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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-