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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 des

tination, 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).


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 ex

cepted here. Ibid,

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 08. Young, 397(2). Parties, must be made so, before trust ostate 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 Rail

road 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 Erecutors.


Partition of lands under will, by mistake of appraisers made un

equal, binding after fourteen years acquiescence. Lererett vs. Stevenson, 701.

Judgment, money awarded to oldest, in contest with younger judg-

ments, held error under facts of this case. Parrott vs. Nes-
bitt, 307.

Equitable remedy not invoked until remedy under 23979 exhausted.

Manheim vs. Claflin, 133.
Same: Even if equitable remedy needed, under acts 1884),

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 43979(a).

Ibid, Forthcoming bond given under 23976, amendable. Lytle rs. De Vaughn,

227. Usury; ordinary mortgage infected with, not void. Hodge 19.

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.


Awning over sidewalk falling and injuring plaintiff, recovery sus-

tained. Mayor vs. Caldwell, 76(2, 3).
Same: Condition of other awnings irrelevant. Ibid. 76(6).

Damages from sewers or grading, not recoverable, prior to constitu

tion 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. Tcwn of Seney, 489. Garnishment, not subject to, for work done on a municipal school

house. 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.


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," sus

tained 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. Calduell, 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 rs.

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 precau

tions 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 i well-digger) breaking and in

juring him, nonsuit proper, when. Reid vs. Central Railroad, 694.


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. 1795.
Draft secured by bill of lading, carrier delivering goods to con-

signee without production of, liable. Boatmen's Bank vs. Western w Atlantic Railroad, 221(1).


Arrest of judgment, overruling motion in, no ground for. Gard

ner vs. State, 144(1). Concurrent verdicts, two for plaintiff, court will construe evidence

more favorably to verdict than upon a first verdict. Tur

ner vs. Rome Street Railroad Co. 339. Conduct of persons crying out in court-room during trial of crimi

nal case, considered in granting. Woolfolk vs. State, 552 4). Demurrer to indictment, overruling, no ground for a. Flemister is

State, 768(2). Error in favor of complaining party, no ground for. McCook vs.

Harp, 2293). Evidence, error in rejecting, must appear it would elucidate some

issue, and was admissible for that purpose. Patterson vs.

Ramspeck, 8083). 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, refusa)

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. Parker vs.

State, 332(5). Newly discovered evidence, credibility of witnesses establishing,

must appear, before Supreme Court will consider. Domis

nick 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 controlied,

where fight took place in court-house during term, and diligence in sifting crowd for witnesses not appearing. Smith

ts. 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. Slate, 763. Newly discovered evidence: witnesses present when pistol drawn

who would deny it was a pistol, affidavit must show pres

ence 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 is. Swann, 207(2).

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