Newspaper Page Text
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THE MACON WEEKLY TELEGRAPH. TUESDAY FEBRUARY 16. 1886.-TVVELVE PAGES.
SUPREME COURT OP GEORGIA.
D«cl>toni Rendered Tuesday, February 9,
uuat.
Fpecul Report by Henry C. Peeples.
Ilsrtley vs. Bilker et al. Illegality, fiom
Hancock. Before Judge Lumpkin. Mort
gage fif.i. Bond. Illegality.
Jackson, C. J.—1. Whero a mortgage fifs
on penonalty won levied and the bond
given to btay the name, nnder sec. 39711 of
the Code, was conditions) to retnrn the
property levied on to the levying officer in
ease the inane ft r.i a 1 on tl • affidavit of ille-
gality to the forecloaure of said mortgage
■honld he found againat defendant in exe
cution, instead of being conditioned to re-
tarn the property when called for by the
levying officer, it wns not error to dismiss
the illegality filed supported by such bond.
(o) A proper bond was a condition precr-
dent to the retnrn and henring of the ille
gality. Code 397fl. 3971. 3972, 3975; 01 On.
391. Judgment affirmed.
Jordan A Lea is, Harrison A Peeples, for
plaintiff; J. A. Harley contra.
Handy vs. Wilson A Co,, et al. Refusal of
injunction from Pulton. Equity Parties
escrow. Deeds. Judgment.
Jackson, C., J.—The judgment against
the collection of wbieh injunction was
sought by one obtained by a bonu fi<lt
holders for value before maturity of a prom
issory note.
Such holders conid not lie compelled to
make a deed to a tract of land to which
thev themselves had no titlo, and as to
which they had no connection with defend
ant in the judgment; said defendant claim
ing that she had purchased such a tract and
given the notes therefor, receiving a bond
for titles; thst said notes and a deed to port
of the land by her vendor to her had been
pnt in the hands of plaintiff in the judg
ment to be held as security for a debt due
from said vendor to said pisintiffs, and that
said deed was to lie ln*ld until the purchase
monev notes were paid by said defendant
in judgment. Nor conid said plaintiffs be
affected by the insolvency of said vendor
so as to make them proper parties to n hill
against them and said vendor to enjoin
their jndgment and compel the ranking of
a deed to the entire tract alleged to he cov
ered by the bond for title. Judgment af
firmed.
Mynntt A Howell, for plaintiff; M. A.
Bell, F. A. Arnold, contra.
Ale*. Mcflorr vs. the State. Forgery, from
Fulton. Before Judge Hammond.
Criminal law. Demurrer. Evidence.
Jackson, C. J.—1. The demurrer should
have been in writing. Code 41139.
2. The paper offered as the forged neper
was properly admitted. It sufficiently ap
peared to he that alleged in this indictment
to warrant its admission, taken with the
charge of the court that if there was am
biguity the jury might determine from nfl
the evidence whether the charge of the
proof corresponded.
3. The charge in respect to reasonable
doubts is unexceptionable.
4. Tho verdict is sustained by Inw and
evidence. While an intent to defraud two
persona is charged in the indictment, proof
of intent to defraud either was sufficient to
convict; and where the name of a merchant
is forged to a receipt for goods in his store
the jury might well conclude that the in
tent was to defrand him by so rating his
name and interfering with his trade. J udg
luent affirmed.
W. A. Way, H. B. Tompkins for plain
tiff; C. D. Hill, solicitor-general, contra.
W. Bates," (the grantee), “will permit Eu
nice Cupp, wife of me, the aforementioned
Daniel D. Copp.tohold and possess the same
daring her natural life, and to receive
the rents, issues and profits thereof daring
her said life, not subject to the
debts, contracts or engagements of her
present or any future husband, with whom
she may intermarry, and from and after the
death of the said Eunice, in farther trust
that he, the said Levi W. Bates, bis heirs,
executors, administrators, will convey the
same to the children of the said Eunice,
share and share alike, if more than one to
them, their heirs slid assigns forever, free
from any trust; snd in dtfault of any surh
children, then, in further trust, to convey
the same to such person or persons as the
said Ennice may direct by her last wjll and
testament **••*•; and in de
fault of such direction aril appointment
then, in further trust to convey the same
to snch person or persons as may be enti
tled thereto, according to the provisions
of the statute of distributions of the Htate
of Georgia, and to and for no other use,
intent anil purpose whatsoever,
and it is mutually covenanted
and agreed between the parties to these pres
ents, thst.it shall be lawful for the said Levi
Bates upon the written request of the said
Eunice •**••** to sell and
dispose of the aforementioned premises
• »»••• he, the said Levi W.
Bates, or his successor in the trust, invest
ing and preserving the proceeds upon the
same uses and trusts as aro hereinafter
specified, and in such manner as may seem
to him, in the exercise of a fair and reason
able discretion, to he beneficial to the in
terest of the trust, but the purchaser or
purchasers shall not be bound to look to
snch re-investment. Held, That by snch
deed a vested estate in remainder was
crested in the children of said Ennice Copp
in life at the lime of the execution of said
deed, which passed to their children, and
which did not depend upon said children of
Eunice Copp surviving her. 4 Johns, fil; 4
Go., 377; 72 Gn., 85'*; 4 Go., 4C1; 29 Ga„
651; 2 Jor on wills, 416 et seq; 7 Metcf, 375;
10 Tick, 463; 24 N. Y„ 465.
This construction is aided by the sur
rounding circumstances which show the
inclination of the maker of tho deed to
have lieen as abovo held. Code 2456; 3601.
4. Estates, legal or equitable, given by
will or deed, should always be regarded as
vesting immediately, unless tho intention
is clearly to the contrary. 113 U. 8. Bep.
378, code 2263.
ltemaiiiders may he created for persons
not in being, and if a vested remainder, it
opens to take in all persons within tho de
scription coming into being up to the time
of the enjoyment commencing. Code 2263.
5. When one conveyance to a trustee di
rects him to make another of the same
kind to a third person, equity will dispense
with the seconi conveyance, if the first
will produce precisely tho snmo result, op
erating ns a conveyance nnder the statute
of uses. 29 Gn. 651, Judgment affirmed.
Jackson A Whatley by Jackson A King
for plaintiff; J. B. Saussy, Go ward A Mol-
drin contra.
not demanded, by tho evidence and the
law,
2. The foundation for the introduction
of the otatements of deceased as dying dec
larations was properly laid, and the charge
thereon was not contrary to the law. Code;
Section 3781.
A prims facie cose is all that is necessary
to carry such declarations io the jnry, it be
ing a question of fact whether or not they
were made under the circumstances w ar
ranting their consideration as such. 71
Ga. 128. 141.
3. The court in its general charge gave
substantially to the jnry the request to
charge a failure to give which is excepted
Fraser, et al., vs Charleston A Savannah
Railroad Company this term.
Judgment reversed. Hopkins A Glenn
for the plaintiff; Julias L. Brown, W. D.
Ellis, contra.
was not newly discovered and was merely
to.
4. While it is the privilege of connsel, it
is the duty of the court to propound such
questions to reluctant witnesses, (as the
one in question hud shown himself to be)
ns will strip them of the subterfuges to
which they resort to evade telling the truth.
19 Ga. 425, 426; 31 Ga. 261,202; 19 Ga. 102,
118,119, Had the judge in thiB case goue
further and reproved the witness for his in
decorous conduct, he would not have tran
scended the limits of his duty. 27 Ga. 283.
297.
5. There was no evidence making a case
of involuntary manslaughter and the judge
did not err in refusing to charge thereon.
Jndgment affirmed. 8. B. Spencer, W. A.
Way for plaintiff; C. D. Hill solicitor-gen-
enl, C. Anderson attorney-general, by J.
II. Lumpkin, contra.
Blonnt vs. Tho State. Larceny from the
house, from City Court of Atlanta. Be
fore Judge Clark.
Hall, J.—1. Where nn accusation charged
and the proof showed that two silver dol
lars were stolen by the defendant, it was
not necessary to go farther and show what
the vulue of such silver dollars were. 61
Ga. 617 Bov. Stnt. U. 8. Secs. 3565, 3566,
3567. Judgment affirmed.
Gray A Way for plaintiff; II. C. Glenn,
solicitor City Court, Atlanta, contra.
McDongal, vs Sanders: distress warrant
from Hart. Before Judge Lumpkin.
Landlord's special lien. Distress warrant.
Demand. liemedy.
Hall, J.—1, To enforce a special lien of
a landlord, on a crop of the tenant raised
on the land rented, there must be a pre
vious demand for payment of the sum al
leged to be due and a refusal on his part to
pay.
2. But the proceeding in this case was on
a distress warrant and not tha assertion of
such special lien, and it was error to bold
such demand necessary. Code 1977, 1991,
2285, 2236, 4082.
3. The landlord i> not compelled to re
sort to the foreclosure of a speci d lien, be
has the option to do so. 65 Ga. 739; Code
1979; 55 Ga. 655; 57 Ga 31. 63 Ga. 282
cited and distinguished. Judgment re
versed.
J. H. Skelton, John P. Shannon for
plaintiff; McCnrry A Proffitt contra.
cumulative. ...... .
5 We are not satisfied that a ease of mu
tual dealings, in the legal sense of those
terms, is shown by the evidence between
the parties, or thst such a ease is excepted
from the operation of our statute of limita
tion. It is not necessary for us to deter-
mice the latter question in this case.
6. The verdict is fully supported by the
evidence. Jndgment affirmed.
John C. Beed, Barrow A Thomas H.
McWhorter for plaintiff; J. T. Olive, H. T.
Lewis contra.
Savannah Bank and Trust Company vs.
Hariridge. Complaint, from City Court
of Savannah. Before Judge Harden,
Banks. Cashier. Notice. Evidence.
BlaNdfobd, J.—1. A contract between
the cashier of a hank and defendent in er
ror, Hartridge, wheroliy Hartridge was to
buy railroad stock for such cashier, was to
give Jiis note to the bank for it and depoeit
the stock as collateral seenrity for the pay
ment of the same and the cashier was to
advance tho money of the hank to pay for
below was right in holding that stijinlatioi
in the bill of lading, “that for all Ire* ( |
damage occurring in the transit of the
cotton, the legal remedy Bhall be son R ht
and held against the particular carrier on|.
in whose custody the said cotton may C L
at the time of the happening thereof;’ Wai
a condition repugnant to the contract, anj
for that reason void, is not material under
the view wo take of this case.
2. The Central railroad was liable U|
common earner to transport the cotton and
could not limit this liability by a mere B tir>.
ulatiou to that effect in the bill of lading
Code 2066.
3. A common carrier cannot limit Ij,
liability by any notice given, either by r , n ).
lieation, or by entry, on' receipt given, or
tickets sold, it may make an express eon.
tract and then will be governed thereby
Code 2068.
4. There wns no express contract in tkj,
rase, hut merely an attempt by the carrier
to limit its liability by inserting a stipule
tion in the bill of lading, which is forbiddei
the stock, was contrary to the rules of the flrmt . ( i
by the statute. 36 Ga, 532; 68 Ga., 3j|.
66 Ga., 488; 70 Ga., 533. Judgment »[!
Fletcher vs. Horne. Ejectment from Lib
erty. Before Judge Adams. Deeds. Evi
dence. Titlo. Estates. Coustrnction.
Jackson, C. J.—Tho parties below claim
ed nnder a common grantor.
Whero there was proof of the existence of
fto original deed, by which deed only a
•grantor through whom defendants claimed
hiul any title, and proof also of the loss of
the originul and the destruction of its rec
ord by fire, secondary evidence of its com
tents was properly admitted over defen
dant's objection.
(<i.) It was not necessary to call the
witnesses to the deed to prove its contents.
If the original had been offered it would not
have been necessary to call those witnesses
because it had been recorded. Their s was
not the best cviilcuco of its contents, and
satisfactory proof thereof was made.
(fc). There is proof of the delivery of the
deed. Its record was proof of delivery,and
.an is the custody of it by nnn who derived
■•title from a grantee under it. Tho only
grown person who held an equitable inter
est under It conveyed to a feoffor of this de
fendant. When she hail it, that proved
delivery to her and her children, who took
with her under it.
2. Holding under a common grantor
neither side can attack his deed or that of
liU feoffors.
3. Under a deed to “A. J. Baggs, jr., for
the nan, Ac. in trust for said Sarah E.
Boggs for life, (exempt from maritul rights
of said Wm. It. B«gg* or any future bus
band said Sarah ET Baggs may hove), to
writ,” (then follows the description of the
land), “To have and to hold the above de
scribed property to him, the said A. J.
Baggs, jr., in trust for said Sarah E. Baggs
and her children as above specified, for
ever, free from the debts, liabilities, obliga
tions and contracta of' the preaeut or any
future husband of theaaidSarah E. Baggs;”
the mother, Mrs. 8. E. Baggs, took a life
estate and her children an estate in re
mainder. Jndgment affirmed.
Lester A Bavenel, Gowurd A Meldrin for
plaintiff; J. W. Farmer, W. W. Fraser
contra.
Morris, et al, vs. Davis; partition, from
Fulton, liefore Judge lluiumond. Go-
tenants. Innocent purchaser. Judicial
sales. Advertisement. Levy. Deeds.
Construction.
Jackson, C. J.,—1, There can be no ad
verse possession against a co-tenant until
actual ouster, or exclusive possession after
demand, or express notice of adverse pos
session. Code 2,303,
2. While an innoccftt purchaser
for value is protected from irreg
ularities in tho timo of advertising
in Sales by the sheriff nnder State
anil county tax Q fas, us under executions
issued, on judgments, yet where tho levy is
excessive ami tho advertisement is wholly
inadequate and incomplete description of
tho real estate to bo sold for such taxes, the
levy is void, the sale is illegal, uud no title
passes to the purchaser. The purchaser at
all judicial sales depends upon the judg
ment, the levy uud deed. He must see to
these nuil guard himself against their
illegality. 11 Oil 423 ; 25 Ga 103; 72 Ga,
637; 52Ga. 163; code 890, 893; Byars, et al.
~ i. Cotry, et at, this term.
3. Under a deed, after stilting the consul
(ration of love and affection; “have this day
given, granted anil sold to said Lurie K.
Davis for the aupport of herself uud her
present und future children the following
described real estate •••••, To
have and to Loltl the same in fee aimplo for
Hie purpose aforesaid. An estate in fee
simple was conveyed to Mrs. Davis ami the
children anil when Mrs. Davis died her
husband inherited one-third of her interest.
Judgment affirmed.
John Colllar for plaintiff ; T. P. West
morelaud contra.
Atlnnta Beal Estate Company vs. Atlanta
National Bank et al. Equity, from Ful
ton. Before Judge Hammond.
Hall, J.—L A bill filed by shareholders
of the stock of tho Southern llailway Secu
rity Company exhibited their hill against
certain directors and munagera of tho affairs
of that company nnd against the Atlanta
lteul Estate Company, alleging that the
first named defendants converted the assets
of the Southern Bull way Security Company
to their own use, nuil whon they had dou’u
so ceased to conduct business in the
name of that company and suspended
its functions and operations; that
portion of the effects of the company
thus diverted are traced through various
channels and lands into the Atlanta Beal
Estato Company, which it is charged be
longs to anil is controlled by the active
managers of the first named company; the
purpose of the hill being to trace tho ef
fects, thus misapplied and to restore them
with their increaso to tho complainants
nnd such other shareholders in the com
pany ns tuny come in und mako themselves
parties nnd who have been injured by their
wrongful convcrtion of tho properly be
longing jointly to all the members of tho
corporation, and to hold and accumulate
not only tho directors nud managers of the
corporation, hut likewiso all persons who
with knowledge of their misconduct aided
and assisted them, in misapplying such
fuude, was not desirable,
2. Snch of tho defendants ns controlled
the corporation or lmd chorgo of its effects
aro trustees for tho stockholdcre. Code
1988, Mor. on Cores., Sec. 559. Both tVey
und the others, who with a knowledge of
their misappropriation, aided them in di
verting its property wonld be liable to the
injured parlies. Code 3151.
3. Tlio bill is properly brought in the
Benson vs. Gottheimer. Claim from
Wilkes. Before Judge Lumpkin. Land
lord's special hen. Assignment. Defences.
Bona fide purchaser. Ltndlord and
tenant. Champerty.
Halt, J.—1. Where a landlord's lien,
e eated by special contract in writing for
supplies, etc., was assigned and reduced to
judgment by the assignee, a purchaser ot
the crop from the tenant who bought with
notice of such contract could not set np
usnry in the contract for rent as ogninst the
foreclosure of the lien for supplies.
2. If defendant in execution assigned
only his place in the contract to snch pur
chaser of the crop and paid him a valuable
consideration to ossumo his obligation the
claimant could not set up the defense of
usury, against the vendor of plaintiff in ex
ecution. Kelly, 415.
(«) The purchase of the crop could not
bought the right to carry on the litigation
with the landlord as to the using, for thnt
would have been champerous. 4 Ga. 284.
3. Where the landlord reserves a special
lien in writing he can assign the same in
writing, and it can he enforced by the as
signee, just as it could have been by the
landlords.
There is nothing in the objection that
the lion was assigned before the supplies
were furnished. Code 1978, sub. see. 2;
act ot 8175, p. 20. Judgment affirmed.
Sime A Shubrick, Colley A Fortson, for
plaintiff; Hardeman A Irvin contra.
bank, it amounted to u misappropriation of
the bank's funds far which both the cashier
and Hartridge are liable. Code section
3151.
2. The knowledge of the cashier, in such
a transaction, was not the knowledge ot the
bank, and it was not bound thereby. It is
not shown thst the hank over consented to,
acquiesced in, or ratified auything which
tho cashier nnd Hartridge did, further than
to hold the notes and collaterals, ss it hail
a right to do.
3. The verdict is wholly without evi
dence to sustain it.
See same case September Term, 1885.
Jndgment rovetsed.
Chisolm A Erwin for plaintiff; George A.
Mercer contra.
Baker et ah Adams, vs. Thompson et a)
Claim, from Warren. Beforo Judge
Lumpkin. Process. Laches. Waiver.
Hall, J.—1. While a process as served
may have been irregular for want of con
formity to the practice of the courts, ard
illegal because it failed to follow tho • c-
quireuients of the law, still ns it was not
void nnd could have beon amended, nnd as
defendant had notice of the pendency of
the suit and fuiled to object in time to the
defects, nnd suffered judgment to go
against him, he waived them, and they
were covered by the judgment, and being
binding on tho parties, in absence of frauo,
was binding on third parties. Code 3345,-
2116; 45 G,l 298, 299; 51 Ga. 203; Williams
vs. Buchanan A Co., this term.
W. D. Tmt, E. II. Pottle, E. P. P. Davis,
J. A. Harley, for Plaintiff; Jos. Whitehead,
contra.
Jackson A King, for plaintiff; B. F. Ab
bott, contra.
A CLKVKK ESCAPE.
Long vs. Lewis. Equity, from Hancock.
Before Judge Lumpkin.
Blasiivohii, J,—This case seems to have
been tried wholly outside the pleadings,
but evidence was admitted without objec
tion, and there is enough of it to sustain
the verdict. Jndgment affirmed.
Jordan A Lewis by Harrison A Peeples,
C. W. DnBose, for plaintiff; Beese A Little
contra.
Wixson vs. Williams. Appeal from Ilort.
Before Judge Lumpkin.
Blandfoud, J.—Tho verdict is supported
by the evidence. Judgmont affirmed.
Barrow A Ttiomas for plaintiff; Jno. J.
Strickland, contra.
ns are in a similar condition. Mor. ou
Coro., Sec- 662; L. It., 9 cb. app. Cos., 350;
L. It. 6 F.q. ('AS. 143; 18 How. 480.
4. The hill is not nmltiterous, nor is
open to objection either because cf n mis.
joinder of parties or causes of action. 71
G.l,.797.
5 There is no prayer for tho appoint
ment of a receiver or injunction previoistn
the final trial, and tha hill wns property
filed without tho sanction ot tho judge.
Knoxvillo Iron Works vs. Wilkins, Post A
Co. Cited and distinguished. Judgmont
affirmed.
Julius I,. Brown for plaintiff; 0. A.
Lochrane, Yuu Epps, 'ulhomi A King, con
tra.
Bellamy vs. City of Atlanta. Caso from
City Court of Atlanta. Before Judge
Clarke.
Blaxdpord, J.—1. The charge of the
court was not a full and fair presentation
of the case, and it was argumentative and
presented the law more favorably to the de
fendant than he was entitled to
2. It is the duty of the city to keop its
streets and sidewalks in a reasonable safe
conditiou so that they may bo passed over
A Man Fnder s IVnllentlary Sentene,
Walks Out or Jail in the Garb of a
Clergy men.
Cincinnati Enquirer.
Charles ltusseil, better known u
••F’renchy," the notorious pickpocket wl,,, I
last Friday was sentenced to serve three
years in the Ohio penitentiary for relieving
the pocket of u gentleman ou a streetcar
about two month* ago, yesterday about
noon mode his escape from the county jail l
and up to a late hour lust night had not
boon recaptured. His escape was withont
(piculion the cleverest of any on record. Jt 1
was rendered all the more so by his daring j
and tbs perfect nonchalance with which he
addressed even his guards os he passed out I
the great jail door to tho street and to 1
liberty.
The services Snnday morning generally
conclude about 11:30 o'clock, and distantly
there is quite a rush of visitors to get out
side the prison doors. It was of this rash
that Bussell took advantage yesterday. In I
his effort* to escape he tod the assistance
of about half a dozen of the prisoners, it
being understood that Dr. McKenzie anil
Thomas Smith took a hand in aiding him.
Early yesterday morning he uroae, and,
contrary to his usual custom, shared him- I
self, lie sported an elegant dark moun.
tactic, and thia he cut off, leaving his face I
perfectly clean. He ia a thin-featured man,
aud with hi* moustache removtal, anil hit
face elongated—nn easy task to a man whe
has made a livelihood by sharp practices-:
he had much the a)ipenmnce of a clergjl
man. To add to the effect, and to give an
elderly touch to his uiul>c-iip he Lad an
other prisoner shave the top of his head,
leaving as neut a bald spot as wus ever
in safety both by day and by night, and for
Seymore et at. vs. Almond, ordinary. Pro-
hibition, from Elbert, liefore Judge
Lumpkin. Ordinary. Courts. Remedy.
Writ ot prohibition.
Jackson, C. J.—1. An ordinary in respect
to his po vers and duties as to n “no fence" j
. . . _ election, is not a court nnd hence n writ of |
name of the complainants in behalf of prohibition does rot lie against him. I iH-ANuronn, a. —I. sue cunrge was a
themselves nnd such of their co-corporators 2. If he acted as a eourt then the writ I cor ’ ,,< ' t on ® and covered all legal requests
would issno against him only to stop him ^ T b h * l™th
from acting ns such court, if the svoject
neglect in thia particular the city would he
liable.
3. If the defect causing nn injury has
existed for some time the city is charge
able with notice of it. If the city could
have ascertained the defect its failure to do
so is negligence, nud its liability the same
ns if it hod notice.
So a charge that the defect must he open
and notorious, etc., was error. Judgment
reversed.
C. A. Reid, B. E. Arnold for plaintiff;
W. T. Newuian, E, A. Angiet contra.
Henderson vs. Francis et al. Caso from
City Court ot Atlanta. Beforo Judge
Clarke. Charge of the court. Plea of
justification. Practico. Evidence. Ma
licious prosecution,
BuNDronu, J. —1. Tho charge was a
matter was beyond his juris iction. in
this matter jurisdiction is in the ordinary
and no other officer.
3. Under tlio decision of this court no
court can interfere with the ordinary ns to
his duties will) regard to snch election,pub
lishing result, etc.
4. Even if the Superior Court had juris
diction to intervene by prohibition it ought
not to do so beforo some actiou by the Or
dinary was hud iudicating plainly that he
would adjtulieially or act contrary to right.
Skrine et d. vs. Jackson et nl. Sept. T.
81. Caldwell et al. Same terra, ard other
cases cited. J ndgment affirmed.
Turner et nl Exv*. vs. Hires, complaint
for land from Hancock, liefore Jttdgi
Lumpkin. Declaration. Pleading. Equi
ty. Evidence.
Jackson C. J.—1. The decleretion was
hardly sufficient in ita description of the
land sued for, but it was not demurred
and if it had been could probably have been
amended ao as to make the description!
sufficiently accurate. The Und was de
scribed as part of a tract of 220 acres be
tween Fort creek and Shoulderbono creek
and bounded north by Inads of V. Adams,
on the east by lands of. Boss A Carpenter
and on the southwest by UndH of said ltivcs
2. Defendant hail the right to file the
equitable plea anil set np facU which would
authorize a decree compelling the plaintiffs
to do what their tesbitor had promised, and
make titles to the tract which had been paid
tat—his offer to rescind.
3. The contract between the parties was
in writing and iU me ruing plain. It was
not error to rule out psrol testimony con
trr.dicting it. Judgmentaffimirsl.
J. A. Hurley for plaintiff; Jourdnn A
Lewis, contra.
Wilbur et si. vs. McNulty et al. Equity,
from Chatham. Be'ore Judge Adams.
Deeds Remainders. Construction.
Trusts. Estates. [Jackson C. J. being
disqualified Judge Honey presided in his
ate* L)
Bouev, Judge.—1. An estate is vested
when tfiere is su immediate right of enjoy
ment, or a present fixed right of future en- ]
joyu.e'it. It in the present capacity of
taking effect in possession, if the pq»»f s-
einn were to become vacant, that distiu-
gundies a visited from a cectingent re
mainder. t Kent’s comm. 2U2; 5 Wallace
28”.
3. Under the following deed: “Upooeon-
i and trust nevertheless, thst the Levi
Rachel and Titos. Francis vs. Wood et nl.
Case, from City Court of Atlanta. Be
fore Judge Clurk. Libel. Wnrraut. Ju
dicial Proceedings Privileged Commu
nications. Demurrer. Practice.
Hall, J.—1. An action for libel cannot
be sustained for false charges of a criun
Id an affidavit for a warrant taken before
duly authorized aud lawfully commissioned
magistrate, having jurisdiction of tho of
fense for which the warrant issues.
(u). The only exception made is where
an affidavit is sworn recklessly and malici
ously before a court, that has no jurisdic
tion in tho matter aud no power to enter
tain the proceeding. Odgcra on Libel and
Slander, pp 191, 192, 193 and citations; 2
Add on Tort*, sec. 1032; 4 Co. 146.
|!>). The libeller may he punished and
the abuse repressed by a prosecution for
perjury, tho resit t of which is to make the
libeller infamous if he is convicted.
2. Whero the cause of action against a
defendant was that be falsely and malici
ously und without any reasonable or proba
ble cause,went before acommiurtener tukiug
oaths in the court of chancery, amt swore
an affidavit staling of the plaintiff in his
character of an auctioneer, that he con
ducted his business fraudulently und ini-
properly, and that he was not, iu de
ponent's opinion, a fit and proper person
to be entrusted with the sale of certain
property Hum the subject of s suit in the
court o 1 chancery and the court, on the
evidence before it, decided that plaintiff
was not a fit and proper person to couduct
the sale, it was held that the affidavit, be
ing made iu the course of a judicial pro
ceeding, could form no ground of action;
18 C. B. 126. But if the court has no juris
diction in the matter and no right to enter
tain the proceeding, and the charge is reck
lessly aud maliciously made, it will not be
regarded os a privileged communication.
(it.) While it is not stated in oar code,
section 2980, that such affidavits arc privi
lodged communications, it does not thence
follow that they are therefore to be con-1 try
sidereal, ss stfordiug matter for either a | small
Wellman vs. Neufvillc, Ex r. Equity, from
Chatham, Before Judge A lums. Wills.
Construction.
Hall, J.—The seventeenth item of a will
was ss follows: “To tuy friend, Miss Mar
garet M. Wclman, I' give and buqncath all
the silver, jewelry nnd other jiersonal cf.
2. The plea filed wns like that iu 69 On.
26o and it waa not error to hold it a plea of
justification.
3. Testimony o. certain witnesses before
tho committing court which bad been put
in evidence by plaintiff, bat which had not
heon read to the jury wns properly retained
by tho court ulthough plaintiff asked leave
to withdraw them. Evon if this were not
so no harm was done Kince(defendnnt'a
connsel have had the right to put it in.
4. Actions for malicious prosecution are
not favored by the courts Judgment
affirmed.
Hnygnod A Marlin, Spears A Sirmons
(or plaintiff; lloke A Burton Smith contra.
W. M. A M. P. lteeso, Jno. T. Osborne, ! O’Brien vs Whitehead et nl. Claim, from
By the timo this was accomplished it css
about 11 o'clock, aud a half hour later the 1
workers in the vineyard of the Lord would
leave the jaiL A pris mer loa • I him s |
brand new overcoat, und unothur presented
him with a pair of pantaloons. The only
thing that really bothered him wns a dees
scar that ho wore on the right side of hu
neok, a relio of a desperate encounter in
New Orleans a year ago. A silk scurf,
neatly placed inside his under coat and I
wrapped well about his throat, hid tilt
murk, however, and then everything was
iu readiness for him to join the Salvation
ists ns they retired.
Thoae who were aiding him say that he |
Dover showed even the least sign of weak,
citing, but stuiled aud chatted in un easy
manner daring the preparations that were
being made for his escape.
Placing the overcoat upon his arm, he I
stood inside his cell door until he heard the I
people beginning to leave tile jail. Then, I
putting tho coat an, he hnttoned it up well I
about tho throat, nud, with hat in band, I
and with it sanctimonious expression upon I
bis countenance, he stepped outside the I
eell door and down the stairs, joining the I
Salvation Army und their co-workers near |
the iron office. There several guards stood,
one holding tku door partly open and per
mitting the visitors to go nut one at a time. I
Jailor Billy Williums occupied a seat close I
to the door, and how Hnssell evor escaped I
is certainly n my story.
Upstairs in the jail guards were busy I
locking tip the prisoners for diuner, but I
tfir.-e or tour ot the inmates had congre-1
gated at tho head of the stairs, nnd with I
Jno. C. Itced for plaintiff; J. P. Shannon
J. N. Worley, 11. J. Brower, U. A. Roe
buck, W, N. Harris, F. II. Colley contra.
Miller, vs. Rcdwine, et. al.; Kqn'ty from
Fulton. Before Judge Hammond. Trusts.
foots I may die possessed of and not horein * rnstecs. Construction. 1
lu.fnM —r.11...1 tnkvinn nlnui.lv nnm. Ulortg.tge. Equity. USUIY.
Power to sell
civil suit or criminal prosecution for a libel, j snd tt
3. Because a demurrer was not made to item,
lbs declaration in the court below the de- • 3. T!e-i
fendauts were not thereby prevented from j psrol c .i
insisting on this deten te. Titer might h»v< 1 Uech.ieto
demurred but were notbound to dosa. | Jad port
Judgment reversed. Ciiisn In
lloke soil Burton Smith by J. It. White-' gant
beforo enumerated, having already com
municatud to her mv wishes on the subject,
uud in connection with this bequest I state
thst all the silver owned by me when the
city of Suvauuuh was captured by Gen.
Skermar, os well ns that left by my aunt,
Mis. Scott, was at that time stolen."
The eighteenth and lust Item was as fol
lows: “All the rest und residue of my es
tate not hereinliefore specially devised, be
queathed or disposed of, of what kind so
ever, aud wheresoever located, I give, de
vise aid Kquatb to the church Warden*
and vestrymen of the Episcopal clench, ia
the city of Savannah, called Christ church,
and to their ■accessors forever, whom I de
clare my residuary legatees to ho by them
held or applied to and for the use sad bene
fit oC the said church in snob mavirer us
they may deem best for its interest."
A codicil to this wiUboquenths to said
wardens of Christ Church, seven shan
the stock of the Merchants' National Bank
in trust to p»v over the dividends 11 Wm.
Waters, a former slave of testatrix, during
his life, atal after his death, “to hold said
stock to the said church wardens and ves
trymen of tlio Episcopal Church iu the city
of S-vaunah, called Christ Church with the
res! and residue of my estuto uh provided,
declared and bequeathed iu the lsili item
of said will."
Held; !. Tha expression “personal ef
fects" tss axed In the 17th item ot this will
are employed in a restrictive sense toem-l
brace only effects ot personal use, like
jewelry and silver, they were not intended
to op "rare on the residenm ot her rer-o:i*l
estate. La* that this entire re, idciiln is
clearly ar t certainly bequeathed to Christ
church, named a* the residuary legate,- in
18th and h.-t Item of the will.
2. The 18th sn*l lost item of the will
gives i.II tho last snd residue of th ustate
of testatrix to the church wardens and ves-
ot enlist chutch, except some
pt^pU tu other items ot li e will
uiortgige. Equity,
llt.iNiiniKii, J.—1. In order to determin
the power of a trustee tho Courts will look
into the character of the trust estate. Code
See. 2,346; 2 Kelly, 383.
2. Under power to a trustee to hold
property devised, being a hotel lease, furni
ture, slock, Ac., in trust for the trustees
wife and children, with a right to tell said
property and reinvest the same for the
benefit of the cexfui* ijitf leasts st any lime,
withont on order ot Court for that purpose,
tlio trustee had the right to mortgage the
property or its pro :eeds for the benefit
the trust ]
3. Where Snook sold Limitin' to the
trustee's wife individually, and Hiller sold
to the trustee, neither taking written reset-
ration of title, the equity of Mil'.cr was
greater than that of Snook to share in it
turui arising front l.ie sale of I’m trust
property, indeed .snook had no eqo.ty in
■ In- fitud. Miller ii.cl, mi l it was error to
hold to the contrary.
4. Mortgages being enforced against this
itiud should he purged of nsuvy. J lulgment
reversed.
Ij. W. Thomas. Abbott A Smith for ’ loin-
tiff; W. J. Heyward. Hoke nnd Burton
Smith, It. H. Clarke, A. Al. Speer, lie, good
A Martin, contra.
Hancock. Before Judge Lumpkin. At
torney's Lien.
Bi.tMironn, J.—1. Where Smith filed a
hill for specific performance against Walker
and got a decree for a conveyance to him
by Walker of the land in qnestion on his
paying two tbousnu.l dollars to Walker,
Walker having contended that Smith should
pay forty-five hundred dollars, and where
Smith thereupon procured O'Brien to ad
vance the money aud Walker conveyed to
Smith and Smith to O'Brien us security for
tho money, the land in thelmnds of U'Urien
was Htlll subject to the lien of the attorneys
of Smith for the fees for a, rviccs rendered
him in the litigation mentioned, for which
they hail recorded their li-li against the
lands. They hud at least benclittcd their
client to the extent of twenty-five huudred
dollars and should b( paid for it. Judg
ment affirmed.
J. A Harley for plaintiff; Beese A Little,
Jordan A Lewis contra.
Iicurts beutiug rapidly they watchtd their
fellow prisoner. Nearer he drew to the
prisoner.
door. With head bowed down snd his list
still in his bund he stepped forward to the
door uud ont into thu office. Ilia feelings
at this timo must have keen of a peculiar
nutnre. Twenty feet more and be would
lie outside the prison walls. The office wu
filled with visitors snd guards, and be got
into tho throng, moving slowly, however,
with a tread uud bearing that would have
done credit to tho most devout minister of
the gospel. As lie passed Jailer Wiliiatur
he bowed a stately bow, which wus graci
ously returned by tho officer. A moment
l iter and tho prisoners on the stairs saw
him pass out the office door. The gnat
iron affair closed behind bint, aud once
more he whs s free man.
new Dittos fob dandies.
st us construed in the 17th
Dalton vs. Drake, exr. Compl’t (rout Ogle
thorpe. Before Judge Lumpkin. De
murrer. flea. Verdict. Fias-tlca. Evi
dence. Mutual dealing- Sfotalr of
Limitations.
Hall, J.—1. It was not error to over-
Cox et id v- Cody et nl. Equity, from War
ren. Before Judge Lumpkin. Record.
Evidence. Years Support. Widow.
Blanfoiui, J. 1. A record ot the court
of ordinary showing that the land in con
troversy hid been set apart as a year's sui
)Hirt, was properly admitted, the only ol
joe-lion made to its admission being that the
order did not rec.te the names ot 4hr ad
ministrators on whom the application wus
served, it appearing thst the administrators
acknowlcdg- d service on suid applicHtiun.
If the objection had been oa to materiality
of the evidtttce nnder the pleadings, it
might have la-ill error to udmit it.
2. V.’i.t-n the land was set apart as a
twelve mouth J support to the uidow for
herself aud iiiiuor children, she had the
right to sill it and her conveyance carried
tile title, though sb. specified anil set it out
as her homestead. Judgment affirmed.
Seaborn Baese by Harrison A Feeples for
' ‘ ‘ 1 contra.
cose, from
>nd Pine.
9th rule of
Xew York letter In the Boston Herald.
It is rumored that tho much agitated re
form in men’s dress is uhoat to lie inaugu
rated in our midst. Several well knoso
artists and their friends having decided ta
discard the sombre evening dress, which
has befit a uniform for waiter* os well
gentlemen, bnve agreed n|ton a style tlul
seems more suitable to the occasion. Tta
favored garb is nothing less picluresqre
than a combination of the Venetian and the
French of the time of Charles IX. One
model is composed of a gray waiiecost tB»
doublet of violet velvet, embroidered **•»
silver, trimim-d with fine lace at the throd
snd rnflies at the wrist, worn over rioM
satin tranks, slashed with white, and [*»“
gray silk stockings. A Venetian flounce “
Velvet, ornameli'.ed with a white ostites
plume fastened with a jewel in front.
off the costume, which is completed bf
aim.,s of colored leather with ribbon boss
Other styles ap|iesrin tbe colors and tuoJj
ficutions suited to the wearer's tost*
"8"-
charge of duplicity or that the matter u seta !
out is ex delicto, hut it -i.iuni.is to su all -
gation that hl uotiff
of trust iu the mam
for eomiMnsation
suing. Ac.
2. If pliiatiff de-ire
j specify on wlu.t pk a il
i have culled attention t
I cm--siol instructions to
! ton they have returned
guilty of a— souse
fcl
ton
Bi.iMiriiili, J ,
writing, under tire
that tue clerk mi-,
rogstoi its us p-m
Where parties agreed in
approval of the court,
it certify certain tnter-
)t the record, und tli
vide tor plaintiff; Hay good 1 Martin. Spear* i ... . .
A Simmons, contra. 0 ,
i reel (
i< it tin
•at •
Varnodoe vs. The State. Murder from Ful
ton. Before Judge Hammond. Criminal
' law. Dying declarations. Charge ot the
court. Examination of witnesses. Con
duct of the court. Evidence.
Hall, J.—1, Jhe verdict is warranted.
r»ttlh»*IT» it u|.
?n; from iTitr <V>urt of
el pec\
**L >
AM a:
N .mi!!
i* ' • !• \ y »»! r». mi • i
tiff wu* a one lot liter* j loUwu.
vu evidence sufficient to csrrjr bis car* to | mine,
tbe jar/ snd it van error to grant a nonsuit | 4
Testimony of a vitae
u c itb a* for Uao jury u deter*
Tbe alleged newly discovered evidence
l.-rk ili*l n-»t certify it mm part of tbe brief
of tho evidence, bat vii**r*ly incorporated ■
tho nmi* in the record, and it wu* n«* far-1
ther appro?) d by tin* thfc can** mu*' ’
be iUmiii** ! from tniv court. U.) Tbe ^
4i»lh rule of court c*ast be observed, |
snd departure from it cMtiuot be permitted •
V rit or error diiraiMctl
4. it. t unniiintf. iltiiyer k Bro for plain* i
; tiff: A. H. C ox, 4. If. Lampkin, contra,
rebut j Central Railroad snd Banking Company vs.
man* I B aright Munufacturios Coinpuuy. Com*
plaint, from fu ton. Before fudge llsm*
ruoiod. Common carrier. Bill of lading.
Condition. Contract
BiastiroRD, Jl,—1. Whether the coart
1 in
Urd I
••She l>own«'it lllni.**
Ariaiio* Traveler.
“Are your par^ntM living?” nn Arkana*
pool teacher asked of a boy.
“Mur »•», but pap iiin’t.”
••That's bs<l.”
•Want's bad? That tuur's livin’, or lb*
lap's dead?”
“Its Ij'il thnt your father ia dead "
“V.-tri, the man who had a inorigrff-! 0
he cr.sp Kud so."
“Wind wns the matter with yonr fsthar
“H** i-o'd ln’t stand prosperity***. , „
••Why, hov did pronp^rity kill bin*’- -
••Wall, Ole Bill Simmon* gave pap a a y,
| jng of whiitky, nn’ it w»a tno’n be
nun', lie done bis best, bat sbe d»'
him.”
Tiii:rt are from l,B0d to 2»0Q9 ^ Dl ^ 1
children in Nevada, who onght to *>• r
eated, and it is proposed to erect a go*
merit school for this purpose st Canon*
a
i ■■