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8UPBBMB COURT OK GKOllOIA.
Decision* Bspdersd Tuesday, December IS,
1883.
Special Deport by Henry C. Peeples.
Thomas. II. Young et al. vb. J. 0. Brown,
administrator. Equity, from Coweta.
Judgment affirmed.
City Bank of Macon vs. Mayor and Coun
cil of Macon. Assumpsit, from Bibb.
Judgment affirmed.
J. G. Huckaliy vs. 8. II. Brooks. Cer
tiorari, from Upson. Judgment afiirmed.
E. G. Shannon vs. Feckoimer, Godkind
A Co. Equity, from Floyd. Judgment af
firmed.
W. F.. Gian ton vs. P. IL and Ida M.
■Whitaker. Complaint, from Floyd. Judg
ment affirmed.
B. R. Allread vs. Mrs. Lula W. Harris.
Equity, from Floyd, Judgment affirmed.
Sorrell A Nall vs. Central ltailroad and
Banking Company, Complaint, from
Spalding. Judgment affirmed.
Anderson Walker vs. Jas. L Logan, Sr.
Complaint for lands from Puulding. Judg-
rnent affirmed.
M. 6. Green vs. J. SL Watson. Ccrtiorori,
from Douglas. Judgment reversed.
Geo. Schaefer vs.East Tennessee,Virginia
and Georgia ltailroad. Cuse, from Butts.
Judgment reversed.
John Davis vs. The State. Murder,from
Chattooga. Judgment affirmed.
Western nnd Atlantio Railroad Company
vs. W. It. Abbott. Caso, from Fulton. Judg
ment nlliinncd.
Western nnd Atlantic railroad vs. Mary
F. Meigs. Cnse, from Fulton. Judgment
affirmed.
Rachel A. Wood vs. Wilson Sewing Ma
chine Company. Ejectment, from Bibb.
Judgment nffirmed.
W. T. Maynard A Son vs. Jas.M. Ponder.
Two cases. Complaint and motion in ar
rest of judgment, from Monroe. Judg
affirmed in both coses.
John Stephens et al. vs. F. J. Whitehead
ct nl. Equity, from Rockdale. Judgment
affirmed.
A. B. Harris vs. Mrs. A J. Coats. Dower,
from Pike. Judgment affirmed.
Atlanta and West Point railroad vs. W.
H. Conder. Cose, from Coweta. Jndgmcnt
affirmed.
Roberta, Suttlcs et al. vs. John A Smith,
administrator. Appeal from court of ordi
nary, from Campbell. Judgment affirmed,
j’biry C. Rutledge et al. vs. X. G. McFar-
lMl. Claim, from Walker. Judgment uf-
firmed.
II. XI. Tanner vs. E. A. Chapman. Ap
peal, from Floyd. Judgment affirmed.
John T. Bailey A Co. vs. Isabella Ogden
et nl. Claim, from Floyd. Judgment af
firmed.
James S. Cothran, next friend, et nl. vs.
A T. H. BroweretaL Equity, fromFloyd.
Judgment affirmed.
James H. Camp vs. W. F. Montgomery.
Complaint, from. Floyd. Judgment re
versed.
John Drake vs. the State. Alurder, from
Upson. Judgment affirmed.
Joel XIatthews et oL vs. S. N. Dawson.
Certiorari, from Upson. Judgment af
firmed.
Thomas E. Brodnax et al. vs. B. F. Carr.
Equity, from Rockdale. Judgment af
firmed
II. N. Byars et nl. vs. W. D. Curry et al.
Equity, from Butts. Judgment reversed.
Thomas XI. Hamilton vs. Eden Gold
Alining Company ot al. Refusal of injunc
tion, bom Douglas. Judgment affirmed.
G. 0. Birnass vs. Jas. XV. Robertson.
Complaint, from Polk. Judgment af
firmed.
Xlichael Curran vs. 0. C. Fleming et al.
Money rule, from Floyd. Judgment af
firmed.
Charles XV.Spronll, administrator, vs. John
J. Seay. Case, from Floyd. Judgment re
versed.
W. B. Taylor vs. XV. B. Simmons. Com
plaint, bom XValker. Judgment reversed.
Thos. J. Xlodden ct al. vs. J. F. Jones et
al. Complaint for land, from Floyd.
Judgment reversed.
Julius L. Brown et al. vs. U. XI. Gunn,
Equity, from Bibb. Judgment affirmed.
City Bank of XIaoon, vs. mayor and council
of Xlacon. AaBumpsit, from Bibb. Be
fore Judge Simmons. X’erdich Fleas.
Practice. Promissory votes. Considera
tion. Payment
.Jackson, 0. J.—1. It is unnecessary to
consider the pemlenls lilt bill of exceptions
tiled by defendant in error, or nil of the
many points made by counsel for plaintiff
in error.
2. A verdict may be for a defendant on
all his pleas. Code 3560, and where the
verdict is for tho defendant on all the pleas
tho jury need not write the verdict on each.
Code 31161.
(<t) Of conrae, all that defendant needed
was one plea sustained. It decides for him
as effectually as if nil wero good.
3. The noto sued on was given in nlnce
of another for the same sum, which the
mayor of Macon had indorsed. If that note
nod been paid them was no consideration to
support tho second note. Thero was evi
dence that it had been paid and this evi
dence tho jury hoifa right to believe. Jndg-
ment affirmed.
Lyon A Gresham, for plaintiff; Hill A
Harris, XV. A. Hawkins, contra.
Allread vs. Harris. Equity, from Floyd.
Before Judgo Branham. Equity. Land
lord nnd tenant Remedy.
Jackson, C. J.—1. Tho remedy against
a tenant under code section 4077 applies
only to landlords and tenants, and where a
sale of land had been made with entry un
der tho purchase, and there was n failure to
pay the purehaso money or an) thing for
the use of the land, a bill in equity by the
vendor against the vendee to re
scind the contract etc., affords
a more ample and complete remedy
than could be had at law, though the con
tract of purchase did provide that if the
vendee failed to make the payments the
land should be restored and a certain rent
paid 66 Ga 316, 133, 678, 666, 670-1; 48
Ce0:6tGa. 41S;eods2279; 14Ga. 131
2. Tho verdict and decree were eminently
just the improvements being set.off against
the mesne profits or rents, aud the land re
stored. Judgment affirmed.
Daniel S. Printnp, H. D. Harvey A 8on,
for plaintiff; G. N. Feathcrston, J. A
BUncu contra.
Shannon A Co. vs. Felchelmer, Godkind A
Co Eqnity, bom Floyd. Before Judao
Branham. Equity. Debtor and credi-
to” Act of ISM. Practice. Xenfica-
J^soi^c’T-l. When a bill for in-
function and receiver is not sufficiently
verified by the affldsvit thereto, it is right
in the chancellor to allow it to be further
* * rifled This may be done by the counsel,
o? byth* creditors; each ratifying Ms own
SSWOT*
of 1881 the m**re demand nnd refusal to pay,
this
THE MACON WEEKLY TELEGRAPH: TUESDAY. DECEMBER 22, IS85.--TWELVE PAGES.
and drafts, has gone to protest, nnd that all
of said indebtedness is long past due and
unpaid.”
3. Defendants weie merchants and traders
under the act of 18M; they refuse, on de
mand, to pay their debts, and the fact that
they owe some creditors on claims not due,
does not defeat tho bill brought by the
creditors generally. By the time it is tried
and the matter all wound up, probably all
will be due. The bill has equity. Judg
ment affirmed, Daniel S. Printup, for
plaintiff; Dean A Iruing, Underwood A
Rowell, Reese A Denny, contra.
Shacfer vs. East Tennessee, X’irginia and
Georgia Railroad. Case, from Butts.
Before Judge Stewart. Removal to U nited
States Court. Domestic corporation.
Jackson, 0. J.—1. Under the decision in
Angnr et nl., vs. the East Tennessee, Vir
ginia and Georgia Railroad Company, that
corporation is a domestic one nnd this case
should not have been ordered removed to
the United States Court. Judgment re
versed.
E. J. Reagan, John I. Hall for plaintiff;
Bacon A Rutherford contra. ,
XValker vs. Logan. Complaint for land, bom
Paulding. Before Judge Branham. Evi
dence. Forgery. Grant. Certificate.
Opinion. Secretary of State.
.Jackson, 0. J.—1. The evidence is suffi
cient to uphold the verdict that the deed iu
question was a forgery. It was exeouted in
1835 and not recorded until 1883, and the
evidence is that the grantor could not writo
his nnme, while it is in writing as his sig
nature to the deed, and he swore that
he never made such a deed.
2. A mere expression of opinion by tho
Secretary of State that a grant from the
State was genuine, which expression was
put in tho shape ot a certificate by him,
was not admissible.
(a) But even if it wore error to exolndo
it, the question of forgery of the deed con
trols the case. Judgment affirmed.
XV. E. Spinks, Ivy F. Thompson, for
plaintiff; J. Monroe Spinks, contra.
Youngetal.vs. Brown,administrator. Equi
ty, bom Coweta. Before Judge Harris.
Equity. Concurrent jurisdiction. Venno.
Xlultiplicity of suits.
Jackson, C. J.—A bill was brought in
Coweta county by one who was administra
tor on two estates, against his write and son,
resident in said county, and against others
resident in other counties and other States,
but all interested in both estates. It al
leged that said administrator resided in
Coweta county and had been called by cer
tain of the parties defendant thereto to set
tle his accounts on each of said estates,
by separate citations, beforo the ordinary
of Clarke county, and pray
ed that the said suits in
Clarke county be enjoined and the entire
estates and his dealings with them be finally
settled bv one decree. A demurrer wns
filed on tho ground that the ordinary of
Clarke county had acquired jurisdiction of
the matters of the bill first nnd was entitled
to hold it, and because there was no equity
in the bill and no jurisdiction in the coart
of Coweta county.
Held:
1. Equity had concurrent jurisdiction of
the matters in dispute and the Superior
Court of Coweta county had jurisdiction
because of the residence there of parties
defendant. Code 2600.
2. The principle that in cases of concur
rent jurisdiction, the court first taking will
retain it has the important qualification,
"unless a good reason can be givon for the
interference of equity.” Code 3096.
(a) Thero are good reasons under this
bill; there ore numerous parties defendant
who are not parties to the suits in the court
of ordinary, and the administrator has
tho equity of having the estates
settled finally in one decree as to
all, and whilst he might cite all to
appear before the court of ordinary, he
cannot be forced to do so. Code 2598;
there is no power in the court of ordinary
to bring all in, bnt a court of equity Can
and most do so; nor conld the plaintiffs in
the coart ot ordinary force any other dis-
tribntee than themselves to become a party;
there are two estates to be settled, and the
defendants are called on to interplead and
settle their respective rights nnd a court of
equity can better adjudicate these rights
nnd make a final decree; the appeals al
lowed by law from the court of ordinary
still farther multiply litigation and costs;
to allow the court ot ordinary to retain the
jurisdiction would be to force the adminis
trator oat ot the cotraty of his residence,
which county U clearly tho proper venne
under the spirit of the constitution. Code
6172, 6167, 6168, 6169, 6170, 6171.
(6) Section 2598 of the code most be limited
by the constitution and confined to those
administrators resident in the comity where
hie returns ore made and acta of adminis
tration donejwd recorded. Jdugment af
firmed.
Pope Borrow, E. K. Lumpkin for plain
tiff; J. B. 8. Davis, P. H. Brewster contra.
Blandford, J., concurred.
Hall, J., concurred in tho jndgmcnt hut
thought that when the administrator took
out letters in Clarke county and made his
returns there, he voluntarily submitted
himself to the jurisdiction in that comity;
hot there being numerous parties, two
estates involved, doubtful facta and other
circumstances rendering a bill proper, tho
venue was properly laid in Coweta ccnnty.
nuckahy vs. Brooks. Certiorari, from Up
son. Before Jndge Stewart. Home
stead. Distress. Warrants. Landlord
and tenant Counter affidavit Remedy.
Jackson, C. J.—1. Tho statute codified
in sections 2028 ct aeq. of the code in re
spect to art eating the levying end sale un
der executions levied on homestead,! aud
exemptions by counter affidavits that the
property is exempt does not spply to the
mode of arresting and stopping the process
of distraint for rent It applies only to de-
fendanU in execution on judgments* and
not to tenants wdw owe rent aud whoae
property is distrained to pay it
(a) If it ia desired to set up the homestead
or exemption right in caaea of distress, it
should be done by claim, and such claim
may be made in forma pminer!*.
(bi Bnt if the property be not claimed,
aud the tenant wishes to itop the distraint
there is only one mode open to him—that
set out in tne code, secs. 4083 ei $tq. Judg
ment affirmed. , . „ „
Allen A Tisinger, for plaintiff; B. D.
Hardaway, M. H. Sandwich, contra.
;>
. “Til is that defendants “are inaol-
tTSk too^Sr lenr —I
of tiieir indebtednere, to the shape of notes
r-bu.,
of the Court.
Leu rare,
of a cai
against
Western ami Atlantic Railroad Company vs.
Meigs. Case, from City Court of Atlanta.
abend. Life insurance. Charge
t. Trespasser. X'erdict.
Juilge.—1. On the trial
brought by a widow
. railroad company to
recover for the homicide of her huehend,
Sony to prove that the pubUc had been
constantly in the habit of walking on the
track of defendant’s road, at and near the
place where the killing occurred, though it
was neither a crossing, nor other aoch
place as the public had a right to be,
P Tv?bare oneU killed by a locomotive
ordinances of that
city, requiring railroad companies to keep
flagmen at certain street crossings, were
nroticrlreadmitted in testimony, when, to
conu2 ti‘n with other testimony, tuey bow
on the question of tho company’s negligence
at the place of killing.
3. A request to charge, that a railroad
company v/as not liable for an injury to a
trespasser on its track, caused by nn engine,
unless it was shown that the acts of the
company’s servants in eliargo of the engine
were wnnton nnd malicious, or there was
snch gross negligence on their part as wns
tantamount to wilfulness, was rightly re
fused. Said servants are required, in snch
cases, to nse care which amonnta to more
than more aboence of wantonness, malice
or reckless disregard of another’s safety.
4. The act of August 27, 1879, to alter
aud amend section 2970 of the code, re
pealed that entire section.
5. The amount to which a widow is enti
tled from a railroad company for the homi
cide of her husband should not he reduced
by any insurance on his life received by her.
6. It is not error to instruct the jury on
the doctrine of contributory negligence and
apportionment of damages in a case where
tho jury would be authorized to find that
both pnrties were at fault in occasioning the
injury for which the action was brought.
7. After explaining the issuea, it is not
error to say to the jnry, the pleadings ore
not evidence, and what is stated in them is
not to be considered.
8. Nor was it error to state to tho jury
that tho court used the word “negligence’’
in the senso of carelessness, in bis charge,
especially when the charge contains full
and accurate explanations of all the legal
degrees of diligence and negligence.
9. XVhether a vordict is contrary to a
specified charge depends upon the testimo
ny applicable thereto; and if that Is con
flicting, it does not follow that the Verdict
should be set aside as contrary to such
charge.
10. XVe will not review tho verdict of n
jury on the queation of its being contrary
to evidence, when there was a motion for
new trial iu the court below. Judgment
affirmed
J. L. Brown, for plaintiit; Hopkins A
Glenn, contra.
Davis vs. the State. Murder, from Chat
tooga. Before Judge Branham. Crimi
nal law. Circumstantial evidence. Mo-
tivo. Statements. Admissions. Flea.
Delivery of indictment. Practice.
Jackson, C. J.—1. The evidence is suffi
cient to uphold the verdict.
2. The requests to charge, so far as they
contained the full law, are covered by the
charge as given.
3. The true rule of law was, as stated
by the judge below, "when the guilt of the
defendant depends on circumstantial evi
dence (done, tne rule is that each separate
fact or link whioh goes to make the chain
of circumstances from which the deduction
of guilt is sought to be drawn must be
clearly proved, and a fact not clearly proved
should not be considered ns a port of the
chain, bnt should bo rejected, and the cir
cumstances proven must not only be con
sistent with the defendant's guilt, but they
must exclude evory other reasonable
hypothesis than that of the defendant's
guilt If any one or more of the circum
stances relied on by the State are not clearly
proved, and for this reason you reject one
or more of the circumstances relied on,
then you will enquire whether the other
circumstances proved—if they ore clearly
proved, are consistent with the defendants
guilt nnd inconsistent with any other ren-
snnsble hypothesis than that of defendant's
guilt All essential factsnnd circumstances
necessary to show the commission of the
crime and so connect the defendant there
with os tho party committing the act most
bo proved.”
4. A charge as to motive, that: "H tho
evidence snows the commission ot the
crime and yon are satisfied from tho evi
dence beyond n reasonable donbt that the
defendant committed it with malice afore
thought, nnd if the circumstances are con
sintent with his guilt and inconsistent with
sny other reasonable hypothesis than that
of his guilt, then though the evidence may
not disclose a motive, yon would be an-
thorized to find the defendant guilty’’—wai
a correct statement of the law.
6. The exceptions to various portions of
the charge are nnfonnded of themselves or
immaterial, or unhurtful when read with
the net of the charge and considered there
with.
6. It was not error to admit in evidence
various statements of the defendant,
especially those to the sheriff denying hav
ing shot any gnn where the firing was heard,
there being no evidence of improper con
duct in that officer in exciting the slightest
fear or hope; nor was there error in the
charge on the subject of admissions of
statements of tho accused and the cautions
and remarks thereon.
7. A plea that the indictment was improp
erly delivered to the court, it being kronght
into court by the baliff of the grand jury,
without sny allegation of its having been
tampered with at all, or being out of the
bailiff's bands from the moment he left the
grand jury room till he delivered it to tho
court, was properly overruled. Code 3716.
Judgment affirmed.
Dabney A Fouche, J. M. Beliak for plain
tiff; 0. T. Clements, solicitor-general,
contra.
Western and Atlantio Railroad Company vs.
Abbott. Cose, from Fnlton. Before
Jndge Hammond. Railroads. Damages.
Personal injuries. Negligence. Fain and
suffering. (Jackson, 0. J., being dis
qualified, Judge Lumpkin, of the North
ern Circuit, presided in his stead.]
Lumpkin, Judos.—1. On the trial of a
case brought to recover from a railroad com
pany for personal Injuria to the plaintiff,
caused by one of defendant's engines, it
was not error for the oonrt to give in charge
to tho jnry section 3033 of the code. It
may, in many instances, require hut slight
evidence to rclml. the presumption of neg
ligence the law raises against the company,
bat it always remsins till removed by proof,
which may be that offered by either sido.
2. A new trial should not be granted in
such a ease because the court gave in charge
to the jury section 3034 of the code, there
being testimony from which the jnry might
find both parties were at fault, and it ap
pearing also that the court gave to charge
section 2972.
3. On the trial of s suit for personal in
juries, U is proper, if the testimony so au
thorizes, for the jnry to allow the plaintiff
compensation for the pain and suffering
occasioned him, and the court correctly in
structed the jury, that in such cases, "the
enlightened conscience of on impartial
juror is the guide by which the law says
tho measure of damages may be ascer-
billed."
4. It has been thoroughly settled by’re
peated rulings of tbia court, that if there ia
any evidence to sustain the verdict, and it
is satisfactory to the court below, and no
error of law wai committed by Uie jndge on
the trial, this court will not grant a new
trial. Judgment affirmed.
Julios L. Brown, for plaintiff in er ro
Abbott A Gray, Hopkins A Glenn, contra.
not allege that no rnto' had been fixed by
the Railroad Commission, or that such a
rate had been fixed and that tho charge
made exceeded it, was properly dismissed
on demurrer. Code sec. 719 (e), 719 if),
719 (c), 719 if).
(a) It is clear that no recovery for alleged
overcharges of freight beyond reasonable
rates can be had against a railroad compa
ny, unless those alleged overcharges go be
yond tho rates fixed by the commissioners,
for the reason that tho statute makes tho
rates fixed by the commissioners the only
measure of what is just and reasonable to
be used in all our courts where complaint
of overcharges for freight is made. Judg
ment affirmed.
Boynton A Hammond, Beck A Books, for
plaintiff; John I. Hall, contra.
Glanton, administrator, vs. lVliitaker et al.
Complaint, from Floyd. Before Judgo
Branham. Promissory notes. Consid
eration. Fraud. Pleading. Evidence.
Jackson, C. J.—1. A note, given by a
daughter to her father to repay money ex
pended by the father lor the daughter, in
the employment of counsel to represent her
in litigation over her husband’s estate, was
supported by sufficient consideration. Code
2. A plea which alleged that the
note was to be held by the
fathor as an advancement to the
daughter, and that it had been thus pro
cured by fraud on the father's part, but
which railed to allege that there was any
a; i-< mi nt Unit tho holding the note asan
advancement was to be incorporated in the
writing and was left out by fraud or mis
take, was properly striekon on demurrer.
52 Ga. 149.
3. XVhile it may be true that in contests
between children ns to the character of
notes held by their father at his death
against ono or more of them, in the distri-
bntion of his estate, the declarations of the
parent as to the same are admissible, yet,
where the father is still living and tho con
test is between him or his transferees and
the husband of a deceased daughter, the
payee of the note,-ns her administrator, the
ordinary rale, laid down above, must be
applied. 62 Ga. 149.
Qj) This is no question of ndvoncemen t,
as between the heirs of tho father when he
diod, tho father being yet living, and the
ihild, the maker of tho note, dead. 23 Ga.
631; 51 Ga. 20; Cntliff vs. Boyd, February
term, 1884, cited and considered.
4. The case at bar is a strong one against
any probability that tho note sued on was
designed to be on advancement. Judgment
affirmed.
Dean A Ewing, Alexander A XX’rignt, for
plaintiff; C. N. Featherston contra
Green vs. XVatson. Certiorari, from Dong-
las. Before Jndge narria Garnishment.
XVaiver. Exemption.
Jackson, 0. J.—1. A general waiver of
exemption of wages from the process of
garnishment, extending indefinitely to all
i he future wages of the laborer, is void and
cannot be enforced against the promissor.
59 Georgia, 837.
(a) XVhether aspocial waiver upon specific
wages in a certain employment, and for a
certain time by specific orders on employ
ers containing snch specifio waiver we do
not decide. Judgment reyersed.
John X r . Edge, B. G. Griggs, R. M. Holley
for plaintiff; Thos. XV, Latham, C. D. Camp,
contra.
Sorrell A Hall va Central Railroad and
Bulking Company. Complaint, from
KpxMing. Before Judge Stewart Rail-
roada Overcharges. Batca Railroad
Commission. Pleading.
Jackson, C. J.—1. A declaration slirging
that the Central Railroad and Banking
Company ware indebted to plaintiffs a cer
tain suiu as overchargcc, beyond a reasona
ble rate, to the transportation of cotton
from Griffin to Savannah, bnt which did
Rutledge et al. vs. McFarland. Claim,
from XValker. Before Judge Branham.
Exemption. Sec. 20-10. Title. Mort
gage. Hen ailjuilieatn.
Hall, J.—1. Title to land exempted
der ssption 2010 of the oode does not vest
in the children of the debtor, after liis
death, and it is not relieved thereby from
the lien created by a mortgage executed be
foro the exemption was allowed. This was
held to 70 Ga. 631, which decision is af
firmed, after fnll argument and considera
tion of the act of March 18th, 1866. Code
section 2021. ,
(a) It is clear that a man who, as the
head of the family, has taken on exemption
under this code, is not within either section
of the act referred to, and {we are satisfied
it- made no change aa to the persons en
titled to participate in the use of the prop
erty exempted, except to the extent tbnt
tho widow npon her second marriage ceased
to lie a member of her former husband's
family and to bars a right in that event
to use the property—it passed to
children named in the code just as it would
have passed had she been dead. 70 Go.
680.
2. A lien crested by mortgage prior to
setting apart aa an exemption to the debtor
a portion of the property covered by the
mortgage, is not snob an incumbrance as
the debtor cannot make npon the property
except in accordance with the provisions of
the law and in the manner therein specified.
The exemption coaid not prevent the fore
closure of the mortgage upon tho property
set apart, after the execution of the mort
gage, but could only suspend the execu
tion of tho process so long is the exemption
lasted.
3. The former decree, insisted on a*
concluding the parties to this esse, does not
touch the question ns to whom the title to
the land vesta in after the termination of
the nse for which it was'exempted, nor does
it restrain the execution of the process,
when the incumbrance created by the ex
emption ia removed; tho material points in
litigation between these parties were not
thereby adjudcaited and so they cannot be
considered aa res ai(judicata. Judgment
affirmed.
XV. 11. Fayne, I.E. Shumate tor plaintiff,
F. XV. Copeland, Harrison A Peeples, con
tra.
XVood vs. Wilson Sewing Machine Com
pany. Ejectment, from Bibb. Before
Judge Simmons.
Hall, J. —This esse has been twice be
fore this court and is fully covered and
settled by the former decisions in 68 Ga.
624; Gorman etal. vs. XVood, Sept. T. 1884.
It makes no difference that the case may
have been formerly tried on pleadings at
law and now comes np on an amendment to
the declaration which converts it into an
equity proceeding. The principles con
trol'ing the case are the same and they have
been thready determined and announced.
Judgment affirmed.
John Rutherford, for plaintiff; Lanier A
Anderson, contra.
Tanner vs. Chapman. Appeal, fromFloyd.
Before Judge Branham. Bailment. Neg
ligence. Damages.
Hall, J.—1. If defendant removed tho
furniture, for damages from which removal
snit is brought, from the place where plain
tiff pnt it and where abs bad a right to put
it, without authority from her and at his
own risk, be became liable for sny injury
done to it while it was being removed, or
while it was to bis custody si the place to
which it was officiously removed by him
without her consent; and this to true
whether he exercised care in its removal or
not 2 Boor. L. D. 186; Story on Bail
menU, sees. 189, 190; 48 Ga 55.
2. The evidence authorises the verdie
and no errors n> law are complained of.
Judgment affirmed.
XVTt. Cheney for plaintiff; B. D. Harvey
A Son contra.
Roberta, Hatties et al. vs. Smith, adminis
trator. Appeal, from court of ordinary,
from Campbell. Before Judge Harris.
Auditor's report. Evidence. Practice.
Exceptions. A meadment.
Hall, J.—1. The evideuco which accom
panied tbe auditor's report in this case, nnd
which wns before the jndge below, has not
ljeen brought up, nnd we ure unable to de
termine whether the conclusions reached
by the auditor were correct, or whether tbe
alleged errors in the ratings of the court iu
fact exist.
The decision of the court an.l alleged
errors (herein shunld bo plainly specified,
particularly in case of exceptions to a mas
ter’s or auditor’s report, as that, after allow
ance by the court, is prima facie the truth,
code 3097, and becomes conclusive unless
excepted to for good cause, or if the excep-
eeptions are disallowed it becomes conclu
sive, and it is always sustained where ex
ceptions are questions of fact and there is
no evidence to support them.
(a) XVe are not convinced of error on tho
part of the court below in sustaining tbe
nnditor, and his report shows an unusually
clear, full and explicit taking and state
ment of accounts.
3. XVliere the time of filing exceptions to
an auditor's report is limited by order of
court, exceptions cannot afterwards be
made, except by leave of tbe court nnd on
good cause shown, and then it is in the
discretion of the juilgo to allow or disallow
them. Code 4203; 62 Ga. 224, 228.
If pleadings at all, such exceptions are ao
only in a restricted sense, certainly not to
snch an extent as to be entitled to tho
right of amendment aa here claimed.
fa) No cans* was shown why this
amendment or addition to the exceptions
should be allowed nnd wo cannot say that
there wns abuse of iliscrction in rejecting
it. Judgment affirmed.
John S. Bigby, L. S. Roan, n. W. Reid,
P. li. Brewster, for plaintiff; T. XV.
Latham, Hugh Buchanan, contra.
Camp vs. Montgomery. Complaint, from
Floyd. Before Judgo Branham. Part
nership. Profits. Joint interest. Evi
dence. Charge of the court.
1. XVhere M. was to condnct a saw mill,
pay ita expenses from the proceeds end
divide the net profits with two others, and
i! fin tli. I- appears I lot tic- tail "fliers mid
himself jointly owned the mill property
itself, there was clenrly a partnership l>c-
tween tho parties. Code 1890, 1887, 1888,
30 Ga 344.
2. The weight of authority and reason
seems to be decidedly in favor of the rule
tbnt there may be n legal and valid partner
ship although ono or more of tho parties
are guaranteed by the others against loss.
Parsons on Part. 40, 71 (n. 1.) And not
withstanding Iks tost clause of section 1890
of the code, that a "common interest to
profits alone doss not coneHtote * partner-
ship,” the rule is the same in this State.
If parties go into on adventure, ono fur
nishing money or stock and the other skill
or labor, and to share the net profits, they
arc partners, since they have a joint inter
est in the profits ss contradistinguished from
a common interest 44 Ga. 228, 334, 336.
A fortiori is there a partnership where, in
addition to this, thero is a joint interest in
the property need?
3. If thero were evidence, that in ono
view of the cose it waa doubtful whether
such relations existed between tho parties,
still tbe law governing such relations should
have keen given in charge, since thero wns
evidence of their existence. Judgment re-
C. N. Fcntkcrston for plaintiff; C. A.
Thomwell contra.
Cothran et al. vs. Brower et al. Equity,
from Floyd. Beforo Judgo Branham.
Agreements of counsel. Admissions.
Practice. Attorneys at law, Charge of
tho court.
Hitt., J,—1. This is really a contest
between the principal counsel of Mrs. Coth
ran and bis associate counsel employed by
him by authority, aa to tho right of such
counsel to fees from a fund brought into
court by their united efforts in the cose of
Cothran vs. Brower.
Respondent to a rule brought by such
associate counsel for their fees out of the
fund offered an objection, but after arguing
it and before any decision on it withdrew it.
The fund was in court and it
aa agreed to go to tho jury
on the issue made by respondent anil mov
ants. Movants did not wish the fand to
go into tho hands of respondent, tho said
irinciuad counsel, before tho settlement of
heir fees, as they were arena to being
drawn into a enlt against him on the con
tract between them, and by tho agreement
of respondent in open court, on which tbe
trial proceeded, the necessity of resorting to
this course wns obviated, and even if tbe
movants did not bavo this right independ
ent ot such an agreement, whioh we are
inclined to think they bad, tho respondent
is estopped by his solemn admission injutil-
cio, from urging his objection.
Besides tho ground of error last nndcr
consideration assigns no specifie error to
the final order of the conrt nnd hence we
cannot consider it
2. The questions aa to tho employment of
the associate counsel, of the authority of
principal counsel to employ them, of the
amount of the fees, and of proper discharge
of the duties of such associate connsel,
were fully and fairly submitted to the jury,
and there was sufficient evidence to sus-
tain the verdict
3. The charge complained of in tho fifth
ground ot the motion fairly submits tha
point as to whether said associate counsel
performed their dnty and if they did not
whether their foilnro to do ao was canoed by
the condnct of said principal connsel, and
whether he called on them for inch ser
vices, as they alleged he undertook to do.
4. Tbe court did charge what respond
ent’s counsel requested, in the seventh
K ami of tho motion stated, as also the
which prevents attorneys for recover
ing for their services when they have failed
to render them.
6. It was right to refuse to charge, as re
quested, to the language need by this court
to 65 Ga. 283, because of the difference in
the facta and circumstances of the two
cases. Judgment affirmed.
Underwood, Rowell A Cheney for plain
tiff; XVright, Meyerbardt A Bright contra.
Bailey A Co. vs. Ogden et aL Claim, from
Floyd. Before Judge Branham. Evi
dence. Practice. Charge of the conrt
Hall, J.—1. The verdict is abundantly
supported by the evidence.
2. The letters offered were properly ad
mitted. XVhen, first offered they were ob
jected to and ruled ont bnt when, tinder
new developments ot the case, they were
again offered no objection wes made.
3. The court did right in stopping coun
sel from {commenting on evidence that
had been rejected and in checking
them from drawing inferences therefrom
prejudicial to tiieir opponents.
4. It was not error, after having fully charg
ed the jury,for the conrt at request of claim
ant's counsel to rive them s further instruc
tion on n point already covered, but which
was not ss full ss tho charge and which so
far aa it wa it contained nothing objection
(Hall, J. being disqualified, lion, J. D.
Htewart presided in liis plai n.
SrxwABT, Judox.—L If the owi r of
land assents to its use ami eujoj'mi it for
such a length of time that tho pubii • ac
commodation and private rights mi,; .t bo
materially affected by nn interrupt; n c f
tho enjoyment, such use and nsse: will
amount to a dedication. Code 2G81, : 2 Ga.
239; 6 Peters 43!.
2. The bill in this caso wasTproi - rl; dis
missed on demurrer, because it’s nlleg ition*
failed to show that tho land in quest: -i was
dedicated to tho uso of the public, and be
cause the allegations as to the quantify if
tbe land nnd its boundary are too indefinite
and uncertain to establish a dedication. ] t
simply appears from the bill flat owners of
the land bad used the same as a burial
ground, anil permitted others to do so, hut
that this was a mere privilege granted such
others, and did not amount to u dedication.
Jndgmcnt affirmed.
J. Rutherford for plaintiff. J. H. Hall,
Ultra. 1
If farther instruction waa desired it
should have been requested. Judgment
Aldan lor A XVright, J. II. Haskinson,
for plaintiff; C. A. Thorn well, contra.
Brown et aL vs. Gunn. Equity, from Bibb.
Before Judge Simmons. Dedication.
Pleading. Demurrer. Permissive use.
contra.
Atlantia and XVost Point Railroad Company
vs. Conder. Case from Coweta. Before
Jndge Harris. Railroads. Passenger. In
dignity. Damages.
Hall, J.—1. The evidence sustains the
verdict
2. Tbe plaintiff below waa clearly entitled
to recover for the indignity pnt npon and
the assault mode on him by the employe of
delendant while ho was on its cars as n pas
senger.
Such employe had no right to refuse
to let phuntiff pass from the ladies’
car to the other car, even whilo the train
wns in motion, for ii is an undisputed fart
that this was allowed whenever it was re
quired by a necessary occasion nnd when
ever tho passenger saw proper so to do,
either for nis convenience or plensure.
3. Since thero was no loss of time ami no
hindrance of the busincs of plaintiff, or any
considerable amount of physical suffering
caused him, but he was subjected to indig
nity and his feelings ontraged nnd he waa
degraded in the eyes of his fellow-passen
gers, he is entitled to exemplary or general
damages, and tho amount of such damages
is left by law to the enlightened conscience
of an impartial jury. XVe cannot 8 -y the
amount found was excessive. Judgment
affirmed.
Bigby A Dorsey, Buchanan A Brewster,
for plaintiff; A. D. Freeman, contra.
nams vs. Coats. Dower, from Pike. Be
foro Judgo Stewart, Tenants in com
mon. Dower. Title. Evidence. Newly
discovered evidence.
Hall, J.—1. The widow of a tenant in
common is dowable of lands held jointly
with another by him at the time of his
loath.
Her right is os perfect before partition of
the land as ii would be afterwards, though
partition would ho necessary for its enjoy
ment. 58 Ga 249.
2. The co-tenant of deceased objected to
dower in the lands on the ground that they
were not held in common hut were owned
by him. This issue was submitted to the
jury nnd there was ample evidence to sus
tain their verdict.
It was shown by tho deeds of said co-ten-
aut that title to the entire tract had passed
into him, lmt il was rnnti-mlcd that In- luu 1 .
parted with a half interest to deceased, anil
t was shown that he had acknowledged
the right of deceased, had
returned it for taxation as
their joint prodorty anil nover
returned it solely ns liis own until alter the
death of deceased; that deceased had re
ceived part of tho rents with his knowledge,
and that tho papers of docensed.. in his
desk, wero taken possession of by said co-
tenaut or his agent nnd could not after
wards bo fonnd. 65 Ga 613.
3. Thero was no error in admitting parol
evidence to establish tho titlo of dt-
reasod to tho lands, nor in the charge of
tire court on the snnjcok
4. No diligenco was shown to procaro tho
newly discovered evidence and it was mere-
cumulative. Judgment affirmed.
E. F. DuPree, Boynton A Hammond, for
plaintiff; J. 8. Pope, John L Hall contra.
Drake vs. the State. Mnnlcr, from Upton.
Before Jndge Stewart. Criminal law.
Clothing. Evidence. Character of de
ceased.
Blandfobp, J.—1. The evidence de
manded tbs verdict. .
2. It is not error to permit tho clothing
worn by accused to be exhibited to the jury
when it furuishea evidence of his guilt.
3. Nor was it error to refuse to allow tbe
character of deceased for violence of tem
per to be ehown to the jnry. There was
nothing to take this case out of the general
rale, as there was in the case of Monroe,
5 Ga 137. Judgment affirmed.
A. IL Sneer, X. A. Cotton, J. T. Tisinger,
J. G. Allen tor plaintiff; E. XVomnck,
solicitor-general, C. Anderson, attorney-
general, M. li. Sandwich contra.
Mathews ct aL vs. Dawson. Certiorari,
from Upson. Beforo Judgo Stewart.
llLANliroxo, J. 1. The evidence sus
tained the verdict. Judgment nffirmed.
Allen A Tisinger for plaintiff; M. 11.
Sandwich contm.
Broadnax et al. vs, Carr. Eqnity, from
Rockdale. Refore Jndge Stewart. Evi
dence. Contracts. Condition.
Bi-axdvoed, J.—1. XVhere the evidenco
authorizes the verdict and tho jndge below
refuses to interfere, we cannot do so on the
ground that the verdict ia against the evi
dence or weight of evidence.
2. The charges requested were fairly and
fully riven.
3. Where parties agreed to bnild a bridge
for a county and divide the profits'eqnally,
that one of them should receive the money
from the county, and it was further agreed
that the parties should each execute nn in
demnifying bond to the other, thin latter
stipulation would not prevent the parties
interested from colling on the party who
received the money to pay them their part
before they had executed such bonds, espe
cially where no such bond had been de
manded or required by the party receiving
the money. Judgment affirmed.
J. N. Glenn, A. G. McCalla, for plaintiff:
George XV. Gleaton, contra
Byars et al vs. Curry et aL Equity, from
Dntts. Before Judge Stewart. T.ix exe
cutions. Misdirection. Estoppel. Evi
dence. XVitnesa
Blanupibd, J.—1. Bines tho adoption
of onr code, sections 890, 893 and 899, exe
cutions for State anil county taxes stand on
the same footing as to the levy and sole of
E reperty as executions from judgments at
rer. Before the code this was not so. 11
Ga 423.
Executions for municii el taxes still stand
on tho strict footing formerly required as to
other tax executions. 60 Ga 418.
2. XVhile the executions in this case were
improperly directed, "Toany lawful officer to
execute and return, "yet they were executed
by tho proper officer, end we think the levy
nnd sale of the lot in question by him was
not void, because of the misdirection. 67
Ga, 416; 69 Ga 633; code, section 888.
3. Defendant in execution and his ad
ministrator are estopped from denying the- -
legality and validity of the sale,
as raid defendant pointed ont the
property to the sheriff, directed ii.
sheriff to advertise end resell the prop. r..
and wss present and bid at the sale. 4 J. J.
Mar. 686: 65 Ga 360-61