Below is the OCR text representation for this newspapers page.

10 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 ■■