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The Central Railroad and Banking Co. vs. Hollinshead.

Before Judge Gustin. Houston superior court. October adjourned term, 1887.

Reported in the decision.

W. S. WALLACE & Son, for plaintiff in error.

A. C. RILEY, DUNCAN & MILLER and HARDEMAN & Davis, contra.

BLECKLEY, Chief Justice.

Hollinshead recovered $75, half the value of nis mule. The railroad company moved for a new trial on the general grounds, and because the court erred in charging that if the engineer blew the whistle for the purpose of frightening the mule, and not to keep it from going upon the track, the jury might consider that. We think there was no error in this charge, and that the verdict was warranted by the evidence, not that the defence, taken literally, was too weak but rather too strong. The engineer and fireman both testified that they could and did see the mule 600 yards; that the wagon was standing still twenty or thirty yards away from the crossing; that it remained still until the engine approached to within forty or fifty yards of the crossing, and then the driver started to beat the train, the mule being twenty or thirty yards off, and the train forty or fifty yards off. They testified that the driver urged the mule; that the mule was reluctant, drew back and there was a short struggle between them, the driver urging it forward and the mule apparently pulling back, until it got upon the crossing just in time to have its foreparts stricken by the engine, the engine making only from forty to fifty yards through space, whilst the unwilling mule made twenty or thirty This, in its letter, is

V 81-14

Green vs. Combs.

rather too strong a case for the defence; and its very strength, we doubt not, proved a weakness of spirit. The jury were warranted in believing the plaintiff, who testified that he was doing his best to keep off the track, and that the blowing of the whistle frightened the mule and induced it to run upon the track in spite of his exertions. The refusal of a new trial was correct.

Judgment affirmed.


Damages arising from a tort cannot be pleaded as a set-off to a suit on

a contract.

May 11, 1888.

Torts. Contracts. Set-off. Before Judge Fain. Catoosa superior court. August term, 1887.

W. W. Combs sued Wallace Green in a justice's court on two notes, one given for a store account and one for a cow. On the trial, there was conflicting evidence as to the amount of the payments which had been made on the notes. The main defence relied on arose as follows: The note given for the cow was accompanied by a mortgage on her, by the maker to the payee; this mortgage had been foreclosed, the mortgaged property sold, bought by one Whitsett and purchased from him by Combs.

Defendant pleaded as a set-off the value of the cow, at $20.00, and insisted that the foreclosure and sale were illegal, and that he should be allowed to set off the value of the cow; but the evidence offered by him as to her value was ruled out. The affidavit for foreclosure, alleged to be defective, was as follows:

“GEORGIA, Catoosa county.- Personally appeared before the undersigned, an acting justice of the peace in and for the said county,


Green 18. Combs.

W. W. Combs, who on oath says that Wallace Green is indebted to him on the annexed mortgage the sum of eleven dollars and thirty cents, including interest to date, which amounts are due.

W. W. COMBS. “Sworn to and subscribed before me this August 13th, 1886.

R. B. TRUIMEN, J. P.” The jury found for plaintiff. Defendant carried the case by certiorari to the superior court, alleging error in ruling out the testimony as to the value of the cow and error in the verdict because “a failure of consideration resulted from the taking of the cow from possession of the plaintiff by defendant in an illegal manner.” His certiorari was overruled and a new trial refused, and he excepted.

J. H. ANDERSON, by R. J. McCAmy, for plaintiff in


W. H. PAYNE, contra.

SIMMONS, Justice.
Combs sued Green on a promissory note.

Green filed a plea of set-off, in which he attempted to set up damages arising ex delicto, as a set-off against the note. The magistrate ruled out the evidence offered to sustain this plea. Green brought the case to the superior court by certiorari, and the judgment of the magistrate was sustained by the superior court; to which judgment Green filed this bill of exceptions.

There was no error by the court below in dismissing this certiorari. Damages arising from a tort cannot be pleaded as a set-off to a suit on a contract. Code, $3261. Smith, Son of Bro. vs. Printup Bros. f Co., 59 Ga. 610.

Judgment affirmed.


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Massenburg et al. vs. The Grand Lodge F. & A. M. of the State of Georgia.



1. Conceding that the Grand Lodge of Georgia is an institution of

purely public charity, within the meaning of the constitution, its temple or lodge building, when used for corporate profit or income,

is not exempt from taxation. 2. The most that the corporation can claim is, that the comparative

value of the part used for income, and the part not so used, may be distinguished in making its tax returns, and that the latter part, by due apportionment of value, shall be spared from taxation. June 1, 1888.

Tax. Charities.

Charities. Constitutional law. Before Judge GUSTIN. Bibb superior court. May term, 1888.

The Grand Lodge of Free and Accepted Masons for the State of Georgia (a corporation duly incorporated under the laws of Georgia) filed its petition against C. B. Massenburg, tax-collector of Bibb county, and W. H. O'Pry, deputy-sheriff of said county, alleging that said Massenberg, claiming to do so by virtue of the fact that he is such tax-collector, had, without authority of the law, issued a tax fi. fa. for State and county taxes for the year 1887, against the property of complainant, for $150.00, and that O'Pry, as deputysheriff, had without authority of law levied it on the building on Mulberry street in the city of Macon, known as the “Masonic Lodge building,” and would proceed to sell the same unless restrained. The petition prayed that defendants be restrained from proceeding further in levying, advertising and in selling said property; and that the court would adjudge that said property was not subject to taxation, for reasons which sufficiently appear in the affidavit, to be first hereafter mentioned.

On the hearing before the judge, complainant read the bill and its exhibits (which were copies of the exe


Massenburg et al. vs. The Grand Lodge F. & A. M. of the State of Georgia.

cution and levy). Also affidavit of C. E. Danmour and A. M. Wolihin, to the effect following: Deponents are grand treasurer and grand secretary of complainant. Said complainant is an institution of purely public charity. The building sought to be taxed was built solely for the purpose of carrying out the objects of said institution, the same being those of public charity, to wit: for the alleviation of human suffering and distress. Said building is used for no other purpose. Complainant does not use the same for the purposes of private or corporate profit or income, but this and all other masonic institutions are organized purely for charitable purposes, their object being to do good and relieve distress. All moneys received by complainant are used for the same purpose. There is a balance due upon the building of $4,500, the same being for a debt contracted to complete it. There is not now on hand enough money to pay the outstanding debts or necessary expenses, and there is no fund on hand to be appropriated to the payment of any part of the indebtedness incurred in the construction of the building. Said property has never before been taxed by the city, county or State; it has heretofore been recognized as exempt from all taxation, as the objects and purposes were recognized as those of an institution of purely public charity.

Complainants closed and defendants read in evidence the following agreement, signed by complainant's counsel : It is admitted that complainant rents the lower story of the building sought to be taxed, each year, as stores and derives a yearly rent from said stores ; that said lower story is rented out for this year and has been for several years past, the annual rental derived by complainant from said lower story exceeding the sum of $500.00. All moneys so received are applied exclusively to charitable purposes, and complainant does not derive any private profit from the same.

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