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THE MACON WEEKLY TELEGRAPH: TUESDAY, NOVEMBER 24, 1885.--TWELVE PAGES.
.SUPREME COURT Of| GEORGIA.
Decisions Rendered Tuesday, November 17,
1888.
Special Report by Henry C. Pi epics.
Locke; et al. va. Mize, sheriff, to uae,
etc. Complaint, from Sumter. Judgment
reversed.
Joe Phelps vh. the State. Murder, from
Randolph. Judgment affirmed.
Husnu Harrell vh. the State. Assault
with inteut to murder, from Muscogee.
Judgment affirmed.
Columbus and Western Railroad Com
pany vs. Flournoy A Upping. Assumpsit,
from Muscogee. Judgment reversed.
R. W. Leilsinger vs. Central Line Steam
ers. Case, from Muscogee. Judgment af
firmed.
M. E. Ruffle, executrix, vs. Lucy Paris.
Equity, from Taylor. Judgment affirmed.
i Everedgc et nl. vs. Alexander et al.
Private way. Certiorari, from Harris.
Judgment affirmed. Rlandford J. not pre
siding.
Frank McArdle vs. IL D. McDaniel, Gov
ernor. Motion to set aside judgment, from
Muscogee. Judgment reversed.
Lula E. DuBoso vs. E. P. DuBose. Di
vorce, from Muscogee. Judgment affirmed.
Margaret A. Boss vs. J. H. Bass et al., ex
ecutors. Equity, from Muscogee. Writ of
error dismissed.
J. K. Patterson vs. Collier et aL, execu
tors. Ejectment, from Stewart. Judgment
atBrmed. '
J. W. Tufts vs. W. B. Cheatham. Com
plaint, from Terrell. Judgment affirmed.
Charlotte Searcy, executrix, vs. W. L.
Tillman. Motion in arrest of judgment
and appeal from Taylor. Beforo Judge
Willis. Judgment affirmed in both cases.
Sam Jones vs. the State. Burglary, from
Muscogee. Judgment affirmed.
Wm. B. Willis vs. Boltin Jefferson. Il
legality, from Chattahoochee. Judgment
affirmed. i
Myra T. Hickson vs. Bryan, administra- ]
tor, et nl. Equity, from Harris. Judgment
reversed.
Clras. XI. Pfeiffer A Co. vs. C. D. Hunt.
Complaint, from Muscogee. Judgment af
firmed.
Ringer XIanufactnring Compnny vs. Jos.
Martin. Trover, from Xluscogee. Judg
ment afflmed.
Ferguson, next friend, vs. Columbus and
Rome railroad. Non suit, from Muscogee.
Judgment reversed.
m Leo Loi-b vs. the 8tate. Selling liquor
^ to minors, from Muscogee. Judgmont af
firmed.
Herbert A. Knight et oL vs. Julia T.
Knight et al. Injunction, from Fulton.
Judgment affirmed^
John Yon vs. Bllnchard, surviving part
ner. Assumpsit, from Muscogee. Judg
ment reversed.
E. A. Stone vs. XIoore et ah Complaint,
from Chattahoochee. Judgment affirmed.
T. J. Bates vs. Slade A Etheridge. Equity,
from Xluscogee. Judgment affirmed.
C. XV. Hines vs. E. XV. Beers. Refusal of
iqjunction, from Harris. Judgment af
firmed.
C. D. Hunt vs. J. D. Bowen. Claim,
from Muscogee. Judgment affirmed.
XV. A. Rogers et al. vs. A. A. Pace et al.
Ejectment, from Harris. Judgment af
firmed.
Mat Davis va. tho State, Burglary, from
Muscogee. Judgment affirmed.
E. K. Massey vs. mayor and council of
Columbus. Cose, from Xluscogee. Judg
ment affirmed.
XVillinm Baldwin vs. the State. Stabbing,
from Terrell. Judgment reversed. Jack-
son, C. J., dissenting.
T. F. Ridenhour, J. P., vs. tho State.
Xlnlprnctico in office, from Xluscogee. Judg
ment affirmed.
Lackey et al. vs. MUo, sheriff, to use, etc.
Complaint, from Sumter. Before B. B.
Hinton, Esq., judge pro Auer fee. Claim.
Forthcoming bond. Evidence. Para
mount title.
Jackson, C. J.— 1 Where an execution was
levied on certain property, a forthcoming
bond given by Lackey as agent for his wife
nnd children and on the trial of the claim
case tho property was found snbject, on n
suit on the forthcoming bond for failure to
deliver the property, it waa error to rnlo
out evidence that the same property was
levied on under the same execution, anoth
er claim interposed with proper bonds by
tho wife of Lnckey in hor own right, and
on the trinl of that claim the property was
found not subject, the verdict in the last
case being subsequent to tbo ver
dict in the first claim case
mentioned. Such evidence went
to show- that no damage resulted from fail
ure to deliver because the property did not
belong to defendant in execution and was
ndmisuble. 54 Q*. 681; IT Ga. ">'21; T Un.
445; 10 Go. 160; 18 Go. 460; 6 Ga. 244.
Judgment revered.
E. G. Simmons for plaintiff; Hawkins A
Hawkins, contra.
Leilsinger vs. Central Line Steamers. Case,
from Xlnacogee. Before Judge XVillis.
Action. Partnership. Ultra vires. Do-
murrer. Amendment.
Jackson, C. J —1. A suit against XVhitc-
sides and the Central Railroad and Banking
Company, aa copartners in a business of
carrying by steamlmatline, was demurrable,
it having been held this coart tbst said
Central Railroad ami Bunking Company
hail no power by iU charter to enter into
such n partnership. Gunn vs. Central
ltnilroad and Banking Company. February
term, 1885.
. 2. Demurrer to the original declar
ation, on this ground, having been sus
tained, there waa nothing left to amend
by, and a proposed amendment
by which it was sought to hold the partners
' as individual tort feasors, united in a com
mon venture as carriers, was properly re
jected. Judgment affirmed.
Hatcher A Peabody for plaintiff; Peabody
A Brannon contra.
fore Judge XVillis. C riminal law. Police
men. Arrest. XX'armnt. Evidenco.
Jackson, C. J.—1. Policemen ought to
assist each other in making arrests and
when one hails another to stop a man run
ning to a bridge which would carry him into
another jurisdiction, it is tho dnty of the
duty ot the latter to siuze and arrest the
fugitive, nnd if with a knife, already open
in his band, such fngitivo cut at the first
man who tried to stop him, and then cut
the hand of the policeman who seized aud
hold him, and then mode another blow with
the knife to slab him again, which ho
escaped only by jumping out of tire way,
the facts sustain a verdict of guilty of
assault with intent to murder.
2. In such a cose a charge, that a police
man may arrest without warrant for dis
orderly conduct, or other violation of city
ordinances, or for crime in order to prevent
escape, is not error.
3. The offense is assault with intent to
murder, though no malice toward tho police
man be shown, other than the nso of the
deadly weapons. 17 Ga. 101; 30 Ga. 420;
46 Ga. 85; 64 Ga. 125; 66 Ga. 755; Russ, on
Crimes vol. 1 p. 532-3; \Vli*r. Cnm. Law vol.
1 p. 651; XVhor. on Homicide sec. 233.
4. It is immaterial whether the policeman
was prosecutor or not. The presentment
by tne grand jury revealed the fact that he
was not, and parol testimony ns to the fact
was properly rejected.
5. A letter read by n witness about the
character of the accused from a man, the
sheriff told witness, to whom accused for
merly belonged, docs not furnish such evi
dence of knowledge of liis character os will
cnnble the witness to express his opinion
thereon. Judgment affirmed.
B. A. Thornton, XV. A. Little for plaintiff;
T. XV. Grimes, solicitor-general, by McNeill
A Levy, contra.
Joe Phelps vs. the State. Xturdcr, from
Randolph. Before Judge Clark. Crirni.
nal law. Xlurder. Reasonable fears.
Charge of the court. Continuance. Re
charge.
Jackson, C. J.—-1. The evidence demand
ed a verdict of murder and accused was for
tunate to escape with his life.
2. The clmrgo was full, fair and clear,
charge that “if the deceased was cursing the
accused and called for his pistol and ac
cused pulled his pistol out and shot him,
that would not reduce the crime from mur
der to manslaughter,” was not erroneous,
especially when it appears that the jury
wero fully charged as to the doctrine of
reasonable fears.
3. The continuance asked for, because of
the absence of a witness, jnst beard of the
morning of the trial, w ho would swear to
certain statements of the wife of deceased,
without showing that the wife would not
swear on the stand what sho stated to the
witness, either on the committing trial or
otherwise, was properly refused.
4. XVhen tho jury request to be recharged
it is the duty of the judge to re-charge
them, anil the consent of parties or their
counsel is not necessary.
5. It is not error for tho court Vo tellthc
jury the punishment of different grades of
homicide, especially when it is for them to
fix the punisnment in one of the grades.
Judgment affirmed.
L. S. Chastain, A. Hood A Son, for plain
tiff; J. H. Guerry, solicitor-genera), C. An.
ilerson, attorney-general, contra.
ed it in place of the provision in the third
item of the will?
(6) XX’as she fully informed ns to her right
to a year’s support out of her husband’s es
tate, suited to her situation in life and the
mode in which her husband bad provided
for her in his lifetime?
(6) XVas tho vuluo in money and real es
tate given in the settlement to her by John
H. Bass a fair equivalent for her release to
him of “all and singular her rights, privi
leges and interests as heir-at-law, or under
the will of said Robert L. Bass, as well as
all right of dower in tho lands of Bald Rob
ert L. Bass?”
(7) . Did tho settlement and release em
brace in tho minds of both contracting par
ties, a release of her rights to all the estate
of her husband, if tho true construction of
the fourth item of the will, read in connec
tion with the whole will, entitle her to it
all; or did both in the settlement consider
her only entitled to a life support in the
third item ?
4. XIodifying the above questions and ad
ding such others as may seem proper to the
presiding judge, on his own motion or the
suggestion of counsel approved by him,
the entire case is to be trust over again, with
the right of either party to except to any
ruling, as In other cases; and the court be
low to make a final decree on the pleadings
nnd verdict, unless set sside by a grant of
new trial, with right of either party to ex
cept thereto; nnd the right of complainant,
should she bring tho case to this conrt, to
ussigu error hero on the interlocutory bill
of exceptions to the decision on the demur
rer, of file in tho court below.
5. Without regard to the construction of
the will invoked by the demurrer, the com-
plaintant was entitled to a full disclosure of
all the matters and properties of the estate
of her husband, ana all her rights of overy
sort therein.
6. Especially is it important that the is
sue stated in tho seventh question above be
set tied, as then tho entire case, in all proba
bility , can bo finally adjudicated here when
brought here again.
Wnt of error dismissed. Smith A Rus
sell, B. A. Thornton, for plaintiff; It. J.
Moses, McNeill A Levi, contra.
Colambtu and Western Railroad Company
• vs. Flournoy A Epping. Assumpsit,
from Muscogee. Before Judge XXdlis.
XIensure of damages. Carriers. Prompt
delivery. , ,
Jackson, C. J.—1. The measure of dain-
nges in an action against a common carrier
lor failure to transport and deliver goods in
a reasonable time, in the absence of a spe
cial contract, is the difference in the market
value of the goods when actually delivered
and their market value if delivered in a rea
sonable time.
2. On tbo trial of such au action
evidence that the owners of the
good* had contracted for a pnee
above the market value of the
goods, ot which contract no notice hail been
given the carrier, was improperl' *■•-
mitteil. ... t
3. The question of reasonable time is one
for the jury. In iletonnlning it they may
consider the time within which the goods
could ordinarily be carried the distance be
tween the points; the preparations made by
the carrier, whether ample or not; the effort
at dispatch; tho information given by the
shipper of peculiar reasons for
transit and delivery; and other kindred cir
cumstances, including the character of the
freight, etc.
I Qne»tionH not made below not con-
sidcredhere. Judgment reversed.
Peabody A llrannou for plaintiff
Hatcher A Peabody, contra.
Husnn Harrell va the State. Assault with
iuUnt to munler, from Muscogee. De
lias* vs. Bass. Equity, from Muscogee.
Before Judge Willis. Practice. Equity.
Frauds. Directions.
Jackson, C. J,—This case was before
this court at its Scptemlier term, 1883, on
exceptions to the sustaining a demurrer
filed to the bill in the court below, and it
was sent back with certain directions, it
being held that the case was prematurely
here.
XX'hen it came up again in the conrt
bejow, with substantially the same plead
ings, the demurrer was renewed, and was
sustained. Counsel for complainant then
stated in open court that if complainant
on a final construction of the will
in question in the case was not
entitled to the whole estate jand by sus
taining the demurrer tho court hail held
that she was not],they did not wish the set
tlement, alleged ill the hill to be fraudu
lent, inequitable and unlawful, disturbed,
and that the bill ought to be dismissed.
The court then ordered the bill dis
missed. Bill of exceptions was tendered
aud signed to this action and this bill is
now under consideration here. After this
bill of exceptions had been signed an inter
locutory bill of exceptions was also tender
ed anil certified. Held—
]. It was error to dismiss the bill for want
of equity. Other questions of fraud, etc.,
were raised by the bill, which the domnrrcr
did not reach and was not aimed at. The
statement of counsel that the hill ought to
ho dismissed after tho demurrer was sus
tained did not amount to amending the
bill liy striking out all allegations of fraud,
etc. A court of record should keep its plead
ings complete in writing and unaffected by
parol statements and suggestions in open
court.
2. If a motion had been mode in this
court to dismiss this bill of exceptions, on
account ot the consent of plaintiff in error
to the judgment of dismissal below, the
motion would, in all prolwbility, have pre
vailed under the ruling in Zorn vs. Lamar,
of Ga. p. 80, 85, and preceding cases, mi
les* the decree that it be dismirse l for want
of equity went beyond the conaent of coun
sel ; but no motion to dismiss was msde here,
and wo fail to dismiss it and thus finally
terminate the ease, because it is appa
rent that the effort of both parties
has been in g od faith to have
this conrt pass upon the qncstion raised by
the demurrer, nnd thus settle the litigation,
ami in this effort the conrt below seems to
have joined; no motion to dismiss is made
here, nrd the current of recent legislation
in this State has been to require, as far as
possible, esses to be tried on their merits.
3. It is therefore oiderad that the writ of
error be dismissed liecausc it is premature
ly brought to this court; that the court be
low proceed to try the case as indicated in
that part of the judgment which is in these
wonts, “that the parties proceed to try
the issues mailo by the bill and answer;
and in older that no misunderstanding may
arise touching the issues to lie tried, it is
directed that questions such as the follow
ing be submitted to the jury:
(1) Are tho settlement and release fair
and just if the complainant he entitled only
to a competent nnd ample support and
maintenance out of the estate, and which
shall be sufficient to enable her to live m
the same manner, condition ami style as
the family of John II. Bass, in view of the
fact that the allowance turned over to her
is In fee simple, whilst the provision in the
third item of the will Is for her mother s
life and her own or her widowhood?
(2) XX’as any advantage taken of her by
the ilcfcudeut in bringing about the settle
ment and release, eiUnr of her poverty, or
dependence upon him, or distress and suf
fering of body or mind, or otherwise?
(3) XVas she fully informed of, and did
aha know the full value of her husbands
estate, and the full value of the support tor
life or widowhood to which she wsa enti
tled under the third item of the will, if she
bad chosen to take U tor Ufeor widowhood,
nnd its value if she took it in fee, in view ot
the language need in the third item?
Ill XVas she folly informed as to the real
estate of her husband, its value wid ths
value of her dower therein, it she had ideet-
DuBose vs. DuBose. Divorce, from Mus
cogee. Before Judge XVillis. Cruel treat
ment. Character. Evidence.
Jackson, C. J.—1. XVhere libel for divorce
charged cruel treatmentof the most beastly
and degraded character, evidence of general
good character of the respondent was prop
erly admitted. Code 3757.
2. If was not error to confine a witness,
who conversed with defendant, to his say
ings, and to decline to admit impressions
made on his mind by such conversation.
3. The verdict is demanded by the evi
dence and the charge was not erroneous.
4. The rejected evidence, even if admissi
ble, could not have affected the result, nor
could the newly discovered evidence. Judg
ment affirmed. *
Hatcher A I’eabody for plaintiff; XV. A.
Little, contra.
McArdle vs. XIcDaniel, Governor. XIotion
to set aside judgment, from Xluscogee.
Bail. Forfeiture. Trial.
Jackson, C.J.—Where it appeared, cu a
motion to set aside a judgment of final for
feiture of a recognizance, that defendtnt in
the indictment was prevented from up-
S earing at tho first term, when
je noire facias was issued, by his own sick
ness; that when the cnae was called at tlio
next term, to which the mire facia* was re
turnable, he again failed to appear from
tho sickness of his wife, and that, after the
judgment of forfeiture, but at the same
term, tho defendant appoared, was triedand
acquitted, the motion should have been
sustained. 45 Ga. 9; 17 Ga. 88. Judg
ment affirmed.
C. J. Thornton, tor plaintiff; T. XV.
Grimes, solicitor-general, by McNeiU A
Levy, contra.
Evidence. Answer in cqnity. Co-de
fendants. Fraud.
Hall, J.—1. A letter not connected with
the case and passing between outside par
ties, was properly rejected.
2. So as to an altered record. It was not
shown that either of tie defendants had the
remotest connection with that alteration,
or that tho same was any manner fraudu
lent, or unauthorized.
3. The rejection of the answer of one of
the defendants when offered as evidence
against the other defendants, if error at all,
was not material. It was already before
the jury and if ^complainant could bo use it,
under tbo law, she was at liberty to resort
to it on the hearing before the jury.
As to when the unswer of one defendant
may be held ovidence against his co-dofend
ants, see 13 Go. 266; 32 Ga. 219; codl
3107.
As to whether such privity exists as to
malic the answer so admissible would de
pend in some measure on the proof as to
their complicity with him in the frauds
charged in this case.
4. There was enough in the proofs anil in
the pleadingB to have carried the case to the
jury, and if not rebutted by counter evi
dence to hnve sustained a decree in com
plainant’s favor.
5. Though an answer w-as waived this did
not deprive the complainant of the privi
lege of availing herself of admissions mode
in it, and although the whole answer is be
fore the jury and the admissions aro quali
fied by other parts of it, they are not bound
to believe anch qualifications. 45 Ga.,
585.
6. Fraud is peculiarly a question for the
jury, and unless the facts from which fraud
is inferred are undisputed, it is never a
question of law to bo passed upon solely by
the conrt, and the samo rule applies where
fraud anil eoneenlment are replied to tho
statute of limitations. Bigelow on Fraud,
pp. 448, 449 anil citations; Cotie 2391, anil
citations.
7. XX’e suggest, without directing it, that
the proper disposition to make of this cose
would bo to refer it to n master, with au
thority to pass both on questions of law
anil fact. In this way it can he more thor
oughly investigated than conld possibly
be the case on a trial during the term of
conrt. Judgment reversed.
Hatcher & Peabody, A. A. Dozier, for
plaiutiff; Smith A Russell, Peabody A
Brannon, Jos. F. Pou, George H. Bryan,
contra.
Everedge et al. vs. Alexander et al. Private
wav. Cortiorari, from Harris. Before
Jniigo XX’iUis. Prescription. Continu
ous use. Constitutional law. Adverse
possession.
Jackson, C. 4.—1. The evidence shows a
prescriptive right to tho private way claim
ed, and the ordinary did right to onler the
obstructions removed. Code 737, acts of
1872 p. CO; code 738.
2. Whilst the wsy is confined by the law
to a track of fifteen feet, yet the more run
ning nronnd one spot until the road there
could bo repaired within a few honra, which
waa done anil immediately resumed as tho
way again, is not snch an increaae of width
as to break the continuance of the user.
Code 721; 61 Ga. 39, 30.
3. Section 3 of art. 1 of tho con. of 1877,
code 6024, has no application to a private
way acquired by pres .ri; dm by seven
yean’ continuous use oi die wsy.
4. Tho doctrine that prescriptive titles to
the fee in real estate by seven yeara’ pos
session cannot originate in consent, because
the possession there must be adversoall the
time, doe* not apply to a right-of-way un
der the act of 1872 and the code, supra, for
the reason that knowledge and acquies
cence of the owner of the land is of the
very essence of the right-of-way against the
owner. Code 731, 737, 738; acta of 1872,
p. 60. Judgment affirmed.
H. C. Cameron, Porter Ingram, by John
Peabody, tor plaintiff; XV. A. Little, J. M
XIobley contra.
XVillis vs. Jefferson. Illegality, from Chat
tahoochee. Before Juilgo XVillis. Mort-
f rige. Usury. Time sale. Demand.
(au,, J.—1. A counter affidavit to an
affidavit foreclosing a chattel ngprtgage, set
np "that the agreement to pay the sum of
$85 mentioned in the mortgage was
usurious, in thnt the goods sold by
plaintiff in ti. fa. to defendant
were worth at cash prices only the
sum of $50, that the sum of $35 was charged
as credit on said sum and amounted to more
than 100 per cent, per annum. This was
not good as a plea of usury. It does not
allege that any cash price was charged for
the goods, or any contract made for ex
tending time of payment, or that there was
any understanding ns to the difference be
tween cash anil credit prices. No intention
to take usury is imputed to plaintiff. Code
2051, 2057.
A plea of usury with only such averments
is fatally defective. It sets forth nothing
bnt a contract for the sale of goods on time.
Snch a transaction is net usurious. Code
2051 ;JIrwin vs. Matthews, this term.
2. A stipulation in thi mortgage that if
the mortgagor failed to pay promptly the
mortgagee might tako pousesaion of the
proporty and sell it, did not deprive the
mortgagee of his other legal remedies.
Hence, it was not necessary to make a
demand for the property os a condition
S rcceileut to a foreclosure. Judgment nf-
rmoil.
J. F. Pon for plaintiff; Hatcher A Pea
body contra.
tnm it to the last term of this conrt. It
was therefore properly returned to the
present term.
(5) A party sued below who waa never
served anil never appeared, and against
whom judgment could not and did not go,
is not necessarily a party here.
(c) It appears from the affidavit of coun
sel and of the clerk below, which last affi
davit was accepted in lieu or a retnm to a
mandamus nisi which liad been applied for
and granted against him, that the bill of
exceptions wsh filed in the clerk’s office in
the proper time, but the clerk omitted to
mark the filing thereon, anil wo will not
dismiss the enso on tho ground that it does
not appear from the bill of exceptions as
filed here that it was not filed below. Code
4272 (c). Judgment nffirmod.
XV. H. XVallnco A Son, O. M. Colbert for
plaintiff; A. A. Carson, contra.
Patterson vs. Collier, eti al. exeentors.
Ejectment from* Stewart. Before Judge
Fort. Disqualification. Kinship. Con
duct of judge. Agreement of counsel.
Estoppel. Deeds. Ancient document.
Forgery. Presumption. Charge of the
court.
Hall, J.—1. One of plaintiff’s lessors
died pending the action, leaving surviving
him a widow, anil one child bv a former
marriage, and also leaving a will, in which
tho widow and others were appointed his
exeentors. The will was proven, and the
executors named, qualified nnd became par
ties to the suit. Before the case came on
for trial the widow died, she having pre
viously received all of her hus
band’s estate to which she
was entitled; after her death
the suit proceeded in the names of the sur
viving executors. Judge Fort, who pre
sided at tho trial, was related by blood to
the widow in tho fourth degree of consin-
gninity and was consequently related in
the samo degree of affinity to hor husband.
Ho was elected judge after the death of both
of them, aud at tho time of the trial bore
no such relation to any of the parties to tho
suit, or to any one having any interest
therein. Objection wns made to his pre
siding. Anxious to avoid anything liko an
appearance of partiality or prejudice ho
sought to have the parties agree ou a judge
prohac vice, bnt counsel tor plaintiff insist
ed on his presiding, for the reason that lie
was not disqualified and his place conld not
lawfully bo supplied. After carefnl study
of the question he held he was competent.
XVe are satisfied this holding was cor
rect. Tbo cantion with which he
proceeded and tho thorough and
patient investigation riven to the
snbject under the most trying amt embar
rassing circumstances should have been
sufficient to disarm the suspicions of tho
most censorious. As to authorities direct
and analogous fully sustaining his compe
tency, see code 206; 45 Ga. 414; 53 Ga. 684;
Coke on Littleton 166 (a); 1 Leonard 88; 7
Cowen 478, note (a): 1 Denio 25, 186; 77 N.
Y. 101; 12 Conn. 87,93; 1 Bln. Comm. 437.
To multiply disabilities by a more than
doubtful construction, when none are
created by the words of a statute, would be
as nnwiso os it is impolitic and bnrmtnl.
2. An agreement of counsel that copy
deed', from tho record might be used in
lien of lost originals “without exhibiting
tiie primary evidence or accounting for it,
did not estop counsel from attacking the
deeds os forgeries. Code 3753.
(o) The construction of this agreement
was for the conrt and he did right in with
holding it from the jury.
3. A copy of an alleged ancient docu
ment cannot be used to establish its age
had bonglit out the dim rssets of Truitt ft
Hunt (J. T. Hunt tiaving been tho member
of that firm), and as a part of tho consider
ation, agreed to esmmo all tlio liabilities > £
the firm; that the note in question was foi
merchandise sold tho firm, arid that defend
ant having mado tho purchase mentioned,
became liable to pay tho note, tho plaintiff;
releasing tho makers from all liability to
him. To tho declaration copii ; of the nolo
anil agreement were attached. Demurrer
wns filed for wont of privity in law or by
contract between defendant and plaintiff.
This demurrer was properly sustain I
Plaintiff was no party to defendant’s pgree-
ment. There was no understanding be
tween plaintiff anil the firm tint plaintiff'
should accept defendant as his debtor, nor
was defendant ever consulted ebon! it
Nor does it appear that he ever agreed to
become bound for this particular debt,
which on its face appear* not to have been
a firm debt. 5-4 Go., 376; 70 Oa., 890.
Had defendant agreed to assume this debt
and had Tmett given bis consent thereto
this would have extinguished the debt anil
established a privity between the parties to
the snit
2. An amendment charging defendant eh
having undertaken to pay tho debt, whiclx
plaintiff alleged was duo him from tho firm
of Truett A Hunt, was property disallowed.
If it ilid not introduce a new party, it was,
at least on a now and distinct cause of
action. Judgment affirmed.
Hatcher A Peabody, for plaintiff; Pea
body A Brannon, contra.
urglary, from
illis. Crirni-
Ruflin, exeentrix, vs. Paris. Equity, from
Taylor. Before Judge XVillis. Practice.
Amendment. Bill ot exceptions. Jury.
Questions. Verdict Deeds. Husband
and XVifc. Trespnsser.
1. All the defendants below need not lie
plaintiffs in error here. Either one may
bring the case here, and the others rest con
tent with the judgment below.
2. XVhen a motion for new trial is made
the evidence should either be in the bill of
exceptions, or in the record; if in the record
special reference should be made to it in the
bill of exceptions. Bnt if it be in the record,
end the plaintiff in error can show from the
record tbst it was agreed to by counsel and
approved by the conrt, the reference to it
in the bill of exceptions may be supplied by
amendment. Code 4272 b; 67 Ga. 364.
3. The questions submitted by the court
to the jury and their answers thereto fully
cover those which plaintiff in error asked to
have submitted.
4. There is evidence enough to support
the verdict. ,
5. The answers to the fonrth and fifth
questions are not contradictory when given
a reasonable intendment. The answer that
the money was loaned to the husband and
wife, taken with the answer that the note
was riven by the two for the husband, sim
ply means tne money went to the husband,
who could not have got it without the sig
nature of the wife also.
0, The deed by the wife to secure the
husband’s debt was void. Code 1783, etc.
To hold the wife estopped by her deed
wonld be to nullify the statute. Nor conld
she go his security to get money tor him,
or cotton either, this being prohibited by
the express terms of the statute.
7. A treapeeeer, buying with knowledge,
can only have the value of his improve
ments as a set off against rents, which those
improvements caused, to be deducted from
those rents. Code 3168, Judgment af-
fir w*R. Wallace A Hon, tor plaintiff; A. A.
Canon, C. J. Thornton, contra.
Hickson vs. Bryan administrator, et aL Eq,
city,from Harris. Beforo Judge Simmons.
Sam Jones vs. the State. Bui
Muscogee. Before Judge XVill
nal law. Burglary. Confession.
1. The verdict is sustained by evidence
and law.
2. Under our statute defining burglary a
hired room, or apartment in a public tav
ern, inn, or boarding house is considered
as the dwelling bouse of the person or per
sons occupying or hiring the same. It be
comes the dwelling when either occupied or
hired. Code 4628.
(a) That another, a* well aa the prosecu
tor, occupied tho room; docs not msko it
any less the dwelling of the proseontor. 79
Oa., 752.
3. Although a confesaion lie not admissi
ble, yet fhets tending to establish gailt
made known in consequence of the confes
sion, may be shown, together with as much
of the confession ss relates strictly to the
tact* discovered by it.
4. Defendant’s counsel consented that
the statement as to confessions of the de
fendant might be made in the presence of
the jury anil, when they wero ruled out by
the court, he stated that he did not ask to
rule out any facts discovered in conse-
S uonce of the confessions. The remarks,
lerefore, made by the jndge, which simply
went to elicit an understanding of what
counsel desired,and intimated no more than
what was admittedly desired, were not
erroneous. Judgment affirmed.
Goetcbius A Chappell for plaintiff; T.
XV. Grimes, solicitor-general.
Tuft vs. Cheatham. Complaint, from Ter
rell. Beforo Judge Clarke. Contracts.
Rescission. Evidence.
IIali. J.—1. The evidence sustains the
verdict.
2. Objections to evidence must be speci
fied.
3. Defendant hod the right to rescind the
contract without the consent of plaintiff if
it was shown that plaintiff failed to perform
his covenants, he being able to restore
ilsintiff to the condition in which he wse
lefore the contract was made.—Code 2860.
Judgment affirmed.
lloyl A Parks by J. H. Lumpkin for plain-
tif; Simmons A Guerry contra.
Searcy, executrix, vs. Tillman. Motion in
arrest of judgment. Appeal, from
Taylor. Justices, Courts. Jurisdiction.
Appeal. Pleading. Aim <s /actum.
Practice.
Hall, J.—1, XVhere three suits were
brought in a justice’s court, two being oa
notes for one hundred ilollsrs each and 10
per cent, fees, and the other being un a
note tor seventy-five dollars and fees, it is
settled that the court exceeded its jurisdic
tion in giving judgment on the first two.
69 Oa. b87, ib. 756.
(a) The appeals to the Superior Court
and subsequent consolidation of the cases
conld not confer jurisdiction where none
existed in the court from which appeals
were taken.
2. XVbcic no plea was filed to the suits
until after the expiration of the first term,
although the defendant was in life, and no
sufficient reason given for the failure, his
executrix could not come in afterward and
file a plea of nos ettfactum. Code 3851 and
citations; 34 Ga 435; 54 Oa. 59; Code 4148;
4149.
3. A copy of the written ami brief of the
oral testimony is part of the record and is
referred to in the bill of exceptions.
to) Allowing ten days to the clerk to
make out and transmit the record to this
conrt after the filing of the bill of excep
tions in his office, there was not time to ro
und the presumption arising therefrom of
its proper execution. 14 Go. 186; 13 Go. 515.
(o) An sneient deed may be attacked for
forgery, like any other deed. 42 Go. G23;
68 Ga. 587.
4. The jury might infer the spnriotunes*
of the attacked deed from the certificate
emanating from the executive deportment
to the point that the justice who attested
the deed was not in commission at tho date
of the attestation; nnd a charge that they
might consider how far the inference was
rebutted by testimony in parol going to
show that lie acted in that capacity and
was if not rfe jure o tie facto officer, anil it
de facto still his seta might be valid, and if
such bail been shown to them they were
circumstances they might regard in consid
ering the question St issue, was more favor
able to tho defendant than he had any right
to A*ke
to) It was not error to refuse to charge
“that full proof of the attesting witness
being a tie facto officer wsa a complete re
buttal of the presumption of forgery arising
from the proof from the records ot the ex
ecutive department." Had the court given
this charge it wonld hare been to assume
that the proof that the attesting justico
acted in that capacity was full. 5 Go. 6, 10
to 12; 30 Oa. 619; 60 Ga. 482.
5. The charge was full, impartial aud cor
rect os a whole and tho evidence sustains
the verdict. Judgment affirmed.
Little, Worrill, XVimberly A Son, High-
tower for plaintiff; XV. D. Kiddoo contra.
Ferguson vs. Columbus and Rome Railway
Company. Non-suit, from Muscogee.
Beforo Jmlgo XVillis. Evidence, lies
K tno. Declarations. Negligence. Tnm-
le. Non-suit
Hall, J.—1. The declaration of the party,
sought to be proved, if it did not accom
pany the act was so ucar thereto in time as
to lie free from sll suspicion ot devioe or
afterthought, and was therefore admissible.
Code 3773 and citations; Augusts Factory
v*. Barnes, 72 Ga.
2. There was proof to show tbst plaintiff
as injured by defendant’s turn table; that
it wsa negligently kept; that it was in an
exposed public place, much frequented;
that it wss not secured by fastenings; and
the fact that the little gin who was hurt
was sent to defendant's yard by her mother
to carry breakfast to an older brother who
was left there to protect the property of
the company, don not necessarily show
that she wss voluntarily placed in a situa
tion of peril, nor conld snch a conclusion
be drawn from the knowledge of her father
that she had been so sent. The nonsuit
was, therefore, improperly granted. 43 Ga.
324 ; 26 Ga. 617; 57 Oa 28; 5 Ga. 172; 69
Ga. 693; 63 Ga 488; 69 Oa. 619; 70 Ga
256. Judgment reversed.
L. F. Garrard for plaintiff; Brannon A
Battle contra.
Knight et al. vs. Knigbt ct al. Injunction,
from Fulton. Beforo Jndge Hammond.
In testate. Possession. Trusts. Equity,
Discretion.
Hall, J.—1. Although an intestato died
in the posseision of property, a conrt o£
equity will restrain bis administrator from
controlling the property nnd will ilcureo
a conveyance thereof to parties
entitled thereto. 15 Gil 189, 192, 193; 17
Ga. 449,19 Ga. 654; 33 Ga. 625; Bchoulere,
Administrators anil Executors. See. 244,
2051; 45 Me. 445; 4 Mason's C. C. It. 29.
2. The trust in this cose seems to hnvo
been executed, and the person in whoso
favor it was declared being fully capable ot
taking in her own right, anil a perfect title
being thus vested in lier, sho may invokes
the aid of a court of cqnity to put her in
possession. Code 2314; 3152.
3. Equity has peculiar jurisdiction to pre
vent the diversion of a trust estate from it#
true ownor by restraining the legal repre
sentative of a deceased trustee from taking
possession of and administering it os part
of the assets of his intestate, anil if neces-
sary, may go further nnd take it into cus
tody through a receiver, when there is
danger of its destruction and loss (aodo
3098), or when it is in litigation and tho
rights of both parties cannot be otherwise
fully protected, or when there is no one to
manage it. Code 274.
Under the facts disclosed in thin case
thcro was no abuse of the chancellor's dis
cretion in granting injunction and appoint
ing a receiver to take and hold it until tho
questions in tho bill mado are settled.
4. When the effects shall be turned over
to the conrt under its decretal order, if any
thing is found among them which do, s
not properly pertain to tho matters in dis
rate, then tho conrt by n modification ot
ts order can direct its delivery to tho tern-
lornry administrator. XVe do not know
hat a modification will bo necessary but
rather think from its carefully guanletl
terms that tho case was provided for at tho
preliminary bearing. Judgment affirmed.
Gnrtrcll A Ladson, Broyles ft Johnson,
for plaiutiff; Hoko A Burton Smith, W. D,
Ellis contra.
Singer Manufacturing Company vs. Martin.
'Rover, from Muscogee. Before Judge
XVillis. Justice’s courts. Summons. Ap-
If all, J.—Tne only pleading in a justice's
court is a summons to which the justice is
required to attach a copy of the cause of
action. Code 4136. To this we must look
not only for the character but the amount
of the claim. In this case the summons
set forth a liability of only fifty dollars.
Hence the amonnt involved could not ex
ceed that sum, and an appeal did not lie to
the Superior Conrt from the judgment ren
dered. 61 Ga., 74. Judgment affirmed.
Hatcher A Peabody for plaintiff; B. A.
Thornton, by XV. A. Little, contra.
Pfeiffer AlCo. vs. Hunt. Complaint, from
Muscogee. Before Judge XVillis. Plead
ing. Promissory Note. Privity. Amend
ment
Hall, J.—1. A suit for the amount of a
promissory note given by one Truett as
principal, and J. T. Hunt aa his security,
was brought against C. D. Hunt; it was al
leged in the declaration that C. D. Hunt
Loch vs. the State. Selling liquor to re
minor, from Muscogee. Beforo Jndgo
XVillis. Criminal Low. Selling liimor t®
minora. Intention. Crimes, lndiet-
ment. Grand juror. Evidence. Muster
and servant.
Hall, J.—1. Sec. 4540 (a) ot the code>
mains all persons connected with
the sale or retailing of spirituous,
intoxicating or malt liquors
responsible whenever a minor is furnished
therewith, unless they havo written author
ityfrom tho parent or guardian of sneti
minor, anil it matters not whether the pro-
uietor sella or furnishes tho liquor directly
,v himself or it is furnished by another in
bis employment; whether he was present or
not, or knew of tbe fact or consented to it.
he is trailer this section guilty of criminal
nogligence, and is, on that account, li.iblo
to prosecution. Tho offense is completo
whenever it is shown that intoxicating
drink was sold or furnished too mteoi by
any one acting in his place of business in
any capacity whatever, either as clerk, bar
tender or otherwise.
It is not necessary for the State to clung®
guilty intentions on tbo nart of such pro
prietor, or guilty knowledge, or motive.
The Legislature may modify the applica
tion of the principle that a crime consists o£
the union or joint operation of set and in
tention, or criminal negligence. Code,
4292.
For enactments, similar to this statute,
and in respect to liability of employers for
acts of their employes, see code, 4578, 709;
4510 (•); 4539; 4M0; 4292; 4302.
It seems that there is a material differ
ence between a number of these statutes,
and that it is in some cases provided that
the employer may justify himself by proof
that bis employes acted in direct violation
of bis mica and orders, bnt such a provi
sion is noticeably absent from the statute
as to sale of liquors to minors. See for full
discussion of this subject, 69 III 601; also
99 Mass. 6; 6 Bush (Ky.) 400: 24 Wis. 60;
19 Conn. 397; 66 Ga. 1G0.
(a) In the esse at bar no precautions were
taken to ascertain the age of the minor.
49 Ala. 21.
2. XVe suggest that it would be better
practice to set out in the cunuU ot tbs
indictment, that the proprietor sold oral
furnish'd; or, where this was done by an
other, that he sold and furnished and
caused to be sold and furnished auil per
mitted such other being in his employ, as
clerk, bartender, or oiuci capacity u -'ll
■ml furnish u minor with spirituous liquors,
etc., without the written consent, etc.'
3. XVhere it was shown that the miner got
the liquor at the tippling house at vaii»na
times it waa not necessary to go fnrtlw r ami
show that it was sold to him. The pi» sump
tion would be thut be paid for it or was in
debted for ib If the contrary was true it
conld easily have been shown by tbe se
amed.
4. It was not necessary to set cut in tbo
indictment the name of the clerk, who it
« 1. ;.l! 1 >..."!• ti,. . ti.. Old- ':> • :
being a ■ iii-tib' pii.pti. tor.
5. The plea as to incompetent)' id tho
grand juror over sixty yeara of age. it settled
by Carter vs. State, this term.
6. A grand jaror was competent to servo
more than tour weeks in 1885. Code 3938;
acts of 1883 p. 99; act of December 22,
1881.
7. If it was error to exclude the testimo
ny of the collector ot internal rsvsnua, that
he issued a license ton firm of which de
fendant was a member, it was immaterial,
as the fact of accused being a member cf
tbe firm was fully shown by other rvjdSH e.
8. Private instructions of the proprietor:
to their clerk* and barkeepers in relation to
selling to miners were incompetent and
irrelevant
9. The verdict is smtained by evidence.
Judgment affirmed.
McNeill A Levy, XX’. A. Little for plain-