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Legal fee; trustee held to have taken in numerous cases cited here.

Ibid. 364.
Minors interested, estate cannot be sold on petition of trustee, unless

they are made parties. Ibid. 360,3).
Same: Order of confirmation, with due representation had,

not cure defect, if judge disqualified. Ibid. 360,4). Mixing funds, not relieved by showing outcome was confederate

money which he still has. McCook vs. Harp, 229(2). Remainder, legal estate in, trustee not rep esent, when. East Rome

vs. Cothran, 361. Remaindermen, trustee to hold during coverture of tenant for life,

not represent. Bagley vs. Kennedy, 721. Sale by W, as trustee, of land, to B, if W subsequently acquired

title, his title went to B. Lathrop vs. White, 35. Substitution by trustee of other property involved, discretion in

granting injunction not controlled. East Rome Co. 18, Cothran, 360(6).

ULTRA VIRES. See Corporations.

VARIANCE. See Criminal Law; Pleadings.


Caveat emptor, purchaser at sale of administrator or executor, takes

subject to rule. Wells vs. Harper, 194. Conditional sale not duly recorded, stands as to subsequent creditors

as an absolute sale. Steen 18. Harris, 681(1).


Certain: “We, the jury, find one and 62-100 dollars usury" in suit

on note, meant for the debt less that much. Small vs.

Hicks, 692(2). Construed according to legal intendment. Ibid. Evidence, none before jury but all offered excluded, verdict im

proper. Sprinz vs. Frank, 162/1). Excessive, $500 for pain and confinement is not. Itlanta & West

Point Railroad vs. Smith, 620(2). Excessive, $800 or $900 for grave injury by awning over sidewalk

falling, is not. Mayor 18. Caldwell, 76(2, 3). Excessive, $5,304 for killing husband, held not. Central Railroad

vs. Nash, 581(6). Juror agreeing to reluctantly, no ground for new trial.

Parker 18. State, 332(5).

Writing off part by requirement of court, plaintiff doing so, can he

except by cross-bill? Atlanta National Bank vs. Burke. 601(3).




Defects and delays in machinery delivered, no waiver of, by receiv

ing and using. Van Winkle vs. Wilkins, 947).
Same: Nor will a sale (of the oil-mill) defeat right to recoup

such damages against contract price. Ibid. Fertilizers; purchaser not bound by, from pleading want of legal

inspection. Faircloth vs. De Leon, 158. Plea of justification to libel, no waiver of defence that the words

were privileged. Wilson vs. Sullivan, 238 3).

WARRANTY. See Administrators and Erecutors.
Machinery, contract to deliver first-class, means first-class generally,

not of that manufacturer. Van Winkle vs. Wilkins, 94(6). Release of, to title of "water-ditch” on sale of mining property,

effect of. White vs. Furtzwangler, 66. Rescind, offer to, and return price, not discharge warrantor. Riley

18. Hicks, 266(5). Waiver of, none by receiving and using machinery defective in

kind or class. Van Winkle vs. Wilkins, 91(7)
Same: Nor by receiving it after time stipulated for delivery.

Same: Nor will a sale of the oil-mill, defeat the right to

recoup such damage against price. Ibid.

WASTE. See Remainders,


Dam water, grant of right to, with reservation that no injury was

to be done to spring; if spring injured either in its artificial state at date of contract, or in its natural state, action

able. Ford 18. Lukens, 633. Upper proprietor removing ledge of rock from bed of stream and

thereby injuriously projecting water forward on land be-
low, actionable. (irant 15. kuglar, 637.
Same: That no damage clone at point of entry, but only

farther down, not alter case. Ibid.



Ademption of legacy. See Legacies, below.

Approximation; scheme of testatrix for keeping estate together

for education and support of beneficiaries, minors and
adults, becoming impossible of execution, court will make.
Wikle rs. Woolley, 106(19.
Same: Approximation made by court below not interfered

with, when. Ibid. Approximation; scheme for keeping estate together for education

and support of beneficiaries failing, minor beneficiary not
entitled to allowance of arrearages, for not having re-
ceived. Ibid. 106(2).
Same: Minor having received support and education from

father, cannot claim for having missed it out of mother's

estate. Ibid. 106(3). Construction; intention defeated by unexpected circumstances,

court will approximate scheme. Ibid 106(1). Division; bequest to children for life, then over to their children;

division after testator's death; grandchildren took vested remainder in fee, and subsequent exchange of their portions by two of the children not affect rights of grandchil

dren. Crawley vs. Blackman, 775. Division in kind of lands under will, acquiesced in fourteen years,

binding though unequal. Lererett vs. Sterenson, 701. Exchange by children of their portions in division of testator's

property, agreement to, not admissible to affect rights of grandchildren who took vested remainder in fee. Crawley

vs. Blackman, 775. Insolvent son; scheme of father in making bequest to grandson,

in part for use and benefit of said insolvent son, and to

escape his creditors, upheld. Hill vs. Hill, 518. Legacies: ademption ; bequest of money to daughter since 1866;

advance to her husband, held not to be. Hart vs. Johnson,
Same: Declarations of testator made subsequently, not

affect. Ibid. Legacies: devise, in 1854, by mother to trustee for son, and if he

should die childless, trustee to sell and distribute, and place proceeds in hands of other trustee for other children, vested base or qualified fee in son. Matthews. 1's. Iudson, Legacies: insolvent son, bequest to, revoked, and grandson substi

tuten, held, under special facts here, that legal title devolved on grandson; father's rights in legacy, under independent agreement with son, and rights of creditors de

fined. Hill vs. Hill, 516(1, 1a). Partition. See Construction. Per stirpes, bequest to children here was, and not per capita. Mayer

l's. Hover, 309(4). Revocation; bequest to wife of support out of estate in bands of

executor, not revoked, under special facts here. Hart vs.

Hart, 787.
Support of widow: bequest to wife of use of two rooms of dwell-

ing, and of yard and garden : also bequest of buggy and
mare, and, mare dying, to be replaced by executors; exe-
cutors to give said wife “ a decent support during her natu-
ral life" and she to live there in peace and quiet, construed.
Ibid. 785.
Same: Verdict for widow, who moved away from premises,

sustained. Ibid.


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Administrator or executor a party, other party not competent to

anything. Hardman 18. Novell, 748. Attorney competent, unless he got his information from client by

virtue of the relation. Skellie vs. James, 419 2). Character, general, refusing to allow counsel to explain, not error,

not appearing what explanation proposed. Flemister rs.

State, 768(3). Character, good; never heard any one say anything against it,"

admissible. Ibid. 768(4). Competency, mental, of witness examined by interrogatories, pre

sumed. Mayor vs. Caldwell, 76(4).
Same: If disputed by other evidence, question properly

left to jury. Ibid. Dead; evidence before magistrate of witness since dead, admissible

in suit for damages for malicious prosecution. Rigden vs.

Jordan, 674(3). Dead, opposite party being, still if plaintiff asked witness who

was a party if he signed paper, may on cross-examination explain all the circumstances. Carlton rs. Western & Atlantic

Railroad, 531(1). Death ; defendant competent as to matters not transpiring between

him and deceased, and adıninistrator not a party. Hardman v8. Nowell, 748.

may allow.

Examination: general questions to, whether a party or not, court

Van JVinkle vs. Wilkins, 94(81. Failure to produce, when in one's power, frequently a circumstance

of more or less significance. Hunt vs. State, 1406). Impeach ; brief of evidence in other case, though approved, not ad

missible, when. Reid vs. State, 760(1, la). Impeached by proof of swearing falsely to a leading fact, corrobora

tion as to immaterial facts not restore credit. Mitchell vs.

State, 460. Impeachment; what a witness swore on another trial, inadmissible,

no foundation haying been laid therefor. Florida Midland

Railroad us. Varnedoe, 176(5).
Sanity of, examined by interrogatories, presumed. Mayor vs. Cald-

well, 76(4).
Same: If disputed by other evidence, question properly

left to jury. Ibid. Sworn, witness not, no ground for new trial. Smith vs. State, 480(2).


“C. L. R. P. oats," in memorandum of sale, parol admissible to

to show it meant “ car-load Texas rust proof oats.” Wilson

vs. Coleman, 297(1). “Inviolate," in 5174, means twelve jurors to try case ; eighteen to

strike from, instead of twenty-four, constitutional. Conyers vs. Graham 615(4).


Wrongful eviction by sheriff under, gives right of action. Jefferson

v8. Hartley, 717.

21935(a) on page 683 should be 21955(a).

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