Newspaper Page Text
8
THE MACON WEEKLY TELEGRAPH; TUESDAY, FEBRUARY 2, 1886.-TWELVE PAGES.
SUPREME COURT OF GEORGIA.
Seclalons Rendered Tuesday, January *0,
1886.
Special Report by Henry C. Peeplee.
Blanche Darden re. A. J. Hill. Certio
rari from Morgan. Judgment reversed.
Charles Preetorius ts. Berner Barnes.
S ectment, from Bullock. Writ of error
■missed.
J. J. Bowen vs. J. B. Groover. Illegali
ty, from Bulloch. Writ of error dis
missed.
J. M. Langford vs. Commissioners of
Wilkinson County. Exceptions to Audit
or's report, from Wilkinson. Judgment uf-
Armed.
T. V. Saffold vs. F. C. Foster «t al. Re
fusal of injunction, from Morgan. J udg-
ment affirmed.
E. T. Roberts vs. Savannah, Florida nnd
Western railway. Trover, from City Court
of Savannah. Judgment affirmed.
Georgia Nixon vs. The Bute. Keeping
open tippling house on Sunday, from city
court of Savannah. Judgment affirmed.
M. N. Baker A Bro. vs. W. E. Herbage.
Injunction, from Charlton. Judgment af
firmed.
Louis Walker vs. Vale Royal Manufactur-
ing Company. Case from city court of .Sa
vannah, Judgment affirmed.
D. B. Wing vs. Raymond Harris. Fore*
closnre of mortgage, from McIntosh. Writ
of error dismissed.
T. J. Doertlinger vs. Charles Nelson. II-
legality, from Glynn. Judgment affirmed.
Daniel Swint vs. Central Railroad and
Banking Company et al. Case from Chatham.
Judgment affirmed.
Eliza Drowdy vs. L. H. Littlefield.
Claim, from Wayne. Judgment reversed.
James Norris vs. William J. Pollard et al.
Refusal of injunction, from Richmond.
Judgment reversed.
11. N. Morgan vs. W. J. Pollard. Com
plaint, from Columbia. Judgment re
versed.
J. It. Smith vs. G. E. Smith. Probate,
from Jefferson. Judgment alfirmed.
K. A. Smith vs. Goodmnn, Howell A Co.
Case, from Bulloch. Judgment nffirmed.
E. E. McCallum vs. W. E. Carswell.
Equity, from Wilkinson. Judgment
affirmed.
W. H. McMichnel vs. J. E. Pye et al.
Partition of lands, from Jusper. J udgmeut
affirmed.
E. C. Downs et al. vs. David Harris.
Equity, from Jasper. Judgment affirmod.
J, D, Bedell vs. F. M. Scarlett Com
plaint, from Camden. Judgment ulfirmed.
T. J. Herndon vs. the State. Murder,
from Appling. Judgment affirmed.
Wm. Fraser et al. vs.Charleston nnd Savan
nah Railway Company. Case, from
•Gitv Court of Savannah, Judgment re
lented.
Josish Sibley vs. Geo. W. Haslam. Tres
pass, from City Court of Savauuah. Judg
ment reversed.
Mayor and Council of Savannah vs Craw
ford A Lovell et al. Injunction from
Chatham. Judgment reversed.
A. N. Miller vs M. J. Desvergers. Breach
of warranty, from City Court from 8a-
vaunah. Judgment nffirmed.
8. A. Doyle vs William Donovan. Claim,
from Jefferson. Judgment affirmed.
A. U. Brooch vs U. L. Smith et al Exocu
tor. Equity, from Junes, Judgment re
versed.
Colbert Jeffries vs C. L. Bartlott Execu
tor. Illegality' from Jasper. Judgment
Affirmod.
.8. W. Hitch etal vs Amos Frasier, Dis-
poascssory warrant, from Camden. Judg
ment reversed.
Duncan Wright vs. E. P. Lake, master.
Pilotage, from Glynn. Judgment rovened.
Esat Tennessee Virginia and Georgia rail
road company vs. E. F. L. Whitlock nnd
vice versa. Case, from Glynn. Judgment
affirmed in first cobs and rororsod in sec
ond.
John H. McCullough vs. Norris A John
aon, and vloeversa. Ejectment, from Glynn.
Judgment affirmed in first cose and re
T<jr»vd iu second,
Bam Stephens vs. the State. Wife-beat-
ng, from Liberty. Judgment affirmed.
J. A. Callahan vs. the State. Keeping
open tippling house on Hnuday, from Chat
ham, Judgment affirmed.
Patrick Callahan vs. tbo State. Keeping
opeu tippling house on Sunday, from Chat
ham. Judgment affirmed.
Charles Seiler vs. the State: Keeping
opeu tippling houso on Sunday, from City
Court of Savannah. Judgment nffirmed.
H. C. D. Suiter vs. the State. Kecpiug
opeu tippling house on Sunday, from City
Court of Savannah. Judgment affirmed
O. H. Lnfborrow vs. the State, Illegal!-
ty, from Chatham. Judgment uftlriued.
Savannah, Florida and Western Railway
Company vs. W. S. Lawton et al. Cose,
bom Chatham. Judgment affirmed.
William T. Gibson vs. Ella W. Smith.
Complainant, from Chatham. Judgment
xevened.
Durden vs. Hill. Gerteoreri, from Morgan.
Before Judgo Lawson. Landlord and
tenant. CroDs. Bent. Delivery. Liena.
Judgment.
Jackson, C. J.: When a tenant rents
land and agrees to pay the landlord a part
of the crop in kind, and actually delivers a
part of it to the landlord,the title to the part
delivered passes to tbo landlord and it is
not subject to a general judgment, after the
delivery, against the teuaut.
(a) In effect the question is the same ns
though the landlord had ossertod his lien
and brought tho proceeds nf the crop into
court for distribution. 60 Ga. 478 cited
and distiagnished. Judgment reversed.
Foster A Ilutler for plaintiff, Calvin
George by J. A. Billups contra.
Preetoriua vs. Barnes, ejectment, from
Bullock before Judge Caswell, l’raotiee.
Bill of exceptions. Certificate of Judge.
Addenda to certificate.
Jackson, C. J.—1. Where the hill of ex
ceptions brought to this court showed that
between the certificate by the judge re
quired by law and his signature the judge
below had inserted statements qualifying
thoso made in the body cf the hill of ex
ceptions, the code mnst he dismissed.
2. There is no law whatever for an ap
pendage of this sort to the certificate. The
certificate is prescribed substantially in the
codo and is made the writ of error. Code
4252. The duty of the judgo incasoabill
of exceptions is tendered with whieh ho is
not satisfied is clearly pointed out in tho
UHie, see. 4257,
J. It follows that there is no legal writ of
error here and this court has no jurisdiction
of the cause.*
4. It follows also that the hill of excep-
(ions does not contain all the evidence nec
essary to adjudicate the cose and hence is
not a true hill of exceptions.
5. The plaintiff in error is at fault be
cause ho snonid embody all tho necessary
facts in tho bill of exceptions; nnd because
the law gives him a remedy, if the judgo re
fuses to certify a proper hill of exceptions.
Code 4258. Writ of error dismissed.
T. H. Pottorfor plaintiff; D. It. Groover,
Lester A Ravenel contra.
Doerflinger vs. Nelson. Illegality, from
Glynn. Boforo Judge Mersbon. Ille
gality. Execution. Payment. Witness.
Act of 18G6.
Jackson, C. J.—Defendant in ft fa, who
made affidavit of illegality on tho ground
that the ti fa proceeding against linn hml
been paid off, was not a competent witness
to prove payment to counsel for plaintiff in
execution, said counsel being dead. Lang
ford vs. County Commissioners, Wilkinson
oounty; 72 Ga., 143. Judgment affirmed.
Goodyear A Kay, F. n. Harris, for plain
tiff; H. B. Atkinson, C. Symrnea, S, W,
Hitch contra.
Roberts vs. Savannah, Florida and Western
Railroad Companv. Trover, from City
Court of Savannah, lloforo Judgo Har
den. Statutory construction. Code,
Section 1523. Turpentine and rosin.
Jackson, C. J.—Tho language "or other
products" in section 1593 of the codo ns to
sale of cotton, corn, eta., does not cover
turpentine and rosin. It was intended to
apply to tilings planted and grown from the
soil, nnd the not of 1885 amending said sec
tion shows a legislative construction similar
to thnt herein stated. Judgment affirmed.
Lawton A Cunningham, Garrard A Mel-
dnn, Denmark A Adams fur plaintiff; Chis
olm A Erwin, Goo. A. Mercer contra.
draw the hill of exceptions and have it cer
tified, and tbia motion would probably have
been granted, but for the fact that counsel
for plaintiff in error had obliterated from
said bill the date of the first filing in office
below, and, hence, had pat it out of the
rawer of the clerk to certify that the bill sa
t now stands is the true original. 72 Ga.
106, 110, 112; 72 Ga. 212: I bid 763—766.
2. If sendee of the bill of exceptions had
been made by the sheriff, by handing a
copy thereof to the defendant in error after
it was filed, without any nltomtion or oblit
eration of entries upon it, the case wonld
not hare been diamisacd on the ground that
it waa ac served after the filing; but when
the obliteration was made, no copy of the
pnro paper with the official entries thereon
could be served by the sheriff; bnt the ser
vice mnst have been with a copy of some
thing else than the original bill of excep
tions with the official entries upon it, and
therefore no service of the true, original
bill of exceptions. Writ of error dismissed.
W. R. Gignilliat, W. A. Way for plaintiff
W. W. Fraser contra.
Smith, administrator, vs. Central Railroad
and Banking Company of Georgia. Case,
from Chatham. Before Judge Adams.
Jackson, C. J.—This Is the first grant of
new trial nnd upon conflicting evidence.
We will not interfere.
Wo will not closely scan views of the law
expressed by the Jndgo below, as the pre
sumption is that on the second trial he will
correct any errors of law he may hare com
mitted on the first. Judgment affirmed.
P. II. Brewster, W. A. Post, Lester A
Ravenel,. for plaintiff; Lawton A Cunning
ham, J. B. Cumming, contra.
Drawdy vs Littlefield. Claim, from Wayne.
Before Jndge Merjhon. Judge pro lute
trice. Fi ta. Test. Disqualified Judge.
Claim. Estoppol.
Jackson, C. J.—1. A lawyer might pre
side as judge pro lute vice before the con
stitution of 1877, by agreement of parties.
39 Go., 361; 41 Ga., 268.
2. That the fi fa boro test in the name of
the regular Judge of tho Superior Court
does not mako it involid, though this Judge
did not presido when judgment was render'
ed, being disqualified. I issuing the execu
tion was a mere ministerial act of tho
clerk.
3. That the Judgo presided when, the
fi fa in question, a second fi fa, wits direct
ed to be issued to conform to the judgment
ns the first did not, does not invalidate said
second fi fn. Though somewhat judicial,
it was a mere formal correction of error in
tho clerk. The clerk himself might have
done it without authority—certainly he
can issno an alias, the first being lost.
Codo 3496, 3988. Even a Justice of the
Peace might issuo an alias in his court.
Codo 3032; 05 Ga., 007 ; 00 Ga., 298.
4. The fi. fa. need not name the term of
the judgment on which it rests. It is good
if it declares that it was lately rendered in
court and is for so much principal, so much
interest up to a certain date and iJbo inter
est, or together with interest from that
date. That date is tho date of the judg
ment. It may he entered four days after
adjournment, and thus in vacation and not
in term. If tho execution follow the judg
ment that is enough. Code, 3C30j
5. Tho levy wns on property of
Saffold vs. Foster et al. Refusal of injunc
tion, from Mnrgun. Boforo Judge Luw-
aon. Equity, Injunction, Execution.
Levy. Advertisement. Damages.
Jackson, C. J.—1. Equity interposes cau
tiously to stay an execution at law by in
junction.
2. Tho levy was not excessive. The land
Is not levied on and advertised in hulk, but
in smaller pan-els, all folly described.
3. Complainant is not hurt by tin- grow
ing crops not being described in tho levy.
The crop is gathered by him and pocketed.
The restraining order effected this result.
(a). Besides, when the levy was made no
growing crop was on the land. The adver
tisement was, however, after it was grow
ing, and it is fairer that the advertisement
ahead have given some notice of it, 6 Ga.,
455-6., but as has been seen, complainant
waa not hurt.
4. Damages are denied in this case.hnt the
rule in 40 Ga 212 will he strictly enforced
by this court, and where the equity ot a bill
to stay execution is not manifest and the
refusal of a chancellor to grant injunction
is brought to this court damages will be
awarded. Judgment affirmed.
A. M. Speer, Calvin George, John C,
Reed for plaintiff; T. C. Foster contra.
Bowen vs. Groover. Illegality, from Bui
loch. Before Judge Carswell. Illegality.
Practices.
Jackson, 0. J.—Where affidavit of ille-
gality was filed on five grounds, sustained
on two and the other three overruled, affi
ant oould not bring to this court the judg
ment overruling the three mentioned. The
judgment of the court waa a final one and
-was in his favor thongh not on all the
grounds taken. Writ of error dismissed.
T. H. Potter for plaintiff; D. R. Groover,
Lester A Ravenel contra.
Baker A Bro., vs. Herbage. Injunction
from Chariton. Before Judge Mer
nbou,
Jackson, C. J.—1. Both parties claimed
title and both were in possession of evi
dence as to the title conflicting. We can
not ace that the chancellor abused his dis
cretion in enjoining the insolvent party
and putting the solvent one under bond to
answer to the other in the erect the ques
tion of title was decided against him by
The bill and cross-bill seem sufficient
to try these issues and make such a decree
under the pleadings If not deficiencies
may be supplied by amendment Judge-
~mo( affirmed.
Spencer B. Atkinson for plaintiff; F. a
I Benia, Smith A Borcharett, contra
Georgia Nixon vs. the Stuto. Keeping open
tippling houso on Sunday. From City
Court of Savannah. Boforo Judgo Har
den. Criminal law. Onus l’resump
tion. Defendant's statement Charge
of tho court.
Jackson, 0. J.—1. The verdict is sus
tained by the cvidenco.—2. Proof that tie
fondant was proprietress of a , tippling
houso, and that it was kept open on Snn-
day was sufficient to convict nnlcss she
showed that sho did not know it wns kept
open.
3. When dofonilant mado her statement
tlie court told the jury they might believe it
iu preference to nuy or all tho testimony in
tho coho. This gave hor her tho full bene
tltofthelaw, and his charge taken with
this shows no error on this snbjet.
4. A charge; this law against keeping an
open tippling houso ou the Sabbnth day is
now nsserteil liy the Stnto to Imve been vio
lated, and tbo only question for yon to do-
toriuino is whether or not this law has been
violated by this defendant within two years
prior to tho finding of the hill of indict
ment, etc., was not erroneous.
5. Tho entire cluirgo is unexceptionable
and guvu defendant full benefit of tho doc-
trino of reusonublo doubts. Judgment af
firmed.
Garmrd A Melilrim for plaintiff; F. G
Dnllignon, Solicitor-General, contra.
Louis Walker vs. Vide lloyul Manufactur
ing Company. Cose, from City Court of
Suvunnun. Ileforo Judgo Hanlon. Di
rection ot verdict. Evidence. Agency
Ratification. Notice.
Jackson, C. J.—1. When there is no evi
deuce of a vital, controlling link of the
chain of facta necessary to make out the
; daintiff’s case, the judge may instruct the
, nry to find for the defendant.
(>i). Tlie agency of Morse wrs snch a link
in this caso and no proof of it was made.
2. Subsequent working of plnintitf as
day laborer, to bn turned off at the option
of Morse, tho alleged ngent of tho defeud-
ant, who was at tho time of snch subse
quent working the superintendent of the
company was no ratification by the com
pany uf a contract to give pennant nt rni-
doyinent at a ranch higher price alleged to
lave been made by Morse with plaintiff at
a time when it was not shown that Morse
was defendant's agent, nnd of whieh no
knowledge was shown in defendant. Judg
ment uffiriued. -
\V. II. Witde for plaintiff, Lester A Bo-
venel contra.
. P. Lit
tlefield. He was undoubiedly scried. The
execution is against him and his brother.
He lived in the county in which suit wns
brought and hia brother in nnothe county.
Tho facta of tho caso nro sufficient to war-
rant tho conclusion that tho brother was
also served. \
6. Though the levy Itself docs sot stnto
that it is made on property as tho property
of T. P. Littlefield, tho claimant so recog
nized it iu her affidavit of claim, and this
solemn admission in judleio estops hcrfrmn
denying thnt it was levied on his property,
Judgment reversed.
Nicholls A Brantley, S. W. Hitch for
plaintiff; Frank II. Harris contra.
Langford vs. County Commissioners Wil
kinson County. Kxeeptious to Auditor's
report, from Wilkinson. Before Jndge
Lawson. Evidence. Witness. Act of
1866. Auditor. Conduct of the Judge.
Exceptions pendente lite.
Jackson, C. J.—1. A tax collector,
Against whom execution wss proceeding for
default to the county, was not a competent
witness to prove payment by him to the
connly treasurer for which he alleged his
receipt was lost, said treasurer lieing dead.
2. The case having been referred to an
auditor, the coart below could change its
opinion and decision on the question of the
competency of such witness before the final
determination of the case, although he at
first held said witness competent and sus
tained exceptions to the auditor's refusal to
admit his testimony, and then snstoinej
exceptions to bis second report because he
admitted the evidence.
3. Such a ruling on the competency of
the witness, when first made, should not
then, necessarily, have been excepted to
and exceptions pendente lilt filed. Judg
ment affirmed.
J. W. Lindaley for plaintiff; F. Chambers
contra.
Wing vs. Harris. Foreclosure of mortgage,
from McIntosh. Before Judge Mersbon.
Practice. Bill of exceptions. Certifi
cate. Ct ndnet of counsel. Service.
Jackson, C. J.—1. There is no certificate
by the clerk of the Snperior Court that the
bill of exceptions filed in this court is the
true original. Motion was mads to with-
McMichael vs. Pye et ul. Partition, from
Jasper. Before Jndge Lawson. Wills,
Devise, Intestacy. Implication. Heir
at law. Construction.
Ham., J.—A testator bequeathed a largo
number ot slaves, his plantation, stock,
Ac., to his wife during her life or widow
hood, in tho event ot herintermarriage to
bo equally divided botween their ohiUlreu.
After certain specitto bequests he proceeded
to dispose of the residue of his eitnte in
these words: “And tho remainder of my
estate, both real and personal, to he mindly
divideil botween my children Edward] H,
Bennett Jr., John Charles A.,JJN'aney JAim
and William T. Pye." Tho plaintiti iu
error was the son of a daughter of toitator,
Edna l’ye, who died before tho execution
of her father's will, and ho claimed to ho
an heir nt law, and songht partition of tho
lands of tho estate ns against tho other heirs
at law. Held:
1. Tho testator evidently intended to dis
pose tf liis entire estate by the will, and not
to dieintesbito as to any portion of his
property. This, besides being is con
formity to the general rule of law, is appar
ent from tho scope and object of the will,
when its several items are construed to
gether. o7 Go. 568, 569, 592, 593.
2. An heir cannot be disinherited except
by express desire, or necessary implication,
anil the implication to effect this must
amount to such a strong probability that an
intention to the contrary cannot he sup
posed.
In this case it is admitted testator owned
nt the time of the execution of his will only
the lands now in controversy. He gave his
wife su estate for life or during widowhood
in these, and on her intermarriage lie di
rected the property to he divided between
her children by him. True, he does not
say iu direct terms if she does not marry
that at lu r death the property should go to
these children in equal portions, but from
tbo provision standing alone it wonld be im
possible to infer a different intent. Bnt
this point is more clearly settled by the re
siduary clause which designates the objects
of his bounty by name, untl demonstrates
that ho used the word children in its strict
sense, as contradistinguished from grand
children, or other lineal descendants. 12
Ga., 156,163,164,165. Judgment affirmed.
KeyA Preston for plaintiff; F. Jordah
contra.
Smith vs. Smith. Probate, from Jefferson.
Before Judge Carswell. Charge of the
court. Mental capacity.
Hall, J.—1. The evidence authorizes if it
does not demand the verdict.
2. There was evidence on which to baae
the charge of the court os to nndue influ
ence, fraud, duress, Ac.
3. The Jndge did not reqnire the mental
capacity of testatrix to be proved by snch
a degree of testimony aa wonld authorize
a conviction in criminal cases. The entire
charge is a model of clearness and fairness,
deals with the issues made in the case alone
and is not amenable to the objections urged
against it Judgment affirmed.
Phillips A Wynn for plaintiff; J. J.
Wbigham, Cain A Polhill, contra.
Norris vs. Pollard etal, and Morgan
Pollard. Refusal of injunction from
Riehiuoud and complaint from Columbia.
Before Hon. Joe. Gavahl, Jndge pro hae
rice. Jmlgment. Joint promiasora. Prin
cipal and surety. Injunction amendment.
l'n-Ailing Jndge pro Lie tier.
Hall, J. —It is, at least, donbtfnl whether
a judgment awarded by the court against
one of two joint departments, while the suit
is pending end undetermined upon the
K " ms filed try his co-defendent, for whom
was only surety, wae not void. Code
5145. The plaintiff had treated the parties
as joint, issuable pleas had been filed by
one, who itia alleged, was the principal
debtor and so known to he by the plaintiff,
and the pleas setup matters of defense good
as to both defendant.
Respondent owed a dnty to complainant
in the bill, the party defendant against
whom snch judgment was rendered as the
surety of his principal debtor, was bound
to set toward him in tho utmost good faith,
and it is equally true that the liability of
the surety could not be extended beyond
that of his principal. Code 2149, 2154,
2151.
It was erroneous to sustain a demnrrer
for want of equity to a bill filed by the
surety seeking to restrain the enforcement
of the jndgment against him until a ter
mination of the ciiuho as to his principal,
which alleged knowledge of the suretyship
by the plaintiff in the judgment, and un
due ndvantuge taken of complainant by
him, by reason of which ho was prevented
from filing meritorious defenses.
2. The judgment was manifestly highly
irregular, Vie know of no rule lor sepa
rate judgments, rendered by different tri
bunals, against different defendants, where
they are joined in the same action. Code
3559. (a) Although the judgment be void,
chancery would have jurisdiction to set it
aside, provided it wns not caused by negli
gence or fraud of tho complainant. Code
3595. (h) If n surety failed to set up the
Knretysbiji'aud judgment went against him
he was not thereby precluded from showing
the suretyship nod protecting himself at
lenst to that extent. Code, sec. 2149.
3. The fact that a jndge pro Lie t-icc ren
dered the judgment sought to he enjoined,
did not render him competent or authorize
him to act in matters arising subsequent to
that trial. Code 5147, 250. Where in
junction is sought and the judge of the
circuit disqualified, application must be
made to some other judge of the Superior
courts. Code 247, sub, sec. 2248.
4. An action by Printups Bro. A Pollard
for the use of W. J. Pollard, founded on
four promissory notes, two payable to the
order of plaintiffs, and the other two to W.
J. Pollard, the declaration showing no as
signment of tho last two to the plaintiffs,
and the copy of the first two attached
showing no assignment by endorsement or
otherwise of tho plaintiffs to Pollard, was
dcmurable for misjoinder of onuses of ac
tion and want of purties. 12 Ga. 139.
5. An amendment thereto by striking
therefrom tho names of "Printup Brothers
Pollard for the use" and by adding to the
copy notes appended thereto, payable to
the order of that firm, their blank endorse
ment of the same, should huve been re
jected as adding a new party and a new
cause of action. Code 3486. Judgment
reversed with directions.
Salem Dutcher, for plaintiff; Tntt A
Lockhart, contra.
McCallum, administrator, vs. Carswell.
Equity, from Wilkinson. Before Jndge
Lawson. Trusts. Limitations. Contract.
Mutuality. Evidence.
Hall, J,—1. Complainant by her plead
ings made a case of a continuing, exocutory
trust to which the statute of limitation did
not apply, unless the defendant bad changed
his relations to the real owner, in reference
a policy of insurance which hail been as
signed to him by complainant's, intestate in
his life time, and hail given notice either
direct, or such as may he inferred by open
and notorious acts in hostility to the claim
of the cestui que trust, thnt ho held it ad
versely. 71 Ga 259, 264, 205.
2. Bat the assignment was absolute and
unconditional anu no trust could be im
plied from its terms. Plaintiffs own evi
dence showed thnt defendant took tlie as
signment in extinguishment of a defendant
her intestato owed him and gave inundate
the liberty of having the policy re-assigned
to him, in the event he decided to do so, on
his paying tho debt and interest, together
with tlio premiums defendant, hail to pay
to prevent the policy from lapsing, nnil for
this reason defendant kept possession of
tho note evideneiug intestate's indebted
ness to him. It was optional with intes
tate whether he redeemi il the policy or not
anil for want of mutuality neither party
could have enforced a specific performance.
‘1 Ga. 818.
Defendant held tho policy or no special
trust, his title to it beenmo adverse when
tho assignment was made and tho statute of
limitations began then to run in his favor,
lienee complainant's right of action was
burred when this suit was brought.
3. This being true anil the hill making
one case, while complainant's evidence
made another, the court did not err in dis
missing iho bill. Jndgment affirmed.
E. F. Best, J. W. Liudslay, (lustra A Hall
for nlnintiff; Billups A Hardeman, James
G. Ockington, contra.
ordered into the custody of the party at
tacking them for the purpose of proving
them forgeries on conditions laid down in
15P*., 611 and succeeding cases. Judg-
ment reversed. . , , .
T. M. Norwood, 8. B. Adams for plain
tiff ; J. R. Baussy, contra.
Mayor, etc., of Savannah vs. Crawford A
Lovell et al. Injunction, from Chatham.
Before Judge Adams. Municipal corpo
rations, taxation, vested rights.
Hall, J.—1. The municipal authorities
of the city of Savannah, under their char-
ter, had authority to change an ordinance
imposing a special tax ou a particular class
of dealers by increasing the rate after the
tax first levied had been paid, hut before
the expiration of the time for returning and
paying the same. Code Sec. 4847.
The restriction on the power of the city
in its charter is, unless the power is ex
pressly prohibited or properly exempted by
tbo St to law or competent authority of the
United States. Code 4847.
The alteration of an ordinanceimposinga
tax which increases the rate is not express
ly prohibited, and that tnis may be done to
equalize the burden, meets the needs of the
corporation, etc., has been decided, 62 Ga.
646 ; 53 Ga. 416; 7 Pick. 24.
2. The payment of the tax first laid gave
no vested right. Taxation ia not a con
tract. 7UGu. 13, 32, 36 and citations; 107,
123, 124.
If a party claim any exemption from an
equal anil common burthen he must pro
duce the law exonerating him.
3. Without the strongest reasons courts
should not interfere with tho collection of
taxes. Jndgment reversed.
H. C. Cunningham for plaintiff; J. It.
Saussy, J. L. Schley contra.
Miller vs. Desvergers. Breach of warranty
from city court of Savannah. Warranty
of title. Realty. Personalty.
Hail., J.—1. One who has been evicted
from land by a judgment in ejectment, cau
maintain a suit against his vendor for a
breach of a general warranty of title, al
though ho knew at the time of the execu
tion of the deed of a defect in the title of
his immediate feoffor. 46 Ga. 316; 47 Ga.
576; Code 2703.
(a). An intention not to cover known de
fects of title in such a case canuot be es
tablished by parole. Code 2702.
2. Code, section 2G55 applies in cases of
general warranties iu the sale of personal
property to Buch defects as are apparent iu
the thing sold, and not to flaws in tlie title.
Code, sec. 2651. 69 Ga. 476 considered and
corrected. Judgment affirmed.
W. II. Wade, N. C. Collier for plaintiff;
Denmark A Adams contra.
Downs et al vs Harris. Equity, from Jas
per. Before Jndge Lawson. Trust.
Statute of limitations. Act of 1869.
Frand. Disabilities.
Hall, J.--Tho trust in this caso was
creuted in 1860 and the breach complained
of occurred prior to the 1st day ot Juno
1865.
Therefore even if plaintiffs in error were
under disability nutil the death of thoir
mother, which occurred more than nine
months anil fifteen days before they
brought their suit, they are barred, not
having shown that tho trustee acted fraud
ulently and corruptly in tho management
ning "Georgia, Liberty county," showed
the residences of the grand jarors.
2. The indictment being lor wife whip,
ping, the wife was a 'competent witness
against her husband. Code 3854, 4573.
Judgment affirmed.
W. A. Way for plaintiff; F. G. DuBignon,
solicitor general, contra.
Wright vs. Lake. Master. Pilotage,
from Glynn. Before Judge Mershon.
Pilot. Services. Outward bound ves
sels.
BLANtironn, J.—Where a pilot tendered
his services, outside the bar at Brunswick,
to bring a vessel in, his services were de
clined anil her master brought her in him
self but paid the pilot fees allowed for
bringing her in, the pilot was entitled to
take the vessel ont, and having tendered
his services, which were refnseil, could re-
cover tho regular fee therefor. Cobb’s Dig
p 37. 69 Ga. 469 ; 72 Ga. 234 cited and
distinguished. Judgment reversed.
Spencer R. Atkinson for plaintiff; Good
year A Kay, Chisolm A Erwin contra.
Sutler vs. the State. Keeping open tippling
house on Sunday, from City Court of Sa
vannah. Before Jndge Harden.
Blanufobd, J.—This case is controlled
by the case of Seiler vs. tho State, deoided
to-day. Judgment affirmed.
Garrard A Meldrim for plaintiff; F. G.
DuBignon, solicitor-general, contra.
Lnfborrow vs. Koch. Illegality, from Chat-
hum. Before Judge Adams. Devise.
Vested Estate. Levy uud Sale.
Blamikduu, J.—Whole a testator devised
an estate to his wife lor life and after her
death to his son for life, and after the death
ot the son to the children of the son living
at his death in fee, th6 son took a vested
interest, subject to bo divested by his death
before his mother, which was subject to
levy and sale during the life of his mother,
the first tenant. Code 2691, 2695, 2619.
2265 : 4 Kent. Comm., 202 ; 7 Ga., 638 ; 54
Ga., 802 ; 43 E. C. L. ltep., 669 ; 113 U.
341; 93 Nor. Car. R., not yet published.
Judgment affirmed.
R. Saussy for plaintiff; Jno. M.
Guerrurd, contra.
Smith vs. Goodman, Howell A Co. Case,
from Bullock. Before Judge Carswell.
Master and servant. Decoying away ser
vant. Measure of damages.
HallJ.—1. The enticing, decoying or
rcrauading a servant to leave the service of
lis master, or knowingly retaining and em
ploying him after he has left during tho
term for which ho engaged to serve, gives
an action to the injured party against the
wrongdoer. 3 Black. Comm. 143.
2. Plaintiffs below were entitled to re
cover what wonld hnve been their not
profits from the servants enticed away, anil
what thi*y lost by failure to improve their
property in consequence of the decoying
away and retaining of their servants. 43
Ga , 601; 47 Ga., 311.
3. Indeed, as the wrong done was at
tended with most aggravating circum
stances, both in act and intention, the jury
might have found additional damages to
deter the wrong-doer or compensate for the
wounded feelings of plaintiffs. Code. 306G;
70 Go. 368, 379; 43 Ga. 601, and 47 Ga.
311, do not conflict with this view.
Judgment affirmed.
It. F. C. Smith, T. H. Potter for plaintiff;
D, It. Groover, Lester A ltuvenel contra.
Sibley vs. Haslam. Trespass, from City
Court of Savannah. Before Jndge Har
den. Title. Forgery. Grant. Deeds.
Evidence. Remedies.
Hall, J.—L Tlie question in this case was
one of title. Plaintiff below mode suffi
cient proof of his title nnd cast the onus on
defendant. Defendant relied on a grant
anil certain deeds, the deeds ranging in
date from 1822 to 1873. Plaintiff showed
that none of theae deed* were recorded an-
til 1879 and then they were ull recorded on
the same day. The records of the Secreta
ry of the Slate and Surveyor-General showed
no snch grant ta that relied on by defend
ant, and ahowed a grant to another of the
lands in question, while the calendar showed
that the grant and one of the deeila relied
on by delendant bore date on Sunday.
The enapicion thus cast on defendant's
title was not removed by a suggestion that
mistakes have occurred in the inane of
grants, it not being shown that anch a mis
take wes made in this case, or any atepa
taken to rectify it; and the verdict for
plaintiff waa right.
2. The remedy prescribed, by Code, sec
tion 2712, as to attacks on deeds as forge
ries applies to registered deeds and not to
forged grants. 58 Os., 586; 44 Ga., 515.
In that case the remedy is merely cumula
tive. Even after the deed hae been read to
the jury, whether ancient or modem by
reason of its registry, it may be attacked
for forgery by competent evidence. 36 Ga.,
463, 472, 473. (a.) Forged grants may be
of the trust estato. The fraud shown must
be actual nnd not merelv constructive fraud.
Acts of 1869, pages, 133,134; 02 Go. 123
67 Gil 466; 08 Ga. 201.
(a) Sinco complainants were jointly in
terested with their mother daring her life
in the income of the estate and took in re-
nininder nt her death, it is not held that
they were nnder snch disability during her
.life as to present their suit for mismanage
ment. Judgment affirmed.
A. C. McCalls for plaintiff; F. Jordan
contra,
Herndon vs. The State. Mnrdor, from Ap
pling. Before Judge Mershon. Criminal
law. Newly discovered evidence.
Hall, J.—The newly discovered evidence
merely goos to impeach a witness for the
State, and the character of tho new found
witness may have been known to the jndgo
below to be bad. Ho is not sustained by
tlie affidavits of others, who know his char
acter. 68 Ga. 612. Judgment affirmed.
R. T. Williams, G. J. Holton A Son for
plaintiff; S. It, Atkins, S. 1. Carter, solici
tor-general, C. Anderson, attorney-general,
contra.
Fraser et al. vs. Charleston and Savannah
Railway Company. Case, from City
Court of Savannah. Before Judgo Har
den. Evidence. Non suit.
Hall, J.—While hut a weak caso may be
mode for tlaniiigcs still there is some evi-
deuce to sustain plaintiff’s allegations, and
it was error to grant a non suit. 64 Ga.
308. Jndgment reversed.
F. G. DuBignon, N. C. Collier for plain-
tiff; Chisholm A Erwin contra.
Savannah Florida and Western Railway
Company vs. Lawton et al. Case, from
Chatham. Before Judge Adams. Con
tract. Evidence. Frontage proprietors.
Sea wall. Damages.
BLAXtiroan, J.—1. The liability of Law-
ton depended on his contract with the
plaintiff below. There was enough doubt
as to what this contract was from the evi-
dence, as to sustain the grant of a new trial
as to him.
2. The railway company was liable for
its neglect in maintaining the wall or dam
in question.
When it purchased the frontage land lying
along the river, there was a bank or wall
upon it which wns a part of a system which
the frontngo proprietors had adopted to
keep back the floods and high tides. Each
proprietor was bound to tho others to Keep
np the bank on his own land for tho benefit
of all, nnd the company liy its purchase as
sumed this responsibility. Judgment
affirmed.
Chisolm A Erwin for plaintiff; Richards
A Heyward, Lawton A Cunningham contra.
Gibson vs. Smith. Complaint from Chat
ham. Before Judge Adams. Commer
cial law. Draft. Drawee. Acceptance.
Suretyship.' Notice. Discharge.
IlLANuroBD. J.—1. When a draft ia given
directing the payment absolutely of a sum
of money to the drawee, it ia the right ot
the drawee to have an unconditional and
unqualified acceptance of tho draft, and if
he chooses, without the consent of the
drawer to take a conditional, limited or
qualified acceptance, he thereby releases
tho drawer from all liability on the draft.
Tho drawer was merely a surety for the
acceptor, he beiug an acceptor for value,
and the taking of a conditional or qualified
acceptance by the ilruweo without bis con
sent wes to his injury. He bad a right to
notice of any change in the tenor of
the bill, and if he did not consent thereto
ho is discharged. 1 Dav. on Nig. lie. 510.
Judgment reversed.
J. It. Saussy for plaintiff ^Denmark A
Adams contra.
Broach vb. Smith ct. al. executors. Equity,
from Jones. Before Judge Lawson.
Leeds. Usury. Mortgages. Bankrupt
cy. Discharge. Purchase money. Equity.
BLANurimn, J.—1. A deed given as secur
ity for a debt, which is void os title because
of usury, cannot be foreclosed as an equita-
hie mortgage; and the note, to secure which
the deed was executed, being given before
the debtor’s adjudication in bankruptcy was
barred by hia discharge. Codo 1969. 68
Go., 821 considered and questioned.
2. The deed cannot be foreclosed for un
paid purchase money. It is no lien. The
vendor's equitable lieu has been expressly
abolished, and the debt is discharged in
bankruptcy.
(a). We do not mean to hold thnt when
it may he necessary for a defendant to re
sort to equity under snch circumstances he
may not he compelled to do equity and pay
tlie money and interest due. Judgment re
versed.
Jno. llntherford, Nishet, Edge A Nisbet,
Lyon A Gresham, for plaintiff; Lanier A
Anderson by Harrison A I’eeples, Harde
man A Davis, contra.
Doyle vs. Donovan. Claim, from Jeffer
son. Before Jndge Carswell. Claims.
Burden of proof. Opening and conclu
sion. Notice.
Blandfobd, J.—1. The plaintiff in fi fa.
had the right to open and concindo. The
harden on him was not removed by claim
ant by admission nr otherwise.
(u). It is nnfortnnute that in claim coses,
the right is ever given the claimant to open
and conclude the case to the jury. The
burden is always on the plaintiff to show
tho property subject.
Wo have alluded to this before and the
Legislature should give a remedy for it.
I. On the question of notice to claimant
of the unrecorded mortgage of plaintiff
there was sufficient evidence to sustain the
verdict. Judgment affirmed.
F. H. Saffold for plaintiff; Cain A Pol-
hill contra.
Hitch et ol vs Frasier. Dispossessory war
rant, from Camden. Belore Judge Mer-
shon.
Bkadfosd, J.—l. The warrant in this
case is in strict accordance with sec. 4677
of the code, and it was error to dismiss it
for ‘-patent defects." Judgment reversed.
8. It. Atkinson, King and Spalding for
plaintiff; Smith and Borchanlt, F. H. Harris
contra.
Stevens vs. the Bute. Aseanlt and battery,
from Liberty. Before Jndge Adams.
Criminal law. Indictment. Witness.
Husband and wife.
Blandfoed, J;—An indictment begin-
Bciler vs. the State. Keeping open tippling
houso on Sunday, from city court of Sa
vannah. Before Judge Harden. Crimi
nal law. Charge of the courts. Reason
able doubts.
Blandfoiiii, J.—1. The evidence over
whelmingly demanded the verdict.
2. When there is no doubt from the facts
of the guilt of the accused, failure by ths
court to give in charge to the jury tho doc
trine of reasonable doubts, iu tho absence
of a request from the counsel or of bis at
tention being called thereto, does not grant
of n new trial. 67 Ga. 153; 70 Ga. 825 cited
and distingnislied. Judgment affirmed.
Garrard A Melilrim lor pluintiff; F. G.
DuBignon, Solicitor-General, contra.
J. A. Callahan vs Tho State. Keeping open
tippling house on Sunday, from Chuthiun.
Before Judge Adams. Criminal law.
Newly discovered evidence.
Blandfoiid, J.—l. The verdict is sus
tained liy evidence.
2. The newly discovered evidence, is
negative, cumulative, tending hereby to
impeuch, and it does not appear it could
not have been discovered by due diligence.
Judgment nffirmed.
P. J. O'Conner for plaintiff;F.G. DuBig-
non, Solicitor-General, contra.
Patrick Callahan vs State. Keeping open
tippling house on Sunday, from Chatham.
Before Judge Adams.
BLANuruaii, J. This cose is controlled
by the decision in J. A. Callahan vs The
State. Judgment affirmed.
P. J. O’Conner for pluintiff; F. G. Da-
Bignon, Solicitor-General, contra.
East Tennessee, Virginia and Georgia Rail
road vk. Whitlock and vice vena, and
Norris A Johnston vs. McCullough and
vice versa. Cusc and ejectment, from
Glynn. Before Jndge Mershon. Prac
tice. New Trials. Extraordinary Mo
tion. Diligence.
Blanofoud, J. —I. An extraordinary mo
tion for new trial most contain clearly sad
specifically all the grounds necessary to
have been averred in a bill for new trial. 5
Graham A W. on New Trials, 1454 el seq.
2. That the presiding judge absented
himself from hia court, whereby the term
of court was terminated so that the ordina
ry motion for new trial could not be heard
daring that term, with no allegation »
frand, surprise or providential cause, is not
good ground for aucb an extraordinary mo
tion.
(a.) If counsel were not otherwise at
fault. Still they might have filed their mo
tion during the term so thnt the name coal'*
have been
the next
Johns.
57 Gil ,
204, 65 Ga. 57; 62 Iowa, 212. Judgment
Affirmed ia first and thin! case* ***
versed in the otlnr two. _
Goodyear £ Kay for plaintiffs; V. H,
ris. Ire E. Smith, O. B. Mabry, Hill A Har
ris contra.
JK iue icnu no iuiu uie name vw—-
I pending and have gone over to
term. This was not done. >
s. C. K. 320; 9 WalL 806; 42 On. «=
a. 285; 71 Oa. 654; code 372; 7»0a*
Jeffries ix Bartlett, executor. Efi?
from Jasper. Before Judge Las'" 11
Bankruptcy. Judgment. Lien. Home
stead. Idem Souths. Levy. Adveltu*-
ment Remedy.
BLaxoroan, J.—l. When a debt *»