Volume 98 — Georgia Reports

- Action, for damages. Before Judge Sweat. Glynn superior court.

Action for malicious prosecution. Before Judge Hardeman. Ware superior court. April term, 1895. The petition of Cason, filed in March, 1893, alleged: He has been damaged by the Satilla Manufacturing Company and Miles Albertson $5,000.

Complaint on note. Before Judge Sweat. Glynn superior court. May term, 1895. Before the passage of the pleading act of 1893, suit was brought by Brown against Johnson as maker, and Kaiser & Brother as endorsers, upon a promissory note payable to Kaiser & Brother or order, and endorsed: “Pay to the order of J. N. Brown.

<p>1. Where a railroad company furnishes to one of its patrons a car to be used by him in loading freight to be delivered to it for transportation, it is liable to a servant of the patron for injuries resulting to such servant from the defective construction of the car; provided the defect be of such a character as to be discoverable by the exercise of ordinary care upon the part of the railroad company, and provided further, the injuries complained of were inflicted under such circumstances as that the person injured, by the exercise of ordinary care, could not have avoided the consequences resulting to him from the negligent act of the railroad company in furnishing for the use of such patron and his servants such defective ear.</p> <p>2. The evidence was sufficient to authorize a finding that the death of the plaintiff’s husband was, without fault on his part, occasioned by reason of defects in the defendant’s car, and that its defective condition was due to the defendant’s negligence. A careful examination of the several grounds of the motion for a new trial discloses no cause for setting the verdict aside.</p>

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

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

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

<p>Complaint on account. Before Judge Yan Epps. City court of Atlanta. March term, 1895.</p> <p>Levering & Co-, sued E. S. Morris & Co., a partnership-composed of E. S. Morris and N. W. Murphey, upon an account dated May 22, 1893, for ten bags of coffee,. $222.35. Morris, for himself and E. S. Morris & Co.,, pleaded: Not indebted. Further, that the firm -sued did not buy the goods sued for, nor did it receive the goods nor ■ any value thereof. Said goods were purchased and used for the Atlanta Provision & Commission Co., and this fact. was known to plaintiffs. The firm of E. S. Morris & Co. ceased to do business when said provision company begun,, and N. W. Murphey had no right nor license to use the firm credit in purchasing the goods for said company. Defendant did not in any way buy said goods, did not authorize nor ratify said purchase, and if made in name of E. S. Morris & Co., it was without his knowledge or consent. All-power N. W. Murphey had to use the name and credit of E. S. Morris & Co. ceased wdien said company was organized, as E. S. Morris & Co. stopped business, and this contract, if made by N. ~W\ Murphey thereafter in the name of said firm, was illegal and fraudulent.</p> <p>There was a verdict for plaintiffs for the amount sued for. Defendants’ motion for a new trial was overruled, and they excepted. The motion alleged, among other grounds, that the court erred in' admitting the testimony of witness Pritchett as to a conversation he had with Mr. John Murphey, in which. Murphey told witness that if they made further sales they had better sell to Morris & Co.; and the testimony of Murphey, that lie had notified Pritchett not to sell to the Atlanta Provision. Co. This was objected to as irrelevant, defendants not being present nor any proof shown that they knew thereof. It appears from the evidence that, at the time of the sale in question, Pritchett was connected with T. B. Paine & Co., merchandise brokers and commission merchants of Atlanta, Ga., who' represented plaintiffs. The sale was made by Pritchett. John Murphey was a member of the firm of Paine & Company. Before this sale Paine & Co', had made sales both to the Atlanta Provision & Commission Company and to E. S. Morris & Co., dealing with N. "W. Murphey for both companies. Pritchett testified that shortly before he made the sale and when he was negotiating with N. W. Murphey about selling him coffee, the conversation occurred with John Murphey in regard to selling the Atlanta Provision Company the bill, and John Murphey told Pritchett he (Murphey) did not think it was safe to sell the Atlanta Provision Company, and if “we” made further sales there we had better sell to Morris & Co.</p> <p>Other grounds of the motion alleged, error in admitting the letter dated May 22d, addressed to plaintiffs and signed by Paine & Co., as proving the intention of plaintiffs’ agent when making sale of the goods sued for; and the book of Paine &.Co., showing the charge of the goods sued for. Each was objected to as irrelevant. These grounds do not show the contents of the letter or the book referred to, though they appear in the brief of evidence.</p>

Attachment. Before Judge Van Epps. City court of Atlanta. January term, 1895.

Equitable petition. Before Judge Lumpkin. Eulton superior court. March, term, 1895. Tire petition of Dinah O’Neal alleged: On March 31, 1890, she made to W. H. O. Mickleberry and J. J. and J. T. McClendon a deed, copy of which is attached, for the alleged consideration of $3,288. She received no sum whatever from them.

Petition for injunction. Before Judge Clark. Fulton -county.

<p>Equitable petition. Before Judge Lumpkin. Fulton superior court. March, term, 1895.</p> <p>The Short Electric Railway Company brought its petition against the Collins Park & Belt Railroad Company and a number of other parties, praying for rescission of a contract of sale of certain railroad property, and recovery of possession of the same; for partition by sale of the property and division of the proceeds between petitioner and two other parties, after payment of superior incumbrances; for judgment on account; for injunction and receiver, sale of the property under final decree, etc. Answers were filed by the defendants other than the Collins Park & Belt Railroad Co. On final trial the cause was heard, by consent, by the judge without a jury. He rendered a decree to which said railroad company excepted on several grounds set out. The following affidavit in forma pauperis was made by J..K. P. Carlton:</p> <p>“State of G-eorgia, Pulton county. In person appeared before me J. K. P. Carlton, as president of the Collins Park & Belt Railroad Company, who on oath says that from the poverty of said Collins Park & Belt Railroad Co., that said Collins Park & Belt Co. is unable to pay the costs and give the security ior the eventual condemnation money; and deponent further sweam that the Collins Park & Belt Railroad is neither able to pay the cost nor give the security as required by law, in order to carry the case of the [naming the parties], in which case the bill of exceptions was certified . . . to which bill of exceptions this affidavit is attached; and that the counsel of the said Collins Park & Belt Railroad Company has advised this deponent, as president of the said Collins Park & Belt Railroad Company, that said Collins Park & Belt Railroad Company has a good cause for a writ of error. Deponent prays that this affidavit shall operate as a supersedeas, as if the costs had been paid and bond given.”</p> <p>The other material facts of the case, so' far as necessary for an understanding of the questions ruled upon, are sufficiently synopsised in the opinion.</p>

Complaint on note. Before Judge Yan Epps. City court of Atlanta. July term, 1895. Marks & Company by tbeir declaration alleged, that C. M. Davis and Eliza J. Graham were indebted to them on four promissory notes, each for $85, with interest, and ten per cent, attorney’s fees, and that L. E. Davis and M. Eoote, Jr., attorney for Brown Brothers, were endorsers on the notes.

Indictment for mnrder. Before Judge Smith. Twiggs superior court. October term, 1895. The indictment contained two counts. The first charged Gus Fambles, Elizabeth Nobles, Mary S. Eambles, Debby Nobles and Dalton Joyner as principals in the first degree, for that they conspired to murder ánd did murder William Nobles by striking him with a hatchet which they held.

Indictment for assault to murder. Before Judge Reese. Madison superior court. September term, 1895. Strickland was indicted for assault with, intent to murder, and was convicted of assault and battery. Ii'is motion for a new trial was overruled, and he excepted. He and Gholston were cousins. Gholston was much the larger and stronger man, weighing about 230 pounds, while defendant weighed nearly 100 pounds less.

Petition for certiorari. Befor Judge Clark. Pulton county. The exception is to the refusal of the judge to sanction a petition for certiorari, on the ground that the writ does not lie in the case presented. It appears from the petition, that plaintiff in error was convicted of murder and sentenced to death. Afterwards a petition on behalf of himself, and of another person as his next friend, was filed with the ordinary, for inquisition as to alleged insanity of the prisoner.

Action for damages. Before Judge Yan Epps. City court of Atlanta. May term, 1895. Mrs. Anna Pause brought suit against the City of Atlanta for damages resulting to her by the building of a bridge on Eorsyth street, whereby her business of keeping a restam rant and bar and selling fish and oysters was broken up and destroyed. A nonsuit was granted, and she excepted.

Complaint on notes. Before Judge Van Epps. City court of Atlanta. July term, 1895. On May 1, 1891, Jobn B. Jackson made application to Samuel Barnett for a loan of $600, which Barnett obtained through the Georgia Loan & Trust Company; and notes therefor were made by Jackson, due in 1896, with a deed, under sections 1969-71 of the code, to secure the same, to the Security Investment Company of Bridgeport, Conn.

Complaint on note. Before Judge Yan Epps. City court of Atlanta. March, term, 1895. Suit on a promissory note was brought by J. B. Redwine against Gr. A. Johnson as maker, J. A. J. Cook, C. T. Roan and W. J. Speairs as indorsers. Plaintiff demurred to the plea and answer of Johnson as'insufficient in law; the •demurrer was sustained, and Johnson excepted.

<p>Action of libel. Before Judge Lumpkin. Eulton superior court. March term, 1895.</p> <p>The declaration of Conley v. Key was dismissed on demurrer. As originally filed it alleged, in the first count: Key, on March 17, 1894, in the course of a trial in the superior court in a case in which Key was of counsel, published of petitioner an affidavit purporting to have been made by S. L. Holcomb, in which there were the following false, malicious and defamatory words concerning petitioner: “In person appeared before me the undersigned S. L. Holcomb, who upon oath says that he is acquainted with John L. Conley, knows his general character, that his character is bad, and from that character he would not believe the said Conley on his oath.” Said words so-written and published were a false and malicious defamation of petitioner, tending to injure his reputation as an individual and expose him to public hatred, contempt and ridicule. In the proceeding in which Key made such publication petitioner had not been sworn as a witness, nor was he a party to said proceeding. Key well knew that the affidavit was wholly irrelevant to the question then at issue, and immaterial to the cause then being heard, but used his privilege as counsel in said cause merely as a cloak for venting his private malice against petitioner, and did not in good faith publish said affidavit in promotion of the object for which said privilege is granted. Said affidavit was written by said Key. The second count contained similar allegations as to an affidavit by J. H. Franklin. The third count contained similar allegations as to an affidavit by F. 'S. Kendrick. The fourth count contained similar allegations as to an affidavit by S. F. Trimble.</p> <p>By amendment it was alleged, that the cause upon trial, referred to in the declaration, was that of Eliza T. Conley against J. B. McConnell, a proceeding to attach McConnell for contempt in violating an order of the superior court. The petition was set forth. So far as material it alleged, that theretofore Mrs. Conley had filed her bill against McConnell and others, and the judge of the superior court had passed an order enjoining defendants from obstructing or impeding travel over a road mentioned in said bill; that McConnell, after he had been notified of the granting of this order, had violated it; and it was prayed that he show cause why he should not be attached for contempt. This petition was sworn, to by John L. Conley, as agent for Mrs. Conley, on March 5, 1894. On it an order was passed requiring McConnell to show cause on March 10, 1894, why he should not be so attached. The declaration then set out the answer of McConnell, denying that he had violated the injunction, and asserting that the action had not been brought in good faith or for the purpose of serving any good end, but was prompted by the innate viciousness of John L. Conley, the husband of movant; and was sworn to by McConnell on March 10, 1894. The amendment further alleged, that upon the hearing of said petition, rule and answer, John L. Conley was not a witness, nor was anything said by him used in evidence, but the allegations in the petition were sustained by the testimony of persons other than said Conley, and by the personal inspection of the locality by the presiding judge, Conley not being present when the inspection was made; and that upon the trial of the issue the court ordered that McConnell be allowed a certain time to remove his fences from a certain road which they now obstruct in violation of the orders of the court, and if he failed to do so, the sheriff was directed to arrest and imprison him until he should purge himself of contempt. This order was passed May 12, 1894.</p>

Complaint on account. Before Judge Westmoreland. City court of Atlanta. July term, 1895.

Petition for injunction. Before Judge Lumpkin. Fulton county. The petition of Ray alleged: On February 11, 1892, he executed to the Home & Foreign Investment & Agency ■Company, Limited, a deed to three parcels of land in Fulton county, Georgia, describing them. Said company is a foreign and alien corporation, having its principal office and officers at Norwich, England.

Indictment for pointing gun, etc. Before Judge Janes. Douglas superior court. November term, 1895. Tbe prosecutor, P. B. Bingbam, testified: Monday morning about 8 o’clock, I left my bouse to go1 to> Eason’s to sbave; did not liave a full set of tools to sbave witb. As 1 passed prisoner’s bouse; be opened bis door, witb double-barreled shotgun in bis band and threw it on me; pointed it at me witb botb barrels cocked.

<p>Where an attempt was made to bring an action in a justice’s court of a given county upon a joint promissory note against two persons, one of whom resided in that county and the other in another county, the original summons requiring the former to appear at a specified term of the court, and what purported to be a second original requiring the other defendant to appear at a different term, a motion made in due time by both defendants, at a term subsequent to the latter, “to dismiss said cause because they were not sued on said joint note in one and the same action or suit,” should have been sustained, and they were not cut off from assigning error upon the refusal of the magistrate to grant this motion because, after such refusal, they pleaded to the merits and contested the plaintiffs’ right to recover.</p>

<p>1. Where an execution in favor of one person is levied upon the property of another, to which yet another files a claim, and for its production to answer the execution levied, executes a forthcoming bond, if the claim case be dismissed or the property thereafter found subject, and upon a suit upon the forthcoming bond a judgment be rendered in favor of the plaintiff in execution against the claimant and his surety, the moneys realized upon said last mentioned judgment should be credited upon the execution originally levied, whether the judgment upon which such execution issued was really a lien upon the property levied upon or not. The question as to whether or not as to that levy the property levied upon is subject, is concluded by the judgment on the claim case.</p> <p>2. In such a case, if a person holding the real title permits the claimant of record to appropriate the property levied upon to his own use, his remedy is against the claimant, and he does not by virtue of any supposed right to the property levied upon acquire any interest, either legal or equitable, in the proceeds of the judgment rendered in the suit upon the forthcoming bond.</p> <p>3. In view of the principles above announced, the demurrer to the plaintiffs’ petition should have been sustained, and, this being so, all subsequent proceedings had thereon were necessarily illegal.</p>

Before Judge Clark. DeKalb superior court. February term, 1895. On August 27, 1894, a case was tried in DeKalb superior court before Judge J. M. Griggs, presiding. There was a verdict for the defendants. On February 27, 1895, during a regular term, a motion for new trial, made by plaintiff, was filed, and rule nisi issued thereon signed by Judge Clark of the Stone Mountain circuit, in which said county is situated.

Petition for injunction. Before Judge Clark. DeKalb county. The petition of Braswell, administrator, against tbe various defendants hereinafter named, alleged: K. M. Brown died in May, 1S94, intestate, leaving not exceeding $40 worth of personalty and a tract of 112 acres in DeKalb county, describing it. At the September term, 1894, of the court of ordinary of said county, petitioner was appointed administrator of Brown, and has duly qualified as such.

<p>Exceptions to auditor’s report. Before Judge Clark. Rockdale superior court. April term, 1895.</p>

<p>Complaint. Eefore Judge Jones. City court of DeKalb county.</p>

Levy and claim. Before Judge Smith. Bulloch superior court. January 19, 1895. An execution against J. E. Lanier was levied on 44 sacks of guano which was claimed by Ellis. The court directed a verdict for plaintiff, and overruled a motion for new trial. Ellis testified: I never sold Lanier1 the guano. The way he came to get it was this: A boy who I thought was a son of J. B. Lanier came to get some guano for his father.

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

<p>1. An attorney at law who successfully defends an action for the recovery of property, real or personal, recovers the same within the meaning of section 1989 of the code, and by virtue of such recovery is entitled, to the extent of his fees, to a lien upon the property so recovered. His claim of lien arises upon his employment, and is perfected by the ultimate recovery of a judgment for his client and record of his lien, and binds the property so recovered as against the owner and all others, save only bona fide purchasers without notice.</p> <p>2. In such a case, if, pending the litigation out of which such a claim of lien arises, the client, by way of securing a pre-existing debt, executes a deed conveying to another the property involved, the grantee in such deed takes subject to the existing inchoate right of the attorney whose claim of lien is ultimately established by a judgment in favor of his client..</p>

Injunction. Before J udge Callaway. Richmond county. Held: tbat tbe city was without legislative authority, either by express provision or by necessary implication, tO' condemn tbe property in question for opening the street; and that, under tbe evidence, the opening of tbe street would practically amount to a destruction of tire railroad company’s use of its yard for shifting and drilling…

<p>Petition for injunction. Before Judge Lumpkin. Fulton county.</p>

<p>1. The decisions of this court in the cases of McWhorter v. Tarpley et al., 54 Ga. 291; Nelms v. Summers, Ibid. 605, and in other cases, the doctrine of which is recognized in the case of McOook v. Harp, 81 Ga. 236, are binding upon this court, and it is not constrained to follow the decisions of the Supreme Court of the United States in cases involving the same or similar questions.</p> <p>2. According to the above cited Georgia decisions, a guardian who, during the war between the States, in good .faith invested the funds of his ward in bonds of the Confederate States, under an order of the judge of the superior court properly obtained under then existing statutes of this State, was protected thereby, and is not liable 'to the ward for the value of the money so invested.</p>

<p>Although a particular individual may have an interest in the performance by a corporation of the duties devolving upon it by its charter in which the general public does not share, yet if no special ri'ght accrues to him as an individual under the charter, his right of action for damages resulting from a breach of duty on the part of the corporation does not fall within any of the classes of rights mentioned in section 2916 of the code, but under the general law, and consequently Kis action for such damages must be brought within four years.</p>

Appeal. Before Judge Falligant. McIntosh superior court. May term, 1895. Wortham sued Sinclair upon an account dated at Darien, Ga., December 1, 1892, for “eight months board for G. W. Brandon, as per .agreement, at $8.00 per month, $64.00; one month board for Chese Pearce, as per agreement, at $8.00.” A judgment was rendered for plaintiff for the $72 sued for, and the defendant appealed to the superior court.

Petitiou for injunction, etc. Before Judge Milner. Whitfield county. H. K. Main brought his petition for the appointment of a receiver to take charge of the affairs and property of the Empire Hotel Company; and for injunction restraining the directors and common stockholders of the company from interfering with its affairs and from prosecuting any suit against it; and for general relief.

Actions for damages. Before Judge Callaway. Columbia superior court. March term, 1895. These two cases were tried together by agreement. In the Hill case the damages claimed were larger than in the Bohler case, and the verdict was for $24'7'.50. Bor the other material facts see the opinion.

<p>Complaint on account. Before Judge MacDonell. City court of Savannah. May term, 1895.</p>

<p>1. Where a will was executed in England and probated both in that country and in this State, and the testator, after appointing certain persons residing, respectively, in England and in Georgia, executors and trustees, all the persons designated as executors being also appointed trustees, and conferring upon them various powers and duties, provided as follows: “ And I declare that my trustees resident in England may leave to my trustees or trustee for the time being resident in America the entire management of the aforesaid trusts, and the entire execution of the aforesaid powers, ... so far as they respectively are, from the situation of the property or for any other reason, to. be performed in America, and that my trustees or trustee for the time being resident in^ America may leave to my .trustees or trustee for the time being resident in England the entire management of the aforesaid trusts, and the entire execution of the aforesaid powers, . . . so far as they are, from the situation of the property or for any other reason, to he performed in England. . . . But this present proviso shall not have the effect of authorizing such trustees or trustee, respectively, to exclude from such management and execution the other trustees or trustee, in case and so far as they or he shall be desirous of interfering in such management”: Held, that the trustees or trustee in each country were authorized to exercise their powers and duties under the will as to the property of the testator situated in the country of their or his residence, without express assent thereto, or participation therein, on the part of the trustees or trustee residing in the other country.</p> <p>:2. Where two of such executors and trustees resident in Georgia qualified as such and one of them afterwards removed to England and ceased to be a resident of this State, the remaining one could lawfully exercise, as to property of the testator in this State, such powers with reference thereto as were conferred by the will upon all the executors and trustees.</p> <p>3. The will in question having declared that the persons appointed executors and trustees (designating them as “my trustees”) might carry out the trusts and exercise the powers therein specified as if 'they were absolute owners of the estate, and having also conferred upon them the fullest and most ample authority as to all their acts and doings in the premises, it was within the scope of these powers to have the bonds of a private corporation, purchased with funds of the estate, registered in the name of the estate, and to change such registry whenever-desired.</p> <p>4. This being so, and the will further providing that “no person paying money or transferring property to my trustees or otherwise dealing with them shall be bound or concerned to enquire-, as to the necessity or propriety of anything done or authorized by my trustees, or be affected by any irregularity or impropriety-in anything done or authorized,” it was within the power of a single trustee, when he was for the time being the only one residing in this State, to cause the registration of certain bonds, which had been registered in the name of the estate, to be so changed as to render the same payable to bearer; and although such trustee signed as executor the instrument by which the company was directed to make the transfer, it was nevertheless, binding upon the estate of the testator and its beneficiaries; and as against them, the officers of the company, especially in view of the provision of the will last quoted, were protected in allowing the transfer to be made. This is true even though this particular act, under the terms of the will, may have been one specially relating to duties as trustee and not pertaining to the office of executor. Whether or not, by the terms of the will, such executor and trustee was specifically invested with power to do such act in his capacity as executor, inasmuch as the authority was clearly delegated to this person, the law will attribute the act to the proper authority, though not professedly-done in the capacity of trustee.</p>

Petition for certiorari. Before Judge Hutchins. Jackson county. Stewart was tried by jury in the city court of Jackson county, for abandoning his child, and was found guilty. He presented his petition for certiorari to the judge of the superior court, alleging that the verdict was contrary to law, evidence, etc., and assigning error upon the charge of the trial judge.

<p>Inasmuch as under paragraph 5 of section 2, article 6 of the constitution (Code, §5133) writs of error to the Supreme Court lie only from the superior courts, the city courts of Atlanta and Savannah, and like courts established by law in other cities, writs of error do not lie from “city courts” established for counties upon the recommendation of grand juries under the provisions of the act of October 19th, 1891, as amended by the act of December 23d, 1892; for tlie reason that the courts put in operation under these acts, even if they are “like” courts, are not established in cities at all. These acts obviously contemplate the establishment of courts in counties in which there are no cities as well as counties in which there are cities, and the fact that there may be an incorporated city in a given county, for which county such a court is established, does not change the character of the court, or affect the class to which it belongs. Courts so established are good statutory courts, but not the constitutional courts from which a writ of error lies.</p>

<p>Complaint. Before Judge Ealligant. Mclntosb superior court. May term, 1895.</p>

<p>Mandamus Before Judge Ealligant. Chatham superior court. June term, 1895.</p>

<p>Certiorari. Before Judge Hardeman. Houston superior court. October term, 1894.</p>

<p>Complaint for lancL Before Judge Hardeman. Bibb superior court. November term, 1894.</p>

<p>3. Where an insolvent partnership executed and delivered to several of its creditors mortgages upon its assets, and also executed and delivered to these and other creditors, as collateral security for their claims, an assignment of the choses in action belonging to the partnership, these mortgages and the latter instrument, whether taken singly or collectively, did not constitute such an assignment as rendered the assignment acts of 1881 and 1885 applicable, there being nothing in any of these instruments creating a trust in favor of the debtors or any one else, and the only persons deriving any benefit therefrom being those to whom the instruments were given.</p> <p>2. It makes no--difference t-hat the assignment of the choses- in action provided that certain of the creditors therein named should be first paid out of the proceeds realized from the collection of the papers assigned, and that the balance of such proceeds should then be applied pro rata to the claims of the other creditors mentioned in the instrument, the assignment being directly to all these creditors of both classes, and not charging any of them with any duty of collecting for the others, or imposing upon any of the assignees a trust of any kind.</p> <p>3. The evidence relied upon by one of the intervening partnerships to establish its contention that it was entitled to rescind the sale of its goods to the failing partnership on the ground of fraud in the purchase, and consequently had a right to claim the proceeds of these goods in the receiver’s hands, was not sufficient for the purpose indicated.</p> <p>4. On the whole, there was no error in granting a nonsuit as to - all the intervenors.</p>

<p>Where there is pending in the superior court a certiorari from a city court, directly involving the validity" of a judgment for money, rendered by the latter court, and the sheriff is seeking to enforce by levy and sale an execution issued thereon, the judge of the superior court may, upon a proper application, pass an order directing the officer to suspend all further proceedings upon such execution until after the trial of the certiorari and the determination therein of the questions made with reference to the validity of such judgment.</p>

<p>Where the defendant in an action brought under the pleading act of 1893, filed a plea at the first term, in which he severally and distinctly answered each paragraph of the plaintiff’s petition as required by that act, it was, before the passage of the act of December 16th, 1895, the right of the defendant at the trial term to amend his original plea by setting up a new and independent legal defense, without making an affidavit that at the time of filing the original plea, or answer, he did not have notice or knowledge of the new facts or defense set out in the amended plea, or answer; and it was error to reject an amendment offered for this purpose, solely on the ground that it was not filed at the first term.</p>

Motion. Before Judge Hardeman. Crawford .superior court. March term, 1895.

<p>1. The granting of a nonsuit in an action of bail-trover, where the plaintiff has obtained possession of the property sued for, by giving bond under section 3420 of the code, does not conclude him upon the merits of his action, and even though the defendant had obtained a money judgment upon that bond in lieu of a judgment of restitution, the plaintiff may nevertheless renew his action save as to the element of bail, and no conversion subsequent to the granting of the nonsuit need be proved in order to maintain the same.</p> <p>2. Inasmuch as the plaintiffs in their second • action improperly required bail, their remedy, so far as relates to this element, was not maintainable, and the bail, had the same been given, could, in the light of the evidence, have been discharged on motion; but under the evidence as a whole, the question of the plaintiff’s right to recover ought 'to have been passed upon by the jury, and therefore the superior court properly sustained the certiorari, the petition therefor assigning as error the granting generally of a nonsuit against the plaintiffs.</p> <p>3. There was no error in refusing to render a final judgment in favor of the plaintiffs, or in remanding the case to the city court for a hew trial.</p>

<p>1. Primarily, a clerk in a mercantile establishment is not a “laborer,” in the sense in which that word is used in section 1974 of the code, even though the proper discharge of his duties may include the performance of some amount of manual labor. If the contract of employment contemplated that the clerk’s services were to consist mainly, of work requiring mental skill, or business capacity, and involving the exercise of his intellectual faculties, rather than work the doing of which properly would depend upon a mere physical power to perform ordinary manual labor, he would not be a “laborer.” If, on the other hand, the work which the contract required the clerk to do was, in the main, to be the performance of such labor as that last above indicated, he would.be a “laborer.” In any given case, the question whether or not a clerk is entitled, as a laborer, to enforce a summary lien against the property, of his employer, must be determined with reference to its own particular facts and circumstances.</p> <p>2. Although the intervention filed in the present case alleged in general terms that the intervener was a clerk, that the amount he claimed was due him for services, and labor performed as a clerk, and that as such clerk he performed manual labor, yet as it failed by other appropriate allegations to show to which of the classes above indicated he belonged, it was bad for uncertainty and properly dismissed on demurrer.</p>

<p>Petition for injunction. Before Judge Sweat. Charlton county.</p>

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

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

<p>Action on. insurance policy. Before J. R. Lamar, judge pro hao vice. City court of Richmond county.</p>

<p>Action for damages. Before Judge Ross. City court of Macon. June term, 1895.</p>

Action for damages. Before Judge Boss. City court of Macon. March term, 1895. Sarah Johnson sued Mrs Appleton Collins for damages, and her petition was dismissed on general demurrer. She alleged, that several years ago she entered into a contract with the agent of defendant for the rent of a room in a house in Macon, the property of defendant.

<p>Action on bond. Before Judge Ross. City court of Macon. Maxell term, 1895.</p>

<p>1. No legal right of rescission can arise in favor of the holder of land under a bond for titles, until after a breach of the bond by the obligor.</p> <p>2. The defendant having pleaded that he had tendered the balance of the purchase money and made a demand for the title called for by the bond, and that the plaintiff failed and refused to comply with such demand; and having entirely failed to sustain ■these allegations by evidence, the verdict against the defendant was absolutely demanded, and ought not to be set aside, though errors were committed at the trial..</p>

<p>1. Where the superior and city courts of a given county, in order properly to regulate the conduct of the business pending in such courts, have mutually adopted rules which establish such a comity between the courts as to enable counsel employed in both to represent their clients in cases pending in each, and ■ in a given case a conflict arises between such courts touching their authority under such rules, the construction of them is for the superior court, and the city court, in such event, is concluded by and must yield to the judgment of the superior court rendered thereon.</p> <p>2. Under the facts disclosed by the record, it was error for the judge of the city court to refuse to “check” or suspend further proceedings in the case pending before him, so as to allow the counsel for the defendant therein an opportunity to attend the trial of cases in the superior court, which, according to the ruling of the judge of that court, communicated to the judge of the city court, were, relatively to the case 'in the latter court, entitled 'to precedence.</p> <p>3. Enough appears from the record to show that because of the-enforced absence of counsel for the defendant during the latter portion of the trial in the city court, the case there was not properly tried, and the ends of justice require that it should be tried again. Accordingly, the superior court erred in not sustaining the certiorari.</p>

<p>Intervention. Before Judge Griggs. Bibb superior court. August, 1895.</p>

<p>Equitable petition. Before Judge Callaway. Richmond superior court. October term, 1894.</p> <p>A demurrer to the petition was overruled, and the defendants excepted. The petition alleged, that plaintiff, the Georgia Co-operative Loan Company, is a duly chartered corporation. Defendants are S. B. Vaughn, his sister Annie J. Dill, and Patrick Armstrong. On December 12, 1891, Vaughn was the owner in fee of a lot in the city of Augusta, described. He purchased it from John B. Vaughn, trustee, Sarah F. Vaughn, life-tenant, Annie J. Dill and M. L. McCord, remaindermen (S. B. Vaughn being the third remainderman), for $2,500, as appears by deed dated June 5,1891. Previously and while the title was in John B. Vaughn, trustee, the land had been pledged, by security deed dated April 21, 1887, to E. C. Palmer for a loan of $3,500. In order to make the purchase and to pay off the prior lien for balance due under the- security deed to Palmer, and to pay accumulated taxes and for other purposes, S. B. Vaughn secured a loan of $5,500 on the land from plaintiff, giving therefor a security deed dated December 12, 1891, and recorded the same day. ' At the time of his application to plaintiff for this loan and at the date of said deed, S. B. Vaughn occupied the official fiduciary relation for plaintiff of being its local secretary and agent at Augusta, Georgia, and was a lawyer practicing there. Because of the trust and confidence arising from the relations above mentioned between Vaughn and plaintiff, plaintiff sent its check for $5,500 to him, and entrusted him with the duty of paying off the prior liens and especially that of Palmer, instead of having those liens properly cancelled before paying over the money or simultaneously therewith, as is the usual practice of plaintiff in making loans; and Vaughn agreed to make a proper distribution ©f the funds so entrusted to him. He did not pay off the full demands arising from the loan made by Palmer, but paid only a part of it, and Palmer having died, his administratrix, O. F. Gumming, filed suit against Sarah E. Vaughn, who signed the note with John B. Vaughn, trustee, to the May term, 1893, of the city court of Richmond county, for $662, and on November 24, 1893, obtained a verdict therein for $423. .The first information plaintiff had of S. B. Vaughn not having performed his trust to pay off the prior liens of the debt due Palmer was , in November or December, 1893, when S. B. Vaughn told J. D. Proctor, plaintiff’s secretary, who was then visiting Augusta, that the administratrix of Palmer had sued for a balance of $662, but that he would easily win the case, that if any judgment should be obtained.he would pay it, and that Proctor need not concern himself at all about the matter. Execution issued on the judgment in the city court in favor of said administratrix, and was levied upon the property. Under this levy the property was sold on March 6,1894, for $1,225, and the sheriff made a deed to the same to Patrick Armstrong. Plaintiff had no notice that the suit of the administratrix had been tried, or verdict rendered, or execution issued, or levy made, or that the sale was being advertised or expected to take place, relying upon the good faith of S. B. Vaughn, who told its secretary in November, 1894, that he need not concern himself about the matter, and the persons in possession of the property at the time of the levy being tenants of S. B. Vaughn and not of plaintiff. Plaintiff had no knowledge on the subject until after the-sale, at which the property on which it had loaned $5,500 on a valuation of $11,000 was sacrificed for $1,225, and its lien entirely divested if said sale should be held legal,, which $5,500 would be a total loss to plaintiff as S. B.. Vaughn is insolvent. Said Vaughn purposely and deliberately conceived the plan and successfully carried it out, to keep plaintiff in ignorance of the levy and sale, in orderthat he might buy in the property for himself, or for some one who would secretly hold it for his benefit, and thus free-the property from the lien of plaintiff’s claim and cause plaintiff to lose its debt; and Annie- J. Dill conspired with him in carrying out said plan, and they secured the assistance of Armstrong, though plaintiff does not charge-Armstrong with a full knowledge of the facts. S. B. Vaughn made an agreement with Messrs. Lockhart & Baxter, attorneys for the administratrix, who had moved for a. new trial in said case, that if they would dismiss that motion he would settle with them for $500, instead of the amount, of the verdict, and he gave- his note for the difference, it. being a part of said agreement, either by direct expression or necessary implication, that the levy and sale should proceed at once, Vaughn even going so far as to let them know o-f his purpose to keep plaintiff in ignorance of the sale so that Vaughn might have the property bid in for his benefit. Lockhart & Baxter, who are gentlemen of high character, became concerned about the peculiar attitude in which Vaughn had placed them, and desiring to- free themselves from any connection with what began to appear to- be a fraudulent scheme, on February 21, 1894, wrote Vaughn: “Upon .further consideration of the statements made us by you in regard to sale under fi,. fa. of Carolyn P. Gumming, admx., we are satisfied that the notice either by you or by us must be- given to the Atlanta Loan Co. which holds. second deed to our security. ¥e believe tbe fact that you are, or have been, the agent of this company, coupled with our knowledge that no notice is intended to be given them, would render the sale void for conspiracy, in the first place, and, in the second place, that it might entail unpleasant consequences upon [us] in case of an investigation of the matter by the company. "We must therefore ask, with a view to protecting ourselves and our client, that you notify the company in Atlanta, or that you permit us to' do so.” In reply h> this letter S. B. Vaughn, on February 22, 1894, wrote to them: “You are laboring under a mistake in regard to my agency of the company in Atlanta. I was the local secretary of the company when they first organized a branch here, but resigned that position about two years ago, and have no connection with the company now whatever. It is not my intention to enter into any conspiracy with any one, but my only aim is to stop this company from pushing me to the wall, and unjustly so too. I desire and expect to pay them every cent of my indebtedness to them, but they must take it as I agree with them, that is $55.00 per month until paid. As it is they are trying to make me pay it all up in full and more besides. Furthermore, when the general manager was down here during the exposition, I told' him that you had entered suit against my mother on the same property for $662, but that I expected to gain the case, and that even if I lost it we had enough property to cover the amount outside of this property. I hope this will explain the matter in a different light, and that you will agree with me that nothing has been kept concealed under the law from anybody. My idea is to get my sister or Mr. Gumming to buy the property in and hold it, allowing me the equity of redemption, so that as soon as the company agrees to let my contract with them continue, I will then redeem the property. I do not desire to have a heavy judgment standing over me any way, and they could at least get it and hold it. So you see I am only acting in good faith to keep tbe property from being sacrificed.” Accepting tbe statements of said Vanglm as true, and not wishing to appear officious, Lockhart & Baxter did not notify plaintiff as they at first intended. The property when put up at sale by. the sheriff was really bid in by Vaughn, but to carry out his plan to defeat plaintiff’s claim he had the bid entered by the sheriff in the name of said Annie J. Vaughn, his sister, and then for the purpose of still further covering up the real facts, they entered into ■ an agreement with Armstrong that he should pay the $1,225 and take the sheriff’s deed, but should not be the absolute owner of the property, but hold the same for the benefit of S. B. Vaughn through his sister Annie J. Dill. In pursuance of this agreement Armstrong advanced the money held by him as administrator of J. F. Armstrong,- and took the deed in his name as such administrator. But for the. action of said Vaughn in inducing Lockhart & Baxter not to notify plaintiff of the sale, it would not have lost its lien upon the property, because it would have willingly advanced the money to' pay the $423 execution or any other lien prior to its own. After plaintiff learned of the sale, its secretary came at once to Augusta and offered to pay over the $1,225 and any other actual cost to which Armstrong' had been put, if said Vaughn and Annie J . Dill and Armstrong would give such papers as would restore the property to its former condition of being subject to the lien of plaintiff’s claim, but all of them failed and refused to accept its offer. The levy of the $423 execution on the property worth according to valuation at the time of the loan over $10,000, and having a market value of $5,000 or $6,000, was grossly excessive, especially as either the eastern or the western portion of the lot could easily have been levied upon and sold separate from the other portion, and would have brought far more than the amount of the execution; and the sale is void by reason of such excessive levy. Armstrong had no right or lawful authority to take the money belonging to. the estate of J oka F. Armstrong and buy real estate therewith, nor to lend nor advance the money to any one, and take a deed to the same in his name as administrator; and the sale should be set aside upon payment to him by plaintiff of said purchase price of $1,225. No judgment has been entered upon the verdict of the jury in the suit of said administratrix against Sarah E. Vaughn, and consequently no execution could legally issue and no legal sale be had, and hence the deed from the sheriff to Armstrong, administrator, is void. S. B. Vaughn is now indebted to plaintiff upon said loan $5,027, which sum is due and unpaid. A copy of the contract is attached. Plaintiff stands ready to pay off any lien on the property that may have priority over the security deed held by it. It prays, that the sheriff’s deed be declared void and cancelled as against its right; that it have judgment against S. B. Vaughn for the sum due it, and the equity of redemption in said mortgaged property be foreclosed; that the property be declared subject to its said judgment after the payment of any prior lien thereon; and for general relief.</p>

<p>Action on insurance policy. Before Judge Boss. City court of Macon. June term, 1895.</p>

<p>According to the principles ruled in the case of Columbus Southern Railway Co. v. Wright, comptroller-general, 89 Ga. 574, the act of December 24, 1890 (Acts of 1890-91, vol. 1, p. 152), “to make railroad companies subject to municipal taxation,” is not violative of par. 1, sec. 2, art. 7 of the constitution.</p>

<p>Application for alimony. Before Judge Hardeman. Houston county.</p>

<p>1. According to the principle laid down by this court in Henderson v. Walker et al., receivers, 55 Ga. 481, which was reviewed and affirmed in the case of Youngblood v. Comer, receiver, 97 Ga. 152, special statutes enacted for the purpose of fixing and arriving-at the liability of railroad companies, and relating expressly and exclusively to such companies, can not, by implication or-interpretation, be held applicable to receivers of a railroad operating it under the orders of a court.</p> <p>2. This being true, there is, so far as such receivers and their-servants are concerned, no law in this State changing the common law rules of evidence applicable to actions by servants against masters for personal injuries; and therefore, upon the trial of an action against such receivers by one of their employees for injuries of this kind, alleged to have been caused by the defendants’ negligence, there is no presumption of law that, they were negligent, but it is incumbent upon the plaintiff to prove affirmatively that such was the fact.</p> <p>3. There being, in the present case, no evidence showing that the defendants were negligent, the verdict in their favor was -the only legal one which could have been rendered; and therefore, whether the rulings of the trial judge complained of in the motion for a new trial were, or were not, erroneous, that motion, was properly overruled.</p>

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

<p>Where by a will specific legacies in cash were bequeathed to certain named persons designated as nephews and nieces of the testator’s first wife, to other named persons designated as nephews .of the testator, and to one other named person designated as the son of a named nephew of the testator, and the will further provided: “ I give and bequeath to each of my immediate nephews and nieces one thousand dollars ($1,000.00) apiece, this meaning only the children of my brothers and sisters, and not including such nephews or nieces as are specially provided for in this will,” the will also containing a residuary clause disposing of all the balance of the testator’s estate not bequeathed or devised in t'h'e preceding items: Held, that the gifts embraced in the words above quoted were to the testator’s immediate nephews and nieces as a class; that such gifts enured only to the benefit of persons who were his immediate nephews and nieces living at the time of his death, and therefore falling within this class; and that the children or grandchildren of nephews and nieces of the testator who died before his death took nothing under the will, either in their own right or in that of their deceased parents or grandparents, ° aind this is true whether such deceased nephews and nieces were or were not in life when the will was executed.</p> <p>Atkinson, J., dissenting. — The bequest embraced in the words . quoted was to the persons described as legatees severally and as individuals, and not to them collectively and as a class; and the legacies bestowed being absolute and without remainder or limitation over, if one of such legatees so indicated died leaving issue in life at the testator’s death, such issue were entitled, to take the legacy of their deceased ancestor; and this is true eveh though the ancestor died before the testator, or indeed was dead at the time of the execution of the will. Code, §2462.</p>

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

<p>Petition for mandamus. Before Judge Eelton. Bibb county.</p>

<p>Complaint for land. Before Judge Reese. Taliaferro superior court. February term, 1895.</p>

<p>Complaint on note. Before Judge Beese. Hancock, superior court. February term, 1895.</p>

<p>An exemption of personalty being void as to certain creditors for' want of notice to them, -it was tbe right of tbe head of tbe family to make another application for exemption, to give notice thereof to these creditors, and to have the same personalty exempted as to them. But if, before the allowance of the second application, the applicant had sold and parted with the title to and possession of a portion of the property, although he had included the same in the second application, the exemption thereafter allowed was, as to the property thus sold, ineffectual and void as to such creditors.</p>

<p>There being evidence from which the jury might have inferred that the plaintiff’s woods were burned by a fire originating from sparks which escaped from a locomotive operated by a servant of the defendant, and ignited straw and other combustible material on the railroad right of way, and that the fire thus started burned continuously until it reached the plaintiff’s land, it was error to grant a nonsuit.</p>

<p>Appeal. Before Judge Reese. Hancock superior court. Eebruary term, 1895.</p>

<p>1. One of the issues being whether or not-the defendant had used undue influence to induce his mother to execute to him a deed to realty, evidence that the “ defendant several times put his head in his hands in his mother’s presence and said he was going way off to the mountains,” to which she replied, “ not to do that, that things would get better,” standing alone, was inadmissible; and certainly was insufficient to show that undue influence was used.</p> <p>2. No other evidence to show undue influence having been offered, it was error to charge that if the execution of the deed was not the free act of the grantor, but the result of a substitution of the will of another for her own, the deed should be cancelled.</p> <p>3. The chax’ges as to the defendent’s alleged insolvency, and as to failure of consideration in the deed in controversy, were irrelevant to the case as presented by the pleadings and evidence. ■The grounds of the motion for a new trial not covered by the preceding notes present no question of material importance.</p>

<p>1. The action being upon a promissory note, a plea alleging payment to an agent of the plaintiff “ authorized to receive payment of said note ” was not incomplete because it did not aver ■that the alleged agent had the note in his hands at the time it was paid.</p> <p>2. The evidence offered in support of the defendant’s plea was properly admitted.</p> <p>3. There being evidence sufficient to warrant the jury in finding that the alleged agent had express authority from the plaintiff to collect the note sued upon, and also that the latter had ratified partial collections thereon made by the former, 'the court did not eri; in giving in charge to the jury §2178 of the code.</p> <p>4. The record discloses no cause for granting a new trial in this case.</p>

<p>1. Where by a will executed and probated in 1854 a testatrix devised and bequeathed her entire estate to certain named persons as trustees, upon uses and trusts declared in the following words: “ In trust, nevertheless, for the uses and purposes hereinafter expressed, 'that is to say, in trust for the support and maintenance of my children not provided for, and to have a home for them under the supervision of my husband alone. In trust also, that that part or portion that may be set apart ior each of my daughters may be made over to trustee or trustees for each of them and their .children, and not subject to the debts or contracts of said trustee or any husband with which any of them now have or may hereafter intermarry, and in the event of having no children, such as have none are authorized 'to devise it in any manner they 'think proper”: Held, that the title to that portion of the estate which, under this will, went to a daughter of the testatrix and a child of this daughter who was in life at the time- of the execution of the will and who survived the testatrix, vested in the daughter and this child as tenants in common.</p> <p>2. Upon a bill in equity filed in 1860, the executors of an estate were removed from their trust, and it was thereupon decreed that the property in their hands be, by a receiver acting in conjunction with certain commissioners, divided among the devisees and legatees, and that the receiver “ do by his deed convey to and settle the several portions of said property delivered, to the femmes covert ” who were parties to the bill “ upon a trustee or trustees in conformity with 'the provisions and directions in said will contained.” The decree adjudicated nothing as to the nature of the title vested by the will in any of the devisees. The receiver, in pursuance of a division made under this decree, conveyed to a trustee for one of the femmes covert a portion of the property and in the deed recited that it was made by virtue--of the decree, “ and in conformity to the last will and testament ” of the deceased, but erroneously construing the will, undertook by the deed to vest the title to the property thereby conveyed in the trustee for the use of the cestui que trust for life, with remainder to such children as she might leave surviving her. Held, that the receiver had no power to convey except, in conformity to the provisions of the will, and therefore the deed made by him, even without a reformation, should not be-so construed as to defeat 'the purpose of the will in relation to. vesting the title to the property thereby disposed -of, and that the only legal effect of the deed was to pass title in accordance-with the provisions of the will itself.</p>

<p>Complaint for damages. Before Judge Reese. Glascock superior court. August term, 1895.</p>

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

<p>Where an application for temporary alimony, based upon a suit for permanent alimony, was made by a wife against her husband and allowed, and afterwards the husband brought an action for a divorce against her, and she thereupon mad© another application for temporary alimony, based upon the fact that the action for divorce was pending, it was her right, at the hearing of this second application, to dismiss the original suit for permanent alimony; and the effect of this was to do away with the first order granting temporary alimony, and to leave the second application therefor open for a hearing upon its merits. ■</p>

<p>Bail-trover. Before Judge Cobb. City court of Athens. March term, 1895.</p>

<p>Where, on account of the gross negligence of the defendant or his counsel, no defense was made to an action, and the same being in default, a judgment was duly rendered in the plaintiff’s favor, it was not error to overrule the defendant’s motion, though made during the term at which the judgment was rendered, to set the same aside and reinstate the case.</p>

<p>1. Where land was described in a mortgage as parts of certain specified lots in a designated land district of a given county, “ it being the land purchased by J. L. Henson from J. E. Derrick,” the description as a whole was not so totally defective and uncertain as to render the mortgage inadmissible in evidence upon the trial of a rule for its foreclosure; and it was competent to identify by parol evidence the land covered by the mortgage.</p> <p>2. That the land so covered had been set apart to the widow of the mortgagor as a year’s support, over objections filed by the mortgagee, constituted no defense to the foreclosure of the mortgage; Upon -a levy of the mortgage % fa. on the land in question, a very different question would arise.</p> <p>3. In a mortgage foreclosure proceeding there was no error in refusing to strike so- much of á plea filed by the administrator of the deceased mortgagor as alleged that the latter at the time of executing the mortgage “ was very old and sick and unable to sign his name . . but made his mark, that he was heavily under the influence of opiates and at the time was in a comatose state . . and was wholly unable to make any sort of contract,” and also that the mortgagor was unable to read the contract, that it was never read over to nor understood by him, and that if the same had been read to him he could not have understood it.</p>

Complaint. Before Judge Kimsey. White superior court. April term, 1895. On September 5,1893, White county brought suit against W. H. Bell for $464.85 as the aggregate of numerous sums alleged to have been illegally drawn by him as ordinary from the county treasury from March 16, 1887, to May 17, 1892; such sums so drawn being for orders made by defendant upon the county treasurer .for the payment of money, and not for judicial orders jiassed.

<p>Application for mandamtis. Before Judge Kimsey. Habersham superior court. March term, 1895.</p>

<p>1. "Where a controversy not pending in any court was by the parties thereto referred to arbitration, it being stipulated in the submission that the two arbitrators chosen by the respective parties should, in conjunction with an umpire to be selected by them, determine the matters submitted and return their award to the superior court of a given county, of which court the award so returned should be made the judgment; and where it appeared that the party against whom the award was rendered was not served with notice of its rendition, but it was, nevertheless, at the first term, without exception thereto, made the judgment of such court, and thereafter the court set aside this judgment, reopening it for the purpose of hearing and determining the sufficiency of exceptions filed by the person dissatisfied with the award, inasmuch as that court did, this court in deal-: ing with such exceptions will treat them as having been filed in due time, aDd the party excepting having been fully heard upon the exceptions filed by her, the omission to give her notice of the rendition of the award was immaterial.</p> <p>2. In case of such a submission, the agreement of the parties will control as to the court to which the award shall be returned, and if in fact the losing party do not reside in the county to the superior court of which it is, under j;he agreement, made returnable, such party will be held to admit a residence in such county, in so far as may be necessary to uphold, as between the parties themselves, the jurisdiction of such court to make such award its judgment.</p> <p>3. Exceptions to an award upon the ground that the umpire chosen under such a submission was incompetent “ because his hearing was very bad and defective and in all probability he did not hear the evidence so clearly and distinctly as to fully understand it,” and upon the further ground that “ said umpire was brought to the place of arbitration as a witness for the [adverse . party], which was unknown 'to the ” exceptor or her counsel are each without merit, the former because it does not present a matter issuable either in law or fact, the latter because it does not allege either bias or unfairness in the person selected as an umpire.</p> <p>4. An exception to an award, upon the ground that it was delivered to the court by a person other than one of the arbitrators, was without merit, it appearing that the return of the arbitrators was regular, and it not appearing that in the physical act of transmission anything occurred which would cast suspicion upon the paper actually received by the court.</p> <p>5. The mere fact that an arbitration was held and' the award rendered in one county, does not prevent the award from being made the judgment of the court in another county, when the parties in the submission so agree.</p> <p>6. In the present case, the exception that the award was contrary to law and contrary to evidence, is without merit.</p>

Equitable petition. Before Judge Kimsey. Hall superior court. January term, 1895. Tbe petition of Harriet O. Bennett against Sbelton L. Prater and Mrs. A. C. Scales as executrix of James A. Bindley, was demurred to by Prater. Tbe demurrer was overruled, and be excepted.

Equitable petition. Before Judge Kimsey. Hall superior court. January term, 1895. James M. Thompson died leaving a widow and seven children. An eighth child, Jane Dunagan, had died before his death, leaving four children. He left among his papers a deed which he had executed on January 5, 1890, but had never delivered.

<p>A municipal ordinance making it penal to “act in a disorderly manner,” or “make any unnecessary noise within the corporate limits, calculated to disturb the peace, quiet or good order of the city,” or to " be guilty of disorderly conduct,” is not violated by quietly working in a closed church on the Sabbath day upon the benches therein, the work in question not being itself of such a character or causing such noise as would ordinarily disturb any citizen, and the only “disturbance” occasioned by it arising from the fact that it was done on the Sabbath. The ■design of such an ordinance is to insure the peace, tranquillity and repose of the community, and not to prevent acts otherwise unobjectionable, but which from the fact that they are done on that day are shocking to the religious or moral sensibilities of a portion of the citizens.</p>

<p>1 TbiS being a direct bill of exceptions assigning as erroneous a judgment rendered by the trial judge without a jury, and certain rulings made by him during the trial; and the bill of exceptions neither containing, nor purporting to contain, all of the material evidence introduced at the trial, and no brief of the same having been made and approved by the judge so as to become a part of the record, the evidence has not been brought to this court in the manner prescribed by law, and cannot be considered. The fact that the bill of exceptions sets forth, by recital and by exhibit, some of the material evidence, will not suffice.</p> <p>2. All of the errors assigned necessarily involving a consideration of the evidence, and it being impossible without reference 'thereto to determine whether there was error (if any at all) which would require or warrant a reversal of the judgment, there is no question legally before this court for adjudication.</p>

Complaint. Before Judge Gober. Milton superior court. February term, 1895. Nora Howell sued Lewis and Summerour as administrators of Autrey, alleging that they were indebted to ber $132, besides interest, by reason of tbe following facts: On February 10, 1891, Autrey beld a note against ber busband, on wbicb at the time there was due principal and interest about $165. Bier busband was insolvent and the note was worthless and barred by tbe statute of limitations.

<p>The consideration of the note sued upon being the plaintiff’s interest as an heir at law of her deceased father in a tract of land constituting a part of his estate, the title to which was involved in a “ lawsuit ” when the note was executed, it being stipulated that if the entire tract was held by the estate, the note was to be collectible in full, but if only a part of the land was held by the estate, the note should be “ collectible only pro rata, ” and the litigation having so resulted that “ the entire tract was held by the estate, ” the defendant, who was also an heir at law of the deceased, after receiving the plaintiff’s full share of the proceeds of the entire tract realized at a sale thereof by the administrator, was bound to pay the whole amount of the note, although by the terms of the verdict rendered in the “ lawsuit,” the administrator was required to pay a stated sum to the opposite party, and did pay the same out of other assets of the estate, thus diminishing the distributive shares of both the plaintiff and the defendant in those assets.</p>

<p>1. A mother, who was a widow, having agreed in parol with another to take her minor son, about ten years old, and board,, clothe and send him. to- school till he was of age, have his -services to that time, and then give him a horse, saddle, bridle and suit of clothes; and this contract having been faithfully carried out by -the person who had made the same with the mother, until his death, which occurred some five years after the contract was made, the services of the child during this period not. being of greater value than what was done for and received by him, the estate of the deceased was not liable to the child, or1 the mother, in any amount.</p> <p>2. Where, after the death of such person, his widow and his son agreed with the mother of the child to carry out the contract of the deceased, but in point of fact the child worked until his majority for the son of the deceased, who promised the child to pay him for his services; and where, upon the child’s becoming of age, his employer not only repudiated the original agreement of his father as to the horse, saddle, bridle and suit of clothes, but also refused to pay the child the value of his services, the latter could maintain in his own right an action for the same against his employer upon a quantum meruit, it appearing that the plaintiff had been practically manumitted by his mother, that she had relinquished any right to claim compensation for his services, and consented for him to receive the same.</p> <p>3. The evidence fully warranted a finding that the real facts of 'this case were as above summarized; the charges requested. were not adjusted to the issues involved, and the charge complained of, if not strictly correct, was not harmful to the defendant. The verdict appears to have done substantial justice, and being the second one in the plaintiff’s favor, this court will not set it aside.</p>

Trover. Before Judge Turnbull. Bartow superior court. January term, 1895. On June 17, 1879, Erank P. Gray, administrator of Lewis Tumlin, brought bail-trover against B. J. King, to recover a two ninths interest in a wool-carder and appurtenances, alleging the same to be of the value of $1,500, and of the annual rental value of $100; that King had enjoyed the profits of the same since March, 1879, and refused to deliver said carder to plaintiff or pay him the profits thereon.

Ejectment. Before Judge Milner. Whitfield superior court. April term, 1895. In March, 1886, Ammons borrowed $200 from Flint, giving his note therefor, together with a deed as security, conveying 100 acres of land from the west side of lot 140 in Whitfield county. The note and deed were transferred by Flint to the New England Mortgage Security Company, the plaintiff.

Action for damages. Before Judge Akin. City court of Cartersville. March term, 1895. Mrs. Voils sued the railroad company for damages, and obtained a verdict for $250. This was set aside on motion, and at the next trial she obtained a verdict for $325. Defendant again moved for a new trial, which upon the hearing was denied, the judge expressing an opinion, however, that it was against the weight of the evidence.

<p>Levy and claim. Before Judge Milner. Whitfield superior court. April term, 1895.</p>

<p>Where a fidelity insurance company by its bond covenants with a receiver engaged in operating a railroad that, during the continuance in force of such bond, certain specified employees of the receiver shall “ faithfully and honestly discharge their duties in their several capacities, and shall also faithfully and truly account for all moneys and property and other things which may come into their possession in their respective employments, whenever thereto required by the employer -or a duly authorized officer in that behalf, and at the termination of their said employments, shall surrender and deliver up to the employer, or a duly authorized representative, all moneys, hooks, vouchers, papers, tickets, and all other property belonging to the employer, or for which the employer shall be liable to another, or -other party or parties, which shall then be or which ought to be in the hands, possession, or custody of the- employees, -or either of them; and the company hereby indemnifies the employer against all loss which the employer shall sustain by reason of the default of any or either of the employees in the premises, not exceeding in the whole the sum or sums as hereinafter provided”: Seld, that the insurance company was not liable to the insured in damages for a loss resulting from a wrongful delivery of freight by one -of these employees, in consequence of which the receiver was compelled to pay the value of such freight to its true owner, the wrongful delivery having occurred before the bond was executed. This is so notwithstanding that the employee, at the termination of his employment, though liable so to do, failed and refused to pay the receiver the damages which the latter had sustained because of such wrongful delivery.</p>

<p>1. This court cannot determine whether or not it is cause for a new trial that the presiding judge refused to allow an attorney at law to testify as to matters his knowledge of which was alleged to have been derived from his professional relations to the parties concerned, when it does not appear what facts the attorney was offei’ed as a witness to prove.</p> <p>2. Under the rules of law laid down in the case of Guarantee Co. of N. A. v East Rome Town Co., 96 Ga. 511, and in view of the evidence disclosed by the record, it was error to grant a nonsuit.</p>

<p>' Complaint on notes. Before Judge Harris. City court of Eloyd county.</p>

<p>1. No consideration is essential to tlie rescission of a simple executory contract, that is, one which has not been acted upon, other than a mutual agreement of the parties that it shall no longer bind either of them. The consideration on the part of each is the other’s renunciation.</p> <p>2. Hence if a written application for a life insurance policy and a promissory note for the first premium thereon, were delivered to an agent of the insurance company and by him forwarded to the company, but before the latter had acted upon the application it was mutually agreed between the applicant and the agent that the note should be recalled and returned to the applicant, and that “ the affair will stop just where it is at, there will be nothing more of it,” this of itself would be sufficient to constitute a lawful rescission, and it was error to charge in effect that a rescission could not be had under these circumstances unless based upon a valuable consideration.</p> <p>3. In the trial of an action upon such note, a policy of insurance, alleged to have been issued in pursuance of the application above mentioned, was not admissible in evidence without proof of its execution, and it was not sufficient for this purpose merely to prove by a subagent of the company that he had received such a policy from another subagent or from the company’s general agent, the witness being unable to remember from which of these persons it came into his hands.</p>

<p>If being stipulated in a policy of fire insurance issued to a woman, covering a building described in tbe policy as “her one-story frame shingle-roof dwelling,” tbat tbe policy should be void “if tbe interest of tbe insured in tbe property be not truly stated therein,” or “ if tbe interest of the insured be other than unconditional and sole ownership,” it was error, upon tbe trial of an action brought upon tbe policy by tbe insured, to reject a plea, offered in due time, alleging tbat when tbe policy was issued the plaintiff was not tbe owner of the property, because she had previously conveyed tbe same to another by a fee simple deed, and tbat if tbe defendant had known this fact, it would not have issued the policy. This is true although the deed in question may have been made to secure a debt, its effect being to pass tbe title.</p>

<p>1. Where a partnership, .composed of two persons, was indebted upon an open account, and on the day the partnership was dissolved one of the partners, with the knowledge and consent of the other, mailed his individual promissory note to the creditor for the purpose of settling the account, this of itself was not a payment of the account, unless the note was accepted as such by -the creditor.</p> <p>2. A mere statement by the creditor in a letter acknowledging receipt of the note, to the effect that if the same should be paid at or before its maturity it would be accepted in payment of the ■account, and his retention of the note until after its maturity, he being ignorant of the dissolution of the partnership, would not extinguish the account; nor would its extinguishment result from the fact that the creditor, before the maturity of the note, discounted or otherwise used it, the note having been dishonored and the creditor having been compelled, after protest, to again take it up.</p> <p>3. Under the law and the facts of this case, both the defendants were liable to the plaintiff; and the verdict being against one only of them, the court did not err in granting the plaintiff a second new trial.</p>

<p>Complaint on note. Before Judge Janes. Polk superior court. February term, 1895.</p>

<p>The word “ lien,” in the phrase “ as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the defendant’s property,” occurring in the second section of the registry act of 1889 (Acts of 1889, p. 107), applies only to liens acquired by contract, and consequently, this act has no application to contests between ordinary common law judgments. Therefore, the older of two such judgments against the same defendant has priority over the younger, as to a fund arising .from a sale of his property, although the execution issued upon the younger may have been duly entered upon the general execution docket, and the execution issued upon the older has never been entered upon that docket at all.</p>

<p>Where a husband invested his wife’s money in land, taking a deed to the same in his own name, she had a perfect equity in the land, and was not estopped from setting up the same against one who, with full knowledge of the facts, took from the husband a conveyance of the property, although the conveyance was made for the purpose of indemnifying the grantee therein against loss by reason of his having become a surety for the husband and wife upon their joint promissory notes to another person, it not appearing that such conveyance was executed for ■the purpose stated with the wife’s consent.</p>

<p>Equitable petition. Before Judge Smith. Haralson superior court. July term, 1895.</p>

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

Equitable petition. Before' Judge Harris. Carroll superior court. April term, 1895. To the petition of Mrs. Kirkley against Sharp the defendant demurred on the ground, that the cause of action appeared to have arisen more than four years prior to the filing of the declaration. The declaration was amended, but the demurrer was sustained. The petition was filed to the October term,.1891. It alleged: Defendant is indebted to petitioner $210, with interest since August 1, 1887.

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

Foreclosure of mortgage. Before Judge Hart. Morgan • superior court. March, term, 1895. Mrs. Hough, executrix of A. S. Hough, brought her petition against Milton and Rachel Jones, to foreclose a mortgage.

Action, for damages. Before Henry T. Lewis, judge pro Tiao vice. Morgan superior court. March term, 1895. The plaintiff, who- was a commercial traveler, arrived at Madison at 4:45 p. m., April 18,1892, on the train of the Macon & Northern Railroad.

<p>Under the law announced by this court In the case of Weihl, Probasco & Co. et al. v. Atlanta Furniture Manufacturing Co. et al., 89 Ga. 297, and in view of the evidence, the court erred in directing the jury to return a verdict finding the mortgages of the plaintiffs in error void. This case is distinguishable from that of Lowry Banking Co. et al. v. Empire Lumber Co. et al., 91 Ga. 624.</p>

<p>1- The act of October 19, 1891, “ to provide additional security to materialmen and laborers,” etc. (Acts of 1891, vol 1, p. 233), was not repealed by the act of December 18th, 1893, amending section 1979 of the Code (Acts of 1893, p. 34).</p> <p>2. It is not essential to the validity of an action brought by a materialman under the former act, that the contractor should be sued jointly with the owner of the realty improved, nor that the declaration should allege that notice of the plaintiff’s claim had been given to such owner before he settled with the contractor. What should be the-measure of the plaintiff’s recovery in such a case is not now for decision.</p>

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

<p>Levy and claim. Before Judge Willis. City court of Columbus. January term, 1895.</p>

<p>1. 'Where a garnishment upon a judgment was ‘sued out under section 3538 of the code, in a county other than that in which ■the judgment was rendered, and the requirements of that section as to making out, certifying and returning copies of the garnishment affidavit and bond were not complied with, there could be no lawful judgment upon the garnishment in favor of the plaintiff, either against a surety upon a bond given to dissolve the garnishment, or against the garnishee.</p> <p>2. Irrespective of many of the questions px-esented by the bill of exceptions, the judgment rendered was manifestly unauthorized by law.</p>

<p>1. Although, as held by this court in Isbell v. Blanchard, 94 Ga. 678, a foreign administrator de bonds non could not be made a party plaintiff to an action brought in a court in this State by his predecessor in the trust, whose letters had abated, and thus keep that case in court, it does not follow that the original right of action was lost. While the particular action abated, the cause of action remained of force, and could be asserted in a new and independent suit by the administrator de bonis non.</p> <p>2. The action being by an administrator for money deposited by his intestate, a non-resident of this State, with a partnership of Which the defendant was the survivor, and based upon a “ writing obligatory ” acknowledging the receipt from the intestate, for her account, of a specified sum, and concluding with the words, “'We are to allow you 8 pr. ct. on the amt.,” -but specifying no time for payment; and the declaration alleging that the intestate died in 1884 without having demanded payment of the sum so deposited, and that there had been no representation upon her estate until 1891, when for the first time her administrator demanded payment and the same was refused, it was error to dismiss the action upon the ground t-hait the same was barred by the statute of limitations. There was no liability to pay until after demand; and consequently the statute of limitations did not begin to run in favor of tbe debtor until after demand bad been duly made and payment refused.</p>

<p>1. Where, after sustaining a demurrer to a particular paragraph ' of a plea, the plea was amended and the court then “ set aside said demurrer,” the defendant had no cause of complaint.</p> <p>2. Striking on demurrer one paragraph of a plea is not cause for reversal when it appears that another paragraph, containing substantially the same averments, which was neither demurred to nor stricken, was afterwards voluntarily withdrawn by the defendant.</p> <p>3. Alleged error in the amount of a verdict cannot be corrected by direct exceptions to the verdict in a bill of exceptions.</p> <p>4. The bill of exceptions in the present case contains no clear and distinct assignment of error.</p>

<p>Complaint for land. Before Judge Hart. Baldwin superior court. July term, 1895.</p>

<p>Equitable petition. Before Judge Butt. Muscogee superior court. May term, 1895.</p> <p>To the petition of the Cortland Wagon Company, the Landon Conrad Saddlery Company and J. H. Milliken & Sons v. C. L. Gordy, the Fourth National Bank of Columbus, Peabody, Brannon, Hatcher & Martin, and O. O. Bullock, defendants demurred. The demurrer was sustained, and plaintiffs excepted.</p> <p>The petition alleged: Gordy is indebted to the Cortland Wagon Company $50, evidenced by note dated September 15, 1893, and due four months after date, to Landon Conrad Saddlery Co. $213.80 upon an account and agreement, copy of which is .attached, and to Milliken & Sons $52.80 upon an account, copy of which is attached. Gordy is a trader and is insolvent. He dealt in wagons, etc., in Columbus, and bought goods from petitioners in said business, which is the consideration of said indebtedness. He carried on a large business, and has for some time past, and has or ought to have on hand some $3,000 in money, notes, debts and accounts. lie owned and possessed a tract of land, the quantity and location of which are unknown to petitioners. lie has executed to the Fourth National Bank a mortgage upon said stock of goods, to secure a debt or pretended debt of $2,500, one to Peabody, Brannon, Hatcher & Martin to secure a debt or pretended debt of $500, one to L. A. Scarborough, his brother-in-law, for $1,400, and to O. C. Bullock a mortgage upon the realty owned by him, to secure a debt or pretended debt to Bullock, the amount of which is unknown to petitioners. The bank and Peabody, B. H. & M. have foreclosed their mortgages, caused execution to issue thereon, and have the stock of goods advertised for sale thereunder, and unless restrained, will proceed to sell the same. Petitioners charge, upon information and belief, that Gordy is not indebted to the Fourth National Bank in said sum, and if he was indebted to it, a large portion of said indebtedness has been discharged; and for proof of this they have to resort to the consciences of its officers, and to that end they ask that its president and cashier be required to answer on oath various interrogatories set forth in the petition. Petitioners charge, upon information and belief, that the mortgage of Peabody, Brannon, IT. & M. is without consideration, and was given to secure a fee before any litigation was had or commenced. They cannot •establish this without resorting to the conscience of Gordy and the members of the firm, and therefore ask that said defendants make answer to various interrogatories set forth in the petition. They charge, upon information and belief, that the mortgage of Bullock was without consideration, or if any consideration, has been discharged. For this they have to resort to the conscience of Bullock and Gordy, and to this end pray they be required to answer various interrogatories set forth in the petition. Petitioners pray for the appointment of a receiver; that the bank, Scarborough, Peabody, B. H. & M., be restrained from proceeding to sell the goods under their mortgages until further order; that Gordy be restrained from interfering or disposing of his property until further order; that petitioners have judgment against Gordy for the sums due them, and that the proceeds of his property to be sold by a receiver -be paid to petitioners in discharge of their debts. The petition was verified by affidavit of C. J. Thornton, that he is one of the attorneys of petitioners, and that the petition is true to the best of his knowledge and belief. Also, by affidavit as to the account of the saddlery company, that it was just,’ due and unpaid, that the articles mentioned therein were sold and delivered to Gordy and he promised to pay the amount therein charged, as per contract attached. The ■contract attached contains an agreement by Gordy that the goods were to remain the property of the company and to be sold by Gordy on commission, etc. It was dated July 20, 1892, and was to be of force for one year from that date. There was also ¿ttached an unitemized copy of account of Milliken & Sons. By amendment petitioners alleged, that "the claims described in their original petition are due and unpaid and that payment has been demanded of Gordy. They charged, upon information and belief, that defendants were combining and colluding to defraud petitioners and other creditors of Gordy. This amendment is verified by an affidavit of Thornton, similar to his affidavit above mentioned. The petition was filed February 6, 1894.</p> <p>Defendants demurred upon the following among other grounds: (1) The petition is not verified as required by law. (2) It nowhere appears that demand was made upon Gordy before the filing of the petition. (3) It is not alleged that plaintiffs’ demands are due, and no reason is set forth for bringing the action before they are due. (4) It appears from the petition that Gordy had ceased to be a trader before it was filed. (5) No sufficient allegations of fraud are set out. (6) It is not alleged that any of defendants other than Gordy are insolvent.</p>

Action on insurance policy. Before Judge Butt. Muscogee superior court. May term, 1895.

<p>1. Where an action was brought upon a policy of fire insurance by one other than the person to whom the policy was issued, the declaration alleging that the latter had “ for a valuable consideration transferred and assigned and delivered said policy of insurance to petitioner,” and also setting forth a copy of the policy, upon which, however, there was no copy of any assignment or transfer to the plaintiff, grounds of demurrer alleging that “ it does not appear that the alleged transfer and assignment of said contract was in writing,” and that “ said ■alleged transfer and assignment is not set forth and declared on,” ought, 'in the absence of an offer to amend by averring that the assignment was in fact in writing and by setting forth the writing itself, to have been sustained.</p> <p>2. Although such policy contained a contractual limitation to the effect that suit must be brought thereon within twelve months next after the fire, yet where in an action upon the ■policy the declaration alleged that after the fire the 'insurance company, having been garnished by creditors of the insured, " represented and promised to adjust and pay the loss by said ■fire as named in said declaration when said garnishment could and should be disposed of, and that by reason thereof, the plaintiff avers that he did not file and commence said action within one year after said fire,” a ground of demurrer alleging that the action could not be maintained because brought after the twelve months had expired, was not well taken, it being, under these circumstances, a question for the jury whether or not the plaintiff, in consequence of the above mentioned promise, was induced not to bring suit within the year, and whether or not the conduct of the company, under the circumstances, amounted to a waiver of its right to insist upon the limitation stipulated for in the policy.</p> <p>3. The question presented by the cross-bill of exceptions is disposed of by the decisions of this court in Melson v. Phenix Insurance Co., Maril v. Home Ins. Co., 97 Ga. 722, and Williams v. Greenwich Ins. Co., ante, 532.</p>

<p>Rule for contempt. Before Judge Butt. Muscogeesuperior court. May term, 1895.</p>

<p>Garnishment. Before Judge Butt. Muscogee superior court. May term, 1895.</p>

<p>1. In the absence of proper pleadings and parties, parol evidence is inadmissible to engraft a trust upon an absolute and unconditional deed.</p> <p>2. Under the pleadings in this case, the sole issue for determination by the jury was whether or not a deed executed by the plaintiff’s ward, an alleged lunatic, was void because of his mental incapacity, at the time it was signed, to make a binding contract.</p> <p>3. This being so, and the jury, upon a fair submission of this issue, having found for the plaintiff on evidence fully warranting the verdict, the same will not .be set aside, even though, upon immaterial matters, certain charges complained of, but Which are not now passed upon, may have been incorrect.</p>

<p>1. The provisions of section 708 of the code have no application except to crossings where a public road established pursuant to law crosses the track of a railroad, and consequently the statutory duties of blowing the whistle of the locomotive ¡and checking the speed of the train are not incumbent upon an engineer when approaching the intersection with a railroad of a road which, though to a greater ¡or less extent used by the public, has never been established as a public road in the manner pointed out by law. It follows, that no one has a right to assume that in approaching ¡a crossing ¡of the kind last indicated an engineer will observe these statutory requirements, and that the omission to do so is not, in law, negligence per se.</p> <p>2. Applying what is said above to the evidence in the present case, the verdict for the plaintiff cannot be lawfully upheld, it ¡appearing from the undisputed facts that by the exercise of ¡ordinary care the plaintiff's husband, for whose homicide the action was brought, could have avoided the collision which resulted in his death.</p> <p>3. It is unnecessary to deal with many of the questions presented by the motion for a new trial and the bill of exceptions, because upon the substantial merits ¡of the case the only proper result would have been a verdict for the defendants.</p>

<p>Complaint on note. Before Judge Griggs. Clay superior court. March term, 1895.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. March term, 1895.</p>

<p>1. There was no error in striking a ground of caveat to the probate of a will, alleging that it “ was executed by [the testator] under a mistake of fact as to the conduct of [a brother and heir at law] towards [the testator], he having expressed himself as being unwilling to 'provide for his brother, who is old and feeble and poor, as the condition of [the testator’s] estate would warrant, because he claimed that [this brother] had had a difficulty with him, when in truth and in fact there had been no difficulty.” Especially is this so, when an annuity, not merely nominal, was bequeathed to the brother alluded to in this ground of caveat.</p> <p>2. Nor was there any error in striking this ground of caveat after the same had been amended by alleging that the testator believed the brother in question owned property to the amount of $3,000, when in fact the brother owned only $300. An heir1 at law cannot, in any event, ea/veat the probate of a will on the ground that at the time of its execution the testator was misinformed or mistaken as to the amount or value of the property owned by such heir.</p> <p>3. That the above mentioned original amended grounds of caveat were offered “ for the purpose of showing that [the testator] at the time of executing said paper was not of sound and disposing mind and memory ” did not add to their validity, it appearing that another and distinct gound of caveat alleging want of mental capacity to make a will was voluntarily abandoned by the caveators.</p> <p>4. Undue influence to procure the execution of a will cannot be proved by the opinion of a witness that such influence was used, unless he testifies to relevant facts upon which his , opinion is based.</p> <p>5. The court properly refused to allow a witness to testify in a general way that there was something in the “ manner or conduct ” of certain persons named as beneficiaries in the will and charged with having exercised undue influence in procuring its execution, evidencing -that the testator was under their influence; it not being stated, in offering this testimony, what was the “ manner ” or the “ conduct ” sought to be shown, or that the same relaxed to matters occurring in the presence of the testator.</p> <p>■6. If, in the present case, there was any error 'in rejecting evidence of declarations alleged to have been made by such persons as to what they could or would induce the testator to do with respect to matters in no way connected with the testamentary disposal of his estate, it was not error which would require or even justify the granting of a new trial; this evidence, if admissible at all, being of little probative value, and the evidence as a whole showing clearly that the execution of the will was the free and voluntary act of the testator.</p> <p>7. Declarations of a testator, apparently free and voluntary and not made under the restraint of another, tending to show that the paper propounded as his will was prepared in accordance with his wishes, and that he was satisfied with it, are, when the paper has been attacked on the ground that its execution was procured by undue influence, admissible in evidence to show that it was his true last will and testament; but his declarations to the contrary, for the purpose of invalidating the paper as a will, are not admissible.</p> <p>8. In view of the evidence, and of the fact that the general ground of caveat alleging want of testamentary capacity was abandoned, there was no error in charging the jury, “ the issue in this case is narrowed to the sole one of undue influence, except so far as mental weakness demonstrates the susceptibility to such influence.”</p>

<p>1. Where a trustee having the title to realty returned it for taxation for a particular year in his own name, making no other tax return for that year, and the property was afterwards sold under a tax execution issued against him individually and based upon the return indicated, and, though not so appearing on the face of the execution, the “ property tax ” included therein was in fact the tax on this identical property, the purchaser at the sale, if the same was otherwise free from objection, obtained a good title as against the eestuis que trust represented- by the trustee, and this is true although the poll tax of the latter was also included in the tax execution.</p> <p>2. Irrespective of other questions, this case, upon its facts, is controlled by the law above announced.</p>

Equitable petition. Before Judge Butt. Muscogee superior court. November term, 1894. Tlie iDetition of Sarab M. McCoy alleged: On March 29, 1892, she owned an undivided interest in certain land (described), which was conveyed to her by her father, J. A. Oartledge, on December 4, 1883.

<p>A tenant executed and delivered to his landlord a contract embracing a promise to pay a specified amount of cotton as rent, and creating a lien in the landlord’s favor to secure to him payment for whatever advances he might make to aid the tenant in making crops on the rented premises during the next ensuing year. On the day this contract was executed, an entry was written thereon, which the landlord signed, reciting that, “ for value received, the within rent note is hereby transferred and assigned to ” a named person to whom the landlord was indebted upon a promissory note for the purchase money of the land so rented. The assignment was made as a collateral security for the payment of this note. In the contract of sale, it was stipulated that if this note was not paid when due, the land was to remain the property of the vendor, and the tenant was to be his tenant. The purchase money was, however, paid before its maturity. Upon this state of facts, Held: The assignment in question did not operate to pass to> the assignee the special lien created by the contract in the landlord’s favor for advancements, nor authorize the assignee to furnish the tenant with supplies and then collect the price of the same by a foreclosure of this lien.</p>

Appeal. Before Judge Eish. Stewart superior court. April term, 1895. Miller & Miller, on June 23, 1894,' sued M. M. Wilson in the county court, for a black mare mule named Mollie. They obtained judgment, and defendant appealed to the superior court. In that court a nonsuit was granted, and plaintiffs excepted.

<p>Complaint for land. Before Judge Bish. Dooly superior court. August 2, 1895.</p>

<p>Affidavits of illegality. Before Judge Bower. Dougherty superior court. April term, 1895.</p>

Trover. Before Judge Bower. Dougherty superior •court. April term, 1895. The Chicago Packing & Provision Co. brought bailtrover against ITobbs & Tucker for certain meat.

<p>Ejectment. Before Judge Sweat. Glynn superior ■court. May term, 1895.</p>

Injunction. Before Judge Lumpkin. Tulton county. The following contract was executed: “Atlanta, Ga., October 1st, 1894. Por and in consideration of the sum of $1,500 I hereby sell and convey to E. E. Kirby my membership No. 19 in the American Ticket Brokers Association; also my fire and burglar-proof safe, desk, typewriter, and all other office fixtures contained in my office at 30 Wall street, this city. I guarantee the above to be free from all incumbrance.

<p>1. The defendants in an action of ejectment not having, by plea or otherwise, prayed for any affirmative relief against the plaintiffs, 'it was the right of the latter, even after a judgment in their favor had been set aside by the Supreme Court, to dismiss their action at pleasure at any time before the case was again tried.</p> <p>2. The bare statement of a witness that title to realty “ passed ” from one person into another is wholly incompetent to show title in the latter.</p> <p>8. A deed from one who 'is apparently a stranger to the paramount, title, and who is not shown to have ever been in possession of the premises conveyed, is insufficient to make out a prima facie case showing title in the grantee claiming thereunder.</p> <p>4. The plaintiffs having utterly failed, either to prove a joint, ownership of the premises in controversy, or to show that, either of them had any interest, legal or equitable, therein, the court erred in granting an injunction restraining the defendants from interfering with or exercising control over the-premises.</p>

<p>Action o-n stock subscription. Before Judge Milner. Walker superior court. August term, 1894.</p> <p>The Chattanooga, Boma & Columbus Railroad Company, suing for tbe use of J. U. Jackson, by its petition alleged: N. G. Wartlien is indebted to Jackson $2,900, besides interest, upon a written promise to- pay the same, copy of which is attached. Warthen therein subscribed $2,900, being the par value of 29 shares of the capital stock of the Chattanooga, Rome & Columbus Railroad Company, and promised to pay the same as set forth in said contract. Other citizens also signed the contract, agreeing to pay other and various amounts set opposite their names. (This contract is set forth in full in the opinion of the court.) The Chattanooga, Rome & Columbus Railroad Company, formerly the Rome & Carrollton Railroad Company, for value received transferred and assigned said contract and subscription to O. M. Hillman, in writing, who afterwards transferred and assigned the same for a valuable consideration to the Rome & Carrollton Construction Company, a corporation duly incorporated under the laws of Connecticut, which on February 13, 1891, being in embarrassed circumstances, in pursuance of the statutes of Connecticut, made an assignment for the benefit of its creditors to E. T. McDonald, trustee. On February 20, 1892, the latter was duly authorized to sell and transfer said contract, along with other property of the construction company, by the court of probate for the district of Stamford, Conn., which court has jurisdiction of said matters. On March 30, 1892, in pursuance of said authority, he sold the same at public auction, and on the same day, in writing, transferred and assigned the same to J. F. Under-hill, the highest bidder, for $150. On June 21, 1892, in writing, Underhill for a valuable consideration transferred and assigned said contract to Jackson. The main line of. said railroad company was built and passes through the town of LaFayette and the corporate limits thereof. In June, 1888, the cars commenced running from a point at or near Rome through the counties mentioned in said contract to Chattanooga, Tenn., over a road built by said company. Defendant refused to pay 25 per cent, of said sum subscribed by him, upon November 15, 1888, or to give his notes for the remaining 75 per cent., one third of which to become due every six months after November 15, 1888, and continues to^ refuse to pay said sums or any part thereof or to give his notes therefor, although duly demanded. Said railroad company complied with every condition precedent in the contract, in accordance with the terms thereof, and stood and stands ready to comply with all other con-, ditions therein specified.</p> <p>In addition to tlie general issue, defendant filed nine special pleas to which plaintiff demurred. The pleas numbered 2 and 3 were stricken, but the demurrer was overruled as to the others. To the refusal to strike the latter plaintiff' excepted.</p> <p>The pleas not stricken were as follows: (1) The subscription was to be null and void unless the main line of the railroad when built should pass through the corporate limits of LaFayette. This condition was not complied with, and the railroad does not pass through the corporate limits as understood and agreed to by defendant. It was understood and agreed by and between the railroad company and the ■defendant, that the railroad should be built upon the grade of an old railroad which passes near the center of the town, and the condition above quoted was understood and agreed upon by the parties as meaning that the road should be located upon said old grade, or upon a line equally near the ■center of the town. The road was constructed outside the corporate limits, or, if within the limits, upon the very edge thereof, and this was only a colorable compliance with said conditions, and fraudulent, and in violation of the terms of said agreement and subscription, and this fraudulent conduct of the railroad company releases defendant. (4) After the alleged transfer by Hillman to said construction company, said construction company, by its contract and agreement with the railroad company for the building and equipment of said railroad, had the sole and exclusive right and power granted it by said railroad company to locate the railroad at such place or places as it, the construction company, saw proper. After having this right so given it, and after the alleged transfer by Hillman, the construction company contracted with Robert Dougherty and A. L. Snow that the main line of the railroad should be located in the extreme western limits of the town, or without the limits of the town, for a valuable consideration, and this contract was made to defraud defendant and to build up a section not then included in the corporate limits, and to lessen the market value of defendant’s property, which was located centrally and east of the town. By this contract the construction company became the owners of fifty-five one hundredths of about 300 acres immediately west of the town, and half of 350 acres south of the first tract, worth some $25,000. The construction company, wholly regardless of defendant’s right under the contract sued on, located its line on the property west of the town, thereby fraudulently and knowingly violating [the contract sued on] and •damaging defendant $5,000. By reason of said location he is put to great inconvenience, and is damaged by the reduction in the market value of his property. (5) The subscription sued on is conditional upon the railroad company issuing to him stock in the sum of $100 per share to- the amount of $2,900, when the subscription is paid and at the time of its payment. The contract sued on is for the purchase of stock, and no other consideration, except as above set forth. On May 5, 1891, the railroad company, by proper deed, made in pursuance of a directors’ meeting and stockholders’ meeting, sold and conveyed to the Savannah & Western Railroad Company, a Georgia corporation, its entire line of road and all its property, including its franchises, for a valuable consideration, and said railroad company has no rightful or legal existence, and cannot now issue its stock, having sold and conveyed the same as aforesaid, and there is now in fact and in law no longer any such corporation. (6) Since the subscription was made the railroad company has procured an amendment to its charter, materially and fraudulently altering the charter, by legislative act of September 26, 1888, authorizing it to extend its road to Atlanta, Augusta, Macon and Savannah, and to increase its capital stock to $15,000,000, to none of which changes of charter did defendant agree, having no knowledge of such change of charter until long after its procurement. He does not agree to any of said changes, or to any other amendment to the charter, and is released from his subscription by reason of said radical changes of charter. (7) [Since] the time the subscription was made said railroad company has procured an amendment to its charter, materially and fraudulently altering the charter. About IVIarch 2, 1891, it procured an amendment to the charter, under the general law for amendments of railroad charters, of December 29, 1890, authorizing and empowering the railroad company to increase its stock to- any amount deemed proper by it, extend its line to any point in the State it may desire, change the route thereof, make contracts with other roads, sell its property and franchise to other roads, purchase other roads, and build branch roads from said railroad to any point. To none of these changes of charter did defendant agree, having no knowledge thereof until long after their procurement, and he does not agree thereto or to any other amendment of the charter, and he is thereby released from said subscription. (8) The clause in the original subscription, containing the- condition that the main line should pass through the corporate limits of LaFayette, was, before and at the time defendant subscribed, definitely and positively understood to mean, both by defendant and the railroad company, that the railroad would be built on what is known as the “old railroad bed,” west of the court-house in said town, and east of the present line of the railroad, as built by the Chattanooga, Rome & Columbus Railroad Company. It was distinctly understood at the time that a definite description of location of the railroad would put defendant, and’ others who had guaranteed the right of way to said road, to greater expense than to leave the exact location indefinite, and defendant-signed the subscription with the positive understanding and agreement that the road would be constructed on said old railroad bed, and he would not have made the subscription if he had not been so assured. In the location of the railroad by said town he was misled and deceived by the railroad company. He acted on said agreement made as above stated, and was deceived in that tbe railroad company did not follow the old road-bed, but constructed its road, for its own benefit and to his injury, and in defiance of said original contract and agreement, several hundred yards further west from the old railroad bed and from the town, where defendant then and now resides, and then and now owns property. The railroad company fraudulently concealed its real purpose, in that it and its promoters, after leading defendant to believe that it would come through the town on the old railroad bed, and after deceiving him as to the real purpose in leaving the' location in the original subscription doubtful and indefinite as above stated, adopted the other route mentioned above, to which defendant then objected. He was deceived and defrauded in that he acted upon the representation that the clause meant, and was understood to mean by both parties at the time of signing the contract, that the railroad would be constructed on the old railroad bed. The railroad company did not at the time intend to so construct the railroad, but in order to deceive and defraud defendant, left the location indefinite 'as above stated. He had confidence in said company, confided in said representations and was induced thereby to subscribe, by which he was defrauded. (9) The stock subscription was never legally transferred to Hillman nor to the construction company, and the transfer could not legally be made separate and apart from the conveyance of the property upon which the stock is based, and which is represented by the stock of the company. Whoever holds and seeks to enforce said subscription must be in condition to comply with the terms of the subscription, and able to issue and furnish the stock subscribed for. This Jackson cannot do, nor can the railroad. It has parted with its property and franchises and cannot now issue the stock certificates. If it could now issue the stock it would be valueless. The railroad company has parted with, all its property and rendered any stock now issued by it wholly valueless, and cannot comply with its obligation, and the railroad company is now insolvent, and cannot respond in damages to defendant for failure to comply with its contract, if he be compelled to pay the subscription. The railroad company and all its property and franchises are in the hands of a receiver, and it cannot now deliver certificates of stock to defendant, or anything else of value, in accordance with the terms of the stock subscription.</p> <p>The demurrer to the pleas was general, and specially on the following grounds: As to plea (1), it seeks by the allegations relating to an old grade or a line equally near the center of the town, to engraft a parol condition upon a written contract. As to plea (4), it does not set forth clearly and distinctly wherein the alleged contract affects defendant’s interests, nor that said contract'was not perfectly consistent with its obligation to defendant to locate the road so that the main line would pass through the corporate limits of LaFayette; nor does it allege wherein or how the railroad company was under contract or obligation to build the road for the benefit of defendant’s property. As to plea (5), the condition to issue a certificate of stock is a condition subsequent and not to be performed until full payment of the sum subscribed, and after payment defendant has his remedy against the Ohattanooga, Rome & Columbus Railroad Company, and not by defense against plaintiff, who is a transferee; and defendant does not allege whether said railroad company has authority to sell its road or not. It is not alleged that defendant did not acquiesce in the sale, nor what his knowledge or conduct touching the sale was; and it appears that said sale was long subsequent to the transfer of the contract sued on, and to the time when said subscription was due, to wit, November, 1888. As to plea (6), it is not alleged that said amendment was ever accepted by the railroad company, or acted upon, nor that ten miles of the same have ever been, built, nor that defendant did not acquiesce in said amendment; and said amendment was passed after the transfer by the railroad company of the contract sued on, and cannot affect the plaintiff. As to plea (7), said amendment is not alleged to have been accepted by all the stockholders of the railroad company, nor that any act has been done by virtue of said amendment that could not have been done under its original charter; and the amendment was granted long after the transfer of the contract sued upon, and does not affect the rights of plaintiff. As to plea (8), the same ground as taken in reference to the first plea. And to plea (9), the value of the stock is immaterial.</p> <p>The motion for a new trial (after verdict for defendant)was upon the general grounds; because the verdict fails-to specify the plea or pleas upon which the jury found; and for errors in the court’s charge to the jury, and in admitting and excluding evidence. The portions of the charge assigned as error are as follows:</p> <p>“If you find that he, the defendant, was by any fraudulent representations induced to sign the subscription list, then he would not be bound by it. Fraud vitiates all contracts, and it vitiates this contract.</p> <p>“If you find, on the other hand, that he signed this contract with his eyes open, with .a full knowledge of the terms of the contract, and understood what it meant, and there was no fraud practiced on him at the time he signed, then parol evidence and evidence going to show what the-contract was, not on its face, wohld not be admissible for' changing or altering its terms.</p> <p>“If you find that there was no fraud acting on "Warthen at the time he signed the contract, but it was stated to him, and so he would understand it, and if there was no fraud in it, and the other party did not make it for the purpose of deceiving, that the road was to be located on the old grade located in the corporate limits; as I stated, if you find that there was no- such false aud fraudulent statement of that sort, and Warthen signed the contract with the understanding that that was the contract, if he did not see that that contract did not express that, it would not be such a contract as to allow parol testimony to come in for the purpose of adding to or varying the terms of the contract.</p> <p>“If you find that after the defendant’s subscription for the stock of the railroad company, the charter of the company rvas, by an agreement, materially, fundamentally and radically changed without the consent of the subscriber, he is released from the subscription.</p> <p>“If you find that by any such amendment the company was authorized to extend its road or branches thereof to any point or points to which they [could not] under the charter as it existed when the subscription was made, or if it could increase its capital stock beyond the- amount it was limited to under the charter as it existed at the time the subscription was made, such enlarged powers would be a material, fundamental or radical change.</p> <p>“Now you will find whether the Chattanooga, Rome & Columbus Railroad Company accepted the general. railroad law as an amendment to its charter, since the defendant subscribed for the stock and without his consent. If the company did so accept the general law as an amendment to its charter, and if you find that the power of the company to extend its road beyond point or to other points not authorized by its charter, as it existed on the 4th of September, 1887, was given by this general law, then the subscriber is released.</p> <p>“You will find in evidence an act approved 26th of December, 1888, as an amendment to its charter-. You will determine by the evidence whether that amendment was accepted by the railroad company. If it was, then see whether that amendment authorized the company to extend its road to a point or points to which they could not extend it under the charter as it existed when the defendant subscribed for tbe stock, and if tbe defendant did not consent to such amendment, then the subscriber will be released.</p> <p>“On the subject of whether or' not the plaintiff has placed himself, or the party in whose name he brings this suit has placed itself, in a position where he cannot.comply with the terms of this contract, and deliver to the defendant, upon payment of his stock subscription, stock in the company, I read you this as applicable to that point in this case: This subscription is’for shares of the stock of the railroad company. The plaintiff in this case sues for the use of James TJ. Jackson. The contract evidenced by the subscription of stock sued on shows two concurrent and dependent provisions, one on the part of the defendant to pay $2,900 and the other on the part of the company to furnish the stock or certificate of stock upon the’ payment. Neither party can require the other to perform without being able to perform his paid of the contract. If the railroad company has placed it beyond its power to comply with' its part of the contract, or to enable the plaintiff to comply with his part of the contract, he cannot enforce the contract. And if the railroad company has parted with all the property and franchises upon which the value of its stock depended, and voluntarily destroyed the value of the stock when issued, the railroad company, nor Jackson the usee, could compel the subscriber to pay for the stock.</p> <p>“If the company’s assets are in the hands of a receiver and it is out of the power of the railroad company to furnish the stock, there can be no recovery in this case.”</p> <p>The errors assigned as to evidence are:</p> <p>In allowing B. R. Thurman to testify, over plaintiff’s objection: “They said, if we would take that stock they would give us the benefit of the location of the road where-ever we wanted it, and locate the depot. In other words, we considered it buying the rights, privileges and benefits of this railroad. It originated first with Mr. Williamson. I don’t remember the dates. I think it was in the spring of 1887 that the statement was made. We were assured that-the railroad would come into town on the old road-bed, by-Mr. Lumpkin acting for Mr. Williamson. lie told me that was the positive understanding. The reason he told me that, I objected to signing that subscription book until that was put in the subscription, and I am sorry to this day that it was not done. 'He said he was positively instructed by Williamson not to do that, and that he had letters in his pocket from Williamson that it was positively to be located there, and it was not to be known to these people because it would cause them to charge them too much for .the .road bed.” This evidence was objected to, because it sought to-vary a written contract with previous parol stipulations; defendant was no party to this understanding; the contract-in writing was complete and unambiguous, and all previous stipulations and conversations and understandings were merged into the writing; and neither Williamson nor Lumpkin had authority, as plaintiff contends, to make any such stipulation. Further, plaintiff contends that Lump-kin’s evidence shows that the letter in question was written confidentially to him upon a restricted and definite subject^ viz: to enable him to obtain the right of way; and had no reference to inducing subscriptions, and in fact did not. represent Williamson in getting subscriptions, but only in obtaining rights of way. And such evidence- could not affect Jackson, who claimed under creditors and innocent-purchasers, and was himself an innocent purchaser and holder.</p> <p>In allowing the same witness to testify that Williamson “said he, Williamson, had a controlling interest in that land (lying near freight depot) over there for the control of that location and the freight depot.” Objected to as-irrelevant; as seeking to go behind and vary a written contract, and being the mere sayings of Williamson after the location was complete-; because the location of the freight; depot was not a material issue, if the railroad ran through the corporate limits; and because such evidence could not affect plaintiff.</p> <p>In allowing the same witness to testify: “They built the first depot down near the Russell place, down nearly at the line,” over objection on grounds already stated.</p> <p>In admitting a certified copy of an act to amend the charter of the Chattanooga, Rome & Columbus Railroad Company, so as to authorize said company to extend its railway lines to Atlanta, Augusta, Macon and Savannah and also to the Florida line; and providing that the capital stock of the company might be increased to $15,000,000, and that unless at least ten miles of the road should be actually built and equipped within five years from the passage of this act, then the privileges therein granted should lapse and become of no effect. Attached to said copy was a certificate dated February 11, 1890, that the same is a true copy of the charter of the Chattanooga, Rome & Columbus Railroad Company and of the amendments thereto, and that the officers of said company are J. D. Williamson, president, R. T. Foucké, secretary, J. H. Rhodes, cashier; signed (with the company’s seal attached) by R. T. Fouché, seqretary. Also an entry of filing in the office of the secretary of State, February 12, 1890; and a certificate from the secretary of State that the same was a correct copy of charter and amendments, filed by the company on 12th day of February, 1890. Objected to because, if said amendment was made and accepted, it was after said subscription was executed and transferred; because, although the amendment was allowed, it was never acted upon, there was no extension of road under it nor change of capital stock nor any other material change, and even if made and accepted, and fundamental, it could not affect the plaintiff, because he and those under whom he claimed were creditors and innocent purchasers; because a certified copy by the secretary of State of a copy certified and filed by the company for other purposes, was not competent evidence of such amendment, and a certified copy by the secretary of State of a certificate of the secretary of the company was not competent nor best evidence of the acceptance of said amendment by the company; because there was no evidence that ten miles of the road had. been built and equipped under the amendment, and therefore the amendment had lapsed and become of no effect, more than five years having elapsed; the evidence affirmatively showing that the road as originally built extended from Chattanooga to Carrollton, had never been changed or altered, nor a single additional mile constructed, and the capital stock as fixed at $2,800,000 had never been changed.</p> <p>In admitting the deed from the Chattanooga, Rome & Columbus Railroad Company to the Savannah & Western Railroad Company, dated May 5, 1891, conveying all its railroad property and franchises of every sort. ' The objection was, that the sale was authorized by the charter and laws in force at the date of the subscription; or if not, then the sale was made under amendments contemplated by existing charter and laws, or else was illegal and void and could not avail as a defense; that it was illegal because the general law was not adopted by all the directors nor by all the stockholders, but by only two thirds of the stockholders, and the sale was only authorized by two thirds of the stockholders; and, as defendant did not consent, it was null and void as to him; that plaintiff and those under whom he holds were and are creditors of the company, and innocent holders, and could not be affected by said amendment, or sale made afterwards; and that the contract of subscription contemplated the most radical changes in the corporation.</p> <p>In allowing J. O. Clements to testify: “Dr. Holmes and I went to New York in the spring of 1889, and had a conversation with Borg, Sully and Dow. Borg and Dow had large interests in the construction company. We made complaints of J. D. Williamson’s management and they said they would come to Georgia and investigate. They came by LaFayette on the train, and I pointed out the objectionable location; and between LaFayette and Rock Springs, in conversation with Mr. Dow, he said that he thought he could say that this matter could be arranged to the satisfaction of the people here, and the location could be made satisfactory to them, if they would pay then subscriptions. We told him that it was useless to insist on these subscriptions, for nobody would pay them under the circumstances.” Objected to as irrelevant and immaterial; as sayings and admissions of parties without authority, and, if with authority, long after the road was constructed; as seeking to vary a written instrument by parol; and as mere conversations looking to a compromise.</p> <p>In allowing the same witness to testify, that his recollection was that Borg, Sully and Dow were acting as directors of the Chattanooga, Rome & Columbus Railroad Company. Objected to because the minutes of the company were the best evidence, and were introduced by defendant, and none of their names appear on the record as directors; because the minutes showed that other parties were the directors; and because witness was the president of the company, and testified that these parties were never in a meeting acting as directors with him. He stated that he drew his impression that they were directors from the conversations with J. D. Williamson and from his management of the road.</p> <p>In allowing H. P. Lumpkin to' testify: “I received a letter from Williamson while I was at Dade superior court; I don’t know whether it was before the subscription contract was signed or after. It said, ‘Railroad located from Rock Springs into the town of LaFayette on old grade. Get right of way as soon as possible.’ I have lost this letter and can’t find it.” Objected to, as an attempt to vary the terms of a written contract; as a mere statement made to an employee, not meant to influence subscribers if made before, and, if after, was immaterial; and as confidential, the witness not being competent to testify. He stated that he was in Williamson’s employ to get right of way; supposed Williamson employed him because he (witness) was an attorney at law, but did not know; and that this letter contained information that was to be kept secret from the public until the right of way was obtained, and was secret except to those on the inside.</p> <p>In refusing to allow W. W. Brookes (who had testified that he was secretary of the Chattanooga, Rome & Columbus Railroad Company, and that there had been set aside and was held for the benefit of the subscribers of the stock $235,400 of the capital stock of the company, $100,000 of it for the Chattanooga subscription and the remainder for subscribers along the line) to testify that his clients stand ready to deliver this stock whenever the subscriber pays his subscription.</p> <p>In allowing defendant to testify: “It was the understanding at that time (when I signed subscription) that it (the railroad) would come in on the old grade. I think 1 got this understanding from Mr. Williamson himself, from parties that were with him at the time the conversation was going on. I would not have signed unless it was understood to gO' through the town and satisfactory to the subscribers.” Objected to because it varied, the written contract by parol; and because it was vague, indefinite and unauthorized.</p>

<p>Action for damages. Before Judge Beck. Spalding superior court. January term, 1895.</p>

<p>Certiorari. Before Judge Butt. Chattahoochee superior court. March term, 1895.</p>

<p>1. The recommendations of two successive grand juries that a bridge be built over a stream crossed by a public road at a place where no bridge previously existed, do not render the building thereof a matter of such absolute duty on the part of the ordinary sitting for county purposes as to deprive him of the right to exercise a discretion in the premises, nor authorize a proceeding by mandamus to compel him to have such bridge built.</p> <p>2. The court erred in making the mandamus absolute.</p>

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

Action for damages. Before Judge MacDonell. City court of Savannah. May term, 1895. The plaintiff was a passenger on defendant’s street-car in Savannah. It suddenly left the track and ran to the sidewalk and against a tree, and she was thrown down, striking her hip. on the railing of the seat, and seriously injured. She did not know what caused it to leave the track.

Action for damages. Before Judge MacDouell. City-court of Savannah. 'May term, 1895. Pitts sued the railroad company for personal injuries sustained by him while in its employment as a fireman on a locomotive. Pie was nonsuited; to which ruling, and to the refusal of the court to permit him to testify in support of an amendment he made at the trial, he excepted.

<p>Where by the terms of a parol contract, made bona fide, and not colorable only, to which a husband and his wife and a creditor of the former were all parties, the husband was to convey a tract of land to the wife in consideration of a stated sum, part of which she was to pay to him in cash, and for the balance give her own note ito the creditor and secure its payment by making him a deed to the land, the amount of such note being the same as that owed by the husband to the creditor; and where all of these agreements were actually carried out, the creditor, upon the wife’s refusal to pay the note at its maturity, could maintain against her an action of ejectment for the land. Under these circumstances, the wife’s note should not be treated as one given for her husband’s debt, but was in its essence a note given for her own debt incurred in the purchase of the land.</p>

<p>1. Where a wife’s money was used by ber husband with her consent in part payment for a tract of land, upon an express parol agreement between them that when the land was fully paid for he was to make her a deed to “ her pro rata part of the land purchased,” and upon his completing payment he took the title to the entire tract in his own name, the wife owned an equitable undivided interest in the land, and it was perfectly proper and lawful for the husband to convey to her a portion of the land not greater in value than the amount of her money which went into the purchase.</p> <p>2. If this was done in good faith before a particular creditor of the husband obtained a judgment against him, the wife’s title was superior to the judgment, although in the creation of'the debt upon which this judgment was founded the creditor may have extended credit upon the belief that the entire tract belonged bo the husband, it not appearing that the wife had ever said or done anything to mislead the creditor or warrant him in believing that she treated the whole tract as the husband’s exclusive property, and it not being shown that she permitted him to use it as such.</p> <p>3. The mere fact that she lived upon the tract of land with her husband and enjoyed it jointly with him, would not, under the facts above recited, be sufficient to show that she “ permitted him to use the property as his own.”</p> <p>4. In view of the principles above announced and of the evidence in the case, the charge of the court was not precisely adjusted to the issues involved.</p>

<p>1. An entry of a levy upon an execution against George H. Fontaine described certain crops and -stated that they were in the possession of a named person “ as agent of George H. Fontaine on the plantation of defendant, which is known as ‘ Fontaine upper place’ in Stewart county.” Another entry of a levy upon this execution described other crops and stated that they were in the possession of another named person, “ agent for defendant on defendant’s plantation in Early county.” Held, that on the -trial of a claim to this property, it was error to sustain a motion by the claimant to strike from the first entry all the words above quoted. So much of this entry as related to -the alleged agency ought to have been stricken, but so much thereof as showed the property to be “ on the plantation .... known 'as ‘Fontaine upper place’ in Stewart county,” should have been allowed to remain. There was no- error in striking from the second entry the words quoted, except that those which showed the plantation to be located in Early county should have been allowed to remain.</p> <p>2. Declarations of the defendant in fi. fa., made after the suit was brought which resulted in the judgment the plaintiff wa-s then -seeking to enforce, and shortly before that judgment was rendered, to 'the effect that the defendant had sold the lands in question to the claimant, were not admissible in the latter’-s</p> <p>. favor, and it was error to compel the plaintiff to read answers to cross-interrogatories propounded to his witness, by which such declarations were shown.</p> <p>3. Letters written by the defendant in execution during the year in which the judgment was rendered, both before and after its ■date, to an overseer upon -one of the plantations, giving directions as to the cultivation -of the crop subsequently under levy and as to the management of the farm during that year, and relating to other like matters, were admissible in evidence for the plaintiff as acts of the defendant tending to show possession and control by him.</p> <p>4. Declarations of the defendant in fi. fa., made under oath as a witness at a former trial of the same case, in disparagement of the claimant’s title, were not admissible in evidence against her.</p> <p>5. The question of a fraudulent transfer of title from the defendant in execution to the claimant being indirectly, if not directly, involved in this case, it was error to refuse to allow the plaintiff to prove that the defendant was insolvent at or about the time such alleged transfer was made, if made at all.</p> <p>6. For a like reason it was error to reject the tax books when offered -in evidence by the plaintiff for the purpose of showing that the claimant gaye in no property for taxation, and as tending to show she had no means with which t-o purchase the lands in dispute.</p> <p>7. The plaintiff having introduced evidence showing that the defendant in execution had for fifteen or twenty years before the judgment been in possession -of the land on which the crops levied upon were raised, that the -overseer and the hands -on these 'lands had all been employed and paid by him, that he had managed and directed the farming operations thereon both before and after judgment, and that the claimant had never been upon the premises nor exercised any control or acts of ownership -over the same, this was sufficient to 'shift 'the onus ■and put the claimant upon proof of her title, and it was therefore error to dismiss the levy upon the ground that the plaintiff had .shown neither title nor possession in the defendant. since the judgment.</p>

<p>Action for damages. Before Judge MacDonell. City ■Court of Savannah. February term, 1895.</p>

<p>Petition for injunction and receiver. Before Judge Candler. DeKalb county.</p>

<p>1. The law requires the reporter of the Supreme Oourt to advertise for bids for the printing and binding of the Supreme Oourt reports, and gives him 'the power, with the consent and approval of the Governor, to award the contract for the publication of these reports. In making such award, the Governor and the reporter are invested with a very broad discretion. They are not “ limited 'to the lowest bidder, but may take into consideration the responsibility of such bidder, and his capacity and ability to perform such contract, in all cases making such award as will promote the best interests of the State and secure .the cheapest and most prompt and efficient performance of said contract.” They may reject any and all bids, especially where the advertisement for the same distinctly reserves the right to do so.</p> <p>2. Such contract may, within reasonable limits, be awarded for the publication of more than one volume; but the number of volumes to be embraced in the contract should be specified in the advertisement calling for bids.</p> <p>3. Where bids were advertised for pursuant to law, several were made and all rejected; and the reporter, with the approval and ■consent of the Governor, thereupon awarded the contract to a competent and qualified contractor who made no bid at all, but at the price named in the lowest of the bids submitted, this was a substantial compliance with the requirements of the law; and the lowest bidder whose bid had been rejected did not, because of a supposed right to have the contract awarded to him, have any legal cause of complaint as to the action taken 'in the premises by the 'Governor and the reporter.</p> <p>4. No citizen or taxpayer, as sudh, has the right to institute in his own name an equitable petition against the reporter and the person with whom he, under the Governor’s approval, has made a contract to publish the Supreme Court reports, for the purpose of testing the legality of that contract or of interfering with the carrying out of the same; because the State, being a party to the contract, would be a necessary party to the case, and as it cannot be subjected to an action of any kind without its own express consent, such a petition cannot be maintained. Even if the State was not an essential party, or if it could be made a party, a proceeding of the nature indicated would not lie at the instance of a taxpayer who was in no wise injured, as such. If in any given instance the public interest should require the annulling or cancellation of such a contract, for illegality or any other sufficient cause, the proper proceeding for this purpose can, and ought to, be instituted by .the attorney-general.</p>

Certiorari. Before Judge Bower. Dougherty superior court. October term, 1895. The coroner of Dougherty county brought suit against said county on an account. He obtained .a verdict for $15, which was set aside on certiorari, the court holding that the coroner was not entitled to recover in this case-.

<p>1. When, the foundation for introducing secondary evidence of the contents of a registered deed has been properly laid, a certified copy of it from the records of a co-unty in which it was duly recorded is admissible in evidence though the land described in the deed was afterwards cut off into a newly made county and the deed in question was never recorded therein.</p> <p>2. Though on the trial of an action by administrators for -trespass to realty alleged to belong to their intestate the evidence introduced by the plaintiffs may be sufficient to show title in the intestate, yet where it appears that neither he nor they were in possession when the alleged trespass was committed and the-evidence for the defendant show-s a paramount outstanding title in another, there can be no recovery; and this is true notwithstanding the failure of the defendant to show any connection between such outstanding title and the claim under which he entered.</p> <p>3. It is essential to the maintenance of an action of trespass upon realty, brought to recover damages to the freehold, that the plaintiff, if not in possession when the injury was committed, should show himself to be the true owner of the land; and this he must do by proving title in himself; and in such ease title is not shown by proof of former possession, without more.</p> <p>4. In view of the evidence as a whole, the court committed no error in directing a verdict for the defendant.</p>

Action of trespass. Before Judge MacDonell. City court of Savannah. November term, 1895. On April 13, 1895, P. H. Carter & Co. sued J. J. McDonough & Co, for cutting and carrying away the merchantable saw-mill timber on lot of land 97 in the 5th district of Appling county. The court directed a verdict in favor of plaintiffs for the value of the timber at the time it was cut. Defendants moved for a new trial, which was denied, and they excepted.

<p>Action on contract. Before Judge Smith. Wilcox superior court. November term, 1895.</p> <p>By the contract sued on, defendants obligated themselves to pay the plaintiff $65 per month as salary for services rendered as teacher of the Abbeville High School for a stated period. Defendants pleaded, that they were induced and influenced to sign the contract by the fraud of plaintiff, he having held himself out as fit, competent and equipped under the laws of Georgia to contract to teach in the public schools of the State; whereas he was not so fit, competent and equipped, and knowingly misrepresented himself to defendants for the purpose of procuring their signatures to the contract. Further, that by reason of his not being equipped and a proper party to contract as a teacher of the public schools of the State, he was not able to collect any of the public school funds which should have gone as a credit in favor of defendants. Further, that had he been equipped and eligible to teach in the public schools as he fraudulently represented himself to be, said school would have paid him $65 per month. Further that defendants were induced to enter into the contract by reason of the fact that plaintiff represented himself to them that he was equipped to teach in the public schools of the State and had license so to do, which representation was false and fraudulent, and had it been true defendants would have been enabled to draw through plaintiff $60 per month for four months during the time the contract was to continue. “And for the further false and fraudulent representation on the part of plaintiff, that he would apply for and sure of obtaining a license to teach in the public schools of said county and State, and would make a contract with the county of Wilcox during the time .embraced in said contract.”</p> <p>Plaintiff assigned error upon the overruling of his motion to strike these pleas, the motion being upon the grounds, that the representations alleged to be fraudulent were not so, and that such pleas were an attempt to change the written contract by parol. Also, upon the reception of testimony in support of the last plea, over objection on like grounds.</p>

Complaint on account. Before Judge Sweat. Pierce .superior court. November term, 1895.

<p>Levies and claims. Before Judge Lumpkin.' Fulton superior court. September term, 1895.</p>

<p>1. A judgment rendered at chambers denying an application for temporary alimony, filed by -a wife under section 1741 -of the code in behalf of herself and a minor child pending an action for divorce by her against her husband, is, under section 1748 of the code, reviewable upon a “ fast ” writ -of error.</p> <p>2. Where an applicant against whom such a judgment was rendered did not sue out a bill of exceptions within the time prescribed by law, but instead thereof -filed exceptions pendente lite, she could not, after the lapse of three terms, and after -obtaining a final judgment -of divorce, bring the refusal to grant temporary alimony to this court for review by then filing a bill of -exceptions and therein assigning error upon the rulings set forth in the exceptions pendente lite.</p> <p>3. Even if the bill of exceptions had been filed in time, and excluding from consideration the evidence alleged to have been improperly admitted, it 'does not appear that there was any abuse of discretion in refusing to grant the application for temporary -alimony.</p>

<p>Action on insurance policy. Before Judge Berry. City court of Atlanta. November term, 1895.</p>

<p>Rule for contempt. Before Judge Lumpkin. Eulton superior court. September term, 1895.</p>

<p>1. Tie act of October 29th, 1889 (Acts of 1889, p. Ill), “ to provide for the time and mode of perfecting service by publication,” as amended by the act of October 14th, 1891 (Acts of 1890-91, vol. 1, p. 110), is applicable to a proceeding for the foreclosure of a mortgage upon realty, and consequently, where the mortgagee is a non-resident of this State, service may be perfected by publication twice a month, for two months, in compliance with the terms- of these acts.</p> <p>2. To the extent above -indicated, these acts modified section 3962 of the -code, though it i-s neither referred to nor described in either -of them.</p> <p>3. The above notes cover all the questions made in the case which can be considered without reference to the evidence; and as the same was not briefed nor brought to this court in the manner prescribed by law, this court will not examine it for the purpose -of ascertaining whether or not errors were committed.</p>

<p>1. It is not incumbent upon an heir at law who seeks under section 2403 of the code to render a will inoperative as to him on the ground that it was executed under a mistake of fact as toMs existence, to show affirmatively that but for such mistake-he would have been a beneficiary of the will.</p> <p>(ft) Whether or not this section is applicable in a case where it appears that the testator knew of the existence of the person claiming to be his heir and acted upon an erroneous conclusion as to the fact of relationship, is not now for determination.</p> <p>2. The court did not err in granting a new trial.</p>

<p>1. The purchase by an administrator at his own sale of land belonging to 'the estate of his intestate being voidable at the option 'of an heir upon his election, within a reasonable time, to set the sale aside, the administrator could not, in his own name and right, before the expiration of such time, convey to another who had notice of the facts a good title to the land.</p> <p>.2. Although a person who bargained with an administrator for land which the latter had purchased at his own sale, and which he was undertaking to sell in his own right, paid a part of the purchase money, gave a promissory note for the balance, took a bond for titles and entered .into possession without notice or knowledge of any defect in his vendor’s title, such person could not, as against the right of the heir to set the sale of the administrator to himself aside, be treated as a Iona fide purchaser for value, if he discovered the truth before completing the payment of the purchase money, or taking a deed from his vendor.</p> <p>3. On the trial of an equitable petition filed by such purchaser to enjoin an action brought by the vendor in a city court for the balance of the purchase money, the plaintiff would be entitled to obtain a rescission of the contract of purchase under a judgment adjusting all the equities between these parties.</p> <p>4. It would not, under the facts recited, be incumbent upon the plaintiff, as a prerequisite to the right of rescission, to account to the defendant for the value of a house upon the. land which ■had been destroyed by fire, unless it appeared that the burning was caused by the plaintiff’s fault or negligence.</p>

<p>Rule. Before Judge Callaway. Richmond county.</p>

<p>1. Where a deed conveyed land to a named person in trust for a. married woman for life, and at her death to her children then living, “ with power in said trustee, by and with the written consent of the [life-tenant], to sell said property and reinvest the same in other property, subject to the same limitations and restrictions,” the power thus created conferred upon the trustee-a -special personal trust, and was therefore one which did not pass to a successor.</p> <p>2. Where the cestui que trust for life, in such deed named, in 1867 presented to the judge of the superior court in her own behalf alone an application which -dealt with the trustee in so far only as he held in trust for her, alleged that -he was ready and willing to resign “ the ¡said trust,” and prayed for the appointment in his stead of her husband as trustee for her, the application being accompanied by a resignation on the part of the trustee, describing him as trustee for her but making no reference to any other person as cestui que trust, an order-passed thereon making the substitution of trustees as prayed for was not valid -and binding upon any persons who were not parties to that proceeding.</p> <p>3. It was, therefore, n'ot lawful for the judge; upon such an application (it having been -made since the adoption of the code), without ¡service upon or notice to children of the life-tenant then in existence, -to make any change of trustees as to them; and in so far as the order in -question undertook to do this, it. was void.</p> <p>4. The effect of the order a-s passed, however it may have affected the life-tenant, was to leave the person designated as trustee-in the -deed still trustee for the children, and, as such, he retained the power of -sale conferred by the deed.</p> <p>5. It follows that, as against the trustee -of the children -or as against them upon reaching majority, they having no right to possession and consequently no right to- sue until after the death of the life-tenant, n-o prescription ran, while she was still in life, in favor of persons holding under her trustee, though the latter had undertaken to sell and convey the property in fee simple.</p>

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

<p>Action for damages. Before Judge MacDonell. City court of Savannah. November'term, 1895.</p>

Action for damages. Before Judge Ross. City court of Macon. December term, 1895. Edward T. Higgins, by his next friend, brought suit, against the railway company for damages. Upon demurrer his petition was dismissed for want of cause of action.

Action on insurance policy. Before Judge Hardeman. 'Bibb superior court. November term, 1895. Tbe policy was dated March 14, 1894, and was made for .a term of one year.

<p>A court of equity will not lend its aid to one seeking the rescission of an executed contract, when it affirmatively appears, from the evidence introduced by the plaintiff in making out his case, that 'one of the purposes which he and the defendant both had in view in making the contract necessarily involved the violation of a criminal statute and a mutual intention on their part to defraud and deprive a city. of the revenue to which it was entitled as a license fee for conducting a retail liquor business, the sale of which .constituted in part the consideration of the contract in question.</p>

<p>Equitable petition. Before Judge Beese. "Warren superior court. October term, 1895.</p>

<p>1. Where a promissory note was given for ^-premium on a policy of life insurance, and the person- taking it executed and delivered to the maker a contemporaneous agreement in writing “to renew said note, at the request of [the maker] until three annual payments have been made,” it was incumbent upon the maker, in order to obtain under this agreement the right to renew the note in question, to tender or pay in cash the next annual premium upon the policy when the same became 'due, the contract not contemplating that a promissory note would be accepted for such premium.</p> <p>2. It appearing from the evidence in the present case that the defendant did not tender or make payment as above indicated, he did not show himself entitled to the privilege of renewing the note sued on; and this being so, he was liable thereon, and a verdict in his favor was not warranted.</p>

Trover. Before Judge Eeese. Warren superior court. ‘October term, 1895. Cooper sued O’Brien to recover a lot of seed-cotton raised by Moss. Plaintiff claimed the cotton under a bill of sale to him from Moss; but upon offering the same in evidence, ■’it was rejected for want of proof of its execution, notwithstanding it appeared by an entry thereon to have been filed for record in the office of the clerk of the superior court.

<p>Action on bond. Before Judge Hutchins. Clarke superior court. October term, 1895.</p>

<p>Equitable petition. Before. Judge Hutchins. Jackson superior court. August term, 1895.</p>

Complaint on. note. Before Judge Ximsey. Haber-sham superior court. September term, 1895. J. M. Loudermilk sued T. A. Loudermilk as maker, and Jacob Loudermilk as indorser, upon a promissory note. Each of the defendants filed a special plea. Both pleas were stricken on motion, and defendants excepted. This court ruled that there was no error in striking the plea of the maker, but it was error to strike the plea of the indorser. 93 Ga. ééé.

<p>Action for damages. Before Judge Gober. Cobb superior court. November term, 1895.</p>

<p>Under tlie facts alleged In tlie petition, tlie superior court of the county in -which it was brought was without jurisdiction to entertain it, and therefore the court committed no error in dismissing it on demurrer.</p>

<p>1. Although an execution founded upon promissory notes given for the purchase money of land of which the plaintiff in execution retained title, -cannot, under section 3654 of the code, be lawfully levied upon the land until such plaintiff has executed and had recorded a deed conveying the land to the defendant . in execution, yet causing a levy thereon to be made before these things have been 'done may nevertheless be treated as a bona Ude and public act of the plaintiff asserting his right to ■collect the execution, and an entry of such a levy by the sheriff will constitute a new point from which the statute as to dormant judgments will begin to run. This conclusion results from the established doctrine, as laid down in repeated adjudications of this court, that this statute should receive a liberal ■construction.</p> <p>2. Where such a levy was made and a claim to the land was interposed by a third person, the running of the statute in question was suspended so long as the claim case remained pending in the court to which the claim was returned.</p>

Equitable petition. Before Judge Kimsey. Hall superior court. July term, 1895. A general demurrer to tbe petition of R. H. Pass against Aaron Pass and A. D. Candler was sustained, and plaintiffs excepted.

<p>Equitable petition. Before Judge Gober. Eorsyth superior court. August term, 1895.</p>

Equitable petition. Before Judge Kimsey. Haber-sham superior court. September term, 1895. On July 15, August 19, and November 18, 1891, judgments were rendered against Mrs. Hntriner in favor of the Gibbs Drug Oo., Mauck and Edwards, for the principal sums of $36.50, $38.56, and $38.35, besides interest and costs on each.

<p>Petition for injunction. Before Judge Fish. Dooly county.</p>