*A complaint alleged that those in charge of a locomotive of defendant company caused great volumes of steam to be suddenly emitted from a locomotive, thereby frightening plaintiff's horse. Held not open to general demurrer on the ground that it did not allege that the noise of the escaping steam was unnecessary.-Brunswick & B. R. Co. v. Hoodenpyle (Ga.) 705. In an action for death at a crossing, the court having read to the jury Civ. Code 1895, §§ 2322, 3830, the charge held not erroneous as instructing a recovery for plaintiff, even though the negligence of deceased and that of defendant company were equal, or that of the company was less than that of deceased.-Wrightsville & T. R. Co. v. Gornto (Ga.) 769. In a suit for death at a crossing, it is not error to charge that, if the train was not running on schedule time, the jury may consider that circumstance in determining whether the deceased had reason to apprehend danger.Wrightsville & T. R. Co. v. Gornto (Ga.) 769. *If a person with knowledge of the impending danger steps on the track and seeks to cross immediately in front of an engine, and is injured, he cannot recover.-Harris v. Southern Ry. Co. (Ga.) 873. *In an action for the death of a person killed by a train, evidence of contributory negligence held sufficient to warrant a nonsuit.-Drawdy v. Atlantic Coast Line R. Co. (S. C.) 980. *Where a railroad fails to comply with the signal statute when approaching a crossing, and a person is killed there by the train, the noncompliance is presumed to be the negligence which caused the death, unless it is shown to have been caused in some other manner.Drawdy v. Atlantic Coast Line R. Co. (S. C.) 980. In an action for injuries to a person on the track, a paragraph of the petition held sufficient to put defendant on notice that the negligence claimed was the failure to equip the train with proper appliances.-Central of Georgia Ry. Co. v. Brandenburg (Ga.) 658. A paragraph in a petition for the death of plaintiff's husband on the track which failed to show by what right plaintiff's husband was on the track at the time he was killed, and whether the killing was at a public crossing and whether he was walking, standing, or lying upon the track, is insufficient.-Central of Georgia Ry. Co. v. Brandenburg (Ga.) 658. *The statute requiring signals and a checking of speed at a public crossing is inapplicable where the injury occurred elsewhere than at a public crossing.-Southern Ry. Co. v. Flynt (Ga. App.) 374. *Railroads are not required to give any warning signal to travelers on adjacent highways of the approach of a train.-Southern Ry. Co. v. Flynt (Ga. App.) 374. *Railroads are under no duty to travelers on adjacent highways to regulate the speed of their trains to prevent horses from becoming fright danger to persons on the highway, it is their duty to use reasonable and practicable care to prevent injury.-Southern Ry. Co. v. Flynt (Ga. App.) 374. Where those in charge of a train see apparent *The violation of a rule of a railroad company in the operation of its trains is not actionable negligence unless it is the proximate cause of the injury.-Southern Ry. Co. v. Flynt (Ga. App.) 374. *A logging railroad held negligent in not keeping a lookout along the track in the direction its train was going.-Sawyer v. Roanoke R. & Lumber Co. (N. C.) 598. *One who went on a railroad track was struck by lightning and rendered unconscious, and afterwards run over by a train which kept no lookout, held not guilty of contributory negligence.Sawyer v. Roanoke R. & Lumber Co. (N. C.) 598. tracks. § 10. Injuries to animals on or near An instruction that, when an injury is sustained by a person by the running of a train, the presumption is that defendant was negli gent, held not subject to objection that it led the jury to believe that it was necessary to rebut this presumption by evidence of defendant. -Brunswick & B. R. Co. v. Hoodenpyle (Ga.) 705. *The act of an engineer in blowing the whistle at a crossing or to prevent stock from getting on the track held not negligence unless the whistle was blown in an unnecessary and unusual manner.-Southern Ry. Co. v. Puryear (Ga. App.) 306. To render a railroad company responsible for the death of a horse, the evidence or some reasonable inference therefrom must show that its death resulted from injuries caused by the railroad's negligence.-Southern Ry. Co. v. Puryear (Ga. App.) 306. The rule of diligence required of railroads to prevent killing stock is not altered by the fact that the stock law is in existence in the district in which the road was run.-Atlanta & W. P. R. Co. v. Hudson (Ga. App.) 500. the railroad company from proof of the killing *A presumption of negligence arising against fendant.-Western & A. R. Co. v. Clark (Ga. of an animal held overcome by evidence of deApp.) 500. In a suit against a railroad for killing stock error in instruction as to diligence held harmless, especially where the court gave Civ. Code and instructing the jury that the diligence nee 1895, § 2321, defining the diligence required, essary was as laid down in such section.-Atlantic & B. Ry. Co. v. Smith (Ga. App.) 542. *In an action against a railroad company for killing a team at a crossing stalled on the track, the question whether a railroad bridge at the crossing was unsafe held for the jury.Thompson v. Seaboard Air Line Ry. (S. C.) 1094. *Whether a defect in a railroad bridge at a crossing was the proximate cause of the killing of a team stalled on the track in consequence of the defect held for the jury.-Thompson v. Seaboard Air Line Ry. (S. C.) 1094. § 11. Fires. *A railroad company is liable for damages to property caused by a fire negligently set out by one of its engines.-Southern Ry. Co. v. Thompson (Ga.) 1044. *Point annotated. See syllabus. The measure of diligence required of a railroad company as to spark arresters to prevent REAL PROPERTY. fire is ordinary care to apply to its engines the See "Property." *Ordinary care required of a railroad company to guard against fires from sparks must be used as well in equipping the engines with proper appliances as in the operation of the engine.-Southern Ry. Co. v. Thompson (Ga.) 1044. *A presumption of negligence arising from fire from sparks from an engine may be rebutted by proof that the company and its agents used all ordinary and reasonable care.-Southern Ry. Co. v. Thompson (Ga.) 1044. *Where a presumption of negligence arises from proof that property was destroyed by fire from sparks from an engine, such presumption may be rebutted by evidence either of plaintiff or defendant.-Southern Ry. Co. v. Thompson (Ga.) 1044. *Civ. Code 1895, § 2321, raising a presumption of negligence against railroad companies in actions for loss to persons or property by the running of locomotives, etc., held applicable to fires set out by engines.-Southern Ry. Co. v. Thompson (Ga.) 1044. In an action against the railroad company for fire alleged to have been negligently set out, an instruction held erroneous as broadening the issue and placing a greater burden on defendant than it was required to bear.-Southern Ry. Co. v. Thompson (Ga.) 1044. *Liability of railroad for damages by communicated fire to cotton on its right of way, under Civ. Code 1902, § 2135, determined.-German-American Ins. Co. v. Southern Ry. Co. (S. C.) 337. RAPE. RECEIPTS. See "Accord and Satisfaction." Delivery of warehouse receipts as delivery of articles sold, see "Sales," § 4. RECEIVERS. Appealable orders in proceedings to enjoin, see "Appeal and Error," § 1. § 1. Actions. Where money is held by a receiver, which by decree is payable to plaintiff, it is error on application of a general creditor of such plaintiff such creditor can prosecute a suit to judgto order the same held by the receiver until ment.-Spence v. Solomons Co. (Ga.) 463. RECEIVING STOLEN GOODS. See "Larceny," § 1. Though after committing larceny in an adjoining state the thief brings the stolen property into Georgia, he does not commit larceny in the state, and it is not, therefore, a crime for one to receive in the state goods so stolen. --Golden v. State (Ga. App.) 557. In those states only in which it is larceny to bring into the state goods stolen in another state, one who there receives goods with knowledge that they have been stolen is liable to indictment for receiving stolen goods.-Golden v. State (Ga. App.) 557. RECOGNIZANCES. See "Bail," § 1. For release from arrest, see "Arrest," § 2. RECORDS. Of particular facts, acts, instruments, or proceedings not judicial. See "Deeds," § 2; "Mortgages," § 2. Of judicial proceedings. Course and conduct of trial, see "Criminal See "Judgment." § 3. § 1. Prosecution and punishment. *Corroboration of prosecutrix is unnecessary to support a conviction of assault with intent to rape.-Fields v. State (Ga. App.) 327. On a trial for assault with intent to rape under certain evidence error held to be committed in refusing to give in charge the law of assault or assault and battery as the indictment may authorize.-Fields v. State (Ga. App.) 327. RATIFICATION. Abstract for purpose of review, see "Appeal and Entry on execution docket, see "Execution," REDELIVERY. Of property taken in replevin, see "Replevin," § 1. REDEMPTION. Of act of agent, see "Principal and Agent," § 3. From mortgage, see "Mortgages," § 5. reference under Code Civ. Proc. 1902, § 293.Greenwood Granite & Construction Co. v. Ware Shoals Mfg. Co. (S. C.) 765. § 2. Report and findings. Where an auditor's report that a seller of lumber was not liable for alleged breaches of contracts to deliver was correct, inaccuracies in his report as to the measure of damages were immaterial. Robert R. Sizer & Co. v. G. T. Melton & Sons (Ga.) 1055. *Additional exceptions to an auditor's report cannot be filed after the time fixed by Civ. Code 1895. § 4589, has expired, unless a good excuse is shown.-Robert R. Sizer & Co. v. G. T. Melton & Sons (Ga.) 1055. REFORMATION OF INSTRUMENTS. See "Cancellation of Instruments." Construction of instructions, see "Trial," § 10. § 1. Right of action and defenses. A mistake in the description in a voluntary deed will not be reformed where before proceedings to reform it had been brought a judgment had been obtained against the grantor which created a lien on his property not conveyed.-Turner v. Newell (Ga.) 657. RELEVANCY. Of evidence in civil actions, see "Evidence." § 3. Of evidence in criminal prosecutions, see "Crim inal Law," 8 7. RELIGIOUS SOCIETIES. Disturbance of public worship, see "Disturbance of Public Assemblage." Jurisdiction of magistrate of preliminary complaint for disturbing public worship, see "Criminal Law," § 5. *The General Assembly of the Cumberland Presbyterian Church has authority to determine whether the teaching, doctrines, and form of government of another organization are in ac cord with it, and, if found so, to unite with such organization.-Mack v. Kime (Ga.) 184. *Civil courts where property rights are involved will interfere to protect the members of an ecclesiastical organization.-Mack v. Kime (Ga.) 184. *Where property acquired by an ecclesiastical organization is devoted, by express terms, to support any specific religious doctrine, the civil courts, to protect the trust to which the property has been devoted, will inquire into the re*Where an instrument sought to be foreclos-ligious faith of the parties claiming its use ed is on its face a bill of sale to secure a debt, or control.-Mack v. Kime (Ga.) 184. equity will reform the instrument to make an omitted stipulation a part thereof.-Nelson v. Spence (Ga.) 697. *A reformed instrument takes effect from the time when it was originally executed, except as to bona fide purchasers without notice and those standing in similar relations.-Nelson v. Spence (Ga.) 697. 2. Proceedings and relief. *A religious society, having established tribunals authorized to decide all questions of faith, discipline, or ecclesiastical government, is bound by the decisions of all such tribunals on all questions within their respective jurisdictions.— Mack v. Kime (Ga.) 184. REMAINDERS. REMAND. *An amendment offered by plaintiff to his See "Life Estates." original petition for the foreclosure of a mortgage, though subject to special demurrer, held sufficient to authorize evidence that certain words making the mortgage cover certain property were by mutual mistake omitted from the instrument.-Nelson v. Spence (Ga.) 697. *After an amendment to a petition in an action to foreclose a chattel mortgage seeking to have the instrument reformed, it was competent to show by parol the intent of the parties. Nelson v. Spence (Ga.) 697. *Plaintiff, in an action to recover land, though entitled to reform a deed in his chain of title, can do so only on making the necessary averments in his complaint.-Webb v. Borden (N. C.) 1083. REGISTRATION. See "Deeds," §§ 2, 4. Mandamus as remedy to strike names of electors from registration books, see "Mandamus," § 1. REHEARING. See "New Trial." RELEASE. See "Accord and Satisfaction"; "Compositions with Creditors"; "Payment.' § 1. Requisites and validity. *One who for a valuable consideration has released another from all liability for personal injuries cannot obtain a rescission of such contract without first restoring or offering to restore benefits received.-Harley v. Riverside Mills (Ga.) 711. Of cause on appeal or writ of error, see "Appeal and Error," § 19. REMEDY AT LAW. Effect on jurisdiction of equity, see "Cancella- REMOVAL. Of officers, see "Officers," § 1. REMOVAL OF CAUSES. Change of venue or place of trial, see "Venue," § 2. RENT. See "Landlord and Tenant," § 3. REPEAL. Of statute, see "Statutes," §§ 3, 4. REPLEVIN. 1. Proceedings for taking and redelivery of property. The obligation of a replevy bond filed with an affidavit of illegality is to redeliver the *Point annotated. See syllabus. goods at the time and place of sale.-Kaminsky v. Horrigan (Ga. App.) 497. REVIVAL. § 2. Liabilities on bonds and undertak- Of judgment, see "Judgment," § 11. ings. RIGHT OF WAY. The adjudication of the principal in a replevy bond filed on affidavit of illegality as a bankrupt does not relieve the surety from the obligation of his bond.-Kaminsky v. Horrigan Of railroads, see "Railroads," § 2. (Ga. App.) 497. Where property is levied on and is replevied on affidavit of illegality, and suit is brought on the bond, the burden of proof is on defendant surety, and not on plaintiff, to show why such property is not produced.-Kaminsky v. Horrigan (Ga. App.) 497. REPORT. Of arbitrators, see "Arbitration and Award," § 2. On reference, see "Reference," § 2. REQUESTS. For instructions in criminal prosecutions, see "Criminal Law," § 23. For instructions in civil actions, see "Trial," § 9. RESALE. Of goods by seller, see "Sales," § 7. RESCISSION. Cancellation of written instrument, see "Can cellation of Instruments." Of contract, see "Contracts." § 4. See "Easements." RIGHT TO OPEN AND CLOSE. See "Trial," § 1. RIOT. Of contract for sale of goods, see "Sales," § 3. Assignment of conditional contract of sale, see RES GESTÆ. "Assignments," § 2. Jurisdiction of Supreme Court to restrain use of place for sale of liquors, see "Courts," 8 4. In criminal prosecutions, see "Criminal Law," Memoranda required by statute of frauds, see 8 7. RESIDENCE. "Frauds, Statute of," § 2. Mortgage as distinguished from conditional sale, see 'Mortgages," § 1. Of testator as fixing jurisdiction of probate Nature of action on breach of contract of sale, proceedings, see "Wills," § 3. *Where defendant contracts in writing for the purchase of certain goods, subject to plaintiff's approval, the offer may be withdrawn at any time before the approval.-Cable Co. v. Hancock (Ga. App.) 319. *Where a traveling salesman takes a written contract to buy an article on named conditions, subject to the approval of his principal, the writing is unilateral until the approval has been duly made.-Cable Co. v. Hancock (Ga. App.) 319. § 2. Construction of contract. *An executory contract for the sale of goods construed, and held divisible.-Bearden Mercantile Co. v. Madison Oil Co. (Ga.) 200; Fitzpatrick v. Same, Id. *Under an executory contract for the sale of goods, time held of the essence of the contract as far as goods referred to in one paragraph were concerned, but not as to goods referred to in another paragraph.-Bearden Mercantile Co. v. Madison Oil Co. (Ga.) 200; Fitzpatrick v. Same, Id. Contract for a given quantity of cotton seed hulls construed, and held to impose no duty to store in the absence of a request to do so on or before a certain date.-Bearden Mercantile Co. v. Madison Oil Co. (Ga.) 200; Fitzpatrick v. Same, Id. notify," to a draft for the price, delivery is post- *Where a known and definite article is ordered of a manufacturer, there is no warranty that it will answer the particular purpose intended by the buyer.-J. A. Fay & Eagan Co. v. T. J. Dudley & Sons (Ga.) 826. Where a written contract of sale provides that the retention of an article for a given time shall constitute a trial and acceptance, that within the time stipulated notice of dissatisfaction is given, but the article is retained, will not relieve the buyer from the contract.-J. A. Fay & Eagan Co. v. T. J. Dudley & Sons (Ga.) 826. *Where an order is given to a manufacturer for a specific article of a recognized kind and the same is supplied, there is no implied warranty that it will answer for the purpose for which it is intended to be used.-Crankshaw v. Schweizer Mfg. Co. (Ga. App.) 222. *Where the seller on complaint of the buyer authorizes him to use the article, admitting that it is not up to warranty, such a state of facts presents an exception to the general rule that a vendee cannot complain after acceptance of an article with knowledge of its defective con § 3. Modification or rescission of condition.-Burr v. Atlanta Paper Co. (Ga. App.) tract. *A new agreement for the return of an article sold to the seller to make certain changes therein and return to the defendant held based on no consideration.-J. A. Fay & Eagan Co. V. T. J. Dudley & Sons (Ga.) 826. § 4. Performance of contract. *Where a contract of sale contemplates transportation to the purchaser by a common carrier, delivery to the carrier and acceptance of a bill of lading is delivery to the purchaser. Rhodes, Dolvin & Co. v. Continental Furniture Co. (Ga. App.) 293. *The uncontradicted testimony of a witness in an action on an open account, that plaintiffs sold and shipped defendant's goods as itemized was sufficient proof of delivery.-G. V. Gress Co. v. Berry Bros. (Ga. App.) 384. *Delivery of a warehouse receipt is constructive delivery of the articles, but will not suffice if actual delivery at the time of the sale is impossible.-Livingston v. U. Anderson & Son (Ga. App.) 505. Where a contract for the sale of corn provided that it should be graded by a certain elevator, the buyer was bound by the elevator's finding that the corn tendered was of the contract grade, unless the grading was fraudulent. -Brooke v. Laurens Milling Co. (S. C.) 806. *Where defendant accepted corn delivered under a contract, he was not entitled to claim inferiority of quality which was obvious, and not latent.-Brooke V. Laurens Milling Co. (S. C.) 806. § 5. Operation and effect. *Where goods are sold to be paid for on delivery, and payment is refused, trover will lie. Starnes v. Roberts (Ga.) 348. con *Where personal chattels are sold on dition that they are to be paid for on delivery, and payment is refused on demand, no title passes.-Starnes v. Roberts (Ga.) 348. *For a contract of sale to be executed, the title must pass to the purchaser, in the absence of delivery.-Dilman Bros. v. Patterson Produce & Provision Co. (Ga. App.) 365. *Where title to personalty is retained by the vendor by attaching a bill of lading, "order 373. *Where there is an express warranty as to quality, the purchaser may plead a failure of consideration growing out of defects discovered after acceptance.-Burr v. Atlanta Paper Co. (Ga. App.) 373. *An express warranty may be created by such description as preclude any danger of mistaking or confusing that article with any other. -De Loach Mill Mfg. Co. v. Tutweiler Coal, Coke & Iron Co. (Ga. App.) 790. A description of goods sold in an invoice thereof held equivalent to an express_warranty that the goods were as described.-De Loach Mill Mfg. Co. v. Tutweiler Coal, Coke & Iron Co. (Ga. App.) 790. Where a manufacturer sells iron as of a certain description, there is an express warranty only that the articles sold shall be equal to the description.-De Loach Mill Mfg. Co. v. Tutweiler Coal, Coke & Iron Co. (Ga. App.) 790. *An express warranty is exclusive of all the warranties arising by implication.-De Loach Mill Mfg. Co. v. Tutweiler Coal, Coke & Iron Co. (Ga. App.) 790. *An implied warranty held waived, where the article purchased, after full opportunity for examination, is accepted and used.-De Loach Mill Mfg. Co. v. Tutweiler Coal, Coke & Iron Co. (Ga. App.) 790. § 7. Remedies of seller. A breach of an executory contract for the purchase of goods will not support an action for the price.-Dilman Bros. v. Patterson Produce & Provision Co. (Ga. App.) 365. *Under a contract for the sale of corn, the seller, on the buyer's breach, before the time arrived for the performance, though entitled to sell the contract corn for the buyer's ac count at once, held only entitled to recover the difference between the contract price and the market price on the day or days fixed for ac ceptance.-Brooke v. Laurens Milling Co. (S. C.) 806. *Where, on defendant's breach of a contract to purchase corn, plaintiff resold the corn at once, neither the market price on the day of *Point annotated. See syllabus. |