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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 *»