Volume 99 — Georgia Reports

<p>1. An execution against a lessee of convicts and the sureties upon the bond of such lessee, issued by the comptroller-general under the act of February 17, 1876 (Acts of 1876, p. 46), authorizing him to collect by execution debts due the State by such lessees, is not void because one or more of the sureties named in the execution had died before the same was issued.</p> <p>{a) If, before issuing the execution, the comptroller-general had become informed of the death of one of the sureties, he could lawfully issue 'the execution, as to that particular surety, against ■his legal representatives.</p> <p>2. When such an execution was about to be levied upon the property of a surety, the principal in the bond (the" lessee) could not arrest its progress by giving the sheriff written directions to levy upon the property of the principal situated in another county, although such property was of more than sufficient value to satisfy the execution'.</p>

Petition for injunction. Before Judge Sheffield. TerTell county. February 20, 1896. The plaintiffs in error, as citizens and taxpayers of the-city of Dawson, brought their petition to enjoin the municipal authorities from selling or disposing of bonds of the city for the purpose of buying or erecting waterworks and electric lights, and from collecting taxes to pay the same or the interest thereon. The injunction was denied.

Indictment for 'assault to murder. Before Judge Milner. Bartow superior court. January term, 1896. On a night in December, 1893, Milner, a police officer of Oartersville, arrested a brother of Dan and Willis Pickett. Dan told Milner he must not take his brother to-the calaboose. Milner replied that he would- show him what he would do, and went off with his prisoner, but released him upon his own statement after arrival at the calaboose.

<p>Accusation of false imprisonment. Before Judge Berry. Criminal court of Atlanta. January term, 1896.</p>

<p>Oertiorari. Before Judge Milner. Bartow superior court. January term, 1896.</p>

<p>"1. Although the city count of Cartersville may have the power to grant new trials, it is nevertheless an inferior judicatory whose final judgments may be'reviewed by the superior court upon certiorari, and this remedy may be invoked without first moving for a new trial in the city court.</p> <p>'2. The fact that, in a given case tried in the city court mentioned, a motion for a new trial was made, will not cut off the movant’s right to take the case up by certiorari, if he voluntarily dismisses such motion and applies ’for the writ of certiorari within the time prescribed by the statute.</p>

Indictment for murder. Before Judge Ealligant. ■Chatham superior court. December term, 1895. Abe Smalls was convicted of the murder of Jansen 0. Neve, and his motion for a new trial was overruled. The motion alleged, among other grounds, that the court erred: In permitting the witness Joseph Brown to testify, over .stated objections, as follows: “I reside at East Broad and Anderson streets. I am a brother of George Brown.

<p>Indictment for murder. Before Judge Gamble. Tattnall superior court. October term, 1895.</p>

<p>Indictment for murder. Before Judge Candler. Fulton superior court. March term, 1896.</p>

<p>Certiorari. Before Judge Hart. Morgan superior court. March term, 1896.</p>

<p>1. The petition for certiorari in a criminal case alleging error in the verdict on the ground that it was contrary to law and the evidence, and there being in the evidence set forth in the petition, which purported to contain a statement of all the evidence introduced on the trial, nothing to show that the offense was' committed in the county where the trial was had, this court, following its previous adjudications on this subject, is constrained to hold that the judge of the superior court erred in refusing to sanction the petition.</p> <p>2. The error above indicated requires a reversal of the judgment, irrespective of the other questions presented by the petition for certiorari.</p>

<p>1. Interlineations or erasures in an indictment apparently made before it had been acted upon by the grand jury present no cause for quashing the same.</p> <p>2. An offense against §4595 of the code is set forth by an indictment Which charges that, in selling and delivering a load of hay, the accused falsely, fraudulently and for the purpose of defrauding the purchaser, represented to the latter that the hay had been weighed and that its weight was 1244 pounds, when in fact its real weight was only 644 pounds, which was well known to the accused, and that by means of these false and fraudulent representations the purchaser was cheated and defrauded of a specified amount of money.</p> <p>3. In such case, it was competent to show, as a part of the false and fraudulent representations, that the accused exhibited to the purchaser a written ticket purporting to evidence the weight of the hay; and this is true although the indictment alleged nothing with reference to such ticket.</p> <p>4. The loss of the ticket in question having been accounted for, and its contents, as it appeared when exhibited to the purchaser, having been proved, the corresponding stub in the book from which the ticket had been taken was admissible in evidence, the witness who had made out both the ticket and the stub having identified the latter and having testified that the figures on both were originally the same and correctly set down, that the stub was made out and kept for the purpose of preserving a record of the weight, and that he could not testify as to the matter except by reference to the stub. Under these eircumstances, tlie stub was relevant and material in determining tbe question as to whether or not t'he figures originally entered upon the ticket had been changed.</p>

<p>Indictment for murder. Before Judge Candler. Fulton superior court. March term, 1896.</p>

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

<p>1. In so far as the act of September 5th, 1879 (Acts 1878-9, p. 381), “ to prescribe the method of granting license to sell spirituous ■or intoxicating liquors in the county of Bulloch, and to increase the fee for the same to five thousand dollars,” undertakes to make it a misdemeanor to “ sell spirituous or intoxicating liquors of any kind ” in that county without obtaining the license provided for by this act, it contains matter different from what is expressed in its title, and is to that extent unconstitutional.</p> <p>2. It was error to refuse to quash on demurrer an indictment based upon this act and charging the accused with selling “ a certain quantity of intoxicating liquor.”</p>

<p>1. The act of December 29th, 1890, to amend section 4372 of the code, is not violative of the constitutional provision which forbids the amendment of a section of the code by mere reference to its title.</p> <p>2. The word “damned,” when used in a sense “importing an imprecation of future divine vengeance,” is profane.</p> <p>3. It follows that the words, “ arrest and be damned,” spoken to a female and used in a manifestly irreverent sense, relatively to the Deity, are indictable under t'he above cited section as amended.</p>

<p>1. Under the act of September 29th, 1879 (Acts of 1878-9, p. 149), as amended by the act of December 24th, 1886 (Acts of 1886, p. 34), the judge of the superior court of the Stone Mountain circuit, when presiding in the criminal section or branch of the superior court of Fulton county, has jurisdiction to render a judgment against the sureties upon a forfeited recognizance in a criminal case.</p> <p>2. Matters of defense originating before judgment cannot, when the defendant has been served, be set up by an affidavit of illegality; nor is such an affidavit available for the purpose of calling in question the truth of a recital in a judgment that no issuable defense had been filed in the case.</p> <p>3. Where judgment was rendered against two cosureties upon a forfeited recognizance, and one of them, upon compromising and paying off the execution issued thereon, had it levied upon property of the other for the purpose of enforcing contribution, the latter could not arrest the progress of the execution by an affidavit of illegality alleging that the principal in the recognizance had, prior to its execution, conveyed to the levying surety, for the purpose of indemnifying him against loss, property of more than sufficient value to pay the amount of the recognizance. If, in such case, the levying surety was solvent, the remedy of the other would be to pay one half of the amount for which the execution had been compromised, and then compel an accounting by tbe cosurety as to the property which 'had been pledged to him. If the latter was insolvent, resort could be had to appropriate equitable proceedings.</p>

Action on bond. Before Judge MacDonell. City court of Savannah. February term, 1895. Attachment was sued out and levied. Not having been replevied, an order for sale of the property as perishable, after ten days advertising, was regularly granted. At the sale it brought $75, and after paying costs and expenses, $43.32 remained in the hands of the levying officer.

<p>Ejectment. Before Judge Ealligant. Chatham superior court. March term, 1895.</p>

<p>Action for damages. Before Judge MacBonell. City court of Savannah. July term, 1895.</p> <p>The declaration, alleged, that about 8 o’clock on the morning of April 28, 1892, the plaintiff was driving a horse hitched to a wagon going northward on West Broad street in 'Savannah, near the corner of that street with Stewart street; .that the servants of the defendant in charge of its street-car ran the same in such a negligent and improper manner that it struck plaintiff’s wagon, threw him into the street and seriously injured him; and that he was in no fault. His own testimony tended to show, that at the time and place alleged he was driving his wagon on the left side of the street. There was a space along the track about six feet wide, which he was afraid to go into; so he looked up Roberts street (which came into West Broad about forty yards from Stewart street) and saw no car. After he got up a little way a boy called to him to look out, and he turned into that space. The car was going so fast it scared his mare, and when it came along and the hind wheels of his wagon were touched by it, the mare jumped and threw him.' over. His back fell on the wheel of the wagon. After he looked down Roberts street he was going in the wagon track which he had always traveled; was driving carefully, as he had done in Savannah for thirty years. He was seventy or more years old. The wagon track was straight until he came to Keiffer’s door, Keiffer’s store being at the corner of West Broad and Stewart streets. He was on the regular wagon track, as he never touched the railroad under any circumstances. When told to look out he was about at Keiffer’s door. Freight was piled there. He drove up there to escape; he tried to get out of the way; there was no other way to go to save himself. He did not hear a gong; heard nothing. The car came round the comer, and was coming with all kind of force. He did all he could to get out of the way; he was a good way from the sidewalk until he got to Keiffer’s comer. A mail box is there; the way is only six feet wide; and there is a great hole. He drove up on the sidewalk as high as he could to Keiffer’s door. He had the mare safely up, and the oar came and hit the hind wheel. The car had passed when he fell; but for that he would have been under it. When the boy called to him he looked out; the car was very convenient to him, and he turned into the sidewalk because, if it had caught him between the sidewalk and that hole in the ground, it would have killed him. He kept the wagon as straight as he could after he turned it; if he had kept straight in the wagon track, the car would have struck the wagon and thrown him against the poles. He moved as fast as he could on the sidewalk; he had to stand where he was; could get no further because of the freight on the sidewalk. He had the fore part of the wagon on the sidewalk, and the car coming along making such a racket made the mare leap, and it struck the rear wheel and made him be knocked out. He introduced two witnesses whose testimony tended to corroborate him materially, and to show that the gong of the car was not sounded after it turned into West Broad street, and that no apparent effort was made to stop it or even to slacken its speed. The plaintiff was in bed for a week or ten days after the accident, and in the house for quite a length of time. He suffered a great deal of pain, and cannot do any manual work. His physician’s bill and other expenses of sickness amounted to over $200.</p> <p>The testimony for defendant tended to show, that the motorman of the car was ringing the gong when it came into West Broad street, and continued to ring it so that plaintiff would not cross him and would not get too close. He had the current off and the brakes on. The front of the car never struck the wagon; the rim of the wheel scratched the side of the car. It could not possibly have struck the hub of the wheel. If plaintiff had kept where he was, the car could not have struck him. After the front of it passed him there was no reason why the rest of it should not have passed, unless he came back; and the front did pass. Just before the ear reached, the wagon, the motorman called to the plaintiff to keep him from trying to cross the track; whereupon he turned his wagon round to drive upon the sidewalk, and the rear' of the wagon or the rim struck the side of the car. It was not moving fast, and stopped not •over a car-length from the place of the collision. That is a dangerous place if a man does not keep out of the way. The track was located under the direction of the city authorities. The motorman had the reputation of being unusually careful as to ringing the gong, checking speed, etc.</p> <p>The jury found for the plaintiff $1,500. Defendant moved for a new trial on the grounds, that the verdict was contrary to law and evidence; and that nothing in the pleadings put defendant on notice that the contention of plaintiff would be that there was not room for the car and vehicle at the place where they came in contact; whereas subsequent measurements (which defendant had no opportunity to make at the time, the trial lasting but a few hours) 'show that there was room for both. 'This latter ground is supported by the affidavit of the president of the defendant company; to which affidavit is attached a plat of the premises, showing measurements, etc.</p>

<p>Action for damages. Before Judge MacBonell. City court of Savannah. February term, 1895.</p>

Action on insurance policy. Before Judge MacDonell. City court of Savannah. July term, 1895. Suit was brought upon a policy of fire insurance. Upon the argument of a demurrer to the declaration, the judge suggested to plaintiff’s counsel that the declaration be so amended as to show that the proofs of loss required by the policy were furnished, or that they were waived. Counsel failed to do this, and the demurrer was sustained.

<p>Bill in equity. Before Judge Ealligant. Chatham superior court. June term, 1895.</p>

<p>Gertiorari. Before Judge Hardeman. Bibb superior court. November term, 1894.</p>

<p>Oeriiorari. Before Judge Hardeman. Bibb superior court. November term, 1894.</p>

Certiorari. Before Judge Hardeman. Bibb superior court. November term, 1894. Trover was brought for the recovery of 150 pounds of meat. Judgment was rendered for defendant, and plaintiff appealed to a jury.

Action on bond. Before Joseph. H. ITall, judge pro hac vice. Bibb superior court. November term, 1894. Jarratt & Todd brought suit upon the bond of W. P. Corbett as marshal of the United States.

<p>Complaint on account. Before Judge Ross. City court of Macon. December term, 1894.</p>

Action for damages. Before Judge Reese. Glascock superior court. August term, 1894. Hill sued the railroad company for the killing of a horse by the running of its train, and obtained a verdict. The company moved on the general grounds for a new trial, and the motion was denied. Erom plaintiff’s testimony it appears that he turned the horse out to graze. There was no stock law at the place'. The point where the horse was struck was about half a mile from Gibson.

Complaint on account. Before Judge Reese. Hancock superior court. February term, 1895. Cranston & Stovall, as a firm composed of W. J. Cranston and-Stovall, sued Carey & Hill in complaint upon an account. Defendant pleaded tbe general issue. Upon tbe trial plaintiffs put in evidence testimony of F. M. Stovall, as follows: I am a member of the firm of Cranston & Stovall. Mrs. Anna H. Cranston, of Augusta, Ga., is my copartner.

<p>Affidavit of illegality. Before Judge Reese. Hancock superior court. February term, 1895.</p> <p>An execution issuing from the foreclosure of a chattel mortgage in favor of L. Cohen against F. Garner was levied upon an engine, saw-mill with belting and fixtures, a road-cart and a buggy. Defendant interposed an affidavit of illegality, which was stricken as insufficient in law. The grounds of illegality were: (1) Defendant is not indebted to plaintiff as alleged against him. (2) Defendant signed the mortgage, sued on and the notes under the following circumstances: On July 5, 1892, he had purchased of S. G. Lang one 12 H. P. Farquhar engine, one No. 3 Farquhar saw-mill, with 48 inserted tooth, Atkins saw and belting and fixtures, for the sum of $1,049.96, represented by three notes, $344 due Oct. 1, 1892; $346.32 due January 5, 1893, and $359.64 due July 5, 1893, said notes reserving the titles to said property, duly recorded July 5, 1892, and payable at Louis Cohen’s bank in Sandersville, Ga., which were negotiable. Defendant paid off and took up the first of said notes on or before July 1, 1893, and executed the mortgage sued on and the two notes secured by it, in lieu of two notes for same amount named above, and in consideration of them, to Louis Cohen, in his presence and in the presence óf the said S. G. Lang, under agreement that said two notes were to be surrendered. After obtaining possession of said last mortgage or note, Louis Cohen and S. G. Lang declined to surrender said first mentioned notes, stating that they did not have them at the time, and also declined to surrender the mortgage and notes just executed, which said failure and refusal operates as a fraud on the rights of the defendant, practiced in their procurement, and they are therefore without legal consideration and are void. Said outstanding notes, being negotiable, and duly recorded, are a legal claim against defendant, and reserving the title in the holder, unless they are surrendered. Defendant is advised he had no right to execute the mortgage and notes sued on; would not have done so but for their promised surrender. (3) Defendant paid to S. G. Lang $20 over and above tbe first note, taken np July 1, 1893, wbicb was to have been credited on the second note, and also on tbe note in lieu of it, payable to Cohen; and is surprised that said credit has not been made as it should have been. Defendant also transferred a note of A. Jobnson to S. G. Lang for $73, under an agreement that $50 was to be applied to a private account of S. G. Lang and the balance to said note, which note of Alonzo Johnson has been collected by S. G. Lang and said payment has not been so applied. This agreement was in writing, dated December 9, 1893. Defendant also paid to Louis Cohen at his bank, the place where all these notes were payable, $150 February 16, 1894, for which no credit has been recorded; and defendant expressly charges that there is and has been all the time collusion between S. G. Lang and Louis Cohen.</p>

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

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

Equitable petition. Before Judge Reese. Hart superior court. Marcb term, 1895. The petition of AíC. M. Richardson and ITarrison A. Teasley, administrator’s of Thomas J. Teasley, against Lncy E. Adams et al., alleged: Thomas J. Teasley died October 15, 1891, intestate. January 4, 1892, petitioners duly qualified as his administrators.

Money rule. Before Judge Beese. Hancock superior court. February term, 1895. Tbe contest was between an ordinary execution in favor of Baker, and an execution issued upon tbe foreclosure of a laborer’s lien in favor of Carrie Davis, for money in tbe sheriff’s bands arising from tbe sale of property of Flagg.

<p>Assumpsit. Before Judge Reese. Warren superior court. April term, 1895.</p>

<p>Attachments, etc. Before Judge Hutchins. Walton superior court. August term, 1894.</p>

<p>Equitable petition. Before Judge Reese. Lincoln superior court. April term, 1895.</p>

<p>Levy and claim. Before Judge Gobb. Oity court of Athens. March term, 1895.</p>

<p>Certiorari. Before Judge Kimsey. Habersham superior court. March term, 1895.</p>

<p>Complaint on note. Before, Judge Smith. City court of Hall county. May term, 1895.</p>

<p>Exceptions to auditor’s report. Before H. H. Dean, judge pro hae vice. Rabun superior court. February term, 1895.</p>

•Certiorari. Before Judge Kimsey. Hall superior court. July term, 1895. Plaintiffs foreclosed a mortgage against Brown. Hpon the levy of the execution, Reed interposed a claim to tbe property. At the trial plaintiffs introduced their mortgage with the date of its record.

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

Appeal. Before Judge Milner. Bartow superior court. January term, 1895. An affidavit was made to foreclose a landlord’s lien for $61.74. Defendant claimed, among other defences, a set-off of $39.50. After the suit was commenced, he paid into the justice’s court $35.13, and thereafter judgment was rendered against him for $26.60..

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

<p>Petition for injunction. Before Judge Milner. Cordon county. November 12, 1895.</p>

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

Action for damages. Before Judge Milner. Eloyd superior court. January term, 1895. ■ Duncan sued the railroad company for damages from the homicide of his thirteen year old son. The nature of his action will sufficiently appear from the report of the evidence.

<p>Action for damages. Before Judge Turnbull; motion for new trial before Judge Harris. City court of Floyd county. December term, 1894.</p>

Action on judgment. Before Judge Turnbull. Walker superior court. February term, 1895. Tbe petition alleged an indebtedness upon a judgment obtained in the chancery court of Hamilton county, Tennessee. 'When tbe transcript of tbe proceeding in which tbe judgment was rendered was offered in evidence, it was objected to on tbe ground that it failed to show that tbe chancellor bad signed tbe judgment or tbe minutes of tbe court.

Certiorari. Before Judge Turnbull. Floyd superior court. January term, 1895.

<p>Action for damages. Before Judge Harris. City court of Floyd county. March term, 1895.</p>

<p>Garnishment. Before Judge Turnbull. Floyd superior court. January term, 1895.</p> <p>McKee sued Towers, and on April 28, 1893, had summons of garnishment issued to the Georgia Cotton Oil Company. On December 25, 1893, said company answered denying indebtedness, etc. The answer was traversed, and upon the trial of the issue thus made the judge directed a verdict for the garnishee. Plaintiff moved for a new trial, which was denied, and he excepted.</p> <p>Plaintiff introduced his execution against Towers, based on a judgment obtained September 27, 1893. Also, the summons of garnishment, answer and traverse. "W. S. Cothran, for plaintiff, testified: I am cashier of the garnishee; keep its books and have done so since April, 1891. Towers has charge of the mill of the garnishee at Rome, and it pays him $208.33 a month. He was indebted to the garnishee $165.23 when the garnishment was levied. He draws money at any time. I could not say he had any regular pay-day. He can get money when he wants it. His salary is paid at the end of the month. On April 28 he .owed the garnishee $165.23. On June 1, 1893, his account was balanced, and tbe garnishee owed him nothing. In the month of June his salary was $208.33, and he received that amount in June. On July 1st the account was balanced. He was indebted to the garnishee about all of June up to the 30th, until his account was credited with his salary. He did not become indebted any more in June. On June 4th he was indebted. On June 3d he was charged with $144.77. The next day he was charged with any money was on June 5th, charge of $8. The next day was June 10th, charge of $61. The next was June 23d, charge of $2.30. The next charge was July 3d. July 1, the account showed no entry. His account was balanced on June 30. On the 31st he drew $182.87. On August 1st his account was balanced; that means he owed nothing to them nor they to him. On September 1, it balanced. On September 2d there was a charge of $21.92; on the 6th a charge of $64.30; on September 25th he owed the garnishee $159.76. The amount credited to him on June 1st, his salary up to September 25th, was $624.99. He was credited with three months salary. He had no credit from the 1st to the 25th of September. He was charged with some money, but he was not credited until the 30th of September. He was charged with $784.75 from June 1st until September 25. His account on April 28th showed he was indebted to the garnishee $165.23. The next item charged to him was $95 April 29th; May 5th, $126.80; May 24th, $20; May 27th, $9; May 31st, 63 cents; June 3, $144.77; June 5th, $8; June 10th, $61; June 23d, $2.30; July 3d, $182.87; July 15th, $13.68; July 18th, $13; July 27th, $4.19; August 9th, $154.97; August 26th, $23.50; August 1st, $44.62; August 29-th, $4.06; September 2d, $21.92; September 6th, $64.30; September 18th, $15.63; September 20th, $19.91; September 26th, $10 and $8. Towers was employed by the month, and can be discharged at the end of any month during the year that the garnishee may see fit. That is the way I consider myself, and I am employed by the month. I could not say whether he made, a contract on the first of January fo-r 1895. I do not think he did. On the 29th of April a credit was entered on his account for $208.33, his salary for April; and at the end of each succeeding month up to September, he was credited with a similar amount, his salary for such month. On June 30th he was credited by cash $774, on July 31st by cash $541, on August 31st by cash $18.82. The condition of his account just prior to April 28th, the month prior, he was indebted to the company. On March 31st he owed it $36.02. On March 16th he owed it $206.53. On June 30th he owed it $774, and paid it that amount to make his account balance. On July 31st he owed it $541, and paid it that amount for the same purpose. On August 31st he owed it $18.32, and paid it that amount to make it balance. The various items charged to him on his account were money he had collected from different parties owing the mill, and instructed me to charge to him. None of the items are for money paid out of the assets of the mill, or for money that check was given to him for. He would collect the money from various parties and report that he had collected it and hold it out and have me charge it to him. If at the end of the month he had collected and held out more than his salary, he would pay me the difference. (This explains the credits of cash.) Q. When you stated he drew money, you meant he got it in this way? A. I don’t remember saying he drew money. I said he was charged with it, and that was what I meant to say. He was charged with it at his direction. His salary was due on the last day of the month, which was the garnishee’s pay-day. None of the employees are employed except by the month, and their salaries are due at the end of the month and not before. Towers, as well as myself, is employed by the month and not by the year. There was no time from April 28th until September 25th that the garnishee owed Towers anything. He was indebted to it during that whole time, except at the last of the month. I do not know of Towers having a contract with the mill. I think and believe he has no contract by the year. I charge any amount to him that he tells me to charge. He can take money when he wants it. If he were to make a check to me to be charged to him, it would have to be countersigned by me: If I had money in the mill and he were to come and want me to let him have it, I would do it. If after he collects the money and wants it he tells me to charge it to 'him, I do it. When he collected money outside, he reported it to me and I charged it to him and gave the parties from whom he collected it credit for the same. I think Mr. Towers was served with a summons of garnishment. None of the items charged to him were taken up by checks. The item's for merchandise were entered on the day-book. I know that my salary was paid by the month.</p>

<p>Action for damages. Before Judge Harris. City court of Floyd county. June term, 1895.</p>

<p>Levy and claim. Before Judge Harris. City court of Floyd county. June term, 1895.</p>

Action on accident insurance policy. Before Judge Harris. City court of Floyd county. March term, 1895. The suit was brought November 21th, 1893. The policy was dated October 13, 1892.

<p>Action on insurance policy. Before Judge Janes. Polk superior court. February term, 1895.</p>

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

<p>Equitable petition, etc. Before Judge Janes. • Polk superior court. February term, 1895.</p>

Ejectment. Before Judge Smith. Haralson superior court. July term, 1895. Mary J. Burt sued Edmond Blackmon, May 9, 1889, for lot number 990 in tbe 20th. district 'and 3d section of originally Cherokee, now Haralson county. She obtained a verdict for the premises, and defendant’s motion for a new trial, on the general grounds alone, was overruled. Plaintiff put in evidence the plat and grant from the State to Joseph McKee, dated June 15, 1850.

<p>Complaint. Before Judge Janes. Douglas superior court. May term, 1895.</p>

<p>Petition for injunction. Before Judge Janes. Polk county. December 31, 1895.</p>

<p>Head & Head, for plaintiff in error.</p>

<p>Action on bond. Before Judge Harris. Fayette superior court. September term, 1894.</p>

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

Rule against constable. Before Judge Harris. Carroll superior court. April term, 1895. A fund of $100.36 was raised by tbe levy of two justice’s court fi. fas. in favor of E. G-. Kramer. The fi. fas. were against J. H. Marcbman, dated April Y, 1893, recorded April 15, 1893, and based on judgments dated April 1, 1893.

Certiorari. Before Judge Butt. Monroe superior court. February term, 1895.

<p>' Injunction and receiver. Before Judge Beck. Henry county. July 2, 1895.</p>

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

<p>Petition for injunction. Before Judge Beck. Butts county. November 2, 1895.</p>

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

<p>Complaint 'an note. Before Judge Butt. Muscogee superior court. November term, 1894.</p>

<p>Affidavit of illegality. Before Judge Butt. Chattahoochee superior court. March term, 1895.</p>

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

<p>Appeal. Before Judge Butt. Talbot superior court. March, term, 1895.</p>

<p>Complaint for land. Befoi*e Judge Butt. Muscogee superior court. May term, 1895.</p>

<p>Petition for certiorari. Before Judge Butt. Muscogee county. June 24, 1895.</p> <p>The petition alleged, that on March 15, 1895, Henderson sued Pittman in a justice’s court and on the same day had summons of garnishment issued to petitioner. Petitioner answered, that at the time of the service of the garnishment it was indebted to defendant $6.60 as daily wages, and since then had become indebted to him $13.65 as daily wages. Plaintiff traversed this answer, denying that the sums were due to defendant for daily wages. The case went by appeal to a jury in the justice’s court. It appeared that the summons was served on the garnishee March 15, 1895. Pittman was then working as a day-laborer for the garnishee, and receiving’ 85 cents a day. On March 18, the contract the garnishee had with Pittman was changed, and it paid him 11 cents a hank and required him to make not less than eight hanks a day, for which he was to receive 88 cents, and for all over and above the eight hanks he made he was to be paid 11 cents a hank. The wages he received for the day’s work depended upon the amount of hanks he turned out. It was his business to run a frame, and it required constant manual labor to run it. He did the same kind of work at 11 cents a hank he was doing when he was paid at 85 cents a day, the only change made in the contract being the manner in which he was to be paid. He could not substitute any one in his place. He turned out an average of eight hanks a day. The garnishee paid its hands every two weeks. Pittman was paid at the same time all the others were paid. The $13.65 was made by Pittman under the 11 cents a hank contract, except $1.70. The justice of the peace charged the jury, that if the garnishee had Pittman employed at a stipulated sum per diay, his wages would not be subject, but if he was doing contract work at so much a piece or hank, as had been testified about, then his wages would be subject. The jury found against the garnishee $8.55, which was the amount of the judgment ITenderson had obtained against Pittman. It is alleged that the magistrate erred in so charging; and that the verdict was contrary to law and without evidence to support it.</p> <p>The judge refused to sanction the petition for certiorari, and petitioner excepted.</p>

<p>■Certiorari. Before Judge Butt. Talbot superior court.- March, term, 1895.</p>

<p>Equitable petition. Before Judge Butt. Harris superior court. April term, 1895.</p>

Foreclosure of lien. Before Judge Butt. Muscogee superior court. May term, 1895. Black made affidavit for tbe purpose of foreclosing bis alleged special landlord’s lien upon tbe crops raised by Rodgers upon lands rented by Black to Rodgers for 1893, for supplies (guano of tbe value of $100) which be claimed be furnished to Rodgers for tbe purpose of making a crop for 1893 upon the land rented.

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

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

Foreclosure of lien. Before Judge Butt. Muscogee superior court. November term, 1894. Affidavit was made to foreclose a landlord’s special lien; and issue was taken by counter-affidavit. Under tbe evidence and charge of the court, the jury found a verdict for the plaintiff. Without moving for a new trial, defendant brought a bill of exceptions with the assignment of error quoted in the head-note.

<p>Rule against sheriff. Before Judge Butt. Chattahoochee superior court. March term, 1895.</p>

<p>Equitable petition. Before Judge Butt. Talbot superior court. September term, 1895.</p>

<p>Petition for injunction, etc. Before Judge Butt. Tialbot county. November 12, 1895.</p>

<p>Equitable petition. Before Judge Hutchins. Randolph superior court. November term, 1894.</p>

<p>Petition for injunction. Before Judge Smith. Montgomery county. January 17, 1896.</p>

<p>Affidavit of illegality. Before Judge Harris. City court of El'oyd county. March term, 1895.</p> <p>Suit was brought in January, 1889, in the city court of E'loyd county, the 'declaration alleging that the defendant resided in that county. The deputy-sheriff of that county made an entry on the process that service had been perfected by leaving a copy of the declaration and process at the defendant’s most notorious place of abode. Judgment was rendered for the plaintiffs on June 11, 1889, and the execution therefrom was levied. Defendant interposed an affidavit of illegality, on two grounds: (1) He was not served with any process and copy of the declaration, and did not appear in person or by agent or attorney, nor has he had his day in court before the rendition of the judgment, nor did he have any notice or knowledge of the same until long after judgment was obtained. (2) When the suit was brought and at the time judgment was rendered, he resided in Greene county, and not in Floyd county; and the court rendering the judgment had no jurisdiction of his person. He offered evidence in support of these grounds; but the court held, upon inspection of the record and in the absence of a traverse of the return of service, that the evidence so offered was inadmissible; and dismissed the affidavit of illegality.</p>

Appeal. Before Judge Bower. Early superior court. April term, 1895. J. IT. & B. P. Coadunan brought suit in a justice’s court against William Houston, upon a promissory note. The defendant filed the following plea: “Coachman, agent Virginia Valley Life Insurance Co. vs. Vm. J. Houston. Complaint, in justice court, 1164 dist. G. M. December term, 1894.

Ejectment. Before Judge Bower. Early superior court. April term, 1895. This suit was brought on September 11, 1893, to recover lot of land 148 in the 26th district of Early county, containing 250 acres, more or less, by William and Brown Philman and Penny McGlamory, the only surviving children of Case Philman.

<p>Levy land claim. Before Judge Griggs. Clay superior court. March, term, 1895.</p> <p>Tbe plaintiffs were materialmen, and as snob furnished Killingswortb witb materials to tbe amount of $70 for tbe improvement of bis dwelling, from January 16 to February 10, 1893. Tbey filed and bad recorded tbeir lien witbin thirty days of tbe latter named date; and foreclosed tbe same witbin twelve months. Upon tbe levy of tbeir ■execution, a claim was interposed by Whatley. ELUingsworth conveyed tbe realty upon which tbe material was used, on February 18, 1893, to Adams, who conveyed tbe same on tbe same day to tbe claimant. Claimant knew Killingsworth was making improvements on tbe property, but did not know tbe materials were being bought on credit from plaintiffs; knew be was buying some of them from plaintiffs, and bad loaned him some money to pay plaintiffs witb; defendant was making tbe improvements at claimant’s request, as be (claimant) expected to buy tbe property after tbey were made. He did not know that plaintiffs claimed a lien until long after tbe same bad been recorded. Tbe court directed a verdict for tbe claimant, and plaintiffs excepted.</p>

. Garnishment and claim. Before Judge Griggs. Clay superior court. March term, 1895. Held: Toombs agreed to pay over to him the proceeds of the 126 bales of cotton, after paying the bank the advances made thereon.

Equitable petition. Before Judge Eisb. Dooly superior court. March term, 1895. Seisel & Company and four others, for themselves and such other creditors as might join them, brought their petition against A. Wells, Mollie E. Wells, Frances M. Wells, E. W. Dunton, J. W. Haygood, and M. B. Gilmore, sheriff. At tbe final trial, plaintiffs struck tbe name of Ilaygood as a party defendant.

<p>Exceptions to auditor’s report. Before Judge Eish. Sumter superior court. November term, 1894.</p>

<p>Attachment. Before Judge Eish. Stewart superior court. April term, 1895.</p> <p>Plaintiffs brought their petition against Shelton as a fraudulent debtor, alleging that he had made fraudulent mortgages and a fraudulent sale of all his property liable for the payment of his debts, for the purpose of evading the payment of the same, and especially the payment of his debts due plaintiffs, who were his creditors by account for the purchase money of goods. The petition was presented to the judge of the superior court at chambers, who thereupon passed an order to wit: “Read and' considered. It is ordered and adjudged by the court that attachment do issue in tbe above stated case as prayed for.” An attachment was thereupon issued by tbe clerk; an attachment bond was given by the plaintiffs, bearing even date with the attachment; and the attachment was levied by the sheriff. Upon the return of the same, defendant demurred thereto for insufficiency. The court ordered that the demurrer be sustained and the attachment be dismissed, on the ground that it was issued by the clerk without an express order by the judge for him to do so. Plaintiffs excepted.</p>

<p>Action on bond. Before Judge Fish. Webster superior court. April term, 1895.</p>

Motion to set aside judgment. Before Judge Eisb. Sumter superior court. November term, 1894. Barrow brought suit against Parker, Patterson and Hargis, in the county court, for damages from breach of warranty. Judgment was rendered for Barrow against Parker for $45.

<p>Equitable petition. Before Judge Eisb. Sumter superior court. November term, 1894.</p>

<p>Intervention for fees. Before Judge Eisb. Sumter superior court. November term, 1894.</p>

Appeal. Before Judge Fish. Stewart superior court. April term, 1895. The Patapsco Guano Co. sued Misses Mary, Sallie, Eliza and Ocia Simpson upon an account dated Maxell 6th, 1891, for 57 sacks of guano. TJpon the trial on appeal a motion for nonsuit was overruled, and a verdict for the plaintiff directed. Pot plaintiff A. T. Port testified: The account is just, true and unpaid.

<p>Certiorari. Before Judge Fish. Stewart superior court. April term, 1895.</p>

Appeal. Before Judge Pish. Macon superior court. May term, 1895. Lofley offered for probate in solemn form tbe will of Mrs. Margaret Meeks, alleging that A. H. Greer, tbe executor nominated in tbe will,having died before Mrs.Meeks, petitioner was appointed administrator with tbe will annexed. By tbe will testatrix left all her estate to her bus-band Allen Meeks during bis life.

<p>Appeal. Before Judge Eish. Sumter superior court. May term, 1895.</p> <p>In the county court Lumpkin, surviving partner, for the use of Snow, Ohurch & Co., filed his petition for rule against the county court bailiff, for not making the money on an execution placed in his hands, alleged to have been levied on the property of defendant in execution of sufficient value to satisfy the execution, it being alleged that tbe bailiff bad levied on tbe property but refused to bring it to sale and make tbe money. Tbe bailiff answered, admitting that be levied on tbe property and that it was of sufficient value to pay tbe fi. fa., but denying that be failed or refused to sell tbe property. He alleged, that wben tbe property was levied on defendant claimed it and gave bond for tbe same; that wben tbe case was called for bearing it appeared that tbe .attorney for defendant signed tbe claim affidavit, apd for some inadvertency tbe affidavit was not properly attested, and the same was either withdrawn or dismissed; that then tbe defendant filed a claim and gave good and sufficient bond for tbe forthcoming of tbe property ; and that tbe claim is now pending in -the county court. Tbe rule was made absolute against tbe constable for $57.01 principal, besides interest and costs. He entered an appeal to tbe superior court. In that court plaintiff moved to dismiss tbe appeal, because it was a case that was not appealable to tbe superior court, and tbe superior court •bad no jurisdiction of tbe case by appeal. Tbe motion was sustained, and tbe bailiff excepted.</p>

<p>Petition for injunction. Before Judge Eish. Sumter county. August 14, 1895.</p>

Petition for injunction. Before Judge Fisli. Sumter county. January 17, 1896. J. H. Bryan brought a petition against John. Windsor, to enjoin the further proceeding of suits brought by Windsor against him in the county court upon two promissory notes. The injunction was denied. It appears from the petition, that on February 2, 1894, Bryan, being the owner and holder of two promissory notes, indorsed them and sold them to Windsor for $60.

Practice in Supreme Court. It appears from tbe bill of exceptions, tbat tbe case in tbe superior court was called for trial and defendants were not present; tbat plaintiffs made out tbeir case and obtained a verdict and judgment against defendants; tbat later on tbe same day defendants came into court and moved to reinstate tbe case for trial, which motion was beard and overruled by tbe court; wherefore tbe defendants in tbe case now tender tbis tbeir bill of exceptions…

<p>Affidavit of illegality. Before Judge Bower. Dougherty superior court. April term, 1895.</p> <p>Upon the levy of a mortgage fi. fa. for $242 principal, beside interest and costs, the defendant filed his affidavit of illegality, alleging that he was not indebted; that the consideration for the debt sued on was 100 sacks of guano for which he was to pay at the rate of $20 per ton, if said fertilizers proved good and came up to the standard which plaintiff warranted, and this would have amounted to $200 instead, of $242; that the fertilizer was not branded and tagged in accordance with the requirements of the law; 'and plaintiff is not entitled to recover therefor at all; and that the fertilizer was utterly worthless, etc. The jury found in favor of the plaintiff for 90 sacks of guano, $198, beside interest and costs. Defendant’s motion for a new trial was overruled, and he excepted. The motion was upon the grounds, that the verdict.is contrary to law and evidence, and to the charge of the court; and that the verdict shows that the jury credited the defence and intended to sustain defendant’s theory as to the absence of tags, yet the verdict was not such as was required by that theory. Plaintiff contends that all the sacks were tagged; defendant contends that 45 of them were not tagged. The jury adopted defendant’s contention, limiting the nntagged sacks to ten; but while there is abundant evidence to sustain defendant’s contention, there is no evidence to sustain or uphold the limitation to ten sacks; and the jury should have found in defendant’s favor to the extent which the evidence supporting his theory required.</p>

Affidavit of illegality. Before Judge Bower. Dougherty superior court. April term, 1895. The commissioners of roads and revenues of Dougherty county issued an execution against Burks and the sureties on his bond as county treasurer, and he filed an affidavit of illegality. The issue was submitted to the judge upon an agreed, statement of faots; and lie overruled the illegality.

<p>Petitions for injunction. Before Judge Sweat. Coffee county. January 11, 1896.</p>

<p>Petition for injunction. Before Judge Falligant. Liberty county. January 2J, 1896.</p> <p>Jordan sued Tutty on December 23, 1891, in Liberty county court. The clerk annexed a process returnable to the next quarterly session of that court, which convened on January 10, 1892. Service was made, December 26, 1891, by leaving a copy at the most notorious place of abode of Tutty. At the succeeding April term of the county court, judgment by default was taken, Tutty having neither appeared nor pleaded. Execution issued and was levied on land which was regularly advertised and sold thereunder, with the knowledge of Tutty; McDonald becoming the purchaser at the sale, in good faith and without notice of any defect in the judgmen/t. To a petition subsequently brought by him to restrain Tutty from cutting timber on the land, Tutty set up (among several defences which were overruled by the judge) that the judgment on which the sale was founded was void, and that McDonald acquired no title by his purchase. This contention was sustained, and the injunction denied.</p>

<p>Petition for alimony, etc. Before Judge Sweat. Glynn superior court. May term, 1895.</p>

Petition. Before Judge Bower. Dougherty superior court. April term, 1895.

Action for damages. Before Judge Milner. Whitfield superior court. April term, 1895. Tbe declaration made tbe following allegations: Waugh street, one of tbe public streets of Dalton, crosses tbe railroad nearly at right 'angles.

Action for damages. Before Judge Turnbull. Floyd superior c-ourt. January term, 1895.

■Certiorari. Before Judge Milner. Bartow superior court. January term, 1896. Branson was tried in the city court of Bartow county, upon an established copy of a presentment alleged to have-been found by the grand jury of Bartow county against him and one Anderson, charging them with larceny from the house on October 1, 1893, in stealing from the chicken-house of Dee Heard certain described chickens, the property of Oiely Heard.

<p>Indictment for burglary. Before Judge Milner. Catoosa superior court. Eebruary term, 1896.</p>

Indictment for malicious mischief. Before Judge Milner. Catoosa superior court. February term, 1896. . Ballew, Templeton and Green were indicted for maliciously breaking ten window-glasses in tbe dwelling of John Cupp. Ballew was found guilty, and his motion for new trial, upon tbe general grounds, was overruled. Cupp testified: The window-glasses of my home were broken out between February 20 and 25, 1895.

<p>Indictment for murder. Before Judge Bower. Calhoun superior court. December term, 1895.</p> <p>Keaton was charged with the murder of Lingo, and was convicted of voluntary manslaughter. TIG motion for a new trial was overruled, and lie excepted. The motion was upon the following among other grounds:</p> <p>1. Error in charging the jury: “If you believe that at the time of killing the deceased was attempting to commit a serious personal injury upon the defendant, not amounting to a felony, and that the defendant killed the deceased to prevent such serious personal injury, defendant would not be guilty of murder, but you should find him guilty of voluntary manslaughter. If you believe that the circumstances were such that it would appear to a reasonably brave man that the deceased was about to commit a serious personal injury upon the defendant, not amounting to a felony, and acting under these fears the defendant killed the deceased to prevent such personal injury, the defendant would not be guilty of murder, but would be guilty of Voluntary manslaughter, and you should so find. If you believe from the evidence that at the time of the killing deceased was attempting to commit a serious personal in- ■ jury upon the defendant, amounting to a felony, or that deceased was making an assault with intent to murder, upon defendant, with a weapon likely to produce death, or if the circumstances were such as to make a reasonably brave man believe such was the case, and the defendant killed the deceased to prevent such an assault with intent to murder, or such believed assault with intent to murder, and not in a spirit of revenge, then you should find the defendant not -guilty.”</p> <p>2. Error in charging: “If there was an unprovoked assault made on the defendant by the deceased previous to the killing, and there was not a sufficient interval for the passion of the defendant to cool and the voice of reason and humanity to be heard, and the defendant killed de- - ceased in this heat of passion, he would not be guilty of murder but would be guilty of voluntary manslaughter; "but if the interval between the assault or provocation given, and the killing, was sufficient for the voice of reason and humanity to be heard, then the killing would be attributed to deliberate revenge, and you should find him guilty of murder.” The specific error assigned as to this charge is that the previous difficulty had nothing to do with the hilling, all the evidence going to show that it had been settled, and defendant did not claim to have acted by reason of it.</p> <p>3. Error in charging as shown in the third head-note.</p> <p>•4. When the witness Bill Graham was being examined he was asked, “if Keaton was not in the front of the store . so that he could ncut know as much as he, the witness, knew?” intending to show by this question that the defendant did not know where Lingo was and which way he came. An objection to this question was sustained. The preceding testimony was: “I heard Webb say something to Keaton like, come go to bed. I don’t know whether Webb .asked-Keaton to come go and sleep with him. Keaton followed right after Webb. I don’t know that Lingo* was out ' of the rear door.”</p>

Indictment for burglary. Before Judge Harris. EloycL superior court. July term, 1895. The burglary was alleged to have been committed on April 17, 1895, in breaking and entering the storehouse of N. 0. Landers with intent to steal, and taking and carrying away therefrom $450.27, the property of N. 0. Landers,. with intent to steal the same. Stephens was found guilty, and his motion for new trial was overruled.

Indictment for assault. Before Judge Harris. Eloyd -superior court. January term, 1896. William Williams was indicted for an assault upon Mrs. Mary Arwood. He was found guilty, and his motion for new trial was overruled. The motion was upon the grounds that the verdict was contrary to law and evidence.

<p>Certiorari. Before Judge Gober. Newton superior court. March, term, 1896.</p>

<p>Indictment for arson. Before J udge Williamson. Monroe superior court. October term, 1895.</p>

<p>Petition for' injunction. Before Judge Gober. Oobbcounty. March. 12, 1896.</p>

Accusation, of cheating and swindling. Before Judge Berry. Oriminal court of Atlanta. March term, 1896.

<p>Injunction. Before Judge Lumpkin. Pulton county. March 23, 1896.</p>

<p>Indictment for murder. Before Judge Hart. Laurens superior court. January term, 1896.</p>

<p>Indictment for robbery. Before Judge Candler. Fulton superior court. March term, 1896.</p>

<p>Motion to set aside judgment. Before Judge Candler. Eulton superior court. March term, 1896.</p>

<p>Indictment for murder. Before Judge Butt. Muscogee superior court. November term, 1895.</p>

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

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

<p>Indictment for murder. Before Judge Oandler. Fulton superior court. March, term, 1896.</p>

<p>Indictment for selling liquor. Before Judge Smi-tb. Dodge superior court. March term, 1896.</p>

Erom this it appears, that after the affirmance by the Supreme’ Court of the judgment overruling the original motion for new trial, the defendant was resentenced to be executed on the seventh of August and was respited by the Governor until the fourth of September; and that on August 31, his counsel presented to the judge an alleged extraordinary motion for a new trial, based upon newly discovered testimony of Watt Gantt, who testifies, in brief, that he was present in the…

. Petition for injunction. Before Judge Butt.'. Muscogee 'county. V April' .4, 1896. Held: without changing existing law as to holding such sales at other places; and such sales, when held at the bell-tower, are declared to be legal, so far as concerns the place of sale in said county, subject to the provisos contained in said section thirty-six hundred and forty-six of the code of Georgia.” That section of the code is in…

<p>Partition. Before Judge Bower. Dougherty .superior court. October term, 1895.</p>

<p>Bail-trover. Before Judge Bower. Dougherty superior court. October term, 1895.</p> <p>R. M. Thompson brought bail-trover against Jesse S. Clark for a lot of household and kitchen furniture. Defendant pleaded that the debt for which he gave a bill of sale to plaintiff was for money borrowed from plaintiff; that on June 27, 1893, he gave his note and mortgage to plaintiff for $100, and the plaintiff let him have $65 thereon, reserving $35 for the use of or interest on $65 for six months time as specified in the note, the amount so reserved being usury; that on March. 15, 1894, after the mortgage became due, the note and mortgage were taken up and plaintiff advanced him $50 more, taking a bill of sale to the property named in the mortgage; that the usury reserved in the mortgage entered into the bill of sale to the amount of $32.70, and that said bill of sale was only security for the money loaned defendant, and was not an absolute conveyance of the title, 'and is void on account of the usury therein contained. The testimony was directly conflict-mg -upon tbe issues set up by tbe plea. Tbe jury found for tbe plaintiff $138.43, and defendant’s motion for a new trial was overruled. Tbe motion alleges, tbat tbe verdict is contrary to law and evidence, and tbat it shows on its face tbat tbe jury did not find for tbe plaintiff tbe value of tbe property, but found tbe amount of tbe debt witb interest, wbicb defendant insists could not be done in a trover case; and further shows tbat tbe jury found tbe bill of sale was not absolute but only a security for tbe debt; and therefore tbe verdict was contrary to law. Also, tbat “the court erred in not allowing defendant’s attorney to open and conclude, be having claimed tbe right to do so.’’</p>

Levy and claim. Before Judge Hansell. Brooks supexior court. August 14, 1895. In March, 1880, Rountree obtained judgment against B. W. Williams, and on November 3, 1885, the execution issued thereon was levied upon certain land to which a claim was interposed by Mary A. Williams. The case was. submitted to the judge without a jury; and he held the property not subject.

Motion to set aside judgment. Before Judge Hansell. Thomas superior court. April term, 1895. On September 22, 1894, Tullís sued the insurance company upon a policy of fire insurance issued to him by its agents for the term of one year from January 3, 1894; a loss by fire claimed to have been covered by the policy having occurred on April 27, 1894.

Petition to remove cause. Before Judge Smith. Wilcox superior court. September term, 1895. Wells & Ellerbee brought a petition against the defendant of Cumberland Gap, Tenn., praying for an injunction to prevent it from selling certain property under a deed, or from bringing an action on said deed, or on the note given therewith, for decree cancelling the deed, and for judgment against defendant for $5,000 damages. The petition was brought on March 13, 1895.

<p>Action for damages. Before Judge Smith. Twiggs superior court. April term, 1895.</p> <p>Mrs. Moore and her husband brought suit -against the railroad company for damages claimed to have resulted from personal injuries she sustained from the negligence of defendant’s servants in the management of a train upon which she was a passenger. They alleged that in August, 1893, -after having purchased a ticket -at a station on defendant’s railroad, she entered the passenger car of a train as soon as it stopped, and was proceeding to a seat,when, without fault on her part and by the gross carelessness of the company, the train was violently jerked and she was thrown down and seriously -and permanently injured by the fall. The defense was, that the company exercised all due care and diligence, that if Mrs. Moore was hurt it was by reason of her own negligence, and that her condition was not produced by the fall but by previous sickness, and the injuries she thereby sustained were not permanent. TJpo-n conflicting evidence the jury found for the plaintiffs $3,700, and defendant’s motion for a new trial was overruled. The material grounds -of the motion are, that the verdiot is contrary to. law .and evidence, and to portions of the charge of the court; and that the court erred:.</p> <p>1. In admitting the mortuary tables in 70 Ga., over objection that there -was neither any proof -of plaintiff’s age nor any proof of what amount she had been previously earning, if any, or able to earn, or did ever earn, monthly, .annually or otherwise, or what her net earnings were or her necessary expenses.</p> <p>2. In charging the jury: “Certain life tables will be out, and you will have them before you in this matter; and upon that question I give you this in charge: See from the life tables what would have been the probable length of the life of the plaintiff, provided you find she would be entitled to recover. See what would have been the probable length of her life; then see what would have been her net earnings each year. I mean to say what she could earn, less her necessary expenses; deduct from that a due proportion for her continuing ability to labor, provided you find she would be able to labor in the future; then deduct the .amount for probable diminution of ability to labor by reason of old age, provided you find that she would be able to work, and a due proportion for plaintiff’s contributory negligence, provided you find there was any contributory negligence under the law and doctrine which I have just .given you in charge, and see what the entire amount would be. Deduct from the entire amount seven per cent., and that would be the present value of her life, whatever you ■find that amount to be.”</p> <p>3. In stating in the charge, in immediate connection, two •distinct rules of law, thus qualifying the former hy the latter, as follows: “No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agent of the ■company are both at fault, the former may recover, but the ■damages shall be diminished by the jury in proportion to the amount of fault attributable to him.” And in the same connection: “The carrier of passengers is bound to use extraordinary diligence on behalf of itself and its agents to protect the lives and persons of its passengers, blit lie is not liable for injuries to persons after having used such diligence. Extraordinary diligence is that extreme care and caution which every prudent and thoughtful person uses in securing and preserving their own lives or property. The absence of such diligence is termed slight neglect. If the plaintiff, by ordinary care, could have avoided the consequences of her act, the defendant would not be liable and she would not 'be entitled to recover; but in 'order for this cause to relieve them, the plaintiff must in some way have contributed to the injuries sustained.”</p> <p>I. 5. In charging, as shown in the fifth head-note; and in overriding objections to certain interrogatories.</p>

Complaint on notes. Before Judge Smith. Wilcox'superior court. September term, 1895. The notes sued on were dated March 9, 1891, and payable 'at the office of the American Car & Equipment Company in the city of New York, each being for $75 “for rental of rolling-sto'ck under contract of lease and conditional sale of even date herewith.” They were indorsed by tbe payee; and tbe plaintiffs alleged tbat tbey were bona fide holders for value before maturity of tbe notes.

Oomplaiut for laud. Before Judge Smith. Twiggs superior court. October term, 1895. The three children of Mrs. Baker brought their action for the recovery of an undivided three fourths interest in certain land.

Petition. Before Judge Smitk. Montgomery superior «court. October term, 1895. To the petition of J. D. Ellis suing for the use of Greig & Jones, the defendants, J. W. Poe & Brother, filed.a demurrer for want of a cause of action, for want of proper parties, and for want of sufficient and proper exhibits attached to the petition. The demurrer was overruled. The petition alleges, that defendants are indebted to plaintiff for the use of Greig & Jones $468.09.

<p>Levy and claim. Before D. M. Roberts, judge pro luw vice. "Wilcox superior court. September term, 1895.</p>

<p>Complaint. Before Judge Smith. Wilcox superior-"court. September term, 1895.</p>

. Levy and claim. Before Judge Smith. Wilcox superior court. September term, 1895. The entry of levy was dated, “this —■ day of December, 1889.” The plaintiff not offering to show the exact date, the court dismissed the levy.

Equitable petition. Before Judge Smith. Pulaski superior court. November term, 1895.

<p>Levy and claim. Before Judge Smith. Wilcox superior court. September term, 1895.</p> <p>An execution against S. D. Walker, from a judgment of April 12, 1894, was levied on a house with the lot on which it was erected, in the town of Abbeville. A claim to the property was interposed by his wife. It appeared that at the date of the levy, June 4, 1894, both she and her husband were living in the house levied on. She relied upon a deed from her'husband, dated April 27, 1892, and recorded March 25, 1895, conveying the property in question for the expressed consideration of $340. Her husband testified: The property levied on is a part of that described in the deed. I conveyed it to my wife on the day of the deed, and she paid me $340 in money. I sold her’ the place because I needed the money. I did not try to sell it to any one else. Before I sold it to her I bargained, one half-acre in one corner to Stubbs for $300. He was to pay by a certain ^day, and he not doing so, I would not let htm have the land. I offered him $25 to cancel the trade, we had agreed to. The land bargained to him did not have: the dwelling-house on it and was about a quarter of the land I sold my wife. I built the dwelling-house, and it cost me.' over $1,000, besides the fences and outhouses. I built before the sale to my wife. Do not know what the place is worth; would like to get $2,000 out of it. It was my wife’s money that first paid for the land when I bought. I did not notify the parties from whom I bought, but bought in my own name. Did not notify plaintiff of this fact when my indebtedness to it was created, nor afterwards.</p> <p>Bor plaintiff it appeared, that the debt on which the judgment is founded was made in Bebruary, 1890; and that the property in question was worth about $1,500 at the time it was conveyed to claimant, and is now worth about $2,000.</p> <p>Verdict was rendered for the claimant, and plaintiff’s motion for a new trial was overruled. The grounds of the motion are, that the verdict is contrary to law and .evidence, and that the court erred in refusing to allow plaintiff’s counsel to ask Walker, as a witness, the following questions: “When you conveyed the land described in the deed in evidence to your wife, did you own any other real estate?”“When you conveyed the land described in the deed in evidence to your wife, did you claim any other real estate?” “When you conveyed to your wife the land described in the deed in evidence, did you not at the same time sell her the hotel property across the street?” “When you made to your wife the deed in evidence, did you not at the same time, and for the same identical consideration, sell her the hotel property across the street?” “At the time you made the deed in evidence to your wife, did you claim any other property?” “At the time you made the deed in evidence to your wife, did you own any other property?”</p> <p>Also, that the court erred in not charging the jury, though not so requested, that gross inadequacy of consideration in a deed from a husband to his wife is a badge of fraud in a contest between a creditor of the husband, whose debt was created prior to the date of the deed to the wife.</p> <p>Also, that the court 'erred in charging: “I charge you that if you find that the consideration of the deed from the defendant in fi. fa. to the claimant was grossly inadequate, before you would be authorized to find a verdict in favtor of the plaintiff upon that ground, you must further find from the evidence that the intention of the defendant in fi. fa. was to 'hinder, delay and defraud creditors, and that he, defendant, was insolvent at the time.”</p>

Action for damages. Before Judge Griggs. Clinch, superior court. April term, 1895. Wideman sued the railway company for damages resulting to Trim by the killing of five mules on November 13, 1894, by the running of a freight-train. He obtained a verdict, and the company’s motion for a new trial was overruled. The motion alleges that the court erred: 1.

•Complaint on account. Before Judge Sweat. Ware superior court. April term, 1895. Dyal & Hpcburcb sued out an 'attachment, July 18, 1894, before a justice of the peace of Charlton county, making the attachment returnable to the September quarterly •term of the county court of Ware county.

<p>Complaint on account. Before Judge Sweat. Ware superior court. April term, 1895.</p>

<p>Equitable petition. Before Judge Sweat. Appling superior court. August 19, 1895.</p>

Foreclosure of lieu. Before Judge Sweat. Charlton superior court. October term, 1895. E. H. McNeill made affidavit to foreclose a general lieu as a laborer, upon the property of Cole & Covington. He alleged that he contracted with them to do manual labor for the year 1894, as general laborer and hand, commissary keeper and woodsman on their turpentine farm, for which he was to receive $800.

<p>Accusation of carrying concealed weapon. Before Judge Berry. Criminal court of Atlanta. May term, 1896.</p>

<p>Indictment for murder. Before Judge Smith. Hodge superior court. March, term, 1896.</p>

<p>Action for damages. Before Judge Sweat. Cttrarlton superior court. October term, 1895.</p>

Appeal. Before Judge Sweat. Ware superior court. November term, 1895. Tbe plaintiffs, of Hartford, Conn., sued W. J. Smith ujDon an .account for shoes. The court directed a verdict in their favor, and overruled defendant’s motion for a new trial.

Complaint on note. Before Judge Sweat. Glynn superior court. May term, 1895. The United States National Bank sued A. Kaiser & Brother as makers, -and the Brunswick State Bank as indorser, upon -a promissory noté for $2,500, dated May 3, 1893, due sixty days after date, payable to tbe order of “F. E. Cunningham, cashier,” and indorsed: “Brunswick State Bank, Brunswick, Ga. F. E. Cunningham, cashier.” The suit was defended by the makers.

<p>Complaint on note. Before Judge Sweat. Ware superior court. November -term, 1895.</p>

<p>Complaint on account. Before Judge Sweat. Ware superior court. November term, 1895.</p> <p>George Feltham, an architect and builder, sued J. S. Sharp upon an account for “professional services, preparing plans, specifications and details for the erection of a proposed store-building in Waycross, Ga., at-an estimated cost of $4,300, at 3¿ per cent, of such estimated cost.” The jury found for defendant, and plaintiff’s motion for a new trial was overruled.</p> <p>Plaintiff testified: Defendant came to my office and employed me to prepare plans, specifications and details for the construction of a storehouse building on Plant avenue in "Waycross. My commission was to be three and one half per cent, of the estimated cost of the building, which was ¡about $4,300. I thereupon prepared rough plans, specifications and details, submitted them to defendant, and he made some suggestions in regard to the finishings and fittings of the building; and I thereupon made the plans, specifications and details, and furnished them to defendant. In order for the building to be constructed at the estimated cost, I advised defendant to advertise in the Savannah and Jacksonville papers for bids under these plans and specifications. This he failed to do, but simply submitted the plans and specifications to two local firms of builders, Rowbotham & Murphy and Miles & Bratt. Subsequently defendant said to me that he had been unable to purchase the property he desired on Plant avenue to put his storehouse on, and that therefore the building would not be built. Learning this, I went to his house and he returned to me the plans and specifications which I had prepared for him. Plans, specifications and details are always the property of the architect, just as tools of the carpenter are his property. The account is just, due and unpaid, etc. The preparation of these plans, specifications and details was reasonably worth what defendant contracted to pay me. This building, in my opinion, could have been constructed at the cost at which I estimated it, to wit, between four and five thousand dollars. Defendant called at my office several times while these plans were being prepared, and I explained them to him in detail, and corrected them several times until they conformed to his ideas. When completed, they were turned over to him, and were by him submitted for bids upon them.</p> <p>Defendant testified: I told plaintiff I intended putting up a storehouse building on Plant avenue, if I could arrange for a site; and he thereupon stated that he had some plans that he had made for a building in Brunswick, which he would like to show me. He did show me some rough sketches at his office one day. These plans, specifications and details, put in evidence by plaintiff, I think were after-wards prepared by him and shown to me. He advised me to advertise for bids under them, but this I never did. I have never employed him to draw any plans or specifications for me; nor have those plans and specifications ever been in my p¡ossession. Miles & Bratt submitted written bids under these plans. I threw them away, and do not know where they are. Miles & Bratt and Rowbotham & Murphy submitted bids to me; and my recollection is that the bid of Rowbotham & Murphy was $7,800, and that of Miles & Bratt about $9,000. Plaintiff was never at my house. He did this work, not under employment of me, but voluntarily. It is true I am not in the habit of having-work of this kind and magnitude done voluntarily, but this was done that way.</p> <p>Murphy testified: I was in partnership with Rowbotham; we were 'contractors -and builders. We submitted to defendant a bid under these plans and specifications; and while I am not positive, my recollection, is that our bid was about $7,800, not less than $7,000, which was as low as we could reasonably do it for. I do not recollect who- submitted the plans and specifications to us; but I know that when our bid was made it was submitted to defendant. We were agents of certain manufacturing companies, and were in position to do the work lower than any one else.</p> <p>The motion for new trial alleges, that the verdict is -contrary to law and -evidence; that the court erred in admitting the testimony as to the amount and contents of the bids, over objection that they were shown to be in writing, and the foundation for introducing secondary evidence had not been properly laid; and that the court erred in charging the jury as follows: “If you find as a matter of fact, that there was a contract or understanding or agreement between these parties, by which the plaintiff George Feltham w-as to make plans 'and specifications for a building to be -erected in the city of "Waycross for the defendant J. S. Sharp, to cost about fo-ur thousand dollars, -and that he was to be paid three and -one half per cent, upon tire estimated cost of the same, and you shall find in that connection that the plans and specifications as made by the plaintiff for the building, thus to be -erected, when submitted to competent contractors for bids upon the erection of the building, disclosed the fact that the building in accordance with the plans and specifications so made by the plaintiff could not be erected for the sum as understood and agreed upon, about four thousand -dollars, but the cost of the erection of such building in -accordance with the plans ian-d specifications as made would largely exceed that — would cost the -sum of seven or nine thousand dollars, the court charges you that in that event, without any further understanding or agreement made and entered into between the parties, by which the defendant in any event was to pay for the plans, that he would not be liable to the plaintiff for the three and one half per cent, or -any -other sum, and would not be called upon to take and accept the plans as thus prepared, and to pay for them.”</p>

Complaint on note. Before Judge Sweat. Ware superior court. November term, 1895. A promissory for $1,000, dated November 17, 1893, and due at thirty days, containing a waiver of homestead, etc., was executed by Spence & Co. to the South Georgia-Bank of Waycross, and was indorsed by W. M. Denton. After it fell due it was assigned by the bank to the plaintiffs without recourse.

<p>•Gertiorari. Before Judge Lumpkin. Pulton superior court. March term, 1895.</p>

<p>Action far damages. Before Judge Westmoreland. City court-of Atlanta. September term, 1895.</p> <p>Keeny sued the railway company for damages, and obtained a verdict fo-r $100. The testimony in his behalf ¿hows, that he boarded 'one of defendant’s oars, not far from his home, about four o’clock of an afternoon in August, for the purpose of riding to his place of business. Upon the conductor coming to collect his fare, he tendered a silver half-dollar coined in 1824, that being all the money he had about him, though he had ether money at home. The coin was somewhat rare, and of somewhat different appearance from coins of the same denomination of later dates. It was in fact a genuine coin of the United States; but the conductor pronounced it a counterfeit, handed it back and said, “You will piay the fare or get off the car mighty quick.” Plaintiff replied that was all he had; and submitted the coin, to a policeman who was on the car, and who examined it 'and stated, in the hearing of the conductor, that he thought it was .a good half-dollar. The conductor again said, pay tine fare or get off the car; and plaintiff replied as before, and looked round, but did not know anybody from whom he could borrow a nickel. The car passed the next cross street, and the conductor stopped it about the center of the block and told plaintiff to get off the car.or pay his fare. Plaintiff replied that he could not do it, and got off and walked to town, a distance of nearly a mile. He was aware that oars ran every fifteen minutes, and another car did pass him coming into town; but he did not hail it to get on, as he was afraid he would be insulted a second time. The manner of the conductor in addressing him was very impolite and gruff. The coin was in evidence before the jury. Plaintiff was corroborated in some degree by the policeman referred to. There was very material conflict between their testimony 'and that of the conductor and another policeman. The conductor admitted having rejected the coin because he did not think it was .good; but domed having been impolite or having ordered plaintiff to get off the car, and claimed to have intended to let him ride to town, etc.</p> <p>The court charged the jury: “If you find from the evidence in the case, that the plaintiff boarded defendant’s car intending to become a passenger, he was entitled to all the rights and privileges of a passenger, that is, the defendant was due him the exercise of extraordinary care; and if he tendered to the conductor a genuine coin of the denomination as alleged, United States silver coin, in payment of his fare, it was the duty of the conductor to accept the coin and transport him to his destination. If the coin presented was not a genuine coin, in other words it was a counterfeit coin, the conductor ought mot to have accepted it, and if the plaintiff failed to pay the fare demanded of him, he had the right to expel him from the oar. But if the coin, as I have stated, was a genuine silver coin of the United States government, the conductor should have accepted it and returned to him the change that was proper, and conveyed him to his destination. It is a question of fact to be determined by you under the testimony in the case. The coin is in evidence, and you have the right to inspect it in passing upon that question.” This charge is assigned as error: (1) As to the exercise of extraordinary care being due to plaintiff, because there was no question of carelessness or negligence in the ease. (2) As, touching the tender of a genuine coin, inapplicable to the real controversy; for if the coin tendered, though genuine, was so rare or of such appearance as to make it doubtful if it was genuine, the conductor had a right to refuse it if he really believed it was not genuine. (3) Plaintiff had no right to tender a coin of doubtful appearance and insist on change for it, and thereby claim the rights of a passenger, (d) He had no right to demand change from the conductor; his duty being to pay his fare in the amount demanded, and the conductor not being bound to accept a coin of different amount and treat him as a passenger. (The evidence in the record does not state what the amount of fare was, nor indicate that any question arose between plaintiff and the conductor with regard to changing the money.)</p> <p>•The court charged the jury in the language of sections 3065, 3066 of the code, 'and added: “Before you can allow any damages for aggravation, you must believe from the evidence that there were aggravating circumstances either in the act or the intention; and in passing upon this question, you can take into consideration the manner of the conductor, his surrounding circumstances at the time, the necessity for him to act quickly and promptly as conductor, and every other circumstance in the casé which may throw light upon the good faith or bad faith of the conductor in expelling this passenger, if you find he expelled ■him.” The court then charged in the language of section 3067 of the code, omitting any reference to the worldly circumstances of tire parties; also omitting the last sentence of that section; and Stating that “the amount of bad faith in the transaction, if any, and all the attendant facts, should be weighed by you.” The error assigned is, that the evidence did not justify any charge which would authorize vindictive damages, or any other than merely compensatory damages sufficient to carry the costs against defendant.</p> <p>Error is further assigned upon the refusal of the court to charge, upon oral request, that if the jury believed from the evidence that the coin offered by plaintiff was genuine, and yet that the conductor in good faith declined to take it because he believed it a counterfeit or not good money, they should give only nominal damages if they found for the plaintiff.</p>

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

<p>Trover. Before Judge Van Epps. City court of Atlanta. January term, 1896.</p>

<p>Garnishment. Before Judge Van Epps. City court of Atlanta. November term, 1895.</p> <p>Hood, Eoulkrod & Co. obtained judgment against James Rodgers on a suit filed March 29, 1894, on 'an account for merchandise sold him by them September 20, 1890, the judgment being dated May 9, 1894. They sued out summons of garnishment, which on July 24, 1894, was served on Mrs. C. C. Rodgers. She answered, denying any indebtedness, etc. Her answer was traversed; and upon the trial a nonsuit was granted.</p> <p>Plaintiffs introduced the record of their suit .and judgment against Rodgers, William Beggs testified: I know defendant and the garnishee, who is his wife. I have been living in Atlanta a number of years. Rodgers runs a retail store on Decatur street, Atlanta, the business being carried on by him in the name of his wife. It has been run by him that way for about two years prior to April or May, 1895, as well as I can remember. He has bought goods during that time from the house I am connected with. Mrs. Rodgers 'had nothing to do with the active management of the store. It is all managed and controlled by him. He stays there and seems to devote his whole time to the business. She stays at home. It is her stock of goods and business, but is run and managed by him. He has a clerk there, and seems to do a very good business. He is a man. of considerable experience in that line of business. They sell dry goods, etc. My opinion is that the services of a man of his capacity and experience, in giving his whole time and attention to a business of the kind and extent conducted by him for his wife, would be worth at least $50 or $60 a month.</p> <p>Plaintiff tendered in evidence the books of defendant, kept by him in connection with the business of Mrs. Rodgers, produced under notice by her, the same being the regular books of account kept by her in said mercantile business, and showing the original entries of cash sales, collections and 'expenditures, and covering the period of two years prior to the service of the summons of garnishment on her •and at and subsequent to said date; this evidence having been offered to show the nature and extent of the business and that there were no entries of any mony paid out to Rodgers during that time. The 'evidence was rejected by the court. To 'this ruling, and to the grant of a nonsuit, plaintiffs excepted.</p>

<p>Application for partition. Before Judge Lumpkin. Fulton superior court. September term, 1895.</p>

Equitable petition. Before Judge Lumpkin. Fulton superior court. September term, 1895. The petition alleged: About the — day of 1892, petitioner borrowed from defendants $100, but they paid him in cash only $60, for which his note was given for $100, payable nine months from date, and to secure payment of the note a mortgage was executed by him on certain realty described.

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

Complaint for laud. Before Judge Clark. Rockdale superior court. October term, 1895. Suits to recover seventy acres of land in the northeast corner of lot 305 in formerly Newton, now Rockdale county, were brought by Thomas H. Smith and others, children .and heirs at law of Hillman Smith and his wife Amanda R., and by certain grandchildren whose parents were dead. The youngest child of Hillman and Amanda R. Smith was horn in 1852 and died in 1880.

<p>Certiorari. Before Judge Lumpkin. Fulton superior court. September term, 1896.</p>

<p>Complaint. Before Judge Callaway. Jefferson superior oourt._ November term, 1895.</p>

<p>Equitable petition.. Before Judge Gamble. Bulloch superior court. October term, 1895.</p>

<p>Complaint for land. Before Judge Gamble. Bulloch superior court. October term, 1895.</p>

<p>Action for damages. Before Judge Callaway. Richmond superior count. April term, Í895.</p>

Action for damages. Before Judge Eve. City court of Richmond, county. August team, 1895. The petition .alleged, that plaintiff was employed by defendant as a yard train-hand, his duties being to couple cars and do general work .about the yard. A coal car became derailed, .and plaintiff with othea-s was ordea*ed by the yardmasber, Tuggle, to carry cross-ties which were about 100 yards off, for the purpose of putting the car back on the track.

<p>Levy and claim. Before Judge O'allaway. Burke superior court. December term, 1895.</p>

<p>Motion to set aside judgment. Before Judge Eve. City court of Richmond counity. January term, 1896.</p> <p>Pending bis suit against Ooxwell, Reab bad. summons of garnishment issued and served on Hull & Tobin, wbo answered, “that John D. Ooxwell, tbe -defendant in tbe wit,bin stated case, will bave coming to bim tbe net proceeds of fourteen bales of cotton wben sold, less casb drawn against same, $408.97, and interest on said advances.” Reab obtained judgment against Ooxwell for ■$141.25 principal, and afterwards took judgment, against tbe garnishees on their answer, for tbe same amount. At tbe same term ■they moved to set -aside tbe judgment, -on tbe ground, among others, that their answer did not admit that they bad anytbin-g belonging to Ooxwell. Tbe motion was sustained, and Reab excepted.</p>

<p>Petition for injunction, etc. Before Judge Callaway. Richmond superior court. April term, 1896.</p> <p>The Augusta Cotton & Compress Co. by its petition against Alexander & Alexander, Nixon & Danfortb, Hull & Tobin, the South Carolina & Georgia Railroad Co., the National Bank of Augusta, J. & W. Seligman & Co. and Edward H. Butt & Co., alleged: The plaintiff is a corporation duly chartered under the law of Georgia, with its principal office in Augusta. On or before November 4, 1895, Edward TI. Butt, doing business'as Edward H. Butt & Oo., delivered to it in the usual order of business 54 hales of cotton having certain marks .and weights, and it issued its usual receipts for so many bales of cotton in good order, “to be compressed and delivered to tbis receipt only. Eire and other unavoidable accidents excepted.” And said 54 bales were in plaintiff’s possession on November 4, 1895, and still are. On or before that date plaintiff’s compress receipts for 14 of said 54 bales were by said Butt delivered ■to 'tbe South Carolina & Georgia R. R. Co., which issued its bill of lading in the usual course of business for the same, which bill of lading in the, usual course of business came into tbe possession of J. & ~W. Seligman & Co., who had advanced money thereon to said Butt. The same is true as to plaintiff’s compress receipt for 40 of said 54 bales. On or about November 4, 1895, Butt failed in business, and on that date Alexander & Alexander filed suit in trover against petitioner to the Eebruary .term, 1896, of the city court of said county, claiming title to 10 of said 54 bales delivered to plaintiff by said Butt. On tbe same day Nixon & Danforth filed a similar suit to the same term of the same ooiirt against plaintiff, claiming title to 29 of said 54 bales. On the same day Hull & Tobin filed a similar suit to the same term against plaintiff, claiming title to 19 ' of the 54 bales. November 9, 1895, said railroad company filed a similar suit to the same term against plaintiff, claiming title to 40 of said 54 bales. Plaintiff has been notified that the National Bank of Augusta claims title through the compress receipts to 14 of said 54 bales, and said bank is now about to file suit against plaintiff for the same. Plaintiff lias been notified or informed that Seligman & Co. claim title through the bills of lading aforesaid to 40 of said bales. It thus appears that plaintiff has already been sued by four claimants to the cotton in whole or in part, is about to be sued by two or more claimants, and that said claims are of such character as to render it doubtful or dangerous for plaintiff to act. There is no collusion between plaintiff and any one or more of said defendants regarding the filing of this petition. Plaintiff prays, that all of said claimants may be required to interplead and settle among themselves the disputed question of title, plaintiff standing ready to deliver the cotton to the proper parties upon the payment of its usual and reasonable charges thereon; and that injunction may issue against all of the defendants except Butt, restraining each of them from proceeding further to set up their said claims to the cotton, otherwise than by interpleading under this petition. There is expense and danger from fire, and trouble attending the keeping of said cotton, and it would be to the manifest interest of all parties that the cotton should be sold and plaintiff relieved of all further responsibility for its safe-keeping. Wherefore plaintiff prays for the appointment of a receiver to take charge of and sell the cotton under the direction of the court; and for process. Upon this petition a temporary receiver was appointed and temporary restraining order granted.</p> <p>In addition to general demurrers by the defendants, the bank demurred because the petition was in violation of section 5242 of the revised statutes of the United States; and because there was not annexed as an exhibit to the petition a copy of the petition and order of incorporation showing petitioner’s authority and its right to the control of the property in controversy. The bank pleaded that by section 5242 of the revised statutes of the United States, it was enacted that no attachment, injunction, or execution should be issued against a national banking association or its property before final judgment in any suit, action or proceeding in any State, county or ¡municipal court, and hence this court is -without jurisdiction in the premises over this defendant, and can grant no relief as prayed for in the nature of an injunction or temporary restraining order. The demurrers were overruled, and defendants excepted.</p>

<p>Complaint on account. Before Judge Callaway. Burke superior court. December term, 1895.</p>

<p>'Certiorari. Before Judge Balligaut. Chatham superior eourt. June term, 1895.</p>

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

<p>Motion to set aside judgment. Before Judge MacDonell. City count of Savannah. November term, 1895.</p>

Complaint. Before Judge PlacDonell. Oity court of Savannah. November term, 1895. The petition of Annie M. Logan alleged, that on December 14, 1892, she gave 'the defendant bank a note for $1,300, and to secure its payment made a note and •executed a mortgage on certain described land. Said note represented $1,050 principal, and $250 interest for a length of time not stated in the note or mortgage.

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

Indictment for burglary. Before Judge Harris. Cow-eta superior court. September term, 1895. Lee Monicrief was indicted for breaking and entering tbe carriage-bouse .of J. W. Arnold and stealing therefrom a set of buggy harness, a saddle and a buggy rug. He was found guilty, and his motion for a new trial was overruled.

<p>Complaint on note. Before Judge Ross. City court of Macon. September term, 1895.</p>

<p>Levy and •claim. Before Judge Ross. .City court of Macon. September term, 1895.</p>

<p>Injunction. Before Judge Hardeman. Bibb county. September Y, 1895.</p>

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

<p>Injunction. Before Judge Eelton. Houston county. May 15, 1896.</p>

<p>Injunction. Before Judge Eelton. Bibb county. February 5, 1896.</p>

<p>Equitable petition. Before Judge Reese. Madison superior court. September term, 1895.</p>

<p>Equitable petition. Before Judge Reese. Hancock superior court. August term, 1895.</p>

<p>Levy and claim. Before Judge Reese. Taliaferro superior court. August term, 1895.</p>

<p>Money rule. Before Judge Reese. Glascock superior court. August term, 1895.</p>

<p>Gerbiorari. Before Judge Reese. Hart superior court. September term, 1895.</p>

Complaint on notes. Before Judge Beese. Wilkes superior court. November term, 1895. Tbe Dublin Warehouse Go. sued Thomas E. Eortson as maker, and James A. Benson as endorser, upon two promissory notes. Benson filed special pleas which were stricken on motion of the plaintiff.

<p>Certiorari. Before Judge Reese. Warren superior court. October term, 1895.</p>

<p>Complaint on note. Before Judge Reese. Oglethorpe superior court. October term, 1895.</p>

<p>Money rule. Before Judge Reese. Warren superior court. October -term, 1895.</p>

<p>Trover. Before Judge Reese. Wilkes superior court. November term, 1895.</p>

Action for damages. Before Judge Reese. Taliaferro superior court. August term, 1895. Edward Keating sued the railroad company for damages resulting to Mm by a fall from its train on wHch he was a passenger, whereby M's left foot was thrown under the wheels of a car and cut off. He obtained a verdict for $9,000, and defendant’s motion for a new trial was overruled.

Complaint on note. Before Judge Reese. Elbert superior court. September term, 1895. J. N. Hall sued the administrator of Mrs. E. 0. Hanes, deceased, upon a promissory note for $1,210 “for purchase money of land,” dated February 9, 1889, due December 25, 1889, and signed by E. C. TIanes and 0. 0. Hanes. Defendant pleaded, tbat Mrs. E. 0. Hanes signed tbe note as security for 0. 0. Hanes, who was her husband, and tbat tbe consideration of tibe note was money borrowed by 0. 0.

Equitable petition. Before Judge Kimsey. Towns superior court. September term, 1895.' The petition of J. J. Brown against ITarmon Brown et al. was dismissed on demurrer.

<p>Complaint on note. Before Judge Kimsey. Haber-sham superior court. September term, 1895.</p> <p>McConnell & Co. sued E. & B. 0. Martin upon a promissory note for $73.38. Defendants pleaded, that since the suit was brought they had made a contract with plaintiffs, by which the note sued -on was fully paid off. Upon -trial in the superior court, the jury found for the plaintiffs the amount sued for. The testimony for defendants was as follows: About the first of March, 1895, after the suit on this note and several others -of plaintiffs ag-ainst defendants had been 'commenced, defendants proposed to plaintiffs to make to them a payment on the debt they owed plaintiffs, which consisted of the note sued on and several others, and give a mortgage on real estate to secure the same, provided plaintiffs would withdraw the suits and pay the costs, and wait with them until fall. Plaintiffs agreed to the proposition. In accordance with the contract, defendants paid $17 in a bale of cotton and they had deposited a note with plaintiffs as collateral, made by P. J. Shore; and after plaintiffs sued, defendants had told Shore not to pay the note until they and plaintiffs had a settlement. After the contract by plaintiffs to extend time until fall, defendants ordered Shore to pay over to plaintiffs the amount due on the note. After defendants made the payment of $17 and the Shore note of $103, plaintiffs said one of them would -meet defendants at Clarkesville and they would draw tlie mortgage. Defendants did meet J. C. McConnell, one of plaintiffs, at Clarkesville as agreed, but he then refused to carry out the contract because one of the firm objected to the arrangement. So the mortgage was never executed, but defendants had been ready, and, were now ready, to execute the same as agreed, and otherwise fully carry out the contract. If the contract was to he disregarded, they desired the $17 credited on this note -and three other small notes, divided equally between each note.</p> <p>J. C. McConnell testified, that defendants made the payment of $17, and nothing was said as to where it was to be placed. He had not placed it on any of the notes defendants owed him, but he did not care where it was placed; he was willing to have it placed on this note and three other sm'all notes. He did ggree with defendants that if they would pay him the $17 and secure the balance with a mortgage that Mr. Bowden would say was good, he would extend the time till fall on all defendants owed them; but defendants had never made the mortgage. He did not agree to pay the costs in the cases in the justice’s court, and did not say anything about the Shore note to defendants the day they came to see him; but when Shore _got ready to pay his note, he accepted it and gave defendants credit on the $300 note for which it was placed in his hands as collateral security.</p> <p>Defendants except to the following instructions in the charge of the court:</p> <p>“If the defendants bad placed a note on another party with plaintiffs as collateral to secure a certain note for $300, made by defendants, payable to plaintiffs, and plaintiffs still held tbe note as collateral at tbe date on which tbis contract to extend time is claimed to have been -made, and the collateral note was paid to plaintiffs by tbe party who owed it, I charge you that that was no consideration for tbe promise to extend time to defendants on tbis note; and I charge you flhat plaintiffs would, have had the right to credit the amount of the proceeds of the collateral note on the $300 note for which it was given or turned over to plaintiffs by the defendants to secure..</p> <p>“If you should believe there wias a contract between plaintiffs and defendants to extend time to defendants by defendants making or executing a mortgage or deed to plaintiffs to secure the indebtedness of defendants to plaintiffs, and the mortgage or deed has never been executed in accordance with the contract, the contract would not be binding on plaintiffs, notwithstanding defendants may have made some small payments on debts due to plaintiffs.”</p>

<p>Gertiorari. Before Judge Kimsey. Habersham superior court. September term, 1895.</p>

<p>Appeals. Before Judge Kimsey. Lumpltin superior court. October term, 1895.</p> <p>Execution having ben levied, claim was interposed, and on the trial w<as dismissed in a justice’s court of Lumpkin county. Eour days later, the claimant executed in Fulton county a bond for appealing the case to the superior court. There was no entry showing when, if ever, the appeal was filed in the justice’s court. In the superior court plaintiff moved to dismiss the appeal, on the ground that it did not affirmatively appear that the appeal had been filed within the time required by law, nor that it had ever been filed in tbe justice’s court. Olaim'ant’s counsel stated that the appeal bond was sent to the justice of the peace by mail, and that it -could h'ave reached him by due course of mail in due 'time; and this Was not denied. The motion was overruled.</p>

<p>Action for damages. Before Judge G-ober. Cobb superior court. December 21, 1895.</p>

<p>Complaint on. note. Before Judge Gober. Milton superior court. August term, 1895.</p>

Ooanpl'ahit on note. Before Judge Grober. Milton superior court. August term, 1895. Mayfield as bearer sued E. S. Dodd, J. D. Neese and T. J. Bettis on a promissory note for $100.00, dated March 24,4 '1891, and due November 1, 1894, payable to J. M. Dodd or bearer, .and signed by defendants. Defendants pleaded mot indebted; and that the note was given for a certain jack which was worthless, and hence the consideration of the note had failed.

<p>Affidavit of illegality. Before Judge G-ober. Cobb superior court. November term, 1895.</p>

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

Appeal. Before Judge Reese. Elbert superior court. September term, 1895. Tbe case of Brewer v. Mize, pending on appeal from tbe county court, being called for trial, counsel for plaintiff moved to dismiss the appeal on the ground that the affidavit in forma pauperis had no jurat to it, the affidavit being, in all other respects of proper form and being dated August 15, 1894.

<p>Action for damages. Before Judge Kimsey. Haber■sb'am superior court. ‘September term, 1895.</p>

<p>Equitable petition. Before Judge Eiansey. Hall superior court. January term, 1896.</p>

<p>Application for alimony. Before Judge Kimsey. Habersham comity. April 13, 1896.</p>

<p>Levy and -claim. Before Judge Milner. Gordon superior court. August term, 1895.</p>

<p>Equitable petition. Before Judge Gober. , Cherokee superior court. December J, 1895.</p>

Action for damages. Before Judge Miluer. Whitfield superior court. October term, 1895. Mrs. Eslinger sued the railroad company for damages because of the billing of her husband. Her declaration alleged in brief: On June 4, 1892, and for some time previous, her husband was employed by defendant as- car-coupler in its yard in Atlanta.

Equitable petition. Before Judge Milner. Gordon superior court. August term, 1895. In November, 1889, Jackson T. Lewis eonveyed 990 acres of land in Gordon county to B. W. Oomelison, W. M. Oomelison and D. P. Cline, the deed reciting a consideration of $15,000. The grantees in this deed then made written application to the Atlanta Trust & Banking Company to negotiate for them a loan -of $7,500, offering this land as security for the loan.

Certiorari. Before Judge Milner. Bartow superior court. December J, 1895. This was a suit for triple damages under section 1445 of the code, for killing a sow belonging to the plaintiff. The sole question made is, whether the verdict in her favor is sufficiently supported, the evidence t-o connect defendant with the killing being circumstantial.

<p>■Certiorari. Before Judge Ealligant. Chatham superior court. December term, 1895.</p> <p>January 18, 1894, Gordon brought suit against. Esteve & Co., returnable to a justice’s court on February 20; and sued out summons of garnishment which was served on Gordon & Co. January 22, 1894, Wilson & Grady filed with the justice á bond reciting the bringing of the suit and the service of the garnishment, and the fact that Gordon & Co. had IT bales of cotton falling within the operation of the garnishment, which was claimed by Wilson & Grady; and conditioned that they should pay to Gordon the sum that might be found due to Esteve & Co., upon the trial of any issue that might be formed upon the answer of the garnishees, or might be admitted in said answer, if untraversed, bo be due to Esteve & Co. February 20,, 1894, judgment was rendered for Gordon against Esteve & Co. On the same day the garnishees answered, admitting that at the time of the service of the summons they had 17 bales of cotton described, the property of Esteve & Co. October 27, 1894, Wilson & Grady traversed this answer, averring that the title to the whole of said cotton had been transferred to them by Esteve & Go. prior to the service of the garnishment, and was in them at the time of said service. Affidavit to the traverse was made by Wilson. Gordon and the garnishees demurred to the traverse and affidavit, on the grounds: (1) That Wilson & Grady had failed to make oath of claim, as required by law. (2) If the affidavit of Wilson be regarded as a claim affidavit, it is insufficient, irregular and uncertain, in that Wilson & Grady aver that they are claimants by the transfer to them of title to the 17 bales cotton by Esteve & Co., without alleging the manner of the transfer or any facts.or evidence to support said claim. (3) The traverse and affidavit are too late, as they should have been filed within ten days after the filing of the answer of the .garnishees. The demurrer was sustained and the traverse and affidavit stricken, which judgment was set aside on certiorari.</p> <p>Citations by counsel: Code of 1895, §§4150, 4153, 4155, 4156, 4611, 4720, 4723, 5856; Ca. Rep. 96 - 532; 82- 605; 80-491; 78-18; 73-131; 72-705; 71-229; 70-390, 741; 68-444, 812; 67-487; 66 - 350; 64- 608; 62- 683; 61 - 389; 59 -881; 56-394; 55-410; 52-498; 46 -295; 17 -299; Endl. Int. Stat. 280, 281, 731.</p>

Action on bond. Before Judge Callaway. Richmond superior court. April term, 1895. On February 1, 1883, Capers was appointed trustee of certain property for Mrs. Kirkpatrick and her daughter Mrs. McBee, and was ordered to file with the ordinary a bond for $2,000, conditioned for the faithful performance of the duties of the office; which he did.

<p>Complaint for land. Before Judge Lumpkin. Ful■fon superior court. September term, 1895.</p>

<p>Equitable petition. Before Judge Gamble. Washington superior court. March term, 1895.</p>

<p>Equitable petition. Before Judge Gober. Oobb county. November 28, 1895.</p>

Petition for account and settlement. Before Judge Reese. Oglethorpe superior court. April term, 1895. To the petition in this case, the defendant filed a plea of res adjudicata, to which plaintiffs demurred. The demurrer was overruled, the plea sustained, and the action dismissed. The plaintiffs were Mary, Jim, Margaret and Julia Huff.

Before Judge Reese. Warren superior court. April term, 1895. Elizabeth F. Baker, one of the defendants, moved for a new trial on the grounds that the verdict was contrary to law, evidence, and the principles of justice and equity.

Complaint on notes. Before Judge Reese. Oglethorpe superior court. April term, 1895. Annie N. Freeman sued Benjamin Hansford on two promissory notes dated September 25, 1893, one for $500 due December 1, 1893, the other for $1,000 due January I, 1894, alleged to have been given for the purchase money of 148 acres of land more or less (described), she having made him a bond for titles. He filed a plea which, upon demurrer, was stricken as setting forth no legal defence.

<p>Where a husband and wife executed a joint promissory note as a basis of credit for goods to be furnished the husband in conducting his business “and for things for her family” to be furnished out of the payee’s store, the wife’s relation to the note, as to the goods to be supplied and which were supplied to the husband for carrying on his business, was that of surety only;' and where, on the trial of an action brought on such note by the payee against both husband and wife, the above recited facts appeared, and it was also shown that the whole amount of the note had been “traded out” by the husband, and it did not appear that the wife had ever obtained any goods from the plaintiff on her own account, it was error to direct a verdict in his favor 'against both the defendants.</p>

Complaint on note. Before Judge Cobb. City court of Athens. March term, 1895. The suit was against J. II. Carlton as maker, and R. K. Reaves as indorser, on a promissory note, dated November 14, 1893, due four months after date, made and signed by Carlton, and payable to the order of James White, cashier, at the National Bank of Athens. It bore a waiver of notice of protest, signed by Reaves by his attorney.

Equitable petition. Before Judge Hutchins. Oconee superior court. June 13, 1895. To the petition of J. W. Johnson against A. 0. Jackson a demurrer was interposed, and was sustained.

Levy and claim. Before Judge Kimsey. Dawson superior .court. Marcli term, 1895. An execution issued from a judgment of October 7, 1893, was levied on land as tbe property of Jobn Kelly, to wbicb a claim was interposed by bis wife Frances Kelly. There was a verdict finding tbe property subject, and tbe claimant’s motion for a new trial was overruled. In this motion eacb of tbe rulings hereafter stated is assigned as error.

Appeal. Before Judge Kimsey. Lumpkin superior court. April term, 1895. On December 5, 1892, suit on an account was br-ougbt to the January term, 1893, of a justice’s court-, which was held on January 6. Tbe defendant was duly served. When tbe case came oA for trial, tbe plaintiff dismissed it, and on January Id, directed the justice to sue the defendant again on the same account.

<p>Under the previous decision of this court in this case (96 Qa. 477), there wa-s nothing in the plaintiffs’ petition to justify the allowance of the amendment thereto offered by them; but inasmuch as no objection was at the time made to its allowance, and inasmuch as the petitioners, upon the frame of their original petition, were entitled to an injunction tor restrain the defendants from the collection of the matriculation fees, as therein charged, a general demurrer to the entire petition as amended was properly overruled; but as to all other matters set forth by the plaintiffs’ petition as to which special relief was prayed, -the special grounds of demurrer should have been sustained, .and the petition allowed to proceed only for the purpose of ob-■taming a permanent injunction, as above indicated, and for costs; and accordingly, direction is given that it be retained for this purpose, and that as to all other matters the petition be dismissed.</p>

Injunction. Before Judge Kimsey. Habersham county. October 14, 1895. The petition of Lauraine alleged, that on October 27, 1894, he purchased a farm of Capps, who had rented it to Miles, who at the time of the contract of rental was in good standing and whose wife and family were honest, upright and virtuous. The contract was transferred to plaintiff, and Miles knew it. His wife afterwards died, and in August or September, 1895, he married a woman of disreputable character.

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

<p>S. being indebted to H. agreed with him in parol that H. should to the extent of the .indebtedness of S. to H. have “an interest” in certain promissory notes which S. held on a third person. Subsequently S. delivered these notes to A. for use by the latter in raising money, with an understanding that H. was to be paid out of their proceeds; but there was no contract or agreement of any kind between A. and H. A. raised money on the notes but did not pay any portion of the same to H., though he after-wards promised H. in parol to pay H. the debt due him by S. Held:</p> <p>1. That H. had no such title, legal or equitable, to the notes in question as would have authorized him to bring an action against S. for any portion of the notes or their proceeds.</p> <p>2. That H. could nqt recover from A. any portion of the proceeds of the notes, because the latter, before receiving and realizing upon the notes, had made no contract with H. to pay him anything, and the promise made afterwards was merely gratuitous, without legal consideration, and in law amounted to nothing more than a parol promise to pay the debt of another.</p>

<p>In the exercise of its chancery jurisdiction a superior court of this State may render a valid judgment foreclosing a mortgage, and having jurisdiction of the person of the mortgagor, may in addition to the foreclosure render against him a personal judgment in the same proceeding. The fact that the amount of the latter judgment is less than the sum for which the foreclosure was allowed is not a matter of which the defendant can complain.</p>

<p>Action for damages. Before Judge Lumpkin. Fulton superior court. September term, 1894.</p>

<p>Complaint for land. Before Judge Callaway. Biehmond superior court. April term, 1895.</p>

<p>Money rule. Before Judge Milner. Oity court of Oartersyille. June term, 1895.</p>

Levy and claim. Before Judge Liimpkin. Eulton superior court. September term, 1895. Executions against Jackson, issued upon judgments obtained in a magistrate’s court of the 1348th district G. M., of Eulton county,, after entry made thereon, signed J. W. Harper, L.O., of due search made and'no personal property found upon which to levy, were by said constable levied on certain realty. Part of the property levied upon was claimed by Lapsley.

<p>1. Under a statute authorizing street paving to be done in a city when “the person owning real estate which has at least one third of the fronting on the street, or portion of a street, the improvement of which is desired, shall in writing reguest the commissioners of streets and sewers to make such improvements,” the city cannot, as an owner of property fronting on isuch street, join in 'signing such reguest in order to make the same come up to- the legal reguirement as stated.</p> <p>2. A statute authorizing the paving, on certain conditions, of a portion of a street “not to exceed four sguares, . . upon the petition of abutting owners having less than one third frontage on the -street . . the improvement of which is petitioned for,” is not applicable where the contemplated improvement embraces five sguares on one side of the street and four on the other.</p> <p>3. Though an ordinance providing for certain paving be properly and lawfully passed, the paving therein provided for cannot be treated as having been actually laid, and therefore as an improvement already made, for the purpose of legalizing another ordinance passed on the same day, to the validity of which the actual existence of the improvement in guestion is essential as a jurisdictional fact.</p> <p>4. There was no error in granting the injunction prayed for.</p>

Equitable petition. Before Judge Lumpkin. Eulton superior court. March term, 1896. The Land Title Warranty & Safe Deposit Oo. brought its petition against G. TI. Tanner, to which the defendant demurred generally. The demurrer was sustained, and plaintiff excepted.

<p>Qertioram. Before Judge Gamble. Bulloch superior court. October term, 1895.</p>

Action for damages. Before Judge Ross. City court of Macon. December term, 1895. J. H. & W. W. Williams sued the Southern Express Company, a common carrier, for $185, the value of a diamond ring and scarf pin. Tbe charge of the court was a virtual direction to find for the plaintiffs the proved value of the property; and the defendant’s motion for a new trial was overruled.

Complaint on account. Before Judge Boss. City court of Macon. December term, 1895. Mills & Gibb brought suit againt John Ellis and h'is wife as partners composing the firm of John Ellis & Co., upon an account for goods sold to them between September 20th and November 23, 1892.

<p>Action on bond. Before Judge Neese. Hancock superior court. August term, 1895.</p>

<p>Action for damages. Before Judge Cobb. Oity court of Athens. September term, 1895.</p> <p>Thomas E. Fortson brought his action against R. L. Moss & Co., to which defendants demurred on the ground that the declaration attempted to unite in one cause of action a tort and a contract. Thereupon plaintiff amended his petition by striking the 9 th paragraph which he alleged was the only portion of the same which sought to recover for a breach of contract. The plaintiff obtained a verdict, and defendants moved in arrest of judgment, on the grounds, (1) that the declaration does not set out a cause of action, and (2) that the declaration discloses that the suit, while being nominated one for damage, is really for a breach of contract, without any allegation of special damage flowing therefrom. This motion was overruled, and defendants excepted. The petition alleges, that defendants have injured and damaged plaintiff’ in the sum of $5,000, for that on September 12, 1893, defendants, desiring an agent at "Washington for the purpose of buying cotton for them, proposed to petitioner in writing: “If you will buy for us exclusively during the continuance of this arrangement, which can be cancelled upon two days notice by either party, we will wire you our limits each morning, until changed or cancelled, allowing you a commission of twenty-five cents per bale on all cottons reported and shipped on these limits. "We will quote you on a basis of Liverpool good middling, and will use Shapperson’s code of 1881. 'We will have you to ship all cotton to us at Athens by local freight.” Plaintiff accepted this contract and requested defendants to notify the bank at Washington that they would pay all sight drafts drawn upon them by him with bill of lading attached, which they did in writing on September 16, 1893. At that time, and for many years before, plaintiff had been engaged in the business of cotton buying, and had built up a business of the value of over $1,000 a year. Ilis means were very limited, and he was enabled to carry on his business solely by reason of the confidence reposed in him by the banks and warehouses in Washington; which facts were well known to defendants. As soon as said negotiations were completed, plaintiff entered upon his duties as agent of defendants, and commenced to buy and ship cotton for them at Washington according to the terms of the contract, paying therefor by sight drafts upon defendants with bill of lading attached. The business was earned on 'as agreed until October 27, 1893, when defendants, without notice to plaintiff and in violation of the contract, refused to pay two drafts drawn by him on -them with bill of lading attached, for cotton bought by him for them 'at Washington and shipped as per contract, one being for $1,081 in favor of the Dublin Warehouse Oo., and the other for $605 in favor of Boyce Ficklin, cashier, both of which were negotiated at the bank in Washington. Both were protested for non-payment, and defendants wilfully refused to recognize or pay them, though properly demanded so to do, and though they were drawn by plaintiff under the terms of -the contract. Said conduct was a fraud on plaintiff, and a wilful violation of the contract; and the effect of it was to destroy and utterly ruin plaintiff’s business as a cotton buyer, and tended to-mortify and disgrace him as a business man, and to destroy the confidence heretofore and at said time existing in him among the banks and warehouses of Washington; and all these things were well knov^n to defendants at said time.. On account of said fraudulent and illegal conduct on the part of defendants, plaintiff has been forced to abandon his business of buying cotton and to engage in other business, which is far less remunerative. The 9th paragraph of the-petition was in these words: “And your petitioner shows, that under his contract with defendants, he bought and shipped to them at Athens, Ga., before the breach of contract as aforesaid, 395 bales of cotton for the purchase of which, at 25 cents per bale, as per contract, he was entitled to $98.75, which said sum said defendants fail and refuse to pay, though often requested so to do.”</p>

'Complaint on note. Before Judge Smith. City court ■of Hall county. August term, 1895. In connection with the following report see 93 Q-a. 438. At the last trial of this case the verdict was again in favor •of the plaintiff, and defendant’s motion for a new trial was overruled.

Action on contract. Before Judge Smith. City court of Hall county. August term, 1895. W. L. Telford, suing for the use of the Southern Agricultural Works, the Sterling Dynamite Co., and Edward J. Jenkins & Sons, brought his action against J. W. O-slin upon the written contract hereafter referred to. It appears, that the Logan Hardware Company, a corporation, began to do business in April, and so continued until November 24,1893.

Action for damages. Before Judge Gober. Pickeus superior court. September term, 1895. . The petition as amended alleged: On November 14, 1894, defendant, though having no charter as a railroad company of Georgia, was acting as a railroad company, doing business as such in Pickens county, engaged in running and operating a railroad and running a train of cars thereon, and was engaged in the business of 'hauling freight thereon for itself and others.

Money rule. Before Judge Milner. Bartow superior court. July term, 1895. Watkins and Angier contested for a fund arising from tbe sale of property of Mrs. Branson. Tbe case was submitted to the judge without a jury, upon tbe following agreed facts: “Watkins and Angier bold fi. fas. against Mrs. Branson. Watkins’ judgments were first rendered in justice’s court in 1876, and were appealed to tbe superior court. In July, 1893, Watkins obtained judgment on appeal.

<p>1. An instrument purporting on its face to secure a described debt,' ■though in the form of a deed to land, and itself declaring that ii was “given under and by virtue of section 1969 of the code of Georgia,” does not fall within the provisions of that section unless -there was a bond to reconvey the land upon payment of the debt.</p> <p>2. Where such an instrument contains nothing to indicate that there was no bond for a reconveyance, it will be presumed that ■such a bond was given. If, however, the instrument recites that upon payment of the debt thereby secured, “this deed shall be cancelled and surrendered in accordance with the act of the General Assembly -of Georgia, approved November 12th, 1889” (Acts of 1889, p. 118), the presumption would be that there was no bond; but this presumption could be rebutted by proving that, in point of fact, a bond was given.</p> <p>3. It not affirmatively appearing in the present ease that there was ,a bond to reconvey, and the presumption because of a recital in. the alleged deed in -the words above quoted being to ¡the contrary, and the condition expressed in the recital above indicated to the effect that the instrument shall be void on payment of the debt being equivalent to the defeasance clause usually inserted in mortgages, the court erred in treating the instrument in question as a conveyance passing title and not as a mere mortgage, and consequently erred further in dismissing the plaintiff’s petition.</p>

<p>Equitable petition. Before Judge Milner. Gordon superior court. August term, 1895.</p>

Action on bond. Before Judge Milner. Whitfield superior court. October term, 1895. Suit was brought on tbe official bond of Slioll as clerk of •the superior court. Tbe case was submitted to filie judge without a jury. He rendered judgment for the defendants, and the plaintiffs excepted. It appears, that on 'November 14, 1892, plaintiffs sued out an attachment against J, B. Rock, which was levied on *tíbu© same day upon a lot of land by a constable.

<p>1. Where a paper intended to operate as exceptions pendente lite is; filed, and recites that such and such action had been taken by the court, but does not state or set forth any exception to any ruling or decision of the trial judge, such paper cannot be made the basis for the assignment of any error in the final bill of exceptions filed by the losing party.</p> <p>2. A partnership as such may be insolvent, although one or more of the individuals composing it be solvent.</p> <p>3. The evidence warranted the verdict, and no cause for a new trial appears.</p>

Complaint on note. Before Judge Harris. City court of Floyd county. December term, 1895. Suit was brought November 25, 1893, against YanDyke upon a note for $360.10, made by Raymond, payable to the-order of • the plaintiff, dated January'1, 1892, and due-twelve months (to be paid in monthly instalments) after-date.” Upon it were -entered four credits of payments-made, dated February 9, April 7, June 24, and September 20, 1892, the first three for $50 each, the last for $5.82.

<p>Injunction. Before Judge Janes. Floyd county. May 14, 1896.</p>

<p>The defendant in an attachment issued against him as an alleged fraudulent debtor under section 3297 et seq. of the code, without a hearing, may, under section 3299, apply for a removal of such attachment and contest the truth of the grounds upon which it was issued, without stating in his petition for such removal 'that the property upon which the attachment had been levied belonged to him'.</p>

<p>Complaint on notes. Before Judge ITart. Morgan superior court. September term, 1895.</p>

Petition for direction, etc. Before Judge Hart. Morgan superior court. September term, 1895. Held: That Mrs. Sarab Ezell, wife of John Ezell, bad received from tbe estate of tbe testator property to tbe value of $950, witb wbicb sbe was chargeable as an advancement, and for wbicb sbe must account before sbe could take part in tbe distribution of tbe estate.

<p>1. A deed from an insolvent married man to bis wife, founded upon no other consideration than a contract previously made between them, by the terms of which she was to perform the ordinary household duties of a wife, for which he was to pay her a. ' stipulated sum per annum, is, as to creditors of the husband whose claims were in existence at the time of the execution of the deed, voluntary, and therefore void.</p> <p>2. The present case upon its facts is absolutely controlled by the. law above, announced.</p>

<p>1. A loan of money made in consideration of the maximum legal rate of interest and one half of the commissions charged by a third person for negotiating the loan, is usurious; and, under such circumstances, it is immaterial whether the third person is the agent of the lender, or of the borrower, or of both.</p> <p>2. A deed executed by a borrower under section 1969 et seq. of the code, to secure a .debt infected with usury, and purporting not ■only to convey title to the lender, but also to confer upon the " latter a power of sale, Is void, and therefore ineffectual either to pass title or to create a valid power of sale.</p> <p>3. The grantee in such a deed cannot, whether assuming to act either as the holder of the legal title, or as the attorney in fact of the grantor, make a conveyance which will pass the title to a third person.</p> <p>(a) Whether or not the grantor would be estopped from setting up the invalidity of his deed as against an innocent purchaser without notice of the usury, is a question not now presented for decision.</p> <p>4. Under the facts disclosed by the record, the verdict for the plaintiffs was manifestly contrary to law.</p>

<p>Levy and claim. Before Judge Iiart. Baldwin supe^rior court. January term, 1896.</p>

<p>1. In order to charge the drawer of a bank check, who -has funds with which to meet the same in the bank upon' which it is drawn, with liability in case the check is dishonored, the payee or holder must present it for payment within a reasonable time; otherwise, the delay will be at his peril.</p> <p>2. “What is a reasonable time will depend upon circumstances, and will in many cases depend upon the time, the mode and the place of receiving the check, and upon the relations of the parties between whom the question arises.”</p> <p>3. If the bank drawn upon is at a place distant from that at which the payee receives the check, and fails before the check is presented, it will, as a general rule, be a question for a jury, in the light of all the attendant facts and circumstances, to determine whether or not due diligence was observed in presenting the check.</p> <p>4. The court erred in directing a verdict for the plaintiff.</p>

<p>1. Where a large body of land divided by a county line was, under section 1969 et seq. of the code, conveyed as a whole to secure a debt, with bond for reconveyance, the creditor, after obtaining judgment, could have the entire tract levied on and sold in either county, neither being the county of the residence of the defendant in execution. This is so although the county line was located exclusively upon original land-lot lines, so that no one of the several lots composing the entire tract was divided by the county line.</p> <p>2. It was, however, essential to the validity of a levy upon the entire tract, that the plaintiff in execution should have previously executed and had recorded in both of the counties in which the land was situated a deed conveying the same to the defendant in execution. Having such deed recorded in one only of these counties was not sufficient.</p>

<p>1. Where several creditors filed caveats to the setting apart of a homestead, which were overruled, and the case appealed to the superior court, and pending the appeal the applicant for the homestead settled the claim of one of the caveating creditors, but no order striking her name as a party to the case was entered, she was bound by a final judgment for costs rendered in. the appeal case in favor of the applicant against her and the other creditors. This is true although such judgment may have been rendered under an “agreement” to which she was not a. party, she being still a party to the case, and the judgment not being in any respect different from what it should have been in ■the absence of any agreement.</p> <p>2. While it was within the power of the court to retax the costs, it was not bound to do so upon a motion which alleged no valid reason for so doing, and consequently there was no error in dismissing a motion to retax which was founded solely upon such a state of facts as that above indicated.</p>

<p>Levy and claim. Before Judge Griggs.. Olay superior court. September term, 1895.</p>

<p>1. Where a creditor, whose debt was secured by a conveyance of land under section 1969 of the code, obtained judgment, reconveyed the land to the debtor, and subsequently acquiesced in a sale of the land under an execution in favor of another creditor, and claimed the proceeds of such sale in the sheriff’s hands, the lien of the secured creditor attached to such proceeds, and tie purchaser at the sheriff’s sale acquired an unencumbered title.</p> <p>2. In a contest for such proceeds, arising upon a rule against the sheriff, the lien of the secured creditor will prevail over judgmeats rendered or liens created in favor of other creditors after the making of the security deed.</p> <p>.3. The evidence in the present case discloses with certainty that the creditor secured by deed, at the time of receiving the same, executed a bond for reconveyance, in accordance with the terms of the statute; and irrespective of the questions presented in the motion for a new trial, that creditor was manifestly entitled to the fund in the sheriff’s hands.</p>

<p>If the general rule that one who, on the ground of fraud or of mental incompetency to contract, seeks to rescind an executed agreement of which he has received the fruits must, before bringing his action, make or offer to make restoration to the opposite party, admits of any exception because of the plaintiff’s inability; from poverty to meet this requirement, such exception certainly cannot obtain unless the fraud remained undiscovered, or the mental incapacity continued, until after such fruits had been put beyond the power or control of the plaintiff.</p> <p>Atkinson, </., dissenting.</p>

<p>1. Though clerks of 'the superior court have, under section 268, par. 2, of the code, express authority “to receive the amounts of all costs due in the court of which they are clerks,” they are not officers authorized by law “to execute and return” executions; and consequently, a mere entry by a clerk upon an execution, acknowledging that he had received the costs due thereon, will not suffice to relieve from dormancy the judgment upon which the execution is based.</p> <p>2. This -case differs from that of Gfoolston v. O’Kelley, 81 Ga. 19, in which it was held that where a receipt for costs was entered upon an execution by a justice of the peace, the date -of such receipt would constitute a new point from which the statute a-s to dormancy would begin to run. A justice of the peace is a collecting -officer liable to rule as such; and while a clerk would be subject to rule for non-payment of costs actually collected by him, he could not be ruled for a failure to collect. The doctrine of the Gholston ease, as to this point, should not be extended.</p> <p>'3. A judgment cannot be saved from dormancy by making upon the execution a mmc pro tunc entry of a levy alleged to have been made at a time when the judgment was not dormant.</p> <p>4. The mere fact that a defendant in execution made partial payments of the judgment debt to the plaintiff in execution, -and took receipts therefor from the latter, which were n-ot entered upon the execution, did not suspend the running of the statute as to dormancy; nor is the running of this statute affected by the death of a defendant in execution.</p>

<p>Certiorari. Before Judge Butt. Chattahoochee superior court. September term, 1895.</p> <p>An execution in favor of Brannon & Wynn against Burton Blowers, founded on a judgment rendered in February, 189-1, was levied by a constable, September 3, 1891, on 50 bushels of corn and 500 pounds of seed-cotton, and later in the same month on 3,000 pounds of seed-cotton, 5,000 pounds of seed-cotton ungathered, and 100 bundles of fodder. Claims were interposed by J. hi. Lightner, and a verdict was rendered for him in justice’s court. On certiorari the superior court ordered that the verdict be set aside, the claims dismissed, and final judgment rendered in favor of plaintiffs. Claimant excepted.</p> <p>The original answer of the justice to the writ .of oertiorari showed, that Flowers rented from Lightner the land upon which the produce levied on was raised, for a certain number of bales of cotton and had discharged the rent obligation, turning over tire number of bales agreed to be paid as rent; that the produce levied on had been turned over by Flowers to Lightner in July, 1894, in discharge, of a debt for supplies; and that plaintiffs’ execution had been duly entered on the execution docket. The amended answer of the justice shows the following: The levying officer testified that Flowers was in possession of the property levied on, at the time the levies were made; and told that officer that said property was not his but claimant’s. Claimant testified, that he rented the land to Flowers for that year for four and a half bales of cotton; that there was a verbal contract with Flowers that the entire crop should be claimant’s until all advances for fertilizers and provisions were paid for; and that in July he bought out Flowers, gave him his supply account for his interest, and agreed with him that he should remain on the farm and gather the crop, and if anything were left over after paying the rent and supply account, claimant would turn it over to Flowers.</p>

<p>1. A request to charge, which in effect amounts to an instruction that, a given proposition being good law, the jury might find, that certain facts had been proved in the case on trial, was properly refused.</p> <p>.2. Where, at a meeting of certain persons who were stockholders of a corporation, a resolution was adopted containing an agreement upon the part of certain of these persons, to the effect that if the directors would proceed to sell out the assets and wind up-the affairs of the corporation as soon as practicable, they would indemnify the directors (to the extent of a given amount upon each share of stock held by such persons) against loss in consequence of a personal obligation previously assumed upon the part of the directors to pay certain -of the debts of the corporation, and where such directors, having discharged such debts of the corporation, thereafter brought suit against one of such ■ persons upon account of the liability alleged to have been incurred by him in consequence of his having assented to and voted for such resolution, it was a good reply to such a suit, that the directors had not complied with the condition imposed, and had not in fact proceeded as soon as practicable to sell out and wind up the affairs of the corporation; and it was not a good reply to such a plea, that a certain creditor of the corporation had been enjoined by it from selling such assets under a power of sale contained in a deed from the corporation to that creditor, there being no contention by the directors that their failure to comply with the condition stated was due to any want of authority in them to make the sale, or that the defendant did anything to prevent their taking such action.</p> <p>■'3. There was no error in rejecting or admitting evidence, and upon itbe question as to the nature and terms of the resolution alleged to have been adopted, and under which it was alleged that the liability of the stockholders accrued, the evidence was conflicting, but even though conflicting, being sufiicient to sustain the verdict, the court did not err in refusing -to grant a new trial.</p>

Certiorari. Before Judge Milner. Whitfield superior court. October term, 1895. Davis sued the railway company on account of the loss of three hogs, and obtained a verdict which was sustained on certiorari.

<p>Complaint. Before Judge Milner. Whitfield superior court. October term, 1895.</p>

<p>Complaint on account. Before Judge Milner. Dadesuperior court. September term, 1895.</p>

<p>Attachment. Before Judge Milner. City court of Oartersville. June term, 1895.</p>

Certiorari. Before Judge Turnbull. Floyd superior •court. November 12, 1895.

<p>Garnishment. Before Judge Harris. City court of Eloyd county. September term, 1895.</p>

<p>Complaint on note. Before Judge Harris. City court of Eloyd county. December term, 1895.</p> <p>E. J. McGhee and J. L. Camp sued J. King alleging: J. King is indebted to them $1,000 principal, besides interest, upon a promissory note, copy of which is annexed. He is also indebted to them for ten per cent, as attorney’s fees upon principal and interest of said sum. Said amount of principal, interest and attorney’s fees is due and unpaid, and he refuses to pay the same. The copy note attached "was dated April 10, 1895, was for $1,000, was signed J. King, was due sixty days after date, was payable to B. I. Hughes, cashier, or order, at a certain bank named, and contained stipulations for the payment of interest and attorney’s fees. On the back of the note are the names “E. J. McGhee,” “J. L. Camp.” To this petition defendant demurred, on the ground that it set forth no cause of action authorizing plaintiffs to recover. Plaintiffs offered the following amendment: Said E. J. McGhee and J. L. •Camp endorsed said note of $1,000, a copy of which is attached to plaintiffs’ petition, for accommodation and without consideration to them; that said King failed to pay said note at maturity or since; and that said plaintiffs, as such endorsers, have paid the same and did pay the same before the bringing of this suit, as they were by law bound to do. To the allowance of this amendment defendant objected, because there was nothing to amend by, and because the amendment set forth a new and distinct cause of action. The objection was overruled. Defendant then demurred on the ground that no cause of action was set forth either in the original petition or the petition as amended, and that the amendment set forth a new and distinct cause of action. The demurrers were overruled. To each of the rulings stated, defendant excepted.</p>

<p>Complaint on account. Before Judge Janes. Haralson superior court. July term, 1895.</p>

Complaint. Before Judge Janes. Douglas superior court. November term, 1895. To tbe May term, 1895, of tbe superior court, Mrs. Callaway sued tbe Douglasville College to recover aii amount alleged to be due ber. Tbe suit was brought in conformity to tbe Neel act of 1893. Tbe case was regularly set for trial for a day during tbe trial term.

<p>Motion to set aside judgment. Before Judge Janes. [Douglas superior court. November term, 1895.</p> <p>On October 27, 1891, Mrs. Dannie Y. Driskell filed her bill of complaint, returnable to the Debruary term, 1892, of tbe superior court of Douglas county, against one Willoughby and four Whites of Douglas county, J. M. Green and Mrs. Slaughter of Carroll county, and two named persons of Paulding county. IJpon this bill the judge granted a restraining order, and a rule to show cause, on the fourth Monday in November, 1891, why the writ of injunction and the other prayers in the bill should not be granted. On November 23, 1891, defendants Green, Willoughby and Slaughter filed their motion to dismiss the case for want of process, service, and jurisdiction, and for other defects apparent upon the face of the record. Subject to this motion they filed their several answers to the bill. On January 18, 1892, three of the Whites named as defendants filed their “petition and answer,” apparently not contesting any claim of Mrs. Driskell, but praying for injunction and relief against Green. Upon this they obtained an order, that “this petition and answer” be made a part of the record in the case of Dannie Y. Driskell vs. James M. Green et al., and that Green be enjoined as prayed, until further order, and that he show cause at the next term of Douglas superior court why the prayer of petitioners should not be granted. On April 15, 1892, Green filed a plea to the jurisdiction, alleging that he was a resident of Carroll and not of Douglas county, that no substantial relief was prayed or sought against any citizen of Douglas county, and that the principal defendants who did reside in Douglas county, the Whites, had had themselves made parties plaintiff and prayed for money judgment against Green. On July 15, 1892, during the February adjourned term of Douglas superior court, an order was passed, that the motion to dissolve the temporary restraining order in the case 'of Fannie Y. Driskell vs.• James FI. Green et al., and the demurrer to said case, and the questions made by the “answer and cross-bill” filed by the Whites, be set for trial in vacation at chambers at Dallas, Ga., on August 10, 1892. On that date the following judgment was rendered: (After stating the case) “In accordance with an order granted in term and in open court, the above stated case came on to-day for trial; and after hearing said case, it is hereby ordered and adjudged that the tenxporary restraining order heretofore granted in said case be and the same is hereby dissolved. It is also ordered and adjudged that the temporary restraining order heretofore granted on the application of L. N. White, E. J. White and J. B. White, some of the defendants in the above stated case, who filed an answer and prayed therein to be made parties plaintiff, and also prayed for injunction &c. against the defendant James M. Green, be and the same are hereby dissolved; and it is also ordered and adjudged that the status of the parties be the same as though said restraining order had never been granted. It is also ordered and adjudged that said ease be and the same is hereby dismissed at the plaintiff’s costs.”</p> <p>On October 15, 1892, in vacation and without notice to defendants Green, Willoughby or Slaughter or their counsel, the court, on motion of plaintiff’s counsel, passed an order referring to the former orders before set out, and proceeding thus: “And it further appearing to the court that the leading counsel for E. J., J. B. and L. N. White, to wit. John Y. Edge, was physically unable to attend court; it further appearing to the court that the other counsel in the case for Mrs. Fannie Y. Driskell could not be present to attend to any of the matters i" said bill or answer: it is 'therefore ordered,” that the judgment of August 10, 1892, be vacated, and the case or cases be reinstated and stand on the same footing’ as if said judgment had not been rendered. Afterwards at the November term, 1892, a verdict and judgment were rendered in favor of Mrs. Driskell against Green, Willoughby and Slaughter, for $801.25 principal, beside interest and costs; this in the absence of said three defendants and of their counsel. At the same term they filed their motion to arrest said judgment, and to set aside and vacate the verdict and judgment or decree, and to set aside and vacate the order of October 15, before stated. This motion was demurred to by plaintiff’s counsel, as unauthorized and insufficient in law. The demurrer was sustained, and defendants’ motion dismissed; and they excepted.</p>

Complaint. Before Judge Ereeman. City court of Newnan. July term, 1895. After verdict for plaintiffs, defendant moved for a new trial, and the motion was set to be heard on September 30, 1895. Upon that day counsel for plaintiffs moved to dismiss the motion, because defendant had failed to file a brief of the evidence.

<p>Appeal. Before Judge Harris. Campbell superior court. August term, 1895.</p>

<p>Rule against sheriff. Before Judge Harris. Carroll superior court. October term, 1895.</p>

<p>Gertiorari. Before Judge Harris. Carroll superior court. October term, 1895.</p> <p>An execution in favor of N. Shelnutt against M. J. & 1VI. B. Sparks, based on a judgment of April 19, 1894, was levied on 1,500 pounds of cotton in the field unpicked, as the property of defendants in fi. fa. Mrs. M. P. Sparks, for herself and her two minor children Luna -and Ada, interposed a claim, which was tried before a jury in a magistrate’s court, and there was a verdict finding the property subject. By certiorari claimant alleged that the verdict was contrary to the law and the evidence. The only issue passed on by the superior court-, and conceded to be the only and controlling -issue, was the validity of the homestead hereinafter mentioned. The certiorari was overruled, and claimant excepted.</p> <p>Upon the trial before the jury plaintiff put in evidence the execution and levy, and evidence 'that the property levied upon was in the possession of the defendants in fi. fa. at the time of the levy. Claimant put -in evidence her petition for homestead. This petition set out that petitioner is the wife of Moses Sparks, is a citizen of Carroll county (where the application was made); that her husband refused to apply for a homestead; that she had two minor children, Luna sixteen years old, and Ada thirteen years old; that neither she nor her husband had any real estate, but desired to have exempted the personal property embraced in a schedule attached, belonging to her husband and herself; that this schedule contained a minute and accurate description of all the personal property belonging to her and her husband, and another schedule attached contained a correct list of the names of. post-offices of the creditors of herself and her husband. Among other things in the schedule of property was the item 3600 pounds seed-cotton, 1200 picked out and 2400 pounds growing in the field, cultivated this year by Moses and Martha P. Sparks. The affidavit made by the applicant stated that the property all belonged to her, and that she did not personally owe anybody except the creditors whose names appeared on the schedule of creditors and whose post-offices were correctly given. Also, affidavit of M. J. Sparks, that he had given notice in writing personally to all but one of these creditors; and the written statement of the ordinary that notice was published and written notice mailed to the other creditor as required by law. Also, an amendment to the petition for homestead, in which it was stated that the minor children, notwithstanding they lived with petitioner and her husband, are indigent and dependent upon petitioner for a support, by reason of the physical weakness of 'her husband, which renders him almost unable to do physical labor, and such labor is nearly all that he can do; that all the property mentioned in the schedule belongs to petitioner and not to her husband. This amendment was made the day that the application was granted, November 12, 1894. Mrs. Sparks testified that the cotton levied upon was part of the 3600 pounds of cotton mentioned in the schedule.</p>

Certiorari. Before Judge Beck. Monroe superior court. August term, 1895. In the case of Earley, plaintiff in fi. fa., v. Sanders, defendant, and Butler, claimant, there being a verdict against the claimant by a jury in a justice’s court, claimant carried the cause by certiorari to the superior court.

<p>Complaint. Before Judge Beck. Monroe superior-court. August term, 1895.</p>

<p>Motion to confirm receiver’s sale. Before- Judge Beck. Butts superior court. November term, 1895. ,</p>

<p>Complaint for damages. Before Judge Smith. Upson superior court. November term, 1895.</p> <p>Zorn, suing for the use of Adams & Co., alleged that Hannah & Co. were indebted to him for said use $156.72, being the value of four'bales of cotton stored with defendants as warehousemen on the 22d and 27th of November, 1893, as appeared by copies of receipts for the cotton annexed; that -the four bales- aggregated in weight 1959 pounds and were reasonably worth the sum above mentioned; and that petitioner had demanded of Hannah & Co. said four bales, which they had refused. Attached to the declaration were copies of four similar receipts. The first was dated November 22, 1893, and was as follows:</p> <p>“Iron "Warehouse. G. "W. T. Hannah & Co., proprietors. Mark [4] No. [161] weight [450] P Marks [175]</p> <p>“Rec. from A. M. Zom -one bale of cotton, marks, numbers, brands, etc. as margin, subject to the presentation of this receipt- only on paying customary expenses and all advances. All cotton stored with us fully insured. Acts of providence excepted.</p> <p>[Signed] "W. D. McKenzie, for the proprietors.”</p> <p>The declaration was amended by alleging: The four bales were destroyed by fire on or about December —, 1893, and were destroyed by reason of defendant’s negligence or carelessness, in this, that they, on the day the cot-ion was burned, allowed [it] to be stored on platform on outside of the warehouse within ten or twelve feet of the railroad track, and within very short while after the passing of an engine on the Macon & Birmingham railroad the cotton placed or stored on the outside of the warehouse was discovered to be on fire, from which fire the warehouse and the entire contents were destroyed. By reason of thus negligently or carelessly allowing the cotton placed on the outside- of the warehouse said four bales so stored with the defendant as warehousemen were destroyed, and this damaged petitioner $156.72. Defendants were [bailees] for [hire], and as such were liable for the production of said four bales when demanded, and under the contract set out in the-'receipt-agreed to fully insure the cotton so stored, which they failed to do.</p> <p>Defendants demurred upon the ground, that plaintiff’s cause of action, if any exists, is not sufficiently, plainly and distinctly set forth; and that the allegations are too general and not distinctly alleged. The demurrer was sustained, and plaintiff excepted.</p>

<p>Complaint for damages. Before Judge Smith. Upson superior court. November term, 1895.</p>

Practice in Supreme Court. The bill of exceptions sets forth that a bill for injunction, in which S. C. McCandless was complainant and R. L. Rodgers respondent, came on to be heard before Judge John S. .Candler at chambers in Atlanta on March 13 (no year being stated); that upon considering said bill “the same was denied; and now comes S. 0.

Levy and claim. Before Judge Hart. Morgan superior court. September term, 1895. An execution against Durdin was levied on land to which, a claim was interposed in forma pauperis in the name of Shecut, who filed a traverse of the sheriff’s entry of levy, as to the return therein that defendant in fi. fa. was in possession of the land.

<p>Action for damages. Before Judge Hart. Putnam superior court. September term, 1895.</p> <p>James Reynolds, as next friend of bis minor son "William, sued the railroad company for damages, alleging; On April 19, 1891, defendant’s engine struck said minor, knocking him violently from the track, breaking the thigh bone of one of his legs, lacerating his head and face, injuring his spinal column and body; in consequence of which he suffered excruciating pain for many weeks, his health has been permanently impaired, his body disfigured, and his capacity to earn money in after life been diminished one half, if not entirely destroyed. At the time of the injury he was only 19 months old. The injury occurred at a place where the child, who was then standing or walking on the track, could have been seen four hundred yards from the approaching engine which struck him. If the engineer had used ordinary care he could easily have stopped the engine after coining in sight of the child, but he was careless in not looking ahead and in taking no steps to reduce the speed of the train until it was too late. The injury occurred within 200 yards after the train had passed .a public crossing, and defendant’s employees were negligent in not blowing for the crossing and in not checking the speed of the train while approaching the crossing. TIad they observed the law, the train would have been so under •control as to have been readily stopped before the child was reached. ' Defendant’s agents were negligent in running the train at an unusual and reckless rate of speed. The •engine was so defective as to render it difficult to check its speed or stop it. Had an engine in suitable condition been in use it could have been stopped in ample time to have prevented the injury. Defendant was grossly negligent in not having on the engine and train the best appliances for ■checking speed. It had in use no air-brakes, but only handbrakes. There were no means of signal between the con•ductor and the engine. Had proper machinery been in use the injury could readily have been avoided.</p> <p>Plaintiff obtained a verdict for $500. Defendant’s motion for a new trial was overruled, and it excepted. The motion alleges, beside the general grounds, that the court erred:</p> <p>In refusing to allow Dr. E. T. Walker and the physician who attended the injured child and who set and dressed his broken limb, 'to testify that after -applying plaster dressings, before the time when said bandages should have been removed, and contrary to his positive orders and instructions, .said bandages were removed, to wit one week before he had been instructed to do so. Movant contends that had ¡said testimony been admitted, it would have shown that the injured child would have made a quicker and safer recovery and would not have suffered so much pain.</p> <p>In refusing to permit defendant to show that it had paid .all the doctors’ bills for treating said injured child; which testimony would have shown that defendant had done all in its power after the injury to lessen and prevent pain and •suffering, and did in fact materially lessen the same.</p> <p>After charging: “If the engineer fails to comply with these requirements [referring to blowing whistle and checking train on approaching a public crossing] and a stranger is discovered on the track, not at a public crossing, the company through its agents must use all ordinary precaution to prevent an injury to the stranger; and if after using all ordinary precaution to prevent an injury to the stranger such injury does occur, the company will not be liable,” in refusing a request to charge the following: “If the stranger who is so discovered is an adult or person of sound mind and discretion, and laboring under no physical infirmity or disability, the company’s agents may presume that he will get out of danger; but if the stranger is a child and is known by the company not to be of such age and discretion, and unable to realize his danger, or to take the usual means to protect himself against such danger, then the company may not presume that it will get off the track, and the company must use all ordinary means to check its train and prevent any injury to such stranger; the requirements in the latter case being upon the company to the same extent as in the case of cattle who are discovered upon the track. In the case of a child who appears upon the track not at a public crossing, the company owes it no higher degree of diligence than to use all ordinary, and not extraordinary, means to prevent an injury to it.”</p> <p>The evidence having shown that "W. R. Bowles, an employee of the company but not on duty on the day of the injury, was on the engine when the child was struck and was being transported by the company from Covington to his home in Eatonton, and counsel for the plaintiff having argued to the jury that it was negligence upon the part of the company if this employee could have seen the child before it was actually seen, but did not see him because he was not on the lookout, the court erred in refusing a request to charge the following: “An employee of a railroad company, who is not on duty at the time of an accident whereby one is injured by the running of the company’s cars, cannot bind the company by any failure upon his part to discharge the work or duty of another employee who at the time of the accident is on duty and engaged in the work for which he is employed. If a fireman of the company who is not on duty is being transported from one place to another on the company’s engine, and his presence upon the engine is simply for the purpose of being transported, fails to keep a lookout for persons on the track, his failure so to do is not negligence upon the part of the company, it having at the time a regular fireman upon the engine who was discharging the usual duties of his employment.”</p> <p>Also, error in refusing to allow defendant to prove that D. B. Rogers, a witness for plaintiff, was being prosecuted under an indictment for larceny at the instance of defendant; the evidence being offered for the purpose of showing the interest of the witness.</p> <p>And since the trial defendant has discovered that the testimony of Rogers is not only untrue, because no engine could have been used on a railroad track in the condition described by him of this engine, but that the engine immediately before the accident had been thoroughly repaired, especially so as far as its power of taking and holding steam was concerned. Defendant has also discovered, by reason of an examination by an expert machinist, that the engine is in perfect condition as far as taking and holding steam is concerned. It was impossible from the allegation in the plaintiff’s petition to have had reasonable premonition of the peculiar turn Rogers’ testimony in the case would take, the petition having laid stress mainly on the absence of air-brakes as the cause of the accident. Defendant knew that its engine was defective in certain particulars, but did not know, and bad no means of deriving from tbe petition, tbat it would be claimed tbat there were any defects as far as its power to receive and properly bold steam when given by tbe engineer. In support of this ground movant produced tbe affidavit of Gr. ~W. B. Bozeman: Am a practical machinist and have been for fifteen years. I repaired engine No. 4 soon after it was brought here. Repaired tbe steam cylinders, and new pistons and rings were put on. "Was just before tbe accident and I remember tbe fact well, because tbe air-pump was taken off at tbe time and sent to Augusta for repairs. As to its ability to take and bold steam, it was in excellent condition at tbe time of tbe accident, and there were no defects at all in its ability to use its steam. It is an especially quick engine and will start and stop promptly. — Also, affidavit of J. B. Moore: Am a practical machinist and have been for 25 years, and have been a locomotive engineer for 11 years. There is no defect in tbe valve motion or cylinders. It uses steam properly and promptly. The valve motion and drivers- are properly suited for engine passenger service. It is an especially quick engine, and will respond readily to position of lever. There are no defects tbat will binder tbe engine from starting or stopping readily by steam.</p>

<p>Ejectment. Before Judge Hart. Laurens superior court. July term, 1895.</p>

Complaint on notes. Before Judge Butt. Harris superior court. October term, 1895. Dorougb sued Johnson upon five promissory notes for $200 each, due November 1, 1887, 1888, 1889, 1890 and 1891, with credits of sundry amounts aggregating $571.75, made at various dates in 1888, 1889 and 1890. Defendant relied upon special pleas which were stricken on demurrer; to which ruling he excepted.

<p>Certiorari. Before Judge Butt. Marion superior court. October term, 1895.</p>

Ejectment. Before Judge Griggs. Early superior court. October term, 1895. E. E. Hicks sued Mrs. Ann Ivey for land lot 400 in the 6th. district of Early county.

Attachment and garnishment. Before Judge Griggs. Early superior court. October term, 1895. The plaintiff sued and obtained judgment against M. L. McDonald, a resident of Texas, and caused summons of garnishment to issue and be served on T. M. Howard as administrator of A. J. McDonald. The garnishee answered, that defendant had a note against him, on which he is indebted $200, but he does not know who has said note or where it is.

<p>Certiorari. Before Judge Griggs. Early superior-court. October term, 1895.</p>

Complaint on note. Before Judge Griggs. Terrell superior court. November term, 1895. The first State Bank of Dawson sued S. M. Thompson, April 29, 1895, upon a promissory note for $2,300 principal, dated January 17, 1893, due February 1, 1898, bearing interest at 8 per cent., payable semi-annually, as per attached coupons, each of which was a promise to pay $92, signed by the defendant.

Equitable petition. Before Judge Fisb. Sumter superior court. May term, 1895. Meinliard Brothers & Co., Marsh & Smith and others filed their petition against Cobb & Daniel and the Peoples National Bank, alleging: Cobb & Daniel were merchants until the night of March 23, 1895, when they were closed up by the deputy-sheriff of Sumter county by virtue of a mortgage fi. fa. in favor of said bank.

Distress warrant. Before Judge Eish. Macon superior court. November term, 1895. A distress warrant in favor of John Harrison against Tony Westbrook was met by a counter-affidavit that the sum distrained for was not due. Upon the trial defendant moved to quash the distress warrant, upon the ground that it was issued upon an affidavit of IT. 0.

<p>Appeal. Before Judge Fisb. Sumter superior court. November term, 1895.</p>

<p>Indictment for murder. Before Judge Hart. Wilkinson superior court. April term, 1896.</p>

<p>1. A person being tried for the commission of a «rime receives “tbe privilege and benefit of counsel” within the meaning of the fifth paragraph of the “bill of rights” (Code, §4997) whenever, being himself unwilling or unable from proverty or other-cause to procure counsel of his own choice, the court assigns to his defense counsel from members of the legal profession -wh-o may be present at the time of the trial and who undertake in good faith to represent the interests of the accused. In such case it will, in the absence of satisfactory proof to the contrary, be presumed that the counsel so assigned are of sufficient experience and possess the requisite legal attainment to satisfy the constitutional requirement above cited.</p> <p>2. If, after conviction, other counsel be employed by the accused, who move for n new trial, claiming that the counsel actually assigned by the court to represent him at the trial were so inexperienced and incompetent as that their appearance upon 'his behalf did not amount to giving to the accused the benefit of counsel, the question thus sought to be raised is not presented where neither the motion is made upon that ground nor the evidence submitted in support of it authenticated in such manner -as to authorize its consideration by this court.</p> <p>3. There was no error in refusing 'to continue a murder case in order to allow the accused to obtain evidence tending to- show that a person jointly indicted with him had confessed the perpetration of the homicide.</p> <p>4. This court will not reverse the judgment of a trial judge in refusing to grant a continuance upon grounds or for reasons not made or stated when the motion for a continuance was presented. Accordingly, where counsel for the accused did not inform the judge that they needed or desired additional time to prepare the defense, or ask for a continuance of the case or a postponement of the trial in order that they might have further time for this purpose, this court cannot assume that such time was needed, or hold that the trial judge should have allowed it without being so requested.</p> <p>5. The evidence fully warranted the verdict; it does not appear that the accused was denied or deprived o'f any of his legal or constitutional rights; and there is nothing in the motion for a new trial, nor any reason disclosed by the record, which would warrant this court in reversing the judgment of the -court below.</p>

Indictment for malicious mischief. Before Judge Hutchins. Clarke superior court. October term, 1895.

<p>1. Upon the trial of a criminal case, the trial judge, in his charge to the jury, with or without request, should instruct them as to the general principles of the law which of necessity must be applied by them in reaching a correct conclusion upon the questions submitted for their consideration.</p> <p>2. An intent to steal is a substantive element in the eommissiotí of the offense of robbery, and a failure of the trial judge to scs instruct a jury trying such a case is cause for a new trial; espe- . cially is this true in a case in which one contention of the accused was the absence of such intent.</p> <p>3. Where, upon the trial of such a case, 'the person accused makes a statement giving his version of the transaction in question and denying his 'guilt, a charge in these words: “In determining 'the various questions in the case, you must do that by looking to the testimony of the witnesses that have been-sworn in the case,” was not, under the decision of this court in Yauglm v. The State, 88 Ga, 731, -erroneous; but it would not have been inappropriate to have added some such language as the following: “and the statement of the accused, giving to the latter such force as you think it entitled to receive”; and this seemingly would be the better practice.</p> <p>4. Except as above indicated, nio questions -are so- made as will enable this court to determine them.</p>

<p>Indictment for burglary. Before Judge Butt. Muscogee superior court. May term, 1896.</p>

<p>1. Where two persons interested in. a crop raised by one of them . upon, land of the other, or of the latter’s wife, differ as to their respective shares in such crop, and the 'tenant or cropper by whom it was raised peaceably enters upon the land for the purpose of gathering and removing that proportion of the crop which he in good faith claims as his own, and the landlord, to prevent this being done, deliberately kills the tenant or cropper, or his assistant, 'the killing is murder. Even if the tenant, or cropper, was mistaken as to the amount of his interest in the crop and intended to remove more than his lawful share, this alone would not, in legal contemplation, be sufficient to justify the excitement of passion on the part of the slayer, so as to reduce the homicide to voluntary manslaughter.</p> <p>2. In view of the undisputed facts of this case, which fully warranted a conviction of murder, the requests to charge were properly refused, and the charges complained of were substantially correct.</p>

<p>Accusaiti'on of forcible (entry 'and detainer. Before Judge Norwood. City court of Savannah. July term, 1896.</p>

<p>Indictment for rape. Before Judge Oall'away. Ricfhm ond superior court. April term, 1896.</p>

<p>1. An examination for tlie purpose of testing the competency of a child of tender years to testify as a witness, which develops nothing except that he does not know his age, but does know his father’s name and the number and names of the days of the week, and can count thirty-two, is not sufficiently comprehensive to authorize a conclusion that such child understands the nature of an oath.</p> <p>2. Evidence that the father of one accused of crime endeavored to effect a settlement of the prosecution may, in some instances, be ’ competent as affecting the father’s credibility as a witness; but such evidence is never admissible to bind the accused as a quasi admission of guilt, unless it appears that he authorized, or was in some way connected with, the attempt to settle.</p> <p>3. It was error to charge upon the hypothesis that the accused had “made a proposition of settlement,” when there was no evidence that he had done so.</p> <p>4. The charge of the court was, in several respects, inaccurate, and did not clearly present the law of the case.</p>

<p>Indictment for perjury. Before Judge- Candler. Fulton superior court. September'term, 1896.</p>

Petition. far injunction. Before Judge Han’t. Baldwin county. October 1, 1896. Held: used and owned the property, rights, privileges and franchises of the MUledgeville & Asylum Dummy Railroad Company, if it could lawfully do so under the facts stated, and operated the line of railroad the latter had constructed.

<p>Equitable petition. Before Judge- Callaway. Dooly superior court. September term, 1895.</p>

d-ertiorari. Before Judge Eish. Sumter superior court. November term, 1895. Mrs. Wheeler was sued on an account in th© county court by Mrs. Georg© Stapleton. Defendant demurred to the petition, on the ground that no cause of action or bill of particulars was attached.

<p>Levy and claim. Before Judge Eisb. Lee superior court. March term, 1896.</p>

<p>1. The power of the tax-collectors of this State to issue executions, against wild and unimproved lands, because of the non-payment of taxes due thereon by the owner, is dependent upon a non-return of such lands for taxes by the latter, and it is, therefore,, essential to the exercise of this power, and to the validity of the 'title of a purchaser of such land, acquired at a sale made under- and by virtue of an execution so issued, that it appear from the recitals in the execution, not only that the land against which, the same was issued was wild and unimproved, but that it was. likewise not returned for taxes by the owner.</p> <p>2. A paper purporting to be a tax execution, addressed to the sheriffs of this State, and directing “that of the goods and chattels,, lands and tenements” of a specified lot of land (which though in fact wild was not so described in the paper) they cause to be ■made stated sums “due by him for his” State and county taxes-for a named year, was not a legal execution against any defaulting taxpayer because none was named; nor was it a legal execution against the land described, for even if, in spite of the looseness of its phraseology, it could otherwise be so regarded,, it was fatally defective, in that it did not recite that the land was wild, or that it had not been returned for taxes, or that any taxes were due thereon, or set forth any facts authorizing the issuing of a tax execution against the property in rem.</p>

<p>Action for breach of promise of marriage. Before ■Judge Eisli. Dooly superior court. March term, 1896.</p>

<p>Where hy consent a case involving questions both of law and fact was tried by the judge without a jury, and a judgment rendered in the plaintiff’s favor, to which (there being no motion for a new trial) direct exception was taken in the following words: "to which said decision and judgment of the court the defendants by their attorney then excepted, and now except and say that the same was error, and now assign the same as error”: Held, that under the decisions of this court in Mayor etc. of Brunswick v. Moore, executrix, and Hall et al. v. Huff et al., 74 Ga. 409, and the cases cited in the latter, such assignment of orror was too general. It ought at least to have stated whether the judgment was complained of as being contrary to law, or contrary to evidence, or to both.</p>

<p>Complaint for damages. Before Judge Fisli. Sumter superior court. November term, 1895.</p>

<p>•Certiorari. Before Judge Fish. Macon superior court. May term, 1896.</p>

<p>1. An execution issued upon the foreclosure (regular in all respects) of a laborer’s lien is, as to a claimant of property levied on thereunder, final process, and upon the trial of a claim ease arising upon the levy of such an execution, it is not necessary for the plaintiff to prove either the amount of his debt, or the existence of his lien.</p> <p>2. There was sufficient evidence to sustain the verdict, and the trial judge being satisfied with it, .this court will not interfere.</p> <p>Levy and claim. Before Judge Eisb. Stewart superior court. April term, 1896.</p> <p>A laborer’s lien fi. fa. in favor of W. A. Middleton against Reuben Middleton was levied upon certain personalty which was claimed by Rufus Allen. There was a verdict finding the property levied on subject. Claimant’s motion for a new trial was overruled, and he excepted. 'The motion was upon the grounds that the verdict was contrary to law, evidence, etc. Further, because the court erred in refusing to charge: “It is necessary for 'the plaintiff to show that his contract of labor was performed and completed, and that after that time he had made demand upon the party for whom the work was done; and this demand, in order to set up a lien against a purchaser, must have been made before the purchase.” And because the court erred in charging, that it was not necessary for the plaintiff to malee any demand upon the defendant in order to defeat the claimant’s right, provided the claimant was put upon notice of the lien. The court charged the jury that the execution issued upon the foreclosure of the laborer’s lien was final process unless met by counter-affidavit, and there was no counter-affidavit- in this case; that therefore it was not necessary for the plaintiff to prove, in this case, that he had made a demand upon the defendant; that if claimant had notice of plaintiff’s lien at the time claimant purchased the crop, then the jury would be authorized to find the property subject, but if claimant was a bona fide purchaser without notice, he would be protected, and they should find the property not subject.</p>

<p>Equitable petition. Before Judge Spence. Worth superior court. April term, 1896.</p>

<p>1. An entry of milla hona upon an execution issued from a justice’s court, by one wbo had previously been elected constable, and who at the time of the entry was “acting as constable generally,” was not invalid because he was not then under bond.</p> <p>2. It was error, on the trial of a claim case, to admit in evidence in favor of the plaintiff in execution a written statement previously made by the defendant in execution, to the effect that at the time it was signed there were no judgments binding his property, such statement being offered for the purpose of impeaching a judgment against the defendant in execution, in existence when the statement was made, and the claimant’s title to the property in dispute depending upon the validity of a sale under that judgment. The fact that the statement was sworn to added nothing to its competency for the purpose indicated; for, notwithstanding this fact, it was hearsay only.</p>

<p>1. Where the question whether a given deed is good as color of title depends upon whether it covered the land in dispute, and its terms are in this respect ambiguous, parol evidence is admissible to show that it did in fact apply to such land.</p> <p>2. Where an administrator, with the consent of the heirs of his intestate (he being one of them), maltes an agreement with the widow, by the terms of which he permits her to remain in possession of a portion of the lands of the intestate, with the understanding that she shall have the use and occupancy of the same during her life, at the termination of her right -to possession, whether the same results from her death or other cause, he máy in his representative capacity maintain against a stranger an action to recover possession wrongfully withheld.</p> <p>3. Where, by the terms of the agreement under which she thus-enters, the right of the widow is limited to the use of the land for farming purposes only, whether she be treated as a tenant for life or a licensee, if she by herself, or another by her permission, appropriates the land or any part thereof-to other and inconsistent uses which in their nature seriously impair its. value, to the injury of the freehold, and to the injury of those ' entitled in reversion, such use operates as a forfeiture of the ■ life-estate, or a revocation of the license, as the case may be, and the administrator is thereupon entitled to re-enter.</p> <p>4. There was no material error in admitting evidence, nor in the charges complained of, and the evidence as a whole- was sufficient to show title in the plaintiff’s intestate. Under the facts . appearing in the record, and in view of the rules of law above-announced, the plaintiff was entitled to recover the premises in dispute, and the specific damages found by the jury for the de- • struction of trees; but the recovery of “damage and rental, $75.00,” was not warranted, and unless the same is written off, the verdict should be set aside. This matter has been covered, by an appropriate direction.</p>

<p>1. Under the evidence submitted, tbe court did not err in allowing .tbe clerk to amend tbe date of tbe entry of filing upon tbe plaintiff’s declaration.</p> <p>2. Tbe court having permitted witnesses to testify to all the facts witbin tbeir knowledge tending to show that tbe plaintiff knew of the existence oí a certain deed, it was not error to refuse to allow these witnesses to state tbeir own conclusions or impressions as to what tbe plaintiff knew or must have known with reference to tbe deed in question.</p> <p>3. An ordinary, being a judge of a court of record, may, under section 2706 of tbe code, officially attest a deed in any county of this State.</p> <p>4. The deed under which tbe plaintiff claimed title having been recorded witbin the time prescribed by the then existing law, there was no error in failing or refusing to charge upon a hypothesis that it bad not been so recorded.</p> <p>5. Tbe controlling issue in the case being as to whether or not the plaintiff bought certain land with actual notice of a prior existing deed conveying the timber thereon to the defendant, it will, in the absence of any exception alleging that the judge did not properly instruct the jury upon this issue, be presumed that he. did so.</p> <p>6. No ruling of the trial judge was invoked as to the alleged improper conduct of counsel; the evidence warranted the verdict,, and there was no error in denying a new trial.</p>

<p>Accusation of cheating and defrauding. Before Judge Berry. Criminal court of Atlanta. October 13, 1896.</p>

<p>Complaint. Before Judge Smith. Dodge superior court. March term, 1896.</p>

<p>1. The express description in a deed to realty introduced as color of title will not be extended beyond its terms because of a belief by the holder under it that it covered land not embraced in that description, nor because of any unexpressed intention in the mind of the grantor that it should cover land not described in the deed itself, there being no suggestion of mistake in ith-e drawing of it.</p> <p>2. I-t follows, -as a general rule, that in order to render a deed effectual to constitute color of title, it must actually cover the land claimed under it. That the holder of such deed honestly believed or that the grantor supposed it covered the land so claimed, would not suffice in a case where there was no contention that the descriptive words embraced in the deed were other than those which were intended to be used.</p> <p>'3. The court, in several of its instructions to the jury, in effect charged to the contrary of the above, and for this reason there should be a new trial.</p>

<p>1. In a suit upon a bond binding the obligor for the payment of a specified penal sum in the event of his failure to comply with the covenants of the bond, only the actual damages arising from ■ a breach thereof can be recovered.</p> <p>2. The evidence in the present case failing to establish the amount of the damages recovered by the plaintiff, the verdict was"not warranted by law.</p>

<p>Action for damages. Before Judge Sweat. Glynn superior court. May term, 1896.</p>

<p>1. A proceeding instituted under section 4072 of the code for the purpose of ejecting an alleged intruder from land cannot be made the basis of a trial before a justice of the peace and a jury as in cases of forcible entry and detainer arising under section 4085. Such a trial is coram non judice, and its result a nullity.</p> <p>2. Although the present case was argued here by counsel for the plaintiff in error (there being no appearance contra) as if it had originated under the latter section, the record discloses that the trial before the magistrate and the jury was had upon “an affidavit brought to eject [the defendants] as intruders,” resulting in a verdict finding -the defendants guilty of forcible entry and detainer, and that judgment was entered accordingly. Upon certiorari this verdict and judgment were affirmed by final judgment of the superior court. Held, that this was error. The judge ought in the first instance to have refused to sanction the petition for certiorari.</p>

<p>Equitable petition. Before Judge Sweat. Glynn superior court. December term, 1895.</p>