The Southeastern Reporter

§ 1187. An order of the superior court, on | Recovery in particular actions or proceedings. sustaining certiorari on a conviction in a police See Replevin; Trover and Conversion, §§ 46, 52. court, remanding the case, held not error.On sheriff's bond, see Sheriffs and Constables, Smith v. City of Atlanta (Ga. App.) 569; § 158. Logan v. Same, Id.

1190. Where four persons are tried together for riot, and on certiorari a new trial is granted to three, a new trial should also be granted to the fourth.-Lewis v. State (Ga. App.) 570.

§ 1192. Where, on appeal, the court held that giving in charge the law of justifiable homicide laid down in Pen. Code 1895, § 73, was error, on a second trial on the same evidence, the giving of substantially the same charge was reversible error.-Warnack v. State (Ga. App.) 935.

XVII. PUNISHMENT AND PREVEN-
TION OF CRIME.

III. GROUNDS AND SUBJECTS OF
COMPENSATORY DAMAGES.

For delay in delivery of telegram, see Tele-
graphs and Telephones, §§ 67, 68.
For injuries caused by flowage, see Waters and
Water Courses, § 178.

(A) DIRECT OR REMOTE, CONTINGENT,
OR PROSPECTIVE, CONSEQUENCES
OR LOSSES.

§ 18. Where a person was burned in attempting to save her house from a fire negligently set by a locomotive, such injury held a natural consequence of the fire, for which the railroad was liable.-Wilson v. Central of Georgia Ry. Co.

Subject and title of statutes, see Statutes, 8 (Ga.) 1121.

120.

§ 1213. A nine-year penitentiary sentence on a conviction of manslaughter held not a cruel and unusual punishment within the meaning of the Constitution.-State v. Lance (N. C.) 198.

CROPS.

§ 19. Plaintiffs starting their vessel on the assumption that it would not leak after the repairs thereon made by defendant for them held disaster to the vessel.-Bell v. Mutual Mach. gross negligence, the proximate cause of the Co. (N. C.) 680,

§ 39. A matter held a remote consequence of defective performance of contract to re

Renting on shares, see Landlord and Tenant, § pair.-Bell v. Mutual Mach. Co. (N. C.) 680.

333.

CROSS-EXAMINATION.

See Witnesses, §§ 269-286.

CRUEL AND UNUSUAL PUNISHMENT.
See Criminal Law, § 1213.

CRUELTY.

To animals, see Animals, § 40.

CUMULATIVE EVIDENCE.

Ground for new trial, see New Trial, § 104.
CUSTODY.

Of child, see Guardian and Ward, § 58.
Of jury, see Criminal Law, §§ 858-863.

CUSTOMS AND USAGES.

18. It is not necessary to specially plead local and particular usages or customs.-City of Richmond v. Barry (Va.) 1074.

DAMAGES.

§ 40. Damages for breach of contract whereby a party was to receive a specified share of the profits from the operation of a sawmill held not too remote or uncertain to be recoverable.-Tygart v. Albritton (Ga. App.) 521.

$40. The measure of damages for the failure of a buyer of lumber to make advances called

for by the contract held not to include profits the seller might have made through his lumbering operations if the money had been advanced.-C. B. Coles & Sons Co. v. Standard Lumber Co. (N. C.) 736.

§ 40. A party to a contract, entitled to recover for a breach thereof, held entitled_only to compensation for the loss sustained.-C. B. Coles & Sons Co. v. Standard Lumber Co. (N. C.) 736.

§ 45. The measure of damages for the failure of one to perform his agreement to loan to another money held to be the extra expense to which the latter was put to obtain the money. -C. B. Coles & Sons Co. v. Standard Lumber Co. (N. C.) 736.

IV. LIQUIDATED DAMAGES AND

PENALTIES.

76. A contract that, if an employé quit without giving a week's notice, the employer might retain a week's wages as liquidated dam

Compensation for property taken for public ages, held enforceable.-Gleaton v. Fulton Bag use, see Eminent Domain, § 136.

Damages for particular injuries.
See Nuisance, §§ 50, 72; Trespass, § 52.
Breach by buyer of contract for sale of goods,
see Sales, 88 403, 442.

Breach by vendor of contract for sale of land,
see Vendor and Purchaser, §§ 343-345.
Conversion of timber, see Logs and Logging,
$ 35.

Failure of landlord to deliver possession of
leased premises, see Landlord and Tenant,
§ 129.

Injuries caused by public improvements, see
Municipal Corporations, § 401.

Loss of or injury to goods shipped, see Carriers,
$ 135.

Loss of or injury to live stock shipped, see
Carriers, § 229.

Wrongful levy by sheriff, see Sheriffs and Con-
stables, 158.

& Cotton Mills (Ga. App.) 520.

V. EXEMPLARY DAMAGES.

Liability of principal for wrongful act of agent, see Principal and Agent, § 159.

Right of review on issue as to recovery of punitive damages on dismissal of action, see Appeal and Error, § 105.

VI. MEASURE OF DAMAGES.
For particular injuries.
Conversion of timber, see Logs and Logging, §
35.

(A) INJURIES TO THE PERSON.

$ 100. That plaintiff suing for personal injuries was a tramp held material in considering damages to his earning capacity.-Central of Georgia Ry. Co. v. Moore (Ga. App.) 642.

(B) INJURIES TO PROPERTY.
Breach of warranty, see Sales, § 442.
Cutting and removal of timber, see Trespass,
$ 52.
Wrongful levy by sheriff, see Sheriffs and Con-
stables, § 158.

§ 218. The court, in an action for the breach
of a business contract, held required to give in
the guidance of the jury.-C. B. Coles & Sons
its instructions some measure of damages for
Co. v. Standard Lumber Co. (N. C.) 736.

§ 224. A judgment by default within the
sum claimed in the writ and declaration will not
be set aside because exceeding the sum stated
Varney & Evans v. Hutchinson Lumber & Man-
ufacturing Co. (W. Va.) 203.

For mistake in telegram, see Telegraphs and in the bill of particulars or statutory affidavit.—
Telephones, § 67.

§ 120. Under a contract whereby a party
was to receive a specified share of the profits
from a sawmill, held, that he could not recover
both net profits and expenses incurred by him
in making the profits.-Tygart v. Albritton
(Ga. App.) 521.

DAMNUM ABSQUE INJURIA.

See Action, § 1.

DEADLY WEAPONS.

VII. INADEQUATE AND EXCESSIVE Presumption of malice from use of, see Homi-

§ 132. A verdict of $2,500 for personal in-
jury held not excessive.-Chesapeake & O. Ry.
Co. v. Hoffman (Va.) 432.

VIII. PLEADING, EVIDENCE, AND

ASSESSMENT.

(A) PLEADING.

cide, 146.

DEATH.

Of maker of note payable in labor as affecting
liability of purchaser of the note, see Bills
and Notes, § 313.

Suspension of running of statute of limitation,
see Limitation of Actions, § 83.

Amendment of petition in injunction so as to II. ACTIONS FOR CAUSING DEATH.
recover damages, see Pleading, § 250.

$ 145. In an action for injuries in attempt-
ing to prevent the communication to plaintiff's
house of a fire set by a locomotive, the allega-
tion that plaintiff had been unable to perform
any labor in support of her children held prop-
erly stricken as irrelevant.-Wilson v. Central
of Georgia Ry. Co. (Ga.) 1121.

§ 146. In trespass for damage to timber,
loss of rents, etc., plaintiff was not bound to
state the damages claimed for each item, but
could allege the damage and amount generally.
-Woodstock Hardwood & Spool Mfg. Co. v.
Charleston Light & Water Co. (S. C.) 548.

(A) RIGHT OF ACTION AND DEFENSES.
joint tort-feasors.-Walton, Witten & Graham
§ 33. What will constitute parties liable as
v. Miller's Adm'x (Va.) 458; Miller's Adm'x
v. Norfolk & W. Ry. Co., Id.

(D) PLEADING AND EVIDENCE.

§ 67. In an action for the death of a loco-
motive engineer, certain evidence held properly
admitted for consideration in the ascertainment
of damages.-Atlantic Coast Line R. Co. v.
Jones (Ga.) 834.

DEBTOR AND CREDITOR.

§ 146. A declaration held sufficiently broad
to cover certain damages.-City of Richmond See Bankruptcy; Fraudulent Conveyances.
v. Wood (Va.) 449.

§ 148. Where information as to sums paid
for medical attention, nursing, and medicine is

called for by special demurrer, it must be given
with such substantial fullness as the facts of
the case reasonably admit.-Louisville & N. R.
Co. v. Barnwell (Ga.) 501.

§ 148. An allegation as to amount paid for
physician's bills, a nurse, and medicine because

DECEDENTS.

Estates, see Descent and Distribution; Execu-
Testimony as to transactions with persons since
deceased, see Witnesses, § 140.

tors and Administrators.

of injuries sustained held subject to special de- See Fraud.
murrer.-Louisville & N. R. Co. v. Barnwell
(Ga.) 501.

DECEIT.

DECLARATION.

§ 157. Punitive damages need not be plead- In pleading, see Pleading, §§ 44–49.
ed distinct from compensatory damages.-
Woodstock Hardwood & Spool Mfg. Co. v.
Charleston Light & Water Co. (S. C.) 548.

§ 161. Under allegation that mental pain
was caused by mistreatment by defendant's
servant, evidence that plaintiff was made nerv-
ous and had to go to bed was admissible.-
Georgia Southern & F. Ry. Co. v. Ransom
(Ga. App.) 525.

(C) PROCEEDINGS FOR ASSESSMENT.
$207. Though the affidavit filed by plaintiff
with the declaration pursuant to Code 1906,
§ 3866, is made evidence in the execution of an
order for an inquiry of damages, plaintiff held
not limited in his proof to such affidavit.-
Varney & Evans v. Hutchinson Lumber & Man-
ufacturing Co. (W. Va.) 203.

§ 216. An instruction as to how damages for
personal injuries should be estimated held
proper. Chesapeake & O. Ry. Co. v. Hoffman
(Va.) 432.

DECLARATIONS.

As evidence in civil actions, see Evidence, § 274.
Dying declarations, see Homicide, §§ 203–216.
DECREE.

In equity, see Equity, § 429.

$54. Delivery held essential to validity of
a deed, notwithstanding intention of grantor.-
Fortune v. Hunt (N. C.) 82.

$56. Delivery of a deed or other written in-
strument depends largely upon the intent at
the time, and is not conclusively established by
its manual or physical passing.-Gaylord v. Gay-
lord (N. C.) 1028.

§ 56. To constitute a valid delivery, a deed
must pass from the possession and control of the
grantor to that of the grantee, or to some one
for his use and benefit, with intent at the time
that title shall pass, or the instrument become
effective, as a conveyance.-Gaylord v. Gaylord
(N. C.) 1028.

$56. The requirement that intent to pass
title shall exist at the time of delivery, as ap-
plied to the case of a deed between two brothers,
held not affected by the doctrine that a deed can-
not be delivered to a grantee by way of escrow.
-Gaylord v. Gaylord (N. C.) 1028.

and when such intention can be ascertained,
nothing remains but to effectuate it.-Triplett
v. Williams (N. C.) 79.

$97. At common law, the habendum part of
a deed was not allowed to divest an estate al-
ready vested by the deed, and it was void if
repugnant to the estate granted in the prem-
ises.-Triplett v. Williams (N. C.) 79.

$97. The rule that the granting, habendum,
and tenendum clauses of a deed are independent
portions thereof, each with its special function,
held superseded by the rule of construction re-
quiring the court to look at the whole deed to
ascertain the intention of the parties.-Trip-
lett v. Williams (N. C.) 79.

(C) ESTATES AND INTERESTS CREATED.
§ 124. Under Revisal 1905, § 946, all con-
veyances are in fee simple, unless the intention
of the grantor is manifest to convey a less es-
tate.-Triplett v. Williams (N. C.) 79.

$ 129. A deed executed while Revisal 1905,
§ 946, was in force, held to convey to the gran-
tee a life estate only.-Triplett v. Williams (N.
C.) 79.

IV. PLEADING AND EVIDENCE.
Parol evidence as to description of premises, see
Evidence, § 460.

§ 199. In an action to recover land, certain
evidence held properly excluded.-Leathers v.
Leathers (Ga.) 1118.

§ 208. Evidence held sufficient to authorize
a finding that a deed had been delivered.-
Morehead v. Allen (Ga.) 507.

§ 208. In an action for partition, evidence
held to show that a deed previously executed
by plaintiff had been delivered to the grantee,
divesting plaintiff of all interest in the property.
-Nash v. Yellow Poplar Lumber Co. (Va.) 14.
DEFAMATION.

$56. Delivery of a deed is a question of See Libel and Slander.
intent.-Glade Coal Min. Co. v. Harris (W. Va.)

$73.

DEFAULT.

§ 56. Delivery of a deed may be actual or Judgment by, see Judgment, §§ 106–161.

constructive.-Glade Coal Min. Co. v. Harris
(W. Va.) 873.

$ 58. Where the grantor gives a deed to a
third person to deliver if he never calls for
it, and then dies without more being done, held
there is no delivery.-Fortune v. Hunt (N. C.)

82.

66. Under the facts, there being a presump-
tion of delivery of a deed, held, the credibility
of the witness testifying to the contrary was for
the jury.-Fortune v. Hunt (N. C.) 82.

$66. Evidence held to present an issue for
the jury as to whether a deed was in fact ever
delivered.-Gaylord v. Gaylord (N. C.) 1028.

II. RECORDING AND REGISTRA-
TION.

Establishment of lost record, see Records, § 17.

III. CONSTRUCTION AND OPERA-

TION.

(A) GENERAL RULES OF CONSTRUC-
TION.

$90. All parts of a deed should be given ef-
fect, and words deliberately inserted in a deed
for a purpose are not to be lightly considered,
or arbitrarily thrust aside.-Triplett v. Williams
(N. C.) 79.

DELAY.

In delivery of telegram, see Telegraphs and Tel-
In trial of accused, see Criminal Law, § 576.
ephones, §§ 56-73.
Laches, see Equity, § 67.

DELEGATION.

Of power of eminent domain, see Eminent Do-
main, § 10.

Of power to regulate liquor traffic, see Intoxi-
cating Liquors, § 10.

DELIVERY.

Of goods to carrier, see Carriers, §§ 39, 77-94.
Of deed, see Deeds, §§ 54–66.
Of insurance policy, see Insurance, § 136.
Of pardon, see Pardon, § 8.

DEMURRER.

In pleading, see Pleading, §§ 193-227.
To evidence, see Trial, §§ 154, 156.
To indictment, see Indictment and Information,
§§ 137, 139.

DENIALS.

§ 93. To discover the intention of the parties
to a deed is the main object of all construction, In pleading, see Pleading, § 127.

DEPOSITIONS.

See Witnesses.
Admissions by, use of as evidence in action oth-
er than that in which the deposition was tak-
en, see Evidence, § 210.
Impeachment of witness by inconsistent state-
ments in deposition, see Witnesses, § 393.

DESCENT AND DISTRIBUTION.
See Executors and Administrators; Wills.

III. RIGHTS AND LIABILITIES OF
HEIRS AND DISTRIBUTEES.

(A) NATURE AND ESTABLISHMENT OF

RIGHTS IN GENERAL..

§ 69. A conveyance of personalty by a hus-
band held to bar the wife of her distributive
share therein.-Hall v. Hall (Va.) 420.

DESCRIPTION.

Of debt secured by mortgage, see Chattel Mort-
gages, 112.

Of devisees or legatees in will, see Wills, §. 523.
Of premises in proceedings to restrain liquor
nuisance, see Intoxicating Liquors, § 274.
Of property conveyed, see Boundaries, §§ 3-11.
Of property devised or bequeathed, see Wills, §
560.

Of property in complaint in injunction suit as
affecting liability for violation of restraining
order, see Injunction, § 219.

Of property in deed, see Deeds, § 38.
Of property mortgaged, see Chattel Mortgages,
§ 124; Mortgages, § 131.

DIRECTING VERDICT.

In civil actions, see Trial, §§ 168-181.

DISBARMENT.

DISCONTINUANCE.

Of action, see Dismissal and Nonsuit, §§ 25, 26.
DISCRETION OF COURT.

Grant or refusal of continuance, see Continu-
ance, & 7.

Grant or refusal of mandamus, see Mandamus,
$ 72.

Grant or refusal of new trial, see New Trial,
§ 6.

Opening judgment, see Judgment, § 139.
Review in civil actions, see Appeal and Error,
§§ 954-984.

Review in criminal prosecutions, see Criminal
Law, 8 1152, 1156.

Specific performance of contract, see Specific

Performance, § 8.

Withdrawal of plea of guilty, see Criminal Law,
§ 274.

DISCRIMINATION.

By carrier, see Carriers, §§ 18, 202.

DISMISSAL AND NONSUIT.
Appealability of judgment of voluntary nonsuit,
see Appeal and Error, § 105.
Bar of action by limitations as ground for dis-
At trial, see Trial, § 159.
missal, see Limitation of Actions, § 180.

By federal court of action removed from state
court as affecting limitations in renewed cases
in state court, see Limitation of Actions, §
130.

In particular actions or proceedings.
See Ejectment, § 108; Garnishment, § 204.
Appeal or writ of error, see Criminal Law, §
1131.

Certiorari to justice's court, see Justices of the
Peace, § 202.

Dismissal of appeal or writ of error, see Appeal
and Error, § 782.

Proceedings for assessment of damages for pub-
lic improvements, see Eminent Domain, § 198.
Suit in equity, see Equity, § 359.

I. VOLUNTARY.

$25. Where a note is joint and several, and
all are sued, but only a part served, plaintiff
may, under Code 1906, § 2020, proceed to judg-
ment as to those served and dismiss as to the
others, and such dismissal will not release those
served. Watkins v. Angotti (W. Va.) 969.

§ 26. Plaintiff in an action against joint
tort-feasors may dismiss or discontinue as to
one defendant without affecting his rights
against the other.-Walton, Witten & Graham
v. Miller's Adm'x (Va.) 458; Miller's Adm'x
v. Norfolk & W. Ry. Co., Id.

II. INVOLUNTARY.

§ 53. A nonsuit will not be granted because
the evidence shows that one of a number of
alleged acts of negligence did not occur.-Eilen-

Of attorney, see Attorney and Client, §§ 36-54. berg v. Southern Ry. Co. (Ga. App.) 240.

DISCHARGE.

From employment see Master and Servant, &
21.

Of accused for delay, see Criminal Law, § 576.
Of accused on striking out plea of guilty, see
Criminal Law, § 261.

From indebtedness, obligation, or liability.
See Accord and Satisfaction: Bankruptcy, 8
436; Execution, §§ 348, 355.
Liability as insurer, see Insurance, § 603.

DISORDERLY CONDUCT.

See Breach of the Peace; Disturbance of Pub-
lic Assemblage.

DISPENSARIES.

Restraining holding of election to determine
question of maintaining, see Injunction, § 80.
DISSOLUTION.

Liability as surety, see Principal and Surety, 88 Of building association, see Building and Loan
99-112.
Associations, § 45.

Of corporation, see Banks and Banking, §§ 74-
80; Corporations, §§ 614, 620.

Of partnership, see Partnership, § 304.

DISTRIBUTION.

DOCUMENTS.

As evidence in civil actions, see Evidence, 88
345-368.

DOGS.

Of assets of partnership on dissolution, see Part-Sheep-killing dog as nuisance, see Animals, § 81.
nership, $304.

Of estate of decedent, see Descent and Distribu-
tion.

DOMESTICATION.

Of proceeds of sale on execution, see Execution, Of foreign corporation, see Railroads, § 33.
§ 322.

Seduction of divorced woman, see Seduction, § In cities, see Municipal Corporations, §§ 840,
32.

845.

See Poisons.

DRUGGISTS.

DRUNKARDS.

Intoxication affecting validity of contracts in
general, see Contracts, § 92.

DUE PROCESS OF LAW.
Constitutional Law, §§ 283-309.

DYING DECLARATIONS.

$99. Revisal 1905, § 1564, providing that See
in divorce actions the material allegations in the
complaint shall be deemed to be denied, held
not to relieve defendant from pleading a wrong-
ful abandonment in defense.-Kinney v. Kinney See Homicide, §§ 203-216.
(N. C.) 97.

§ 108. Allegations in a divorce action held
not to raise an issue as to abandonment.-
Kinney v. Kinney (N. C.) 97.

$ 108. In a divorce action for adultery,
where plaintiff alleged that at a certain time
and place defendant committed adultery with a
certain man, which was denied by the answer,
the question was properly submitted as an is-
sue.-Kinney v. Kinney (N. C.) 97.

(D) EVIDENCE.

EASEMENTS.

Public easements, see Highways.

I. CREATION, EXISTENCE, AND TER-
MINATION.

§ 1. Agreement held to be a contract to con-
vey an easement over land, not the land itself.
-Buffalo City Mills v. George H. Toadvine
Lumber Co. (N. C.) 678.

EJECTION.

§ 115. In a divorce action for adultery, tes-
timony of a witness that he saw defendant com-
mitting adultery at a date between the times
at which she was alleged in the complaint to Of passenger, see Carriers, § 365.
have committed acis of adultery with the same
person held admissible as tending to explain
their previous relations.-Kinney v. Kinney (N.
C.) 97.

(E) DISMISSAL, TRIAL OR HEARING,
AND NEW TRIAL.

8 144. Where plaintiff's knowledge of de-
fendant's adultery for six months before the ac-
tion, though alleged in the verification of the
complaint to give the court jurisdiction, was not
alleged in the complaint, held, that a refusal to
submit that issue was proper.-Kinney v. Kin-
ney (N. C.) 97.

V. ALIMONY, ALLOWANCES, AND
DISPOSITION OF PROPERTY.

§ 239. Hearing of application for temporary
alimony held not erroneous because, prior to the
filing of the application, there was no proceeding
pending for permanent alimony.-Lewis v. Lew-
is (Ga.) 1114.

EJECTMENT.

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