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Defective machinery; measure is difference in value between that contracted for and that delivered. Van Winkle vs. Wilkins,

93(2).

Delay in delivering machinery (cotton-seed oil-mill), measure is loss sustained.

Ibid.

Same: Cotton-seed deteriorating by keeping, measure of damages stated. Ibid.

Delay in delivery of freight; measure is difference in value at destination, when they should and did arrive. Atlanta & West Point Co. vs. Texas Grate Co. 602(4).

Same: If contract specifies no time, evidence must show what was reasonable time. Ibid.

Servant, discharge of, pending contract of service, damages how ascertained. Roberts vs. Crowley, 429(3).

Trespass for cutting and carrying away timber from land, rules for ascertaining, stated. Parker vs. Waycross & Florida, 388(7).

MINES AND MINING.

Verdict on foreclosure of mortgage on lots "and water ditch," too small here rather than too large. White vs. Furtzwangler, 66. Same: Warranty of title to the "water-ditch," was excepted here. Ibid.

MINORS.

Business on own account, minor in, when liable for purchases in aid of. McKamy vs. Cooper, 679(3).

Fraudulent misrepresentations as to age, amendment setting up, in aid of suit on note, improperly allowed. Ibid. 679(1). Ordinary care, or "due care," in a minor, is such care as its capacity fits it for exercising. Western & Atlantic vs. Young, 397(2). Parties, must be made so, before trust estate can be sold in which they are interested. East Rome Co. vs. Cothran, 360(3). Same: Order of confirmation, with representation had, not cure defect, if judge disqualified. Ibid. 350′4). Parties, must be made so, where trustee or guardian applies for leave to sell homestead. Deyton vs. Bell, 370(2).

Personal injury to child nine years old (loss of arm); amount of damages is in discretion of jury. Western & Atlantic Railroad vs. Young, 397(4).

Ratification; minor buying engine and retaining it after majority, liable. McKamy vs. Cooper, 679(2).

Rights of, often neglected, and ordinaries and chancellors cautioned carefully to guard. Deyton vs. Bell, 371(3).

Support and education, minor entitled to, under scheme of mother's will, having received these from father, cannot claim as creditor of her estate. Wikle vs. Woolley, 106(3).

Same: Nor can he claim for arrearages for having missed these benefits out of mother's estate. Ibid. 106(2).

MISNOMER. See Arbitration and Award.

MISREPRESENTATION. See Administrators and Executors.

MISTAKE.

Partition of lands under will, by mistake of appraisers made unequal, binding after fourteen years acquiescence. Leverett vs. Stevenson, 701.

MONEY RULE.

Judgment, money awarded to oldest, in contest with younger judgments, held error under facts of this case. bitt, 307.

MORTGAGES.

Parrott vs. Nes

Equitable remedy not invoked until remedy under 23979 exhausted. Manheim vs. Claflin, 133.

Same: Even if equitable remedy needed, under acts 1884-5, p. 36, same could be had at law.

Ibid.

Same: And by petition to superior court under acts 1887, p. 64. Ibid.

Foreclosure may be at law under 23971, or in equity under 23979(a). Ibid.

Forthcoming bond given under 23976, amendable. Lytle vs. De Vaughn,

227.

Usury; ordinary mortgage infected with, not void. Hodge vs. Brown, 276.

Verdict on foreclosure of, for mining property, was too small, rather than too large. White vs. Furtzwangler, 66.

Same: The seller held to have refused to warrant title to the "water-ditch." Ibid.

MOTION TO SET ASIDE. See Judgments.

MUNICIPAL CORPORATIONS.

Awning over sidewalk falling and injuring plaintiff, recovery sustained. Mayor vs. Caldwell, 76(2, 3).

Same: Condition of other awnings irrelevant.. Ibid. 76(6).

Damages from sewers or grading, not recoverable, prior to constitution of 1877, unless done unskilfully. Atkinson vs. City, 625. Discharge of marshal before end of year by town incorporated under 22774-797, gives no action. Miller vs. Town of Seney, 489. Garnishment, not subject to, for work done on a municipal schoolhouse. Born vs. Williams, 796(1).

Nuisance; constitution of 1877 did not make that a nuisance which was not before. Atkinson vs. City, 625.

Same: Suit for damages, past and future, must still be brought within four years. Ibid.

Nuisance, continuing, can be none, where no original nuisance.

Ibid.

Same: Smith vs. City, 75 Ga. 110, distinguished. Ibid.

Railroads;

street crossings; power to pass ordinances as to, and duty and liability of railroad companies. Western & Atlantic vs. Young, 397(3).

Suit against "the mayor and council of the city of Gainesville," sustained under terms of its charter. Mayor vs. Caldwell, 76(1). Toombsboro, charter of; refusal of injunction here to test validity of, not error. Duncan vs. Mayor, 353.

Verdict for $800, or $900, for grave injury by awning over sidewalk falling on plaintiff, is not excessive. Mayor vs. Caldwell, 76(2, 3).

MURDER, See Criminal Law.

NEGLIGENCE. See Charge of Court; Railroads.

Administrator losing money by negligence (pickpockets), liable. Tarver vs. Torrance, 261(1).

Averred; plaintiff limited to acts of, set out in declaration; charge as to approved, here. Central Railroad vs. Nash, 581(2). Same: Head-note in Georgia Railroad vs. Oaks, 52 Ga. 410, criticized. Ibid. 585.

Innocent parties, where one of two must suffer, loss falls on one whose negligence put in power of third person to do the injury. Boatmen's Bank vs. Western & Atlantic Railroad, 224. Master not liable to servant for negligence of co-employe. Keith vs. Walker Company, 49.

Same: A carpenter here was killed by the falling of an arch defectively constructed by the masons. Ibid.

Matter of law, negligence as, for railway company not to use precautions at public crossings prescribed by statute or valid city ordinance. Western & Atlantic vs. Young, 397 3.

Same: Existence and reasonableness of ordinance is for jury. Ibid.

Ordinance prescribing duty of railroad at crossing, not to obey is negligence as matter of law. Ibid.

Same: Existence and reasonableness of ordinance is for jury. Ibid.

Passenger jumping to avoid being carried beyond street crossing, where conductor promised to let her off, nonsuit proper. Watson vs. Georgia Pacific Railway, 476.

Question for jury, and charge which takes it from them, error. Covington vs. Western & Atlantic Railroad, 275 2).

Rope furnished by master to servant well-digger) breaking and injuring him, nonsuit proper, when. Reid vs. Central Railroad, 694.

NEGOTIABLE INSTRUMENTS.

Bills of lading. See that title under Railroads.

Bills of lading, assignee of, has no greater rights than assignor.
Haas vs. Kansas City Railroad, 792(3a.

Same: Nature of, and extent of negotiability defined:
Ibid. 795.

Draft secured by bill of lading, carrier delivering goods to consignee without production of, liable. Boatmen's Bank vs. Western & Atlantic Railroad, 221(1).

NEW TRIAL.

Arrest of judgment, overruling motion in, no ground for. Gardner vs. State, 144(1).

Concurrent verdicts, two for plaintiff, court will construe evidence more favorably to verdict than upon a first verdict. Turner vs. Rome Street Railroad Co. 339.

Conduct of persons crying out in court-room during trial of criminal case, considered in granting. Woolfolk vs. State, 552(4). Demurrer to indictment, overruling, no ground for a. Flemister vs.

State, 768(2).

Error in favor of complaining party, no ground for. McCook vs.

Harp, 229(3).

Evidence, error in rejecting, must appear it would elucidate some issue, and was admissible for that purpose. Patterson vs. Ramspeck, 808(3).

Evidence, material, on main question in controversy, improperly excluded, new trial results. Bray vs. Latham, 643.

Evidence, rejection of some competent, not necessarily work new trial. Van Winkle vs. Wilkins, 94(9).

Evidence ruled out, materiality of, must appear. Rigden vs. Jordan,

668(3).

Evidence sustains verdict, and no error of law commmitted, refusal affirmed. Newman vs. Keith, 356.

Evidence, when several writings in, all harmonize and bear with united and powerful force against verdict; will be granted. Roberts vs. Crowley, 429(1).

First grant not scrutinized closely to find error. Wheeler vs. Robin son, 303.

Harmless error in charge, no cause for, where verdict correct. Fry vs. State, 646(5).

Hearsay admitted, not work new trial, where verdict fully sustained by other evidence. Wilson vs. Coleman, 297(3).

Irrelevant testimony, if immaterial, or nearly so, no ground for. Mayor vs. Caldwell, 76(6).

Juror agrees to verdict "reluctantly," no ground for.

State, 332(5).

Parker vs.

Newly discovered evidence, credibility of witnesses establishing, must appear, before Supreme Court will consider. Dominick vs. State, 715.

Newly discovered evidence cumulative in character, discretion in refusing, not controlled. Smith vs. State, 479(1).

Newly discovered evidence: diligence in producing person present at purchase of burglarized goods, not sufficient here. Wynn vs. State, 744(2).

Newly discovered evidence: discretion in refusing. not controlled, where fight took place in court-house during term, and diligence in sifting crowd for witnesses not appearing. Smith vs. State, 479(1).

Newly discovered evidence: extraordinary motion denied, where tending to impeach State's witnesses, and to suggest their guilt, when. Dominick vs. State, 715.

Newly discovered evidence going merely to credit of witness, even if sole witness, no ground for. Hunt vs. State, 140(5).

Newly discovered evidence impeaching in character, no new trial for. Parker vs. State, 332(4); Reid vs. State, 763.

Newly discovered evidence: witnesses present when pistol drawn who would deny it was a pistol, affidavit must show presence not known. Kinnebrew vs. State, 765(2).

Nonsuit, refusal to, one ground of, no reason for dismissing other grounds. Baker vs. Middlebrooks, 492(2).

Omission to charge on plain matters, not work new trial, where no request. Morgan vs. Swann, 207(2).

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