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THE MACON WEEKLY TELEOKAEH. TUESDAY MAY 11, 1WG.-TWE.LVE PAGES.
SUPREME COURT OF GEORGIA.
Decision* Rendered May 1st, 1880.
Special lie port by Henry C. Peeples.
Cobb va. the State. Receiving stolen goods,
from Chattahoochee. Before .lodge Wil
lis. Criminal law. Practice. Receiving
stolen goods. Proof.
Jackson, C. J.—1. Where exception is
made to a long extract from the charge of
the court and errors therein ore not speci
fied, the exception will not be held good
unless the whole is erroneone.
2. Circumstances may convict the de
fendant of knowledge that the goods were
stolen, as well as actnal and direct proof.
The circumstances, the time, the secrecy,
all the transactions before, at the time and
afterwards, may be brought to bear upon
what was the knowledge of the party re
ceiving the goods; and if from all these the
jury can conclude that the receiver did
have good reason as a reasonable person to
believe or suspect that the goods were sto
len, they may well conclude that if ho did
not inquire and investigate before he re
ceived them, that he had knowledge such
as the law will charge him with, of tho
character ot the goods aud of the person
from whom he received as one who had
stolen them; 55 Go. 221; ib. 121. Judg
ment affirmed.
C. J. Thornton, Eugene Wynn for plain
tiff; T. \V. Grimes, solicitor-general, by J.
M. McNeill contra^
Cox vs. Jones. Equity, etc., from Terrell.
Before Judge Ularke. Bond for titles.
- Evidence. Contract Vendor and pur.
wiffiser.
Jackson, C. J.—1. The bond for titles
given by Jones to Cox only gave him the
lot in question, subject to Mrs. Pope's
claim. lie lived in the neighborhood while
Jones lived in Macon, The Fords of
Jtho bond ns to this lot were;
“Lot No, 2CJ, containing 152j acres,
mom or less, or so much thereof as
does not belong to Mrs. Pope" and these
words of description were taken from the
sheriff's deed just received by Jones, and
after fnli knowledge of Mrs. Pope’s claim
Cox wrote to Jones, that he intended to
S ay as soon as he could, and to wait until
ones settled about the disputed lot. Cox
should have looked to gee what Mrs. Pope's
claim was before he traded; and there was
no error in the charge, that if the entire
lot wag held by Mrs. Pop- at tho time of
diate taxation or the issue of bonds is the
most advisable method for raising the
money to rehnild the bridges.
3. It does not appear that the debt of the
county exceeds seven per cent of tho as
sessed value of ita tixablo property, and
therefore an election may bo held and if
the requisite majority be obtained its debt
may be increased. Con. of 1877. Code 5191;
code §508 (i), (j), (k), (1), and (m).
(a) In 71 Go. 484, it waa held that this
general law, codified in sec. 508 (i) ct seq.,
must bo followed over a subsequent local
law on the subject of a bonded debt for a
bridge. If, thor.fore, any special law of
tho General Assembly should now prescribe
n different mode it wonld be invalid, bat
the general law would rnle. Judgment
affirmed.
Underwood A Rowell for plaintiff. No
appearance contra,
Jones A McDonald va. penny. Illegality,
from Floyd. Before Jndge Branham.
Mortgages. Parties. Payment. Liens.
Jackson, C. J.—1. Mortgages not re-
cordtd in time remain valid against the
mortgagor. In this cose it is the mortgagor
who complains that tho money raised from
tho sale of tho mortgaged goods was applied
to the mortgage fl. fas. instead of to com
mon law executions now levied on other
property.
He cannot make the point, and the mort
gagee and tho holder of the common law
executions as transferee being the same
firm, had tho right to apply the proceeds of
the goods to either of its two liens, as
against the mortgagor.
2, The lien on the face of the notes is
valid, whether the notary public attested
them offlcUlly or not, 40 Ga. 253, Judg-
ment reversed. ,
J. F. Hilly of for plaintiff; Forsyth .1 Ho(-
kiuson contra.
Crockett A Sons. vs. Roebuck et al. and
vice versa. C omplaint, from I'ulaski. Be
fore Judge Kibhee. Evidence. Practice.
Jackson, C. J.—I. Tho evidence in this
case demanded a verdict against both the
defendants sued.
2. The motion to dismiss the motion for
a new trial was properly overruled. Thomas
vs. Doekins, last term; Page vs. Black-
sheur lost term; 09 Go. 705.; 09 Go. 700,
748. Judgment reversed in first case and
affirmed in second.
M. T. Hodge, J. U T , npl ip for plain-
the trwln, Jones wonld'not be bound to I tiff; J. H. Martin contra.
for fraud, it must be fraud in the plaintiff
in judgment or his counsel or agent. No
such fraud is shown by this bill.
3. The remedy at law was complete by
motion to sot sside tho judgment, hail it
been pursued in time, within the three
years; but as complainants have waited six
years they are plainly in laches, and equity
will not aid them. Judgment affirmed.
Phillips A Sessions, J. O. Gartrel), T. B.
Irwin for plaintiff; Clay A Blair, W. J. Winn
contra.
Massengill vs. First National Bank of Chat
tanooga. Complaint, from Catoosa. Be
fore Judge Fain. Contractu. Frauds.
Evidence. Charge of the conrt. Nonsuit.
Jackson, C. J.—I. Although the eontmet
between the parties may have been em
bodied in a draft, with bills of lading at
tached, drawn by the defendant in favor of
the piuiutiff below-, if the proof shows that
the borrower gave it with intent to defraud
the lender and the lender became aware of
it, it had tho right to repuuiato the draft
void, and snu on the account for uionoy
loaned, and to put in evidence the draft,
bills of lading, letters of the drawer to the
drawees, and sayings of the drawer showing
or tending to show the intent to defraud.
2. Requests to charge, omitting tho cf-
feot of fraud as stated, and ussnming the
necessity of suit on the draft, with presen
tation, non-payweut and notice were prop
erly refused. '
3. There being no motion for new trial
the question as to whether the verdict is
supported by the evidence, is not before us.
4. There should have been no non-suit.
I’m Ga. 098. Judgment affirmed.
McCntchon A Shumate, Win. II. Pay no for
plaintiff; J. II. Anderson, It, J. McOamy
Contra.
llili vs. Uanlton. Claim, from Taylor.
Before Jndge Willis. Claim. Evidence.
Mortgage. Notice.
Jackson, C. J.- 1. This being a claim to
property levied on under a mortgage fi. fa.,
t was not error to admit in evidence the
rules nisi and absolute for foreclosure as
recorded on the minutes of the court where
the trial was bad.
2. The c'ainmnt bought with full knowl
edge and agreed to pay the mortgage. The
vordict was demanded by the evidence.
Judgment affirmed.
C. J. Thornton, L. F. Garrard, A. A.
Carson, W. P. Edwards for plaintiff; O. M.
Colbert contra.
Haij. J. 1. The aot of September 28,1 ness for an indifinite period, and that these
1881, as to voluntary assignment by goods were embraced not only in the deed
insolvent debtors, requires that the I of assignment, but likewise in mortgages
issignor shall attach to the deed or
make titles to it, and Cox could not claim
a vordict from the general price of the en
tire purchase on account of it. 20 Go. 588;
Code2G42. Judgment affirmed.
D. A. Vason for plaintiff; C. B. Wooten,
contra.
Cleveland National Bank vs. Reynolds.
Complaint, from Floyd. Before Judge
Branham.
Jackson, C. J.- There was no error in
overruling the City Conrt and granting
. new trial on account of the providential ab-
Cook ot al. vs. Weaver, executor. Appeal nonce of tho defendant in error from court
from Coweta. Before Jndgo Hams. Ex- Judgment affirmed,
excutors and administrators. Account- Dabney A Fonclie for plaintiff; Dean A
mg. Ordiny. _ Venue^ Jnrisffiction. ^ [ Eaing, by Harriaon A Peeples, contra.
£« < D ^, c S"J!i n !fi.. t08 ®i h ^S. ith “f tio .“ Roland vs. Coleman A Co. Refusal of in
2o99, 2002, 2lj0J, 2604 and 2005, authority junction, from Bibb. Before Judge Siin<
is not given to cite an executor or admin- m0UH . Deeds. Mortgage. Power of sale,
istrator before the ordinary for a settle- Revocation. Administration,
ment of account* after his discharge Jackson, C. J.-l. An instrument com
2. Where the discharge is attacked as V( ,y ed title in the usuid form, with the usual
fraudulent and therefore void, the discharge I wo rds of conveyance in a deed, and after
ahonld first bo set aside on motion and the usual Wiemium and Untnium clause
proof of the fraud, before tho citation and ftnd the warranty of titlo came this stipula-
settlement can be had. Code 2608. tion: "This conveyance is intended to oper-
3. buit against tin exeeutor or adminis-1 , da as provided by an act of the General As-
trator under section 2ol>7, within five years *embly „f „aiil State, and the not amends-
after attaining majority, etc., must be I tor y thereof, entitled, An act to provide for
brought in the county in which the executor ] sa ] eg 0 f property to secure loans and other
or admimsfmtor resides at tho time of smt, dcbU) . the debt hereby scoured being *950,
** dischirge. as shown by note of this date, pay-
4. When the administrator is called to ft hlo ono day after date, and whereas
account before tho ordinary under scotious t he said D. Roland (tho grantor),
2598etaoq., it is to make an account and b( , in(? cng aged in mercantile host
to issno execution, etc. Bat we do not bo- may Tn tho future desire further
lieye that it is within the scope ol the ordina- crwlitg{fom lbo said 8. T. Coleman A Co.
ry 8 power*under thoMsccUouH of ourCodo | / t j, 0 g ran tec8), and to seenre tho payment
to construe intricate beqncetff and settle leg*} conveyance in also (riven, the
question* which are with difficulty adjusted Hald D . Roland agrece that if
by the ablest of the judiciary sitting on tho 9conro w hi c h this .debt is t
bench of the Superior Courtsaschnnccilors ^i nnjj #t maturity, including bills
21 Ga. 21. The reasoning in the cue cited f or f$ure purihasea or advances, according
applies sa fully to settlements of accounts j („ (f, e tenure and effect of the same, then
*® * T. Coleman A Co. may. and by
will* is beforo bint, as to the cose of tho
factum then beforu the court. 52 Go. 15
these presents are, authorized to tell at
public outcry to tl.e highest bidder for cash,
(t°" ‘fli '*? ** ^ t ®*' ttDl1 "d of said property or u sufficiency thereof
distinguished. Judginent affirmed,
1L Buchanan, McLendon A Freeman,
J. B. 8. Davis for plaintiff; P. 11. Brewster
oontra.
to pay said indebtedness as may then be
owing, with interest and the cost of the
proceeding niter advertising tho time, place
and terms «t sale in the Ttcniaiiui’ii and
Complaint, from I Mkhskw.ku four weeks, and the said 8. T
Latham v« Kolb et *1. , ,
Harris. Before Judge Willia. Statute of Coleman A Co., may make to the pur-
limitations. Minor. chaser or purchasers of said prop-
Jackson, C. J.—1. Plaintiff could not re- city good and sufficient lilies in fee
cover as against the security sued because I simple tothe same, thereby divesting out
he did did not put his seal to his signature I of the said D. Roland ull right, title and
to the do tea, end the action waa not brought I equity tint ho may have in aud to Hoid prop*
within six years after their maturity. Neither «rty and vesting the same in the purchaser
can she recover as against Kolb, as he was I or purchaser* aforesaid. Tho procccda of
* a minor at the time of the transaction in I such sale are to ho applied first to tho pay
question, and It dees not appear that tin- “cot of said debt aud interest and expeniea
things purchased for hi* uso were necessary I ot Ibis proceeding, which expense la to in-
in any way to him. Judgment affirms i. I <— —a ——
W. L. Latham, George Latham for plain
tiff ; H. C. Cameron contra.
clnde attorneys' fees and any other expense
incurred, if any, to pay to said D. Roland.
In witness whereof, etc., etc." Hold to ba
a deed conveying title absolutely to eecnre
Lamar et al. vs. Lanier Honse Company et I * debt with power to sell to pay the debt,
al. Refuse I of injunction, from ltibb. I *”'} not » mprtgsge. _5o Ga. 65l);r,l Ga. 45;
Before Judge Kimnton*. Corporations. I ^ fia 601* 59 Ga. 507; 60 Ga. 588;6l Go.
Jndge Bimmons. Corporations.
Stockholders. Discretion,
Jackson, C. J.—1. This case seems to be
Johnson vs. the 8tute. Perjury, from
Htimter. Before Judge Fort. Criminal
1. UW. Perjury, indictment.
Jackson, C. J.—1. The oath charged is
legal. It was, that accused waa "in due
munner sworn, laying her hand on the
Holy Evangelist of Almighty God, and took
her corporal oath, to speak the truth
such witness." Code 4460.
2. The allegation of tho issue being mate
rial was sufficient. It was; "Aud at and
upon said trial it became and was a material
question and questions anil subject of in
quiry whether tho said Laura Johnson saw
the said George Baker, the defendant in
said cause, in tins night tioar J udgo Mont
gomery’s ut the timo of the alleged offense
and vvhethet tho said George Baker
• did strike her * * * anil
whether the said Laura Johnson had sworn
before the mayor ot America- that George
Baker, defendant as aforesaid, bad knocked
her down and almost killed her,” etc.
3. Tho battery was upon herself and the
charges above exeepted to show it suffi
ciently.
4. The charge that "by her own act and
consent and of her own most wicked und
corrupt mind, in name and form aforesaid,
she wilfully, knowingly, absolutely und
falsely did commit wiltul perjury," is suffi
cient in respect to allegations that what ahe
then sworn was false without further and
additional allegation to tho effect that such
and such was the truth iu opposition or in
consistent with what she swore. Code4628.
5. That the court had authority tn ad
minister UtC t'fth is plainly alleged. J udg-
wont affirmed.
J W. Brady, 8. C. Elam, for plaintiff;
C. B. Hudson riolioitor General, by \V. A.
Hawkins, contra.
Ezell et al. vs. Thrasher. Illegality, from
Pntnam. Before Jndgo Lawson. Ped
dler. Lightning rod vender.
Jackson, C. J. - Oac who travels through
tho country, carrying with him all the tools,
ladders, etc., necessary- to putting tip and
repairing lightning toils, charging a certain
amount per font for rods und a certain
amount for nutting them np, never having
aold any without putting them up, and
soliciting patronage from lionse to bouse,
is not a peddler and subject to penalty for
failing to take out connty license as aucli
in tho aenao of the law. Code . 33, 528,
629. Tax Act for 1885-6; 55 Ga. 678.
He does not aimply sell rods from house
to houae, which would make him a pedlar,
but he affixed rods to houses and expended
skill thereon, aud is rather a skilled me
chanic than a peddler. Jndgment affirmed.
J. 8. Turner by Harrison A Peeples, for
dainriff; \V. B. Wingfield by Newnuu A
■illis contra.
398; Ut Ga. 651; 66 Ga. 704.
(a) The only equity tho adminiatrator of
an effort of a minority of stockholders In a I ‘he gronter has is to tender payment of the
corporation to have the court* interfere in I debt secured und thus to stop tho sale,
reaped to different views of policy among 3- The conveyance lias a power to sell,
tho stockholders in regard to their internal coupled with an interest in the property,
management of nffaraTwithinthe charter the title to it, to ueenre the debt, aid there-
It would require a strong case to authorize fore the power it irrevocable anil doe. not
* . . . * .. .. ° . . ... I .1.*1.. - - - * - n. eiiOi r i n.
such interference, if it can be done at all
U H- i„ 433; 10511. &, 605,
die with the grantor. GO Ga. 562; 6i Ga
441. 65 Ga 312; 72 Go. 20, 863 cited and
2. We do not find that the chancellor I distinguished,
abnsnl his discretion, .traders the conflict- L 3. Inasmuch a* the solo waa postponed
ing evidence in this case, and upon this we tbs restraining order, it mm the re-ad-
pnt oar decision. Judgment affirmed. vertired, and then it can be made to follow
Lyon A Gresham for plaintiff; Doesau A “>« P2*«r.to sell and it* term*.
Bartlett contra 4. This is not such a snit sgamut the ad-
_ . ' ...—- . I miulstrstor *s must await the Ispsc of twelve
CrawforJ va Kimbrough et al. Claim, months. It la not a suit at all, hut a pro
from Talbot. Before Judge Willia Per-
aonalty. Claim. Possession. Title.
Jackson, C. J.—1. When the claimant ad-
ceeding to eell under the power.
(a) whatever rights the administrator
lisa will attach to the proceeds of sale, mid
mitted possession in her husband of the | Coleman A Co. are perfectly solvent and
personalty levied on, and assumed the bar- 1 - - - - - -
den, she admitted title in him. Possession
of p. rvonal good* is title thereto.
2. She undertook to overcome this pos
sessory title by showing title to the land on I Marshall ct oh va Lockett. Injunction, from
able to account. Judgment affirmed.
Nishet, Edge A Nishct for plaintiff; Des
•au A Bartlett contra
which tieerop was raised, bnt the evidence
wfinwhaPy unsatisfactory that her money
paid for it, thongh the deed wes made to
The evidence demanded the verdict.
UttMt
Taylor. Before Jndge willia Injunc
tion. Receiver. Equity.
Jackson, J.—1. Tne writ of injunction
is a mild remedy to prevent interference
68 Ga 560, 667; ltoyce va Gozan and Kmilh I with a receiver, when attachment and im
va Wellborn, last term. Judgment at-1 prisonment for oontempt might have been
finned.
Willis A Mathews for plaintiff; Martin A
WorriU, Jno. Peabody contra
2. The effort to distrain for rent, the
lands being in the hand* of the receiver,
and the title thereto being in djepute be
tween the litigants, would ba an interfer
ence with the court's dominion over the
lands and decree to bo rendered fixing the
rights of both parties in respect to the
one to the other, and
Elliot vs. Gammon i-t.&L, commissioners.
Refusal ot injunction, from Floyd. Be
fore Judge Branham. Connty affaire.
Bridges Debt Ccnstitntionsl law.
Jackson, C. J.—1. It appears from the I amount doe from
allegations In the bill, that the County I me injunction to atop that pro -en until
Commissioner* of Flojd connty, by special 1 u n *l hearing or farther order of the chan
act of the General Assembly^jmrchssed the I djo, was germsin to Urn issues made in the
briagM which adjoin and touch the city I Liil and anawer. Jncoment affirmed,
and control the Fame ss connty officers W 8. Wallsci k Hon tor plaintiff; J. M.
We do not see why they may not rebuild Snath O. J. Thornton. A. A. C'snion contra
that which the connty, by authority of law,
purchased tor the people of tho connty.
Moreover, it is inooneavabla that the city
Morris i t *1. Vi. Moms et si. Refusal
injunction, from Cobb. Before Jndge
Brown. Jailgmrnts Remedy. Equity.
Htsl* demand. Laches.
... Jacksow, O. J.—1. In so far sa the judg-
vene is a party, and why the I ment of th* ordinary of Floyd county is
so to interpose for the I void or may be piooounced so tor went of
I jurisdiction, tbs remedy against it is oom-
and not tor ] plet* by affidavi t of illegality,
determine whether imm*-| 2. Whilst equity msy setarids* j ndgment
object to th* connty rehnild-
ing bridge* ewrentUl to it* commercial pros-
pezity. 11* city hi* made DoopppiiUon.nd
Brown et al. vs. Davenport, orlinary.—Snit
on bond, from Haralson. Before .I Bilge
Branham. Error. Bond. Pleading.
Jackson, 0. J.—1. An administrator's
bond, delivered to tho ordinary himself, by
whom it wss received officially, is not an
error. 60s 202 cited and diatingnished.
2. This cose is controlled by Lewis et al.
va commissioners Gordon connty, 70 Ga
488.
3. If both parties intended that some
thing left ont ot the bond at the time it wss
signed wss to be inserted in it then, bnt wua
left ont by frnnd or mistake, then parol evi
dence was admissible to engraft it therein;
bnt if the party signed in expectation that
it would be afterwards done, the bond as
written and delivered could not be altered
by parol; 72 Ga 679; 57 Ga 319;52 ib, 41S;
43 ib 190, 423.
3. The plea of non esf fartam wan not
filed at the first term, and none wss filed
at that te rm on which could it be grafted.
31 Ga 435; 61 Ga 233; Searcy Extx. vs
Tillman, lust term.
(a) Besides it doe* not certainly appear
that this plea was stricken. Judgment
affirmed.
Underwood A Rowell for plaintiff; Ivy F.
Thompson contra_
Kimbrough va the 8tate. Lan-eny from
the house, from Webster. Before Judge
Fort. Criminal law. Evidence.
Jacksow, 0. J.—1. It was not error to al
low a witness to testily that, "Some time
after Christmas defendant came to aee my
husband and said, ‘Bill, yon presented me
at court. Now if yon swear to the tracks
I’ll be hurt and if yon don't I won’t be hart.
Now l want you to go to my lawyers and
swear them tracks did not get the cotton.
I had rather pay a bale of cotton, or a hun
dred dollars than for yon to do it'"
Defendant's counsel objected on the
ground that if the evidence was in the na
ture of confessions, h* desired to examine
the witness in the absence of the jury ss to
ita admissibility, and farther that it wss in
the nature of a confession without more;
Judgment affirmed.
E. G. Simmons tor plaintiff; C. B. Hud
son, Solicitor General, by W. A. Hawkins
contra.
instrument by which the assignment
is made, “a toll and complete inventory
anil schednle of nil the assets of every kind
held, claimed or owned by such insolvent
person, firm or corporation at the time of
executing auch deed or other instrument
of assignment, which inventory or schednle
shall be sworn to by the person making the
assignment," etc., and that the person or
persons making snch affidavit snail upon
indictment and conviction for filing a falae,
deceptive or incomplete schednlo of assets
be liable to the poina and penait es pre
scribed by law for persons convicted of per
jury, and that no deed or other instrument
of assignment by insolvent persons, firms
or corporations shall be valid, nnless accom
panied by auch sworn schednle. Act* of
188U-81, p. 174; Code odd., p. and see. 1953
(d) (e).
The act of October 17, 1885, requiring in
addition to auch schednle of assets that the
person making the assignment shall prepare
and attach to the deod or instrument by
which such assignment is made at the time
of executing the same, "a full and complete
inventory and schednle of all indebtedness
of every kind” of such person at tho time of
the execution of snch instrument or deed of
assignment, which inventory or schednle
shall set forth in detail the names of
the amounts due to, and the residence
of each of the creditors of snch as
signor. and which inventory or schedule
shall be sworn to by the. person making
the assignment, etc.; and that "no
deed or other instrument of assignment
by insolvent persons, etc., shall he, valid
nnless ftfcosipanied by the sworn schedule
required.”
lienee, when a deed of assignment was
attacked for omissions, both from the
schedule of assets and liabilities, it- is not a
sufficient reply that the creditors omitted
were only snch to an inconsiderable amonnt
as compared with the entire amonnt of as-
signor's indebtedness; that it was donbtfnl,
at least, whether some of them were credit
ors at all, and that tho assets omitted were
trifling in value and amount, and were
omitted from oversight and forgetfulness,
without any intention whatever to palm off
a false, deceptive, or incomplete schedule,
ns was evident from u general claaso iu the
deed of assignment authorizing and empow
ering tho ns-ignee to take, hold anil recover
not only tho property ami assets embraced
in the schedule hut ever) thing else belong
ing to the assignor at the making of the
deed, and in addition thereto the assignor,
npon discovering the omissions, stood ready
anil willing to supply them by sn amended
schedule duly verifiml and actually did so.
Especially is this true when it is claimed
that nearly three thousand dollars were
omitted, and the assignor concedes after
those omissions hail been brought to his
notice by the evidence adduced on the trial,
that assets to the eiuount of nearly thirteen
hundred dollars had been omitted from one
schedule and sundry creditors whose un
disputed demands were shown to aggregate
more than *l,00t> were omitted from the
other, and sought to supply the omission
by then umemiing his schedule* in both re
respects.
2. Tho acts of 1881 and 1885 referred to
are remedial statutes and should be strictly
construed as against the assignor and his
assignee anil liberally in favor of creditors.
76 Ga., 279; Cugglns vs. Stephens A Go.,
September term 1881.
la) The differenco between a schednle
which is not toll and complete, and no
st-hcdnle at all, is a difference in degree
only, and ahonld not vary tho application of
the rule prescribed by the statntes.
'3. It is impracticable, it not impossible,
to lay down any rule us to what may he
safely omitted from such schedules, cither
by oversight or inadvertence, aud without
any intention to do so on the part of the
assignor, or purpose to mislead creditorsl>y
filtng a false, deceptive or incomplete sched
ule, The omh a ion ot some alight and un
important article of little or no value from
the schednle of effects, or gome one or more
creditor* whose claims amounted to a trifle
and which would probably he overlooked or
forgotten by tho most careful, deliberate
and painstaking person in preparing bis
soheuule might not have the effect ot inval
iduting the assignment,
4. The conclusions expressed above are
fortified by the act of 1881 which enabled
creditors to file their hill without rudneing
their claim to judgment nml prohibited any
creditor after the appointment of a receiver
from acqniring a preference by judgment or
hen, on any suit or attachment, under pro
ceedings commenced after the filing of the
bill, etc. Acts of 1880 and 1881, pp. 12 i, 125.
5. The fact that tlie schedules were not
intentionally false, deceptive or incomplete
wonld nut save the assignment, ulthongh
snch dc ign, purpeseund intention is a pre
requisite to the indictment under tho act of
1881.
6. No provision is made cither in the set
of 1881 or 1885 for perfecting the schedules
by amendment after the deed is executed,
and mail legislative authority is given this
cannot be done.
(a.) This has been allowed in other Htatca
but by atstntory regulation.
7. The general olause, conveying allsnch
property to the assignee as might have been
.omitted from the aebedulea, so far from sus
taining the position of connsel for the as
signor, is rather advene to it. "Fraud
lurks in generalities."
8. While preferences in assignments are
allowed they are tolerated rather than fa
vored, aa is manifest from the drift of onr
legislation from 1881 down to tho present
day. Hce nets above cited; act of 1885 p.
1UO, ltti; code 1945, 1946; art 1 nee. 9 par 6.
Con. of 1877. Judgment reversed.
Juo. L. Tye, J. U. Lumpkin, G. W.
Bryan tor plaintiff; Jos. U. Gray, Mail A
Hammond, K. J. Reagan contra.
cotemporaueonsly executed to certain cred
itors preferred by the conveyance, includ
ing the assignee himself to aid, as charged,
any defects therein.
The fact of provision being made to carry
on tho hnsinoss by the aid of goods pro
cured for that purpose and which have not
been paid for, raises a presumption, though
not a conclusive one, of an intention on the
part of the parties to delay, binder and de
fraud such ereditora in are not preferred. .
4. it would lie unjust to hold the assign,
ment void, and yet permit these mortgages
to he closed at law, where complainants
could not intervene, Code 3965 and cita
tions, denying to the complainants the aid
of a court of equity to hold the assets and
determine tho vnlidity of the mortgages
given. Judgment reverend.
King A Spalding, Candler, Thomson A
Candler, Abbott A Smith, W. R. Brown,
Harrison A l’eepies for plaintiff; Hoke
Smith, Jackson A King contra.
Mosely vs. Sanders. —Case, from Early. Be
fore Jndge Clarke. Dormant judg
ment. Illegality. Sheriff. Damages.
Expenses of litigation.
Jackson, C. J.—1. A judgment rendered
in April, 1866, on which a fi. fa. was issued
in May, 1866, and delivered to the sheriff in
October, of tho same year, and this fi. fa.
being lost an alios issued at the April
term, 1875, and levied on tho lands of de
fendant in execution, was a dormant judg
ment. 58 Go. 278; 01 Ga. 236.
2. When the sheriff refused to receive the
affidavit of illegality to the execution from ,
this dormant judgment, he did so at his
K ril and is liable for the dumages caused
• such refusal, 9 Ga. UK); 11 Ga. 294;
25 Ga. 613.
3. Expenses of litigation do not full
nnder the head of punitive or vindictive
damages, bnt stand by themselves.
They may be recovered when the defend
ant has caused the plaintiff unnecetmary
trouble und expense. Jnilgmtnt'affirmed.
E. C. Bower, for plaintiff; Bacon A Ruth-
erfoid, contra.
Gay vs. Gilmore. Mandamus, from Macon.
Before Jndgo Fort. Mandamus. Equity.
Chancellor. Chambers.
Jackson, C. J.—1. A petition in equity
for a writ of mandamus, presented to u
chancellor in chambers, wiw properly dis
missed, becanso the writ of mandamus is a
common law writ, anil equity has nothing
tn do with it. either in term or vacution.
55 Ga., 256 cited and distinguished.
2. The judge at chambuis is not bonml to
grant a rule nisi on any sort of petition, bnt
may dismiss the petition in limine on oral
or written objection or demurrer. Judg
ment uftirmed.
E. G. Simmon*, Hawkins A Hawkins for
plaintiff; F. T. .Snead, coutiu.
MoMiilen vs Knapp et al. Claim, from City
Conrt of .Savannah. Before Judge Har
den. Debtor and creditor. Assignments.
Schedules. Assets. Affidavit.
Haij., J.—1. A schedule attached to an
assignment which omitted a right of re
demption the assignor had, in certain prem
ises, conveyed for the security of a debt he
owed and which rigid of redemption ho sur
rendered to the party holiliug the deed
shortly after the execution of tho assign
ment, w as properly held incomplete and the
assignment void. Tnrnipseed et al. vs.
Schuefer et al. above reported.
2. The affidavit to the schednle was not
in the language of the statute, but that it
was a true, complete and perfect inventory
of all the property of which the assignor
was thon possessed eto.
Tlie nftbluvit was bad slnco tbo statnte
requires tho inventory to cover not only all
property in possession but nil nsseta of
every kind. Judgment affirmed.
Lester A Ravenel for-plaintiff; Garrard A
Mrldrlm, J. H. Schley, C. N. West, Rich
arils A Heyward, Lawton A Cunningham
contra.
an 1 her co-defendant, and a chars,. „„
point was not error. 011 ttb
3. The defendant was a principal fa
first degree. Bho did not affi and" J* I
merely the act done by her actual or”* 1
strnctive presence hut actively piitbin!? 11 :
i. the doing thereof; she wiwWSj 4
principal actors in, or a-tual pormaii
of the fftet done. Whar. Am. trim t ”
book. 112 and 113; 15 Ga. 346; 13 u, 1 ?!*
Judgment affirmed.
R. H. Powell, W. A. Rutler for m..—.
J. H.Guerry, Solicitor General. C. And^J* 1
Attornov Genera], contra.
Wingfield, et al. vs. Rhea Equity
Floyd. Before Jndge Brauham Uwfi
and wife. Domicil. New trial. CW
hill of exceptions. Liches.
Hall, J.—1. This is the first gram a,
new trial on the issues horo made am) *
do not think the judge below abased hti,^*
cretion. Clt -
2. When the hnsband and wife arc Kv'»
together the !aw makes his domicil hc»'°*
3. Where the judge grants the motions
new trial on one ground and impliedly 0 ,„
rules it on the others, the moyant sCw
tile a cross-kill of exceptions to hoy« Jl 4
other grounds considered by u 8 if v
opponent bring np the cases. 70’g*. «J*.
4. Had this been done there could be «-
doubt of the propriety of the grant of tlu
new trial, as plaintiff in error was in Udb!
for failing to traverse tho return of serv£
by the sheriff at the next term of the cone
rendering the judgment after she hod n-m-
‘hereof. Cixfo 31140 and citations; «ee"Z
73 Ga. 477. Judgment affirmed.
Underwood A Roweli for plaintiff- 0 K
Feathers ton contra. ’ '
Keans vs Jones. Complaint, from Floji
Before Jndge Brauham. Evidence, hts
trial. Error. Practice. Presnmption.
Haij. J.—1. The evidence was conflict
ing. there hod been three verdicts 6, ,-- cl
of defendant apil there was no abuse'e!
discretion in refneing a new trial
2. While the transcript from the hooks
seems to have been famished in comnli
once with section 3517 of the Code, jet it
does not appear in the record, and we can
not say that it was relevant testimony, nor
does it npnenr on what ground it was re
pelled, ana we must presume the Judge did
not err in rejecting it. Judgment affirmed
W. D. Elam tor plaintiff; H. M. Wright
contra.
Mooney va Rome Railroad Company. Com
plaint, for land, from Floyd. Before
Judge Branham. Railroads. Right of
wav. Reservation. License. User.
Blands-obd, J.- 1. The dofondant in error
never seems to have had possession of the
land sued for, and never seems to have con
demned any of it as its right of way, but
has used for a long number of yenra gimplj
what its track covered. It bad no deed to
tlio land, bnt relied partly on reservation*
iu its favor in the chain of deeds nnder which
plaintiff in error held. Tlieso reservations,
however, were only ns to tho right of wit
overwlrich "said rendnowmns,” etc. The
grantor or plaintiff in error held the land
under deed aud has asserted actnal adverse
possession from 1853 uutrl pluiDtiff iu error
bought. The vordict, therefore, was not
supported by evidence.
2. Tho company may have hud the right
by license or otherwise to use so much of
this land ns it deemed necessary, and the
fact thut for thirty years it did not take and
use this land is conclusive that it wan not
deemed necessary by tlie company. Judg
ment reversed.
Reece A Denny, W. D. Elam, Dabney A
Poncho for plaintiff; C. N. Feathers toe,
Junius Hillyer contra.
tub
_ fin
l,-.-..:!
Id*-
title
fcraw’-
Dlxon, 80 Randolph .treat, Cnluruhrw, Os.
after .nir.rin* tor niontns with tattoos f.Ttr is*
ItndlnK nothing to benefit him.
Tnrnipseed et si r*. Bchufer et si. Refu
sal of injunction, from llsnry. Beforo
Judge Stewart. Debtor and Creditor.
Assignment*. Bchadnlss, Omissiooe.
Amendments Prefer'net*.
Albany and Van Rensellaer Iron and Bteel
Company et al vs. B iathem Agricultural
Works et al. Refusal of injunction, from
Fnlton. lkfore JnJge Hammond. Cor-
potations. Assignments. Preferences.
Debtor and creditor. Equity. Fraud.
Hall,J.—1. The material questions made
iu this case, as respects the legal sufficiency
of the assignment, are identical with those
made in the case ot Tnrnipseed et si vs.
Schaefer ct aL, above reported, and are con
trolled by that case.
i Under the laws of Georgia, especially
since the set ot September 28, 1881, sn in
solvent corporation can moke s general
assignment tor ths benefit of ereditora,
either with or without provisions giving
preferences and priority of payment to cer
tain named ereditora. Bee also 37 Ga. 613.
3. While it is generally true that credi
ton who have no lien and who have not re
duced their claims to judgment have no
right to invoke the remedial aid of a conrt
of equity, circumstances msy exist render
ing this rule inapplicable, 42 Ga. 46; 70 Us.
315.
Wc find 'list some of these circumstances
exist in this case, snch ss the insolvency of
the debtor, who, it is alleged, has fraudu
lently transferred bis property to one who
is in complicity with him in the fraud, and
who is rapidly disposing of the property,
or where the property is obtained by fraud
ulent representations with which the as-
ijgntf connected.
It is also alleged in this bill that Urge
supplies of goods were obtained with avisw
ot nuking the very assignment in question
to enable the assignee to carry on th* bosi-
Moody va. Travis. Certiorari, from Decatur.
Beforo Judge Bower. Laborer’s lien.
Claims. Otuslnnding lien.
Ham.. J.—1. The affidavit for the en
forcement of the laborer's lion met every
requirement of thestatnte. Code, see. 1991.
2. The special and general Hens of the
laborer wire properly set up and enforced
by this proceeding. Code 1975, 1974, and ]
tho proper preference was given to the
special liens in uccordancc with (lie law us
above cited.
3. Tiro evidence offered by tho claimant
to y'l-.-nv xiaktnnding title to the property
claimed in a third person wus properly re
jected. 6 Ga. 515 (II. N. 13) 529. JuJg.
meat affirmed.
Gnrley A Talbert for plaintiff; G. F.
Westmoreland, contra.
Iladson vs. the State. Murder, from Clay.
Before Jndgo Clarke. Criminal law. Evi
dence. Connsel.
Hall, J.—1. The evidence sustains tho
verdict.
2. Neglect of connsel, as s general rule,
affords no ground for a new- trial. Graham
A Waterman on New Trials, vol. 3, p. 1529,
et seq.
(a) It is not entirely certain that the state
ment of the prisoner was not purposely and
perhaps prudently withheld by liU counsel,
or that he might not have consented to ib
bciug.doue, in order to afford him, in case
of conviction, a chance for another hearing,
for it it to be remarked that the counsel
who defended him do not make this motion
for a new trial
(b) And even if tie defendant's failure to
make the statement that the homicide was
justifiable, wss the result of neglect or over
sight on the part of connsel or was the re
sult of his own ignorance and their failure
to apprise him of bis rights; it is uot made
apparent thut he suffered detriment by be
ing deprived ot the benefit of any evideuce
K to allow thut the transaction wusdif-
t in any material particular from that
testified to by the Bute's, witnesses. In
deed, had tho statement, as set forth in the
motion for new trial, been nude by him, it
is not clear that it would have varied tho
resnlt
r jrnt2 o.i.o. Co,
Punity, GEORGIA,
!• th* nolo proprietor of
O. I. cv
(Old Indian Cure)',
Tin; Perfect Jilood Purifier I
This vegetable Tonic anil Purifier new
toils. Druggists hi-II it nud indorse it enrj-
wbero.
Dr. Win. F. Bynum, Sr„ a prominwi'
physician and citizen of Live Oak, Fla,
writes ns; "It gives the best satisfaction of
all the Blood Purifiers.”
Ladies in Delicate Health
Ilave in it a Sovereign Cure.
AS A TOXIC AXD APPETIZER,
Thom is absolutely nothing to compart
with it.
mimyND mux i-.iti i us cvuF.u mu»
111L 3- Frazier, Columbus, Us., when she bsSsof
fersd from nervous prostration for two yt*is sso
was seuorsllj broken down.
MONEY LOANED
—ON—
F JL X*, jMC N !
Apply to
ELLIOTT ESTES,
144 Stroud street, Macon, Ga.
feblRwtf
imotVN-S I ill IN ill ITT. Its USED »*
D Mr*. O. r*tnn, Columbus, Os., tor djvpos* 1 * ••
four pairs- standing. It so gftstly improved
ds U to svory one.
3. It does uot appear that anv harm was
dono the prisoner by the inexperience or in
efficiency of bis counsel, nr that any evi
dence which could elucidate his ease, wss on
this account withheld from the jary.
(a) While we wonld hesitate to hold that,
if the evidence established the innocence of
the prisoner, and that bis conviction was in
sn appreciable degree attributable to the un-
skiUfnlneiw and idefficiency of his connsel,
especially if this was the result of ignor
ance and drunkenness combined on their
pert, this wonld not afford good ground tor
n new trial, yet, in this case, the jury did
uot err in finding him gnilty. And when
we look to the judge's certificate as to the
facts on which these points depend we are
compelled todetermine Ilium in favor of the
Htstc. 3 Whar. Am. C'rim. Law, sees. 3366,
3367. 3367 (*), 3368 (b). 3369 (e), 3372 (a),
3377 tf). Judgment affirmed.
II. 1L Powell W. O. Butler tor plaintiff;
J. II. Guerry, Solicitor-General; C. Ander
son, Attorney-General contra.
Roney v*. The State. Murder, from Clay.
Before Judge Clarke. Criminal law. Evi
dence. Conspiracy.' Principal in first
degree.
Haij, J—1. The evidence snstains the
verdict.
~ There waa evidence to sustain a charge
sa to conspiracy to kill between theprisoner
MONEY LOANED
R. F. LAWTON, Banker,
apr*dAwly
•tre«;t, Mwon, G*.
nnmvN'8 ikon itirruts has n*®*
1) used la dm family «( Mrs. 3. D. BtlUsao, XI tig
thorp, stoat Columbus, Os., ss sa sppsthsr***
central ionic, and she hssrtuy endows 0- ^
MONEY FOR LAN1) OWNERS
y X gpKCUL RATMI °
AUD
OH CASTTXU0'
Apply to .-a
CLEM P. HTtt.D, li&roa, G*. Ro.
ton Areaac, over Fayas’* «lro*»tor*.
rw^^n rssi.v ni I * RR KN
■ nndtiitaif* of Mr. JofcnBcbatVWjJS
Raakln Ucum. Colombo*. Ga., who waaaMJJ"
with <Virjwu tar t*o j-Ai-k. l ail cth<
HELP
WANTED. WSO A WEBS “
peasssjmid. Vslasbl* oortt u*
e. 3. f. II ILL tU, Augusts.