. LI. Austin, dated November 8, 1889, which stated that it was between T. H. Austin of the first part, and W. E. Dobbs and J. M. Dobbs, doing business under the firm name of the Dobbs Lumber Company, of the second part; that Austin, in consideration of a rental of $25 payable monthly in advance, granted and leased to ~W. E. and J. M. Dobbs for ten years from December 1, 1888, certain land, describing it (being the land mentioned in the levy), with the right to J. M. and W. E. Dobbs to build and maintain a planing-mill and any other building or buildings necessary to the manufacture, handling, working or dealing in lumber of any kind, and to place any kind of machinery whatever thereon for any of said purposes, all of which building, machinery and improvements placed since the beginning of this lease should remain and be the property of J. M. and ~W. E. Dobbs; that the parties of the second part should protect Austin against any raise in the rate of insurance on any dwelling or property of Austin adjoining the property herein leased, by reason of improvements placed thereon under the terms of this lease; that at the expiration of this lease Austin would not take advantage of the parties of the second part on account of his ownership of the land, but would again lease the premises to them for a further term ’of ten years at a fair and reasonable rental to be agreed on by the parties, and in case they could not agree, then the question of rental should be submitted to arbitration. On the back of this writing was entered: “This lease is hereby cancelled and surrendered to Southern Banking & Trust Company, February 17, 1891.” Signed, Dobbs Lumber Company by W. E. Dobbs, W. E. Dobbs, J. M. Dobbs by his attorney in fact, ’William S. Thomson. William S. Thomson testified: I am a lawyer and member of the firm of Candler & Thomson. J. M. and W. E. Dobbs were partners under the firm name of Dobbs Lumber Company, and my firm were attorneys for the company when the claim was made. At the time the levy was made L M. Dobbs brought the lease contract with Austin and advised with me as to what should be done, stating that the greater part of the money of the Dobbs Lumber Company was put in by him, that it was the understanding and agreement between him and W. E. Dobbs that the interest of each partner should be in proportion to the capital contributed by each, that W. E. Dobbs had only contributed about one eighth, and that there were no written articles of partnership. Being of the opinion that the agreement with Austin was a lease to the partnership, and that under it the property was not subject to levy and sale, I in good faith advised that the claim should be interposed. Claimants acted on my advice and directed me to prepare the claim papers, and claimants’ case was commenced and continued under and by reason of my advice. J. M. Dobbs is in Chili and has been since shortly after President Cleveland went into office, who appointed him consul at Valparaiso. W. E. Dobbs is not in the city. When the case was called for trial I supposed he was, but upon inquiry found he had left a day or two before, and his employer, for whom he was travelling, could not tell where he was; and being without witnesses,' we withdrew the claim.</p>

<p>Complaint on notes. Before Judge Westmoreland. City court of Atlanta. May term, 1895.</p>

Motion to set aside judgment. Before Judge Yan Epps. City court of Atlanta. March term, 1895. On February 12, 1895, an attachment was sued out, returnable to the next March term of the city court, and was levied by service of garnishment. On the first day of the March term, the plaintiffs filed their declaration for damages from a breach of contract. Two days later they took a verdict and judgment as by default, for the amount sued for.

Action for damages. Before Judge Westmoreland. City court of Atlanta. IVIarch term, 1895. The plaintiff, a boy of fifteen years, went with his father and brother upon an excursion from Atlanta to Lawrence-ville. Returning on the evening of the same day, he mounted the steps of one of the cars in the train, intending to go inside of the car. He was not then with his father or brother.

Complaint. Before Judge Westmoreland. City court of Atlanta. May term, 1895. The plaintiff was an illiterate woman, seventy-seven years old. W. L. Hunter was acting for ber to obtain a pension which she claimed from the United States. In December, 1893, a check for $2,725.21, payable to her order, was issued by a pension agent, upon the assistant treasurer of the United States at New York. This check was presented to the defendant bank to be cashed.

<p>Petition for injunction. Before Judge Lumpkin. Pulion county. July 2, 1895.</p>

<p>Action on contract. Before Judge Yan Epps. City court of Atlanta. January term, 1895.</p>

<p>Action for damages. Before Judge Lumpkin. Pulton superior court. March term, 1895.</p>

Injunction. Before Judge Clark. Fulton county. September 17, 1895. Tbe Maddox-Rucker Banking Company and Mrs. Kolbeim, as creditors of J. G. Reynolds deceased, brought a. petition to tbe court of ordinary, for tbe removal of J. G.. Walker as executor of tbe estate of Reynolds, on tbe alleged grounds, among others, of lack of business judgment,, an unbalanced mind on all subjects pertaining to tbe estate,, and mismanagement of tbe same in many particulars.

<p>Indictment for burglary. Before Judge Butt. Talbot superior court. September term, 1895.</p>

Indictment for murder. Before Judge Kimsey. Babun superior court. August term, 1895. ~W. S. Keener was convicted of the murder of Arizona Moore, and his motion for a new trial was overruled. 1. A' motion to quash the indictment was made, on the ground that the minutes did not state when, how, nor by whom the bill was returned into court.

<p>Equitable petition. Before Judge Lumpkin. Fulton ■superior court. March term, 1895.</p> <p>Hollingsworth filed his petition for injunction, etc., against the North American Investment & Deposit Company, A. B. Clampet, and J. M. Graden. Graden was personally served. Service was made on Clampet by serving his “alleged attorney.” It was alleged that the investment and deposit company and Clampet were non-residents of Georgia. At the hearing defendant’s counsel admitted that he had waived service by publication as to Clampet, .and would make no point upon any lack of such service. Neither the investment and deposit company nor Graden appeared or pleaded or answered. The investment and deposit company was regularly served by publication, the -order for such service reciting that it was a foreign corporation and had no agent resident in .Georgia on whom service could be perfected. Hpon the hearing the court refused the injunction prayed for, and sustained a demurrer ■of Clampet and dismissed the action as to him.</p> <p>The petition alleged: On May 6, 1892, the North American Investment & Deposit Company, through its •agent O. "W. Comstock, solicited petitioner to borrow money from it and secure the notes given for the loan by a mortgage deed to land owned by petitioner, lying in Clayton county (describing it), and then and now well worth $3,000. Comstock, as agent of said company and duly authorized to contract for it, and to negotiate loans and to-secure the same in the manner above mentioned, on said day and at divers other times importuned petitioner to accept a loan from said company and secure it with said land, setting forth in the most glowing colors the' many advantages to be derived in borrowing from his company. Petitioner listened gladly to Comstock’s eloquence, and being poor and in great need of money, finally yielded to his influence and agreed to negotiate a loan. Comstock represented that his company was then and there perfectly solvent, with millions at its back. Petitioner had no reason to doubt the truthfulness of the-representations then made by Comstock as such agent,, and was wholly unfamiliar with the tricks of the trade. He accordingly executed and delivered to- said company his note for $1,000, dated May 6, 1892, due May 6, 1897, and payable to said company, and ten other promissory notes, each for $35, being for interest due semiannually on said principal note. On said notes $90 of interest is already due. Copies of all the notes are attached. To secure said notes he executed and delivered to defendant a deed or equitable mortgage to the land, and said company then and there executed its bond for titles-to the land to him. He expected the money at once, and so stated to said company, its agents, etc., but said agent then-and there represented to him that the $1,000 would be sent in a few days and that he need give himself no-concern; and he believed such would be the case. He had no suspicion of the fraud which was then being practiced by said company and its agent on him, though he thought the transaction somewhat unbusinesslike and demurred to-the same, but was persuaded by said agent that it would be-all right. Some time passed, and he began to have his-suspicions aroused. He called on said agent and the company and inquired about the matter, and was again put off. Months passed,. and with one pretense and another the company delayed the payment. TIis own creditors were pressing him, and the very object he had in view in negotiating the loan was about to be defeated. He again importuned said agent and the company either to return his deed and notes or to pay the money, but they continued to excite hopes only to be blighted. Finally Olampet came to Atlanta as the agent of said company and to solicit loans for it. He was then and still is an agent of defendant and an officer and stockholder in the same, and active in promoting the business of said company. He saw petitioner, and after expressing regret at the .disappointment, assured him that there was a little hitch in the matter and that it would be all right in a few days. Clampet drew glowing pictures of the wealth of his corporation and the good it -was accomplishing to the poor, etc., and assured him that the best thing for him to do was to take stock in the company purely as an investment. Warned by his past experience, he declined to take stock. Still the money did not come, and the company refused to return the notes or deed and failed to pay over the money. Petitioner finally sought counsel and threatened to sue and prosecute. At last the company sent him $302.50, leaving a balance of $697.50, besides interest, which is still due. Petitioner often sought to get defendant to pay the balance or return the deed and notes. Fáiling in this and pressed by the very claims which he expected to pay from the money borrowed, he was forced to make a sacrifice of the land, and accordingly on October 29, 1892, for a consideration paid, he transferred the bond for titles to one Nile, who afterwards transferred it to Graden of Fulton county, Ga., who now is in possession of the land and holds it under the bond for titles, claiming to be a bona fide purchaser without notice of petitioner’s equity. He holds the land subject to the mortgage title by petitioner. Said company sometimes pretends that it knows nothing about the notes and that the same have been transferred to Clampet as well as the deed; at other times it says that the money will be paid. Petitioner alleges that the company is and always has been insolvent; that Clampet is insolvent; that the whole scheme was and is a fraud; that the plan was to get the deed and sell the land to some bona fide purchaser without notice and before the maturity of the note; that the company and Clampet, as its agent and officer, actively aided in the perpetration of this fraud; that none of said parties ever intended to pay the money, and now hold back the money and the notes and deed in fraud of petitioner’s rights; that its agents and officers, and especially Clampet and Comstock, knew all the time that the company was insolvent, and that the representations as to its solvency were false and fraudulent; that they and the company were perpetrating the most wicked fraud on petitioner; and that each and all of the representations were made to induce jietitioner to execute the notes and deed and mortgage, and with the view of accomplishing the fraud. The company now publishes that it is out of business,- that it has no money to lend, and that it has no agents or officers; in short, “that it is a lingering halo around decay.” It pretends that the deed and mortgage were transferred to Clampet, and that it has nothing to do with petitioner or said papers. Clampet now says that he bought the notes and mortgage before maturity and without notice of petitioner’s equity; but Clampet had full notice and actively aided in the perpetration of the fraud. The plan of Clampet and the company is to collect the rent already due and the balance of the notes, and divide the spoils. Clampet is now actively engaged in collecting the notes, and threatens to bring suit on them and to settle them with Graden and make Graden a deed to the land. Said company and Graden threaten to sell the notes and deeds to a bona fide purchaser without notice, and thus defeat petitioner’s lights. Graden threatens to pay off the notes and take a deed to the land; in which event petitioner would be utterly remediless. Graden (?) threatens to sue on the notes for interest already due, and to collect the same out of Graden by proceeding against the land; is now taking steps to do so, and will do so unless restrained. The company is winking at all this fraud and encouraging it, knowing that it will reap part of the spoils. The prayer is, for injunction restraining Olampet from collecting the interest due on the notes, or transferring the deed and notes or any of them, or1 disposing of the same, and that the same be brought into court and impounded to await further order, or that the same be cancelled unless Olampet or said company shall pay petitioner the balance due on the loan with interest; that Olampet and the company be decreed to pay said balance; that on the payment of the notes by Graden to Olampet or the company, enough of the money be appropriated to pay off the balance due petitioner, and then Olampet or the company, whichever holds the deed,, be decreed to make a deed to Graden; that if this cannot be done, then that Graden be decreed to pay petitioner the balance due on the amount borrowed, with interest, to go as a credit on said amount to be paid before he gets title to the land, and the balance be paid over to Olampet for the company; that the company be restrained from transferring or collecting the note or from foreclosing the mortgage; and that the company, if in possession of the deed and notes, be required to bring the same into court to be disposed of as directed; that Graden be restrained from paying any of the notes and taking a deed to the land until further order, and be restrained from paying the interest now due or to become due; that Olampet and the company be restrained from making any deed to the land to Graden until further order; and that Graden be restrained from paying anything to any holder of said mortgage title made by petitioner until further order; for general relief, etc.</p> <p>Olampet demurred ón the following grounds: (1) Want of jurisdiction. (2) It appears in the petition that the premises are located in Clayton county, that Graden resides in Olayton county, that this defendant resides in Illinois, and that the investment and deposit company is a corporation of the State of Iowa, and not doing business, at the time of filing said suit, in the State of Georgia. (3) It appears upon the face of the petition that plaintiff has parted with all of his right, title and interest in and to the property in controversy, and that in the event the property is sufficient to discharge said debt he has no longer any interest in the amount or payment thereof; and it appears by the petition that the property is sufficient to pay said debt, (d) No cause of action against this defendant is stated. (5) Misjoinder of causes of action, to wit: an alleged cause of action in tort against the investment and deposit company, a separate action in tort against this defendant, and an application for injunction restraining the enforcement of the deed against certain land in which petitioner by his own showing has no interest.</p>

Complaint on notes. Before Judge Yan Epps. City court of Atlanta. July term, 1895. Suit was brought upon a number of promissory notes.

<p>Complaint. Before Judge Yau Epps. City court of Atlanta. May term, 1895.</p>

<p>Certiorari. Before Judge Milner. Bartow superior court. December 7, 1895.</p>

<p>Equitable petition. Before Judge Lumpkin. Eulton superior court. March term, 1895.</p>

Petition for injunction. Before Judge Lumpkin. Pulton county. June 29, 1895. On tbe bearing of an application for injunction, tbe plaintiffs offered in evidence an affidavit of Geo. M. Warren, going materially to support tbe allegations of tbeir petition. It was objected to, on tbe ground tbat tbe name of tbe case was not stated therein; and tbe objection was sustained.

Complaint on note. Before Judge Van Epps. City court of Atlanta. July term, 1895. Exception was here taken to tbe ruling, that the defendant’s plea did not constitute a good defence to the suit on the note signed by her.

Buie against sheriff. Before Judge Clark. Fulton superior court. March term, 1895. Mrs. Small made a deed under the code, §1969 et seq.,. to the Southern Mutual Building & Loan Association, to-secure a loan. Ellis & Gray, who were the attorneys of the association (one of them being also a director therein), were employed by Mrs. Small as her attorneys to obtain the-loan, and were paid a fee by her. They were employed on salary by the association.

<p>Action for damages. Before Judge Westmoreland. City court of Atlanta. July term, 1895.</p>

<p>Complaint on account. Before Judge Yan Epps. City court of Atlanta. March, term, 1895.</p>

Accusation of carrying concealed weapon. Before Judge Williamson. Oity court of Monroe county. October term, 1895. After conviction, defendant moved for a new trial on tlie ground, among others, that tbe court erred in not allowing him to withdraw his waiver of indictment and his waiver of trial by jury.

Action of libel. Before Judge Westmoreland. City court of Atlanta. March term, 1895. The declaration alleged, that the defendant printed, published and circulated, in the Atlanta Constitution newspaper, the following false, malicious and libellous words concerning plaintiff: “Says they blew it in. John Stegall, a butcher, who has figured in police circles before, was arrested last night, charged with stealing $20 from a young boy named Yalentine.

<p>Indictment for riot. Before Judge Reese. Madison superior court. September term, 1895.</p>

<p>Petition for injunction, etc. Before Judge Lumpkin. Pulton county. August 30, 1895.</p>

Indictment for assault to rape. Before Judge Griggs. Randolph superior court. November term, 1895. The plaintiff in error was convicted of assault with intent to rape. He moved on the general grounds for a new trial, .and his motion was overruled. He is a negro, and the ■woman on whom the assault was alleged to have been committed was a white girl of twenty years.

<p>Indictment for misdemeanor. Before Judge Harris. Meriwether superior court. August term, 1895.</p>

Complaint for land. Before Judge Clark. DeKalb superior court. February term, 1895. Dawson, as tbe only surviving heir at law of bis mother, Sarah Burdett, brought suit to recover certain land.

Action for damages. Before Judge Clark. Rockdale superior court. April term, 1895. Randall Ham sued the railroad company, and was non-suited. Upon the trial lie testified: I got on the cars, paid tlie conductor my'fare, sat down on a seat, and told him I wanted to get off up there at Hamilton’s crossing.

Money rale. Before Judge Jones. City court of DeKalb county. June 13, 1895. Several parties contested, on rule against the sheriff, for a fund in his hands arising from sale of property of Mitchell. Morris et al., holders of executions against Mitchell, filed written objections to the execution of Randall et al., administrators, being allowed to claim the fund, upon several grounds.

<p>Action for damages. Before Judge Jones. City court of DeKalb county. May term, 1895.</p>

<p>Complaint in trover. Before Judge Jones. City court of DeKalb county. July term, 1895.</p> <p>Emma Mills sued Hamlin Hudgins for a dark dun-colored cow about ten years old, and a light dun-colored heifer about sixteen months old. The case was tried by the judge without a jury. He found for the defendant. Plaintiff moved for a new trial upon the general grounds, .and her motion was overruled.</p> <p>Bpon the trial plaintiff put in evidence the original demand for the cows sued for. She testified: She owned the two cows. They were taken from her possession in March, 1895, by defendant. The cow was given her by her son 'Moses Hill, who worked for Thomas Wallace in 1894, and who took the cow from Wallace for part of his hire. She hired her son to Wallace, and was to get his hire or part of it herself, and the cow was gotten in that way. Moses was her son by her first husband. The heifer sued for was the ■calf of a cow which died the first of 1894. Her present 'husband, Berry Mills, gave this cow to her some five years ago, and she claimed the heifer as hers by reason of its mother being hers. The cow sued for is worth $20. The: heifer is half Jersey, and worth $25 or $30. She gave Campbell a mortgage for $15 some time in 1894, to get of him supplies for herself and family, but the mortgage was-paid off long before defendant got the two cows. She did not owe anything on the mortgage then, and did not consent that the cows should be taken by defendant on the-mortgage debt. Her son Moses and her son Israel testified, corroborating her as to the ownership of the cattle. Thomas-Wallace testified: He had Moses Hill hired for 1894; hired him from his mother, the plaintiff. One half of Moses’' hire was to go to his mother and the other half to Moses. Witness sold to Moses and his mother the cow sued for, at-$15, and the cow went as part payment for the hire of Moses. He considered the cow worth $15. Plaintiff got the cow some time in the spring of 1894, soon after her other cow died. — Berry Mills testified, corroborating the testimony of his wife as to her ownership of the cattle and as to the way she got them. He did not'sign the mortgage: given by his wife to Campbell. That mortgage was paid off while Campbell had it, and long before defendant got. possession of the cows. Witness owed Campbell $23.30-for balance of supplies witness got of him. This was what was due on it when Campbell foreclosed his lien for said supplies. Plaintiff did not sign the lien contract for supplies. After Campbell foreclosed his lien, Lanceford, constable, levied it on witness’s crop, and sold a part of the-crop and let the other part waste. Witness paid the mortgage given to Campbell by his wife out of his crop, in the fall of 1894, as the cotton was gathered and sold. His wife-controlled her boys’ labor and got it. Witness had two-sons by his former wife, and all the family, consisting of' wife and her children and witness, lived together, and alL contributed to their support.</p> <p>Defendant testified: Berry Mills lived with him in 1894r and he stood Mills’ security for supplies; that is, he took Mills’ obligation for $75 or $80 for supplies, and transferred and endorsed it to Campbell, and Mills got the supplies on it. Campbell also took a mortgage from plaintiff for $15 to get supplies, and witness thinks Berry Mills signed this mortgage. In the fall and winter of 1894 witness went with Berry, and when they sold cotton, had the same credited on the obligations Campbell held against Berry and plaintiff. All was paid on said obligations but about $23. When Campbell foreclosed his lien for supplies made by Berry to witness and transferred as above mentioned, Campbell transferred the foreclosed lien to witness, who had it levied, had the property of Berry Mills sold and got some money on it. Witness bid the property in. The lien papers and mortgage were lost. After the property had been levied on, witness sued out two warrants against Berry and his son, for taking some of the com that was covered by Campbell’s lien, and had them arrested. He agreed to release them if they would pay the balance due on the claims transferred to him by Campbell, when plaintiff surrendered or gave the two cows sued for to witness, which he took in satisfaction of said claims, he paying the cost of the warrants, and the criminal cases were dropped. Did not think the two cows were worth over $12; sold them some weeks afterwards for $12. — Lanceford, constable, testified: He levied the lien fi. fa. on the corn, cotton, etc., and sold it for a little over $20. Hudgins bought it in, and paid the cost. Witness served the warrants, and Hudgins said that if Mills and his son would pay the balance due him, he would discharge them. Plaintiff was very anxious to have them discharged, to which Hudgins agreed and took the cow and calf sued for in satisfaction of his claim, paid the costs and dropped the prosecution. She agreed the cows might go in that way. The cows were not worth over $12 or $15. — Campbell testified: Some time in the first of 1894 Hudgins transferred a lien contract made by Berry Mills, by endorsement to witness, for Berry to get supplies, about $60; and witness let Berry have supplies on it. Some time in the summer of 1894 plaintiff made another mortgage to witness for $15 to get supplies for herself and family. Witness thinks Berry signed it with her, but is not certain. The mortgage covered the cow sued for. Payments were made on the mortgage until it was paid and cancelled. Berry paid on the lien given in the spring for supplies until it was reduced to about $23. Witness foreclosed it in the winter, and transferred it to Hudgins. — There was further evidence for defendant that the cows were worth some $12 or $14.</p>

Levy and claim. Before Judge Smith. Bulloch superior court. January term, 1895. An execution in favor of Caroline Y. Biggs against Daniel B. Woods was levied on land, and a claim was interposed by Henry B. Jones. The court directed a verdict for the claimant. The levy was made on March 6, 1894, upon 175 acres in the 1209th district, Gr. M., of Bulloch county, bounded north and east by Joel Newsom, south by E. Barnes, and west by land of Oalvin Woodrum.

Equitable petition. Before ' Judge Fish. Sumter -county. July 30, 1895. Glessner brought his petition for injunction and other ■equitable relief, against the seven individuals composing the board of directors of the Mutual Building and loan Association of Americus, making that association also a party defendant in its corporate capacity.

<p>Indictment for arson. Before Judge Fisb. Lee superior court. November term, 1895.</p>

<p>Indictment for arson. Before Judge Sweat. Pierce superior court. November term, 1895.</p>

<p>Petition for injunction. Before Judge Callaway. Richmond county. November 25, 1895.</p>

<p>Attachment. . Before Judge Eve. City court of Richmond county. May term, 1895.</p>

<p>1. Where K. D. and W. M., upon an agreement to fight “a fair fight” without weapons,'were preparing to engage in such a fight, and A. M., a brother of W. M., came up to them with a gun, which K. D. seized, and while K. D. and A. M. were struggling over the gun, J. D., a brother of K. D., with another gun shot and killed W. M„ K. D. was criminally responsible for J. D.’s act if it was the result of a previous conspiracy between these two to kill W. M.; but if there was no such conspiracy, and K. D. did not participate in the design to kill, he was not legally responsible for the homicide. In any - event, K. D. under such circumstances was guilty of murder or nothing.</p> <p>2. There being no view of the evidence under which a verdict for voluntary manslaughter could be legally rendered against the accused on trial, it was error to give in charge to the jury the law relating to this grade of homicide.</p>

<p>Accusation of cheating and swindling. Before Judge Ross. City court of Macon. June term, 1895.</p>

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

<p>•Construing together all the provisions of the act of October 20, 1879, “for the prevention of cruelty to children,” a male person who has attained the physical strength and stature of manhood and who is “almost as large as his father but not quite as strong,” is not a “child” in the sense in which this' word is used in that portion of the act in question, now embodied in section 4612(h) of the code. This word as here used means a child of tender years, or a person between infancy and youth.</p>

<p>Affidavit of illegality. Before Judge Smith. Montgomery superior court. January 28, 1895.</p>

<p>Where a distress warrant was levied upon personal property and a‘ claim was filed by a third person, who gave a forthcoming bond in terms of the statute, an action against the principal and sureties thereon was, after the property had been found subject to the warrant, maintainable without a readvertisement of the property for sale, and without proving that any personal demand therefor had, before suit, been made upon the defendants, it affirmatively appearing that it would have been physically impossible for them to produce the property in response to any such advertisement or demand.</p>

<p>When personal property levied upon under execution is claim and replevied by the claimant, and at the trial of the claim case judgment is entered dismissing the claim and ordering the execution to proceed, this is so far an adjudication that the property is subject to the execution as to render the claimant and the surety on the replevy bond liable thereon for a failure to deliver the property to the levying officer at the time and place of sale, he having duly readvertised the property for sale after the rendition of the judgment above mentioned, and no second claim having been filed.</p>

Action for damages. Before Judge Smith. Wilcox superior court. March term, 1895. The case of Swift and Swift against Register, Wylly and Schmidt came on. to be tried.

<p>Complaint on note. Before Judge Smith. Twiggs, superior court. April term, 1895.</p>

<p>1. That the solicitor-general was himself the prosecutor in a criminal case, and appeared before the grand jury not only as such but also in his official capacity, is not, after the trial and conviction of the accused, good cause for a new trial, no exception to the indictment on that ground having been previously taken. In such case, however, a solicitor-general pro tem. should have been- appointed before the indictment was acted upon by the grand jury.</p> <p>2. As has been repeatedly ruled, the Supreme Court will not undertake to correct alleged errors in admitting evidence, when it does not appear what, if any, objection was made to the evidence at the time it was offered; nor, when the evidence objected to is not set out in the motion for a new trial, but is merely referred to therein as being contained in the brief of evidence.</p> <p>3. A ground of a motion for a new trial which undertakes to complain of an alleged irregularity at the trial, without clearly and distinctly stating of what it consisted, but simply averring in general terms that “the circumstances attending this matter are also fully set out in the brief of evidence,” does not properly and legally present any question for determination by this court.</p> <p>4. Where two persons are jointly indicted and tried for the offense of libel, there may, if the evidence so authorizes, be a conviction of one and an acquittal of the other.</p> <p>5. Although certain expressions in tlfe charge of the court may have been somewhat calculated to convey the impression that if either of the two persons who were on trial was guilty, there should be a conviction of both, yet as the court elsewhere in its charge in effect instructed the jury that the guilt of one would not necessarily result in the conviction of the other, and the jury must have understood from the charge as a whole that neither should be convicted unless his own guilt was satisfactorily proved, the inadvertent use of the expressions above referred to is not cause for a new trial.</p> <p>6. Where, in such a trial, it appeared that the alleged libelous matter was published in a newspaper, and that at least one copy of that paper was sent to a given county, this was sufficient evidence as to publication therein, without showing that the paper in question had a general circulation in that county.</p> <p>7. Where an alleged libel consisted in the publication of a letter which did not, upon its face, without the aid of innuendo and of extrinsic evidence, impute to the person alleged to have been libeled the commission of an indictable offense, it was error for the court, in construing this letter, to instruct the jury that it did charge such an offense and was consequently libelous per se. Whether or not, in such case, the letter, in the light of all the evidence, was or was not libelous, was a question of fact which ought to have been submitted to and passed upon by the jury.</p>

Gerliorari. Before Judge Smith. Pulaski superior court. February term, 1895. To the statement of facts in the opinion, it may be added that, after overruling the motion to dismiss, the superior court sustained the writ of certiorari, and rendered final judgment in favor of the defendant; and the plaintiff excepted.

<p>1. The principle stated in section 3X89 of the code was applicable to the issues involved in the present case, and under this principle a perfect equity may, without praying for specific performance, be set up as a defense to an action at law for the recovery of land.</p> <p>2. Declarations by a donor of land in favor of his own title, made after he has delivered possession of the same to the donee, are not admissible in evidence against the latter. Declarations of a donor against his title and in favor of that of the donee hind the donor and his privies in estate, and consequently are admissible in the donee’á favor against one who derived title from the donor after the declarations were made.</p> <p>3. Declarations of one in possession of land and claiming under a parol gift, are admissible to show an adverse claim of title. An inventory made by an ordinary, purporting to include all property belonging to the county, is in the nature of such a declaration.</p> <p>4. The evidence warranted the verdict, and the newly discovered evidence being merely cumulative of that introduced upon the trial and such as would not probably change the result, the court did not err in refusing to grant a new trial.</p>

<p>1. While all of the record admitted in evidence at the instance of the defendant may not have been pertinent, yet as much of it was both material and relevant, the court did not err in overruling a general objection to its admissibility.</p> <p>2. Where letcers in evidence, plain and unambiguous in their terms, clearly and distinctly indicated a purpose on the part of the writer, the defendant’s general manager, to make a contract with the plaintiffs, who were the persons addressed, it was error to allow the former to testify: “It was not my purpose to trade with them [plaintiffs] by writing these letters.” This error, in view of the entire record, is cause for a mw trial.</p> <p>3. A complete and binding contract may be made by means of an epistolary correspondence, but this result is not accomplished until there has been a definite offer by one of the parties to the correspondence, and an unequivocal acceptance of it by the other, without condition or variance'of any kind. The parties must “mutually assent to the same thing in the same sense.”</p> <p>4. Although, in the present case, the correspondence between the plaintiffs and the defendant did not, of itself, amount to a fully completed and binding contract, if, in point of fact, the parties so treated and regarded it, and if, in consequence, the plaintiffs relinquished to the defendant their claim to certain timber and the latter cut and used the same, it is bound to pay to the plaintiffs the price thereof as stated in the letters, unless it shows affirmatively that they did not really own the timber, but that the paramount title thereto was in another, or others, claiming adversely to the plaintiffs.</p> <p>5. The charges excepted to, in which the court stated to the jury the respective contentions of the parties, are not erroneous; some of the other charges complained of are not entirely free from criticism, but they contain nothing which would require the granting of a new trial; and there would be no reversal of the judgment below but for the error first above indicated.</p>

<p>Action on contract. Before Judge Smith. Wilcox superior court. March term, 1895.</p>

<p>1. Where certain pleas, to an action brought under the pleading act of 1893, were stricken on general demurrer to the same, to which no exception was taken at the term when this was done, and at the next term a judgment for the plaintiff was rendered’ by default, error, if any, in striking the pleas at the former term would be no cause for setting this judgment aside, nor for granting a new trial; nor was there any error in refusing at the latter term to entertain a motion to vacate the order of the previous term striking the pleas, on the ground that it was improvidently granted.</p> <p>2. Where in such case the court, after striking the defendant’s pleas, granted his counsel further time during the same term at which this action was taken, within which to file another plea, and no other plea was filed during that term, the court was not bound, at the next term, to allow a plea to be then filed as matter of right, nor to hear any excuse for the failure of counsel to file a plea at the previous term, under the permission then granted.</p> <p>3. The action being upon an unconditional contract in writing, an unsworn plea, even if meritorious, presented no obstacle to the rendition of a judgment by the court in favor of the plaintiff; and the court did not err in refusing, after it had orally announced its judgment in the plaintiff’s favor, to allow the defendant to verify his plea because the judgment had not yet been signed and entered upon the minutes.</p>

<p>Certiorari. Before Judge Sweat. Ware superior court. November term, 1894.</p>

<p>It appearing that the plaintiff in attachment had given an attachment bond on the same day the attachment was issued and levied, a plea by the surety upon the replevy bond given by the defendant in attachment, alleging “that said attachment and the levy thereunder was utterly void, said attachment having been issued and levy made without the necessary attachment bond having been first given,” was properly stricken on demurrer. Construed in the light of the entire record, this plea could not be treated as alleging that no attachment bond at all had been given, nor as negativing the fact that an attachment bond of some description had been given before the issuing and levy of the attachment. If the purpose of the plea was to attack the attachment bond actually given, the plea was bad because it failed entirely to point out any defect in the bond.</p>

<p>1. Where a plea of res adjudicata was “submitted to the court upon an agreed statement of facts,” and the plea stricken, the Supreme Court is unable to determine whether striking the plea was erroneous or not, when there-is nothing whatever in the record to show what facts appeared in the “agreed statement” upon which the trial court acted.</p> <p>2. In order to entitle the plaintiff to a judgment, under the provisions of section 3510 of the code, against the defendant, as by default, because of a failure by the latter to produce books or papers, under notice given in accordance with section 3508, it must appear that the court, by an order, peremptorily required the production of the books or papers in question, and that the defendant failed or refused “to comply with such order.”</p>

<p>Where a passenger on a train standing upon a track at a station whence it was to he started went into the baggage-car for the. purpose of seeing the conductor upon legitimate business connected with the passenger’s journey, and while there was thrown down and injured by the sudden bumping of another car against the standing car, whether or not, in view of all the-evidence submitted, the passenger was rightfully in the baggage-car, and whether or not the injury resulted from the negligence of the company, and whether or not such injury might have been avoided by the exercise of ordinary diligence on the-part of the passenger, were all questions for determination by the jury and not for final solution by the trial judge. It was,, accordingly, error, in such a case, to grant a nonsuit.</p>

<p>A printed timber lease, made August 4th, 1890, in which it was covenanted that the lessee might “commence boxing, working or otherwise using the said timber for turpentine purposes” at any time he might desire, and also that the lessee should “have the right to continue to box, work or otherwise use the said timber and every portion thereof for the full term of two years, beginning, with reference to each portion of the timber, from the time only that the boxing and working of each portion is commenced, it being the intention of the parties that this lease shall continue to operate until all of the timber and each and every portion thereof has been boxed, worked and otherwise used for turpentine purposes for the full period of two (2) years, and shall end after the year 1893,” it appearing that the words “and shall end after the year 1893” were interlined before the lessor would consent to execute the lease, properly construed, gave the lessee no right at all to work or use the timber in question for any purpose after the expiration of the year 1893.</p>

<p>1. A lease of all the “pine timber” on a given area of land “for the purpose of manufacturing spirits of turpentine,” etc., “for the full term of three years from the time boxes are cut,” does not necessarily mean that the term of the lease will expire at the end of three years from the date the first trees a^e boxed.</p> <p>2. The words “from the time boxes are cut,” as used in such a lease, are ambiguous, and cannot be correctly construed by the court without the aid of extraneous evidence to explain their real meaning as understood by the parties.</p> <p>3. The plaintiff having asserted that the lease had expired, the. burden of establishing this assertion rested upon him; and inasmuch as he failed to do so by introducing other evidence to show what the contract' embodied in the lease really meant as to the time from which the three years should be computed, the court, without the aid of such evidence, being unwarranted in holding absolutely that the lease expired at the expiration .’of three years from the date of the first boxing, erred in granting the injunction.</p> <p>Atkinson, J., concurring. — The terms of the lease as .indicated in the first head-note above are not ambiguous. Such a lease conveys to the lessee the right of enjoyment for the specified purpose during the term named, dating from the time the boxes' are actually cut. If he enter and cut a portion-.of the boxes, his term as to them begins to run at the date of their cutting, and extends to all the timber, boxed or unboxed, embraced within, the area over which his boxing operations have actually extended. If a portion of the lea_sed land remain entirely unboxed, he may thereafter enter and box the same, provided his entry be within a reasonable time according to the usages of turpentine operators in the ordinary prosecution of their business in that locality.</p>

Action for damages. Before Judge Sweat. Glynn, superior court. May term, 1895.

<p>1. Where, hy a consent order, an equitable petition filed by several plaintiffs, for injunction and the appointment of a receiver, was dismissed, the receiver discharged, and thereafter the property in his hands was restored to the defendants in the petition, the effect of the order of dismissal was to take the case entirely out of court and end the litigation between the parties.</p> <p>2. Mere recitals in the order of dismissal, to the effect that the defendants had satisfied all obligations against them in the petition set out, except the amounts due one of the plaintiffs upon certain promissory notes therein described “which amounts are hereafter to be satisfied by the payment within a reasonable time, or additional securities given,” did not amount to a final and conclusive decree in favor of this plaintiff against the defendants for the amounts apparently due upon such notes, and one who subsequently acquired title to the same, could not, upon the facts above recited, maintain an equitable petition for a reinstatement of the original case and the appointment of a receiver to again take charge of the defendants’ property in order to administer the same for the purpose of realizing money with which to pay off these notes.</p> <p>3. If such a petition could in any event be maintained, its prayers for relief of the nature above indicated should not be granted when the defendants not only tender a bond for the payment of any sum or sums which may be adjudged to be due by them upon the notes in question, but also offer to pay into court a sufficient amount in cash to satisfy any judgment which may be rendered against them thereon.</p>

Action, on insurance policy. Before Judge Sweat. 'Glynn superior court. May term, 1895. Olubb sued the insurance company, alleging that on December 31st, 1891, in consideration of $17 premium paid to it, defendant contracted with him to insure him against bodily injuries sustained through external, violent .and accidental means, for twelve months, as per contract of insurance, copy of which is attached.

<p>A municipal ordinance imposing a business tax of one third of one per cent, upon “all gross sales of goods, wares and merchandise of every kind” is not obnoxious to that clause of the constitution which declares that “all taxation shall he uniform upon the same class of subjects”, because it further provides that “any person can relieve themselves of the gross sales tax by paying two hundred dollars in advance per annum.” In so far as the ordinance in question imposes- a tax, it is uniform as to all persons upon whose business it is imposed. If for any reason the commutation of the tax by an annual payment of $200 is illegal, it affords no reason for enjoining, at the instance of a taxpayer, the collection of the tax itself.</p>

Petition for injunction and receiver. Before Judge Griggs. Terrell county. June 3, 1895.

<p>Complaint on note. Before Judge Sweat. Glynn superior court. May term, 1895.</p>

<p>Complaint on note. Before Judge Sweat. Glynn superior court. May term, 1895.</p>

Petition to cancel deed. Before Judge Lumpkin. Pulton superior court. March term, 1895.

<p>1. If in an action for a libel brought against several defendants the plaintiff recovers at all, the damages awarded must be for the same amount as to all of the defendants found liable. In a case of this kind, different sums cannot be assessed against different defendants.</p> <p>2. Where, in such a case, there is a verdict for the plaintiff against some of the defendants for a given amount, and in favor of the other defendants, there can be no new trial between the plaintiff and the latter alone; but if a new trial is granted at all, it must he granted as to all the parties. Accordingly, all the defendants below are necessary parties to a bill of exceptions sued out by the plaintiff for the purpose of obtaining a new-trial; and if some of these defendants are not made such parties, the writ of error must be dismissed.</p>

Motion to set aside judgment. Before Judge Van EppsCity court of Atlanta. January term, 1895. To tbe January term, 1894, of tbe city court of Atlanta,. J. J. Thornton and J. L. Hooten, surviving partners of J. H. Couch & Company, and J. L. Key, administrator of J. II.

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. September term, 1894.</p>

Exceptions to auditor’s report. Before Judge Van Epps. City court of Atlanta. January term, 1895.

<p>The evidence for the defendant company showing that the plaintiff had accepted and receipted for a given sum of money in full settlement of a claim for damages on account of personal injuries received; and it appearing from the plaintiff’s own testimony, when fairly construed in connection with the undisputed facts of the case, that at the time of the settlement, the company owed him nothing for wages, that he had no lawful demand against it of any kind other than his above indicated claim, and that the settlement was made for the purpose of satisfying this claim; and it therefore being, in any just view of the evidence, indisputable that damages resulting from the personal injuries were the subject-matter to which the settlement related, he was not, under the principle laid down by this court in E. T., V. & G. Ry. Co. v. Hayes, 83 Ga. 558, entitled to recover, it not appearing that before bringing his action he had tendered to the defendant the money paid him, or had made any effort whatever to rescind the contract of settlement. This case differs from that of Butler v. R. & D. R. R. Co., 88 Ga. 594.</p>

<p>Petition for injunction. Before Judge Lumpkin. Pulton county. July 1, 1895.</p>

<p>1. Where one entitled to a conveyance from another of realty, or an interest therein, upon- the payment of a given sum, tendered at the proper time that sum to the latter, which he then refused to accept and subsequently denied the existence of any contract binding him to convey at ail to the person making the tender, such person could maintain his equitable petition for specific performance; and if the petition contained an offer to pay the amount which the plaintiff was due to the defendant or for which he should be held liable when the amount so due was fixed and ascertained by the decree to be rendered, this was sufficient without actually producing the money and paying it into court.</p> <p>2. In the present ease it was error to grant a nonsuit.</p>

<p>1. Although a plaintiff having a right of action against another may sue for the use of any person whom he may designate to take the proceeds of the action, a plaintiff having no right of action at all cannot recover either for his own benefit or for the use of any one else.</p> <p>2. A covenant of warranty of title in a bill of sale to personalty ' 'is not broken so as to authorize an action against the vendor by the vendee, merely because a third person, to whom the vendee mortgaged the property and who had purchased the same at a sale had upon a foreclosure of the mortgage, has been deprived of the property by a seizure and sale thereof under a judgment against the original vendor of older date than the hill of sale. If, by reason of the facts recited, the purchaser at the mortgage sale acquired any right of action at all against the mortgagor, the mere existence of such right, with-no attempt to enforce it, could not,' of course, result in any injury to the latter; and in no event could he be legally held to have been damaged by his vendor’s alleged breach of warranty before the establishment by a judgment against him of liability on his part to the mortgagee.</p>

<p>Complaint on note. Before Judge Westmoreland. City court of Atlanta. January term, 1895.</p>

Complaint on note. Before Judge Van Epps. City court of Atlanta. March term, 1895.

<p>■ Complaint on draft. Before Judge Van Epps. City ■court of Atlanta. July term, 1895.</p>

<p>Complaint on note. Before Judge "Westmoreland. City court of Atlanta. IMEay tern, 1895.</p>

<p>Equitable petition. Before Judge-Smith. Dodge superior court. March term, 1895.</p>

<p>Petition, for injunction, etc. Before Judge Sweat. Ware county. February 25, 1895.</p>

<p>Complaint on notes. Before Judge Westmoreland. City court of Atlanta. May term, 1895.</p>

<p>Prior to the passage of the act of November il, 1889, relating to sales of the estates of wards for reinvestment (Acts 1889, pp. 156, 157), the ordinary had jurisdiction and authority to grant to a guardian of a minor child an order authorizing the guardian to sell unproductive real estate belonging to the ward, for the purpose of reinvesting the proceeds of the sale in other and productive property. The act of December 21, 1827 (Cobb’s Dig. pp. 325, 326), in so far as it authorized the sale of realty belonging to an orphan or orphans, “where it is fully and plainly made to appear that the same will he for the benefit of such orphan or orphans,” was, until the passage of the act first above cited, still of force, the power of ordering such sales being in the ordinaries. Section 1828 of the code deals only with the rules and restrictions under which such sales are to he conducted.</p>

<p>1. Where the principal of a promissory note is payable at the end of a given term of years, but the note stipulates .for the payment annually of the interest accruing thereon, any installment of interest past due, together with interest thereon, may be sued for and collected before the note, as to principal, has matured.</p> <p>2. Where promissory notes, executed before the passage of the act of July 22, 1891 (Acts of 1890-1891, p. 221), and containing stipulations for the payment of “all cost of collection, including attorney’s fees,” were placed in the hands of an attorney at law for collection, who brought an action thereon in the name of the owner, the plaintiff was entitled to recover reasonable attorney’s fees, although in his contract with the attorney it was agreed that the latter should receive no compensation for . his services, other than what might be recovered from the defendant.</p> <p>3. The maker of such promissory notes was liable for such reason- ' able attorney’s fees as may have been incurred by the owner thereof in defending equitable petitions sued out by the maker to restrain their collection, it appearing that such petitions were without merit and resulted only in delaying the owner in the enforcement of his legal right to collect the notes.</p> <p>4. The consideration of the notes sued upon being the purchase price of land held under a bond for titles from the seller, to which the latter as matter of law ha& a good legal title, that the defendant, erroneously conceiving there was a defect in ■ that title, had instituted an equitable proceeding to have the question of title adjudicated and settled, and had brought that . proceeding to this court, which rendered a decision holding that the title was good, gave the defendant in the action upon the notes no right to recoup against the plaintiffs in that action the expenses incurred by such defendant in the litigation growing out of the proceeding just mentioned.</p>

<p>Complaint. Before Judge Van Epps. City court of Atlanta. January term, 1895.</p>

<p>1. Where, after the adjournment of a term at which a criminal trial was had, the person convicted filed a motion for a new trial upon alleged “extraordinary grounds,” although the judge certified to the correctness of recitals in the motion as to what occurred at the trial, ordered the motion and the brief of evidence to be filed, and granted a rule nisi calling upon the State’s counsel to show cause why the motion should not he granted, these facts did not amount to an adjudication that the motion was in law good as an “extraordinary” motion, or estop the judge, upon investigation at the hearing, from deciding that it was not good as such a motion, or prevent dismissing it for the reason that it could not be legally entertained as such.</p> <p>2. Where one accused of crime was upon his trial defended by an attorney at law appointed for this purpose by the presiding judge, it will, unless there be clear and convincing proof to the contrary, be presumed that this attorney did his duty in the premises and properly represented his client.</p> <p>3. The mere facts that such counsel also, by appointment of the court, defended another person jointly indicted and tried with the accused, it being perfectly consistent for him to represent both, and that he failed to move for a new trial or to take the case to the Supreme Court, would not constitute grounds upon which to base an “extraordinary motion” for a new trial after the adjournment of the term at which the verdict was rendered, it not appearing that there was anything to prevent moving for a new trial during such term, or filing a bill of exceptions to the ruling of the judge within the time prescribed by law, if the counsel appointed as above stated had seen proper to do so.</p> <p>4. The facts disclosed by the record in the present case do not show that the counsel representing the accused at his trial neglected any duty imposed upon him, or that because he failed to take steps to have the verdict of guilty reviewed, he improperly “abandoned” the case; and there was no error in dismissing the alleged “extraordinary motion” for a new trial.</p>

<p>1. An allegation in an indictment for cheating and swindling that the accused “did falsely and fraudulently represent . . . that he owned ten acres of cotton now up and growing in Henry county,” is not supported by evidence that the accused represented he “was going to cultivate about ten acres of cotton on land in Henry county,” and promised to give a mortgage “on the cotton after it was planted.”</p> <p>2. The evidence, taken most strongly against the accused, showed nothing more than the breach of a contract on his part, and failed to establish the charge in the indictment that he obtained credit by making false and fraudulent representations as to his alleged existing possessions. Accordingly, the court erred in not sustaining the certiorari.</p>

<p>Action on foreign judgment. Before Judge "Westmoreland. City court of Atlanta. March term, 1895.</p>

<p>1. Under a contract by which a fidelity and casualty company binds itself to make good to a bank, to a specified extent, such pecuniary loss as the latter may sustain by reason of the fraud or dishonesty of a named employee in connection with his duties as receiving teller, “or the duties to which, in the employer’s service, he may be subsequently appointed or assigned by the employer,” it is the right of the bank, without notifying the company, to confer upon this employee the office of assistant cashier in addition to that of receiving teller; and, upon this being done, the company is as much bound to make good to the bank losses occasioned, during the period covered by the contract, by reason of the employee’s fraud or dishonesty while acting in the capacity of assistant cashier as in that of receiving teller.</p> <p>2. Although the contract may have required the bank, upon the discovery of any fraud or dishonesty on the part of such employee, to give notice thereof to the company, and also, immediately after knowledge by the bank of the occurrence of any act on his part involving a loss to the company of more than $100, to notify the company of the same; yet where such contract contained no stipulation making it in the least degree incumbent upon the bank to exercise any diligence or care in inquiring into or supervising the conduct of this particular employee, or of any of his coemployees in its service, and imposed upon it no duty of vouching for the fidelity or efficiency of the latter, or of requiring them to watch and report upon his actings and doings, information or knowledge on the part of the bank’s cashier, he being only such a coemployee, as to the matters concerning which the company had stipulated for notice, would not, relatively to it, be, under these circumstances, imputable to the bank itself.</p> <p>3. Where, to an action by the bank upon such a contract, the defendant filed an amendment to his plea, which amendment alleged that the employee had, within the knowledge of the bank, been guilty of a specified default, such amendment not being legally complete without further alleging that the plaintiff had failed to duly notify the defendant of the default in question, was properly stricken on demurrer.</p> <p>4. The contract stipulating for proof of loss satisfactory to the company’s officers, and that full particulars of any claim arising upon the contract should be given in writing, addressed to the secretary of the company, within a specified time; and the declaration alleging compliance with the foregoing terms of the contract, but not alleging that there had been any waiver of the requisite proof of loss; and the evidence entirely failing to show that the same had been duly furnished, the plaintiff did not prove its case as laid, and it was error to refuse a nonsuit. This is true although the plaintiff introduced evidence for the purpose of proving a waiver by the defendant of such proof of loss; and it is immaterial whether this evidence was, or was not, legally sufficient to establish the alleged waiver.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. March term, 1895.</p>

Action for damages. Before Judge Yan Epps. City-court of Atlanta. July term, 1895. The case of IVIattie Nisbet against the City of Atlanta was dismissed on general demurrer.

Indictment for murder. Before Judge Janes. Paulding superior court. August term, 1895. Clabe Miller and Howard Parton were jointly indicted for tlie murder of Wesley II. Roberts. They severed. Miller was tried, convicted and sentenced to life imprisonment; and bis motion for a new trial was overruled.

<p>Habeas corpus. Before Judge Westmoreland. City court of Atlanta. July 17, 1895.</p>

<p>1. A written assignment of “all the claims” of tlie assignor against a named debtor arising upon certain loans made by the assignor to the debtor, operates to pass to the assignee all choses in action falling within this description, including promissory notes held by the assignor against the debtor at the time the assignment was made.</p> <p>2. While such an assignment of a promissory note, or other evidence of indebtedness, secured by a deed to land executed under the provisions of section 1969 et seq. of the code, does not pass to the assignee a legal title to the land itself, such assignee has, and as against the debtor may, when necessary to the collection of such claim, assert an equitable interest in the security effectuated by the deed; and in such case it is within the power of a court exercising equity jurisdiction, upon proper pleadings and evidence, to afford appropriate relief in the premises.</p> <p>3. Taking into view all the allegations of the plaintiff’s petition in the present case, the same was not without equity, and there was no error in overruling the defendant’s demurrer.</p>

Action for damages. Before Judge Van Epps. City court of Atlanta. January term, 1895. Mrs. Owings sued tbe railway company, alleging that on September 6, 1893, her husband, A. Y. Owings, was an employee of the Southern Bell Telephone and Telegraph Company, a corporation owning and operating a telephone system in and around Atlanta; and it became his duty as such employee to assist in relieving some trouble in a telephone in the house of the Biedmout Club.

<p>A so-called “business,” conducted for the purpose of enabling persons to bet upon horse-races, though not made criminal by any statute of this State, is contrary to public policy, and is not such a useful or necessary occupation as that a city may not, by appropriate ordinance, make penal and prevent the carrying on of the same; and it is perfectly lawful and proper to enforce such ordinance against any one violating its provisions, notwithstanding the fact that he may have been granted by the city a license generally to do business on commission.</p>

<p>Indictment for an attempt at subornation of perjury. Before Judge Milner. Bartow superior court. July term, 1895.</p>

<p>Complaint for damages. Before Judge Yan Epps. City court of Atlanta. July term, 1895.</p>

Action for damages. Before Judge Yan Epps. City court of Atlanta. July term, 1895.

<p>Where one bona fide, and with no criminal intent, “lends” a pint of whiskey to another to be consumed by the latter, he agreeing to return, and in fact returning, to the lender another pint of the same kind of whiskey, this transaction does not violate a statute prohibiting and making penal the sale of spirituous liquors. While, under section 2125 of the code, the “loan” of the first pint was, as between the parties, a “sale,” as distinguished from a mere bailment, it was not a sale within the-meaning of the statute referred to, which, because of its being-penal in its nature, must be strictly construed.</p> <p>By two Justices.</p>

<p>1. The court, in its charge, having at least intimated an opinion as to what had been proved, the provisions of section 3248 of the code require the granting of a new trial.</p> <p>2. It was improper, in the trial of a criminal case, to charge the jury: “Your purpose is to find out what is the truth of this transaction, and you use the same rules of evidence in this case — the same reasoning — that you would anywhere else on any question outside the court-house, or inside the court-house; only, you give the defendant the benefit of any reasonable doubt in the case.”</p> <p>By two Justices.</p>

<p>Motion to dismiss writ of error.</p>

<p>1. A city may by ordinance lawfully prescribe that unless the owner of a dead animal, even though the carcass may be of some value, shall remove it or cause it to be removed beyond the city limits, within a specified reasonable time, and to a specified reasonable distance, the municipal authorities may deal with such carcass as a nuisance per se, and as such take charge of it and make such disposition thereof as will best conserve the public health.</p> <p>2. It is not, however, lawful to require that such owner, upon removing the carcass, or causing its removal within the time allowed him for that purpose, shall deposit it beyond the city limits at such place only as may be designated by the municipal authorities, or that, upon -his refusing so to do, the city will have it removed at his expense to that particular place; provided the removal intended by the owner contemplates the deposit of the carcass at some other place outside of the city, not itself within a prohibited distance from the city line, and such disposition of it when so deposited as will in any event prevent its becoming a nuisance to, or otherwise injuring any of the inhabitants of the city.</p>

<p>1. As a general rule, one who attacks an instrument signed by himself, alleging tliat it does not contain or express what be intended it should contain, and believed it did contain, and that his signature to it was procured by the fraud of the other party, carries the burden of proving that these allegations are true.</p> <p>2. Where in a given case it was a closely contested issue of fact as to whether or not on a particular occasion the plaintiff was able to read an instrument which he then signed after having made an addition to it in his own handwriting, an omission to charge a rule of law applicable to persons confessedly blind is certainly no cause for a new trial.</p> <p>3. Where after a jury had been charged by the court and sent out to make up their verdict, two or three of them while separated from their fellows “remained in conversation with somebody for about fifteen minutes,” tbe legal presumption is that the losing party in tbe case was thereby injured, and in the absence of any explanation of the matter there should be a new trial.</p>

Action for damages. Before Judge Jones. City court of DeKalb county. IVIarch term, 1895. Clarke was tbe owner and bolder of a quarterly ticket issued by tbe r-aib’oad company, wbicb by its terms entitled liim to 162 continuous trips between Atlanta and Covington, during tbe three months ending October 29, 1894.

<p>1. Where, by will, property was bequeathed and devised to named trustees for the sole and separate use of a daughter of the testator for life, which property at her death was to vest absolutely in fee simple in such child or children as she might have then living, and the will conferred upon the trustees large powers as to making sales of tlie trust property and reinvesting the proceeds thereof, and also the power to use the corpus of the estate for certain specified purposes, the trust created by the will was for the benefit of those entitled to take in remainder as well as for the life-tenant, although the trustee was not invested with the legal title to the estate in remainder beyond what was involved in the execution of those powers.</p> <p>2. Where a successor of the original trustees (who, by the terms of the will, was clothed with the same powers which were thereby conferred upon them) invested money arising from the trust property in land, and took the title thereto to himself as trustee for the life-tenant only, “to have and to hold for her and her heirs and assigns forever,” this did not, although the will was made after the passage of the “married woman’s law” of 1866, execute the trust or vest any title to the land absolutely in the life-tenant, but the property thus acquired became immediately impressed with the trusts imposed by the will upon the property originally belonging to the trust estate for which the land purchased by the trustee was thus substituted.</p> <p>3. In such case, a trustee who, in the event it should “become desirable to use any part of the corpus of said trust estate for the improvement thereof, or for the more comfortable support of said cestui que trust” (-the life-tenant), had “power and authority to allow the corpus thus to be used, upon the written application and consent of said cestui que trust," and who, in the proper exercise of this power, executed a promissory note and secured the same by a deed to land, represented, in a suit brought for the collection of that note, both the life-tenant and the remaindermen; and though they were not made parties to the action, a judgment therein against him bound them all.</p>

<p>Complaint for damages. Before Judge Jones. City court of DeKalb county. IVLay term, 1895.</p>

<p>Action for damages. Before Judge Clark. Clayton superior court. March term, 1895.</p>

<p>Actions on insurance policies. (1) Before Judge Clark.. Clayton superior court. March term, 1895.</p> <p>(2) Before Judge MacDonell. -City court of Savannah. July term, 1895.</p>

<p>1. One of the questions in issue being as to how long a train stopped at a given station, the plaintiff contending that the stop was not sufficiently long to allow him time to alight safely from the train, and the defendant insisting that the stop was long enough for this purpose, evidence that the train was behind time was admissible as tending to show the existence of a reason or motive for making only a short stop, and therefore ¡as supporting the plaintiff’s contention.</p> <p>2. On the trial of an action against a railroad company for personal injuries, it was improper to admit parol evidence tending-to show that the plaintiff had been charged with or tried for a. criminal offense.</p> <p>3. It was not incumbent upon the plaintiff in such a case, where-the injury complained of was caused by the running of the defendant’s cars, to prove the alleged negligence of the defendant by a preponderance of the evidence. Upon showing that he was injured in this manner, the legal presumption arose that the injury was due to the company’s negligence, and in such ease the law embraced in section 3033 of the code ought to have been given in charge as a part of the general law of the case, without any request to that effect.</p> <p>4. The evidence of a witness who testifies that a given thing occurred, is positive testimony; the evidence of another witness-that he was present on the occasion referred to and did not see or hear the occurrence in question, is negative testimony; nor-is such testimony rendered positive by a mere statement of the witness that such an occurrence could not have taken place without his seeing or hearing it. To entitle his, evidence,, other things being equal, to as great weight as that of the former witness, it must appear that his opportunities for seeing or-knowing what occurred were at least equal to those of that, witness, and that his attention was specially directed to the matter in question.</p> <p>5. Whether or not a passenger about to alight from a train and incumbered with hand-baggage or parcels was, under the circumstances, afforded by the company reasonable time and opportunity to leave the train in safety, is a question for determination by the jury and not by the judge.</p>

<p>Where an action for damages to realty was brought against a county within twelve months from the time the claim for such damages arose, the plaintiff’s action was not barred because he failed, before bringing the action, to present such claim to the proper county authorities. The bringing of the suit within the time limited was a sufficient presentation of the claim within the meaning of section 507 of the code.</p>

<p>1. The act of December 22, 1892, amending section 4711 of the code so as to confer a right of trial by jury in certain cases of contempt, has no application to a proceeding pending before a judge of the superior court to enforce the payment of alimony by a husband to his wife; nor is the defendant in such a proceeding entitled to demand a jury to pass .upon the question of his ability to comply with an order of the judge directing the payment by him of certain sums as alimony.</p> <p>2. In the present case there was no abuse of discretion, nor error requiring a reversal.</p>

Appeal. Before Judge Gamble. Washington superior court. September term, 1894. ■ On May 10, 1894, Martha W. Duggan, a daughter of W. D. Harrison, cited W. T. and Saleta Harrison, the executors of the will of W. D. Harrison, to mate return of their acts as such. On appeal the case was submitted to-the judge upon agreement of facts, the case turning on the-construction of the will. This was dated February 19,. 1877; and the testator died in the same year.

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

<p>The act of September 26, 1883, as amended by the act of October 16, 1891, requiring defenses to actions in justices’ courts upon, unconditional contracts in writing to be made at the first term, is not applicable to a suit like the present upon a written contract which is not unconditional; and consequently, though the-defendant made • no appearance or defense in the justice’s court, and a judgment was therein rendered against him by default, he was not cut off from entering an appeal to the superior court, nor from making his defense in the latter court, it. appearing that, in. compliance with the act of October 15, 1885, he offered, before the case proceeded to trial on the appeal, to reduce his defense to writing, and it also appearing that the amount for which the suit was brought exceeded fifty dollars,</p>

<p>1. Although a summons of garnishment is regularly issued in due time before the term of the court to which it is made returnable, service thereof must be perfected before the commencement of such term, in order to compel an answer from the garnishee on or before the first day of the term next thereafter ensuing.</p> <p>2. A judgment rendered against a garnishee before the expiration of the time within which he is allowed by law to answer is void, and it is not necessary to his relief therefrom that he show to the court that his answer, had the same been filed before the judgment, would have presented sufficient legal reasons to prevent its rendition.</p>

Complaint on account. Before Judge Smith. Johnson superior court. March term, 1895. Plaintiffs sued Mrs. Hightower upon an account for dry goods, groceries, farm supplies and other articles, including various items of cash, all furnished during the year 1893, and amounting to $719.44,less credits aggregating $272.31.

<p>An agreement between persons interested in a criminal prosecution, and a deputy-sheriff of the county in which the prosecution is pending, for the payment to the latter of a pecuniary reward for furnishing sufficient evidence to convict the accused, is illegal, contrary to public policy, and void.</p>

Petition for injunction. Before Judge Gamble. Johnson county. August 28, 1895.

<p>Indictment for gaming. Before Judge Berry. Criminal court of Atlanta. December term, 1895.</p>

<p>1. Although a policy of life insurance stipulated on its face that it should not take effect until the first premium was paid, it was not rendered invalid because the application signed by the insured before he received the policy (and which was copied in and made a part of the policy) stated that the first premium had not been paid, when as a matter of fact this first premium was, before the delivery of the policy, paid to the company by the agent who wrote the insurance; and the payment of such premium by the agent, in pursuance of an agreement between him and the insured, was a valuable consideration for a promissory note given to the agent by the insured.</p> <p>2. A statement by an insurance agent that the first premium upon a policy would be $213, when in fact it was $222.50, is not such a misrepresentation as will make void a promissory note for the former sum given by the insured to the agent, who, by agreement, paid the first premium and sought to collect from the insured only the amount of the note.</p> <p>3. The verdict was demanded by the evidence, and therefore the court did not err in directing the jury to find the same, nor in refusing to set it aside.</p> <p>Atkinson, J., being disqualified, Judge Callaway, of the Augusta circuit, was designated to preside.</p>

<p>Complaint on account. Before Judge Sweat. Glynn superior court. December term, 1894.</p>

Affidavit of illegality. Before Judge Sweat. Coffee superior court. March term, 1895. An execution in favor of Rosenheim & Co. against Parker, based on a judgment of the superior court of Coffee county, of November 13, 1889, was levied, October 11th, 1892, on property of the defendant.

<p>1. Where a suit was brought by the receiver of a bank, suing for the use of the bank, on a promissory note payable at that bank to a named person as cashier, a plea by the maker of the note admitting the truth of an allegation in the plaintiff’s petition that the note sued on was a part of the assets of the bank, although denying that the plaintiff was the holder or owner of the note, was properly stricken on demurrer, it not appearing that an inquiry into the ownership of the note was necessary to any defense insisted upon by the defendant, or that the form in which the suit was brought affected or changed the defendant’s rights.</p> <p>2. Where a person signed a promissory note as maker, payable to a named person as cashier, and delivered it to a firm which wrote its name across the back of the note, carried it to the bank at which it was made payable and obtained full value therefor, the fact that the maker was only an accommodation maker and did not receive or use any of the money obtained upon the note, will not change his character from that of maker to that of indorser, so as to entitle him to notice of non-payment by the firm, even though the bank knew that he was merely an accommodation maker; nor was such a note without consideration to the maker, since it accomplished the purpose for which he signed it. A plea hy the maker of such a note, setting out the above facts, was properly stricken.</p> <p>Atkinson, X, being disqualified, Judge Callaway, of the Augusta circuit, was designated to preside.</p>

<p>Where two freight-cars, one of which was used as a station warehouse, had been left “unchocked” and “unbraked" upon a sidetrack having a slight downward grade, and upon being put in motion by a sudden storm of wind, ran over-and killed the railroad agent, who at' the time was crossing the side-track, ' holding an umbrella over himself inclined towards a blowing rain so as to obstruct from his view the approaching cars, the railroad company was not liable for the homicide, it appearing that the deceased was the sole employee of the railroad at this station, having at the time full charge of the locating of these cars upon the side-track in question; that on this particular occasion, they were left exactly as he directed; that he actually knew that the car by which he was stricken had not been “chocked” or “braked,” and that it was within the scope of his duty to know whether or not the other car (it being the warehouse car) had also been left in this condition. If leaving the cars without “chocking” or applying brakes to the same was, under the circumstances, an act .of negligence, it was negligence attributable to the agent himself.</p> <p>Atkinson, J., being 'disqualified, Judge Callaway, of the Augusta circuit, was designated to preside.</p>

<p>1. A petition, for a rule against a sheriff hy one claiming funds in his hands, alleging that a mortgage had been given to secure a principal note and certain notes for interest thereon, maturing at different dates; that the mortgage and all the notes had been transferred to one who subsequently, for value, transferred to the petitioner some of these interest notes, and after so doing had foreclosed the mortgage for the principal debt only, erroneously alleging in the foreclosure petition that the transferred interest notes had been paid; the petition for the rule further alleging that the mortgage /?. fa. had been levied upon the mortgaged property, that the same had been sold and bought in hy the plaintiff in that fi. fa. for less than its value and for less than the principal debt, that the mortgagor was insolvent and petitioner had no other means of collecting his notes, that he had been prevented from being made a party plaintiff to the foreclosure proceeding, because of a misunderstanding between himself and the counsel for the plaintiff in the mortgage ft. fa., that written notice had been given to the sheriff at the mortgage sale to hold up funds sufficient to pay the interest notes belonging to petitioner, and that the sheriff had held up the funds in his hands, is not without equity.</p> <p>2. The method of procedure against a sheriff for the distribution of funds in his hands raised hy levy and sale and claimed by several parties, where the applicant asks for equitable relief, does not differ from the form of procedure where he only insists upon his common law rights, save that in the former case he must allege such facts as entitle him to equitable relief, the difference being one of substance and not of form.</p> <p>3. It is not essential, in the first instance, that an applicant for a rule against a sheriff for a fund in his hands should make parties to the proceeding other claimants of this fund. After the granting of the rule, upon proper notice to such other claimants, either by the applicant or hy the sheriff, they can, if they desire, come in and be made parties; and whether they do so or not, they will be bound hy the judgment rendered upon the rule, if they actually participate in the hearing had upon the same.</p> <p>Atkinson, J., being disqualified, Judge Callaway, of the Augusta circuit, was designated to preside.</p>

<p>Traverse of sheriff’s return. Before Judge Sweat. Glynn superior court. May term, 1895.</p>

<p>1. Where, on a criminal trial, the accused introduced no evidence, and thus obtained the right to open and conclude the argument, and one of two counsel representing him thereupon addressed the jury, consuming less time than that allowed by the rules of court, and the solicitor-general, without having previously given notice of any such intention, then announced that there would be no argument for the State, it was the duty of the counsel for the accused, if they desired that one of them should continue to address the jury for the remainder of the time allowed for argument under the rules, to make in open court a motion or request to this effect to the presiding judge and obtain from him a ruling or decision thereon.</p> <p>2. Where this was not done, but the counsel for the accused who bad not addressed the jury merely stated to the judge in private conversation that he desired to argue the case, and wished the court to understand that he insisted upon so doing as a legal right of the accused, nothing stated by the judge in that private conversation is proper subject-matter for review by this court.</p> <p>'3. The newly discovered evidence presented a theory of the case utterly at variance with the statement made by the accused upon his trial, and contains nothing that would justify either the trial court or this court in granting a new trial; the decided weight of the evidence established the conclusion that the preliminary oath was administered to all of the panel of forty-eight jurors before they were severally put upon their voir dire; the evidence fully warranted the verdict, and there was no abuse of discretion in denying a new trial.</p>

<p>Indictment for rape. Before Judge Hutchins. Clarke superior court. October term, 1895.</p>

<p>1. Where the defense of res judicata was made In resistance to a petition for temporary alimony by a wife against her husband, the same not having been instituted in connection with a pending libel for divorce, but in connection with a suit for permanent alimony based upon the ground that she had been abandoned and driven off by her husband and was living in a state of separation from him, such defense was not sustained by evidence showing no more than that, in an action for divorce brought by the wife against the husband after the alleged abandonment, etc., there was a verdict in his favor, it not appearing upon what ground or grounds the divorce suit was predicated, nor that any judgment or decree was ever entered upon such verdict.</p> <p>2. It does not appear in the present case that there was any abuse of discretion in passing the order allowing temporary alimony.</p>

<p>Action for damages. Before Judge Eve. City court of Richmond county. February term, 1895.</p>

<p>Action for damages. Before Judge Eve. City court of Bichmond county. May term, 1895.</p>

<p>Although the property of a railroad company was put into the hands of a receiver upon its own petition, the question of his liability to his own servants engaged in operating the railroad is nevertheless controlled by the decision of this court in the case of Henderson v. Walker, 55 Ga. 481, recently affirmed in the case of Youngblood v. Comer (ante, 152); and consequently such a receiver is not liable to- one of its employees for personal injuries occasioned by the negligence of a coemployee.</p>

<p>1. Where one sold to another on credit two hills of merchandise on different days in two consecutive months of the same year, the presumption, in the absence of any proof to the contrary, was that the demand arising upon the two sales constituted one entire and indivisible account in favor of the seller against the purchaser; and this being so, the former could not divide the same into two separate accounts predicated respectively upon the two sales, so as to bring actions thereon within the jurisdiction of a justice’s court.</p> <p>2. Where two such actions were brought and a plea in abatement for want of jurisdiction was filed, the burden of proof was-upon the plaintiff to show that the two alleged accounts were not one and the same account, but that they arose upon distinct and separate transactions.</p>

<p>1. Although the maximum legal rate of interest was reserved upon a given loan, the mere fact that the lender’s agent charged the borrower an additional sum as a commission for making the loan, did not render the transaction usurious as to the lender, when he did not authorize such charge, had no knowledge of the same, and did not share in the commission.</p> <p>2. In determining whether or not, as matter of fact, the lender had knowledge of the agreement between his agent and the borrower for the payment of such commission, the law of implied, as well as of express, notice may be invqked; but the agent’s own knowledge of the fact that he did charge the commission, uncommunicated to his principal, is not imputable to the latter, the doctrine of constructive notice not being pertinent to the inquiry.</p>

<p>Indictment for burglary. Before Judge Clark. Fulton superior court. Flarch term, 1895.</p>

<p>Exceptions to master’s report. Before Judge Lumpkin. Fulton superior court; September term, 1894.</p>

<p>By two Justices,</p>