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juries cannot obtain a rescission of such con- $ 1. Proceedings for taking and rede
The obligation of a replevy bond filed with
an affidavit of illegality is to redeliver the 1220
reference under Code Civ. Proc. 1902, § 293.
Of evidence in civil actions, see "Evidence," $ 3. § 2. Report and findings.
Of evidence in criminal prosecutions, see "Crime Where an auditor's report that a seller of
inal Law," $ 7. lumber was not liable for alleged breaches of contracts to deliver was correct, inaccuracies in
RELIGIOUS SOCIETIES. his report as to the measure of damages were immaterial.-Robert R. Sizer & Co. V, G. T. Disturbance of public worship, see “Disturbance Melton & Sons (Ga.) 1055.
of Public Assemblage." *Additional exceptions to an auditor's report Jurisdiction of magistrate of preliminary comcannot be filed after the time fixed by Civ. Code
plaint for disturbing public worship, see 189.5, $ 4589, has expired, unless a good excuse
*Criminal Law," $ 5. is shown.-Robert R. Sizer & Co. v. G. T. Mel
*The General Assembly of the Cumberland ton & Sons (Ga.) 1055.
Presbyterian Church has authority to determine
whether the teaching, doctrines, and form of REFORMATION OF INSTRUMENTS.
government of another organization are in ac
cord with it, and, if found so, to unite with See "Cancellation of Instruments."
such organization.—Mack v. Kime (Ga.) 184. Construction of instructions, see "Trial," $ 10.
*Civil courts where property rights are in
volved will interfere to protect the members § 1. Right of action and defenses. of an ecclesiastical organization.—Mack y. Kime
A mistake in the description in a voluntary | (Ga.) 184. deed will not be reformed where before proceedings to reform it had been brought a judg: organization is devoted, by express terms, to
*Where property acquired by an ecclesiastical ment had been obtained against the grantor which created a lien on bis property not con support any specific religious doctrine, the civil veyed.–Turner v. Newell (Ga.) 657.
courts, to protect the trust to which the proper.
ty 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.
*A religious society, having established tribuSpence (Ga.) 697.
nals authorized to decide all questions of faith, *A reformed instrument takes effect from the by the decisions of all such tribunals on all
discipline, or ecclesiastical government, is bound time when it was originally executed, except
as questions within their
respective jurisdictions.to bona fide purchasers without notice and Mack v. Kime (Ga.) 184. those standing in similar relations.- Nelson v. Spence (Ga.) 697.
REMAINDERS. $ 2. Proceedings and relief.
*An amendment offered by plaintiff to his See “Life Estates." original petition for the foreclosure of a mortgage, though subject to special demurrer, held sutlicient to authorize evidence that certain
REMAND. words making the mortgage cover certain property were by mutual mistake omitted from the Of cause on appeal or writ of error, see “Ap instrument.-Nelson v. Spence (Ga.) 697.
peal and Error," § 19. *After an amendment to a petition in an action to foreclose a chattel mortgage seeking to
REMEDY AT LAW. have the instrument reformed, it was competent to show, by, parol the intent of the parties. Effect on jurisdiction of equity, see “CancellaNelson v. Spence (Ga.) 697.
tion of Instruments," § 1. *Plaintiff, in an action to recover land, though
Existence of, as ground for denying injunction entitled to reform a deed in his chain of title,
to restrain collection of tax, see "Taxation," can do so only on making the necessary aver: Existence of. as ground for denying mandamus, ments in his complaint.-Webb v. Borden (N. see "Mandamus," $ 1. C.) 1083.
Of officers, see "Officers," $ 1.
REMOVAL OF CAUSES.
§ 2. See "New Trial.”
See “Landlord and Tenant," $ 3.
Of statute, see "Statutes," $$ 3, 4. § 1. Requisites and validity.
*One who for a valuable consideration has released another from all liability for personal intract without first restoring or offering to restore benefits received.-Harley v. Riverside
livery of property. Mills (Ga.) 711.
*Point annotated. See syllabus.
Change of venue or place of trial, see "Venue"
goods at the time and place of sale.-Kaminsky
RIGHT OF WAY.
Where property is levied on and is replevied
*Facts held to establish the offense of riot.-
Lewis v. State (Ga. App.) 1070.
Assumed by employé, see “Master and ServREQUESTS.
ant,” 8 8.
Within insurance policy, see "Insurance,” $ 5.
Streets in cities, see "Municipal Corporations,"
88 5, 6.
RULES OF COURT.
Orders, see “Motions."
"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.
"Frauds, Statute of," 8 2. RESIDENCE.
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.
see “Action," $ 1. Of crop subject to landlord's lien, see "Land
lord and Tenant," $S 3, 5, RES JUDICATA.
Of property exempt from execution, see "Ex
emptions," $ 1. See "Judgment,” $8 6, 7.
Sales by or to particular classes of persons.
Agent, see “Principal and Agent," $ 3.
Sales of particular species of, or estates or in
terests in, property. Trusts and other combinations, see “Monop- See "Bills and Notes," $ 4; “Intoxicating Ligolies," § 1. RETURN.
Of realty, see "Vendor and Purchaser."
Sales on judicial or other proceedings. see "Execution," $ 5.
See "Execution," $ 4; "Judicial Sales" ; "Parti
tion." § 1. REVENUE.
Of property of decedent under order of court,
see "Executors and Administrators,” 8 6. See “Taxation.”
Ou foreclosure of mortgage, see "Mortgages,"
Tax sales, see "Taxation," § 6.
§ 1. Requisites and validity of
tract. inal Law,” && 27–39 : “Justices of the Peace,” treated by plaintiff as a contract, and he at
Where correspondence between the parties was $ 3.
tempted to carry it out, be cannot thereafter REVISION.
claim that there was no contract between the
parties.-J. F. Bailey Co. v. West Lumber Co. Of statutes, see "Statutes," $ 4.
(Ga. App.) 120.
*Where defendant contracts in writing for notify," to a draft for the price, delivery is postthe purchase of certain goods, subject to plain. poned until after payment, and the contrat tiff's approval, the offer may be withdrawn at is executory.Dilman Bros. v. Patterson Prod. any time before the approval.--Cable Co. v. uce & Provision Co. (Ga. App.) 363. Hancock (Ga. App.) 319.
$ 6, Warranties. *Where a traveling salesman takes a written contract to buy an article on named condi- ed of a manufacturer, there is no warranty that
*Where a known and definite article is order tions, subject to the approval of his principal, the writing is unilateral until the approval by the buyer.-J. A. Fay & Eagan Co. v. T. J. has been duly made.-Cable Co. v. Hancock Dudley & Sons (Ga.) 836.
it will answer the particular purpose intended (Ga. App.) 319.
Where a written contract of sale provides that $2. Construction of contract.
the retention of an article for a given time shall *An executory contract for the sale of goods constitute a trial and acceptance, that within construed, and held divisible.- Bearden Mercan the time stipulated notice of dissatisfaction is tile Co. v. Madison Oil Co. (Ga.) 200; Fitz- given, but the article is retained, will not repatrick v. Same, Id.
lieve the buyer from the contract.-J. A. Fay *Under an executory contract for the sale of & Eagan Co, v. T. J. Dudley & Sons (Ga.) 820. goods, time held of the essence of the contract as far as goods referred to in one paragraph for a specific article of a recognized kind and
*Where an order is given to a manufacturer were concerned, but not as to goods referred to the same is supplied, there is no implied war in another paragraph.-Bearden Mercantile Co. ranty that it will answer for the purpose for v. Madison Oil Co. (Ga.) 200; Fitzpatrick v.
which it is intended to be used.-Crankshaw Same, Id.
v. Schweizer Mfg. Co. (Ga. App.) 222. Contract for a given quantity of cotton seed hulls construed, and held to impose no duty to authorizes him to use the article, admitting that
*Where the seller on complaint of the buyer store in the absence of a request to do so on it is not up to warranty, such a state of facts or before a certain date.--Bearden Mercantile Co. v. Madison Oil Co. (Ga.) 200; Fitzpatrick presents an exception to the general rule that
à vendee cannot complain after acceptance of v. Same, Id.
an article with knowledge of its defective con$ 3. Modification or rescission of con- dition.-Burr v. Atlanta Paper Co. (Ga. App.) tract.
373. *A new agreement for the return of an article sold to the seller to make certain changes there quality, the purchaser may plead a failure of
*Where there is an express warranty as to in and return to the defendant held based on consideration growing out of defects discorerer no consideration.-J. A. Fay. & Eagan Co. v. after acceptance.—Burr y. Atlanta Paper Co. T. J. Dudley & Sons (Ga.) 826.
(Ga. App.) 373. 8 4. Performance of contract.
*An express warranty may be created by *Where a contract of sale contemplates trans- such description as preclude any danger of misportation to the purchaser by a common car. taking or confusing that article with any other. rier, delivery to the carrier and acceptance of -De Loach Mill Mfg. Co. v. Tutweiler Coal. a bill of lading is delivery to the purchaser.-- Coke & Iron Co. (Ga. App.) 790. Rhodes, Dolvin & Co. v. Continental Furniture Co. (Ga. App.) 293.
A description of goods sold in an invoice
thereof held equivalent to an express warranty *The uncontradicted testimony of a witness that the goods were as described.-- De Loach in an action on an open account, that plaintiff's Mil Mfg. Co. v. Tutweiler Coal, Coke & Iron sold and shipped defendant's goods as itemized Co. (Ga." App.) 790. was sufficient proof of delivery.-G. V. Gress Co. v. Berry Bros. (Ga. App.) 384.
Where a manufacturer sells iron as of a
certain description, there is an express warran*Delivery of a warehouse receipt is construc- ty only that the articles sold shall be equal to tive delivery of the articles, but will not suffice the description.-De Loach Mill Mfg. Co...
; it actual delivery at the time of the sale is Tutweiler Coal, Coke & Iron Co. (Ga. App.) impossible.--Livingston v. U. Anderson & Son
790. (Ga. App.) 505. Where a contract for the sale of corn pro- warranties arising by implication.- De Loach
*An express warranty is exclusive of all the vided that it should be graded by a certain ele- Mill Mfg. Co. v. Tutweiler Coal, Coke & Iron vator, the buyer was bound by the elevator's Co. (Ga. App.) 790. finding that the corn tendered was of the contract grade, unless the grading was fraudulent. *An implied warranty held waived, where -Brooke v. Laurens Milling Co. (S. C.) 806. the article purchased, after full opportunity *Where defendant accepted corn delivered un
for examination, is 'accepted and used.--De
Loach Mill Mfg. Co. v. Tutweiler Coal, Coke & der a contract, he was not entitled to claim Iron Co. (Ga. App.) 790. inferiority of quality which was obvious, and not latent.-Brooke v. Laurens Milling Co. 8 7. Remedies of seller. (S. C.) 806.
A breach of an executory contract for the § 5. Operation and effect.
purchase of goods will not support an action *Where goods are sold to be paid for on de- for the price. ---Dilman Bros. v. Patterson Prolivery, and payment is refused, trover will lie.- duce & Provision Co. (Ga. App.) 363. Starnes v. Roberts (Ga.) 348.
*Under a contract for the sale of corn, the *Where personal chattels are sold on con- arrived for the performance, though entitled
seller, on the buyer's breach, before the time and payment is refused on demand, no title count at once, held only entitled to recover the dition that they are to be paid for on delivery to sell the contract corn for the buyer's agent passes.-Starnes v. Roberts (Ga.) 348.
difference between the contract price and the *For a contract of sale to be executed, the market price on the day or days fixed for at title must pass to the purchaser, in the absence ceptance.-Brooke v. Laurens Milling Co. (s. of delivery.-Dilman Bros, v. Patterson Produce C.) 806. & Provision Co. (Ga. App.) 36.).
*Where, on defendant's breach of a contract *Where title to personalty is retained by the to purchase corn, plaintiff resold the corn of vendor by attaching a bill of lading, Order I once theither the market price on the day of
*Point annotated. See syllabus.
resale nor the amount realized thereat was ma
SATISFACTION. terial in an action for defendant's breach of contract.- Brooke v. Laurens Milling Co. (S. See “Accord and Satisfaction"; "Payment”; C.) 806.
"Release." Where a contract for the sale of corn au- Of judgment, see "Judgment,” | 12. thorized the buyer to resell in case of the buyer's breach, such provision, if authorizing a sale / SCHOOLS AND SCHOOL DISTRICTS. before the date of performance, did not contain an implied guaranty by the seller of the market Selling liquors within certain distance from price on the date of sale.-Brooke v. Laurens Milling Co. (S. C.) 806.
school, see "Intoxicating Liquors,".. $$ 5, 6.
Special or local laws, see "Statutes," $ 1. $ 8. Remedies of buyer.
§ 1. Public schools. * Actions for breach of contract to sell goods
Act Aug. 22, 1905 (Acts 1905, p. 473), creathaving no market price and actions in reference ing the Jenkinsburg public school district, was to the manufacture of goods for sale are excep- repealed by the general act providing for the tions to the rule that the measure of damages is creation of local tax district schools, approved the difference between the contract price and August 23, 1905 (Acts 1.905, p. 425), as amendthe market value at the time and place of de-ed by Act Aug. 21, 1906 (Acts 1906, p. 61).livery.--Robert. R. Sizer & Co. v. G. T. Melton Edalgo v. Southern Ry. Co. (Ga.) 846. & Sons (Ga.) 1055.
* Act Aug. 23, 1905 (Acts 19905, p. 425), as *In an action for failure to deliver goods sold, amended by Act Aug. 21, 1906 (Acts 1906, p. the measure of damages held the difference be- 61), providing for the creation of local tax distween the contract price and the market price. trict schools held not a violation of the uni-Robert R. Sizer & Co. v. G. T. Melton & Sons formity rule of the Constitution as to taxation. (Ga.) 1055.
-Edalgo v. Southern Ry, Co. (Ga.) 846. In an action for breach of a contract for the
*Act Aug. 23, 1905 (Acts 1905, p. 425), as sale of lumber, such commodity held not one amended by Act Aug. 21, 1906 (Acts 1906, p. of which it may be said that it had no market 61), providing for the creation of local tax 'disvalue as a matter of law at the time and place trict schools, is a valid law of uniform operation, of delivery.-Robert R. Sizer & Co. v. G. T. and repeals all laws which are so inconsistent Melton & Sons (Ga.) 1055.
that prior laws and the new law cannot stand
together.-Edalgo v. Southern Ry. Co. (Ga.) Though show cases were warranted to look 846. like those in another store, yet evidence, as to the operation of such other show cases and not
SCIRE FACIAS. to their appearance, would be inadmissible. Crankshaw v. Schweizer Mfg. Co. (Ga. App.) To forfeit recognizance, see “Bail," $ 1.
Defendant having pleaded an express war SEARCHES AND SEIZURES. ranty and partial failure of consideration, evidence that the article sold was defective was Competency of evidence obtained by unlawful properly admitted.-Burr v. Atlanta Paper Co.
search, see "Criminal Law," $ 8. (Ga. App.) 373.
*An arrest without warrant and search of For a breach of the warranty of a warehouse the person to ascertain whether he is violating reccipt that the articles represented are in the law prohibiting carrying concealed weapons existence and in the custody of the bailee, the is unreasonable within the Constitution.-Hughes purchaser may recover the price or proceed v. State (Ga. App.) 390 ; Stewart v. Same (Gu. against the warehouseman at his option. App.) 395. Livingston v. U. Anderson & Son (Ga. App.) 505.
SECONDARY EVIDENCE. $ 9.' Conditional sales.
*Where an attachment for purchase money is In civil actions, see "Evidence," $ 4. levied on property to which plaintiff in attach- In criminal prosecutions, see "Criminal Law," ment has reserved title, a sale is void unless § 9. a quitclaim conveyance was recorded as
required by Civ. Code, $ 5432.-A. G. Rhodes & Son Fur
SEIZURE. niture Co. y. Jenkins (Ga. App.) 897.
A seizure and illegal sale, and purchase by See "Searches and Seizures." vendor at such sale of property conditionally sold, effects a rescission of the contract, and the purchaser can
SELF-DEFENSE. recover the amount of the price, less the reasonable value of its use.-A. G. Rhodes & Son Furniture Co. v. Jenkins (Ga. See “Homicide," $ 4. App.) 897. *A contract construed, and held to constitute
SEPARATION, a conditional sale.-Whitlock v. Auburn Lumber Co. (N. C.) 909.
See "Husband and Wife," $ 4. *A dry kiln conditionally sold, not having been delivered by request of vendee, the parties held to stand in the same position with regard to its
SERVICES. destruction by fire as if it had been delivered. - Whitlock v. Auburn Lumber Co. (N. C.) 909. See "Master and Servant," $ 2.
* A vendee of machinery conditionally sold held liable on notes executed in part payment,
SERVITUDES. though the machinery was subsequently destroyed by fire.- Whitlock v. Auburn Lumber Co. (N. C.) 909.
See “Easements." *Point annotated. See syllabus,
SET-OFF AND COUNTERCLAIM. charges held entitled to unload the goods at
the wharf.-Riddick v. Dunn (N, C.) 439. § 1. Nature and grounds of remedy.
*A partner owing his former partner, and such creditor partner being insolvent, held en
SIGNALS. titled to apply a sufficient amount of his indebtedness to discharge a partnership liability to a From trains, see “Railroads," $ 9. third person.--Childress v. Jordan (Va.) 563. § 2. Subject-matter.
SLANDER *Where one, having bought the business of another, fills an order sold by the latter to a See "Libel and Slander," third person, and sues in such other's name to his own use, such third person may set off counter demands existing against the nominal plain
SPECIAL LAWS. tiff. Durant Lumber Co. v. Sinclair Lumber Co. (Ga. App.) 485.
See "Statutes," § 1. *A cause of action ex delicto cannot be set off against a cause of action on notes.-McLendon Bros. y. Finch (Ga. App.) 690.
By purchaser at executor's sale, see “Executors SETTLEMENT.
and Administrators," $ 6.
Parol or extrinsic evidence, see "Evidence," $ 9. See "Accord and Satisfaction"; "Payment" ; "Release."
$ 1. Contracts enforceable. Of bill of exceptions, see “Exceptions, Bill of," of one of the parties cannot be enforced by
*An executory contract in fraud of creditors $ 2.
either against the other.-Sewell v. Norris (Ga.)
637. SHERIFFS AND CONSTABLES. *Unless the material stipulations of a con
tract are made out with sufficient definiteness Rule against sheriff for fine collected, see for the court to do justice concerning them, it "Fines.
will not undertake to decree specific performa Sale by constable on execution, see “Execution," ance.- McMillan v. McMillan (s. C.) 431. § 4.
*Payment of the purchase money alone can§ 1. Powers, duties, and liabilities. not support an action for specific performance
Where the sheriff levied on crop, but neglect- of a parol contract to convey land, where the ed to sell the same, and is ruled for failure to possession was not changed after the alleged make the money, answer held insufficient in part. contract.--McMillan v. McMillan (S. C.) 431. --Prince v. Walker (Ga. App.) 61.
*Improvements necessary to specific performWhere a sheriff is called to respond by a rule ance of a verbal contract to convey defined.nisi, and is liable to an execution or an attach- McMillan v. McMillan (S. C.) 431. ment for contempt, it is error to strike from $ 2. Proceedings and relief, his answer any meritorious matter of defense. --Read Phosphate Co. v. S. Weichselbaum Co. for improvements made while he wrongfully
Defendant held not entitled to compensation (Ga. App.) 122.
withheld possession of land and after notice *The answer of a sheriff to a rule for the dis- that plaintiff intended to assert his rights.-Altribution of funds in his hands until traversed ston v. Connell (N. C.) 441. is conclusive, but, when answer is traversed, any issues of fact must be submitted to the jury un
On an accounting between one entitled to less submitted to the court by agreement.- Read
a conveyance of land under an option and the Phosphate Co. v. S. Weichselbaum Co. (Ga. of an allowance for improvements to the land
owner for use and occupation, etc., the basis App.) 122.
is not the cost thereof, but the amount by A sheriff held liable for failure to levy on which the value of the land has been enhanced. growing crops under a fi. fa. because of an out --Alston v. Connell (N. C.) 441. standing bill of sale to secure advances.--Hixon v. Callaway (Ga. App.) 1120.
An option, and not a deed of trust, held to
constitute the correct basis for an accounting, *An officer may defend a rule to show cause and hence 6 per cent. interest, being the legal why he did not levy a fi. fa. by showing that, rate on the balance due, was properly allow. despite defendant's possession of the property, ed, and not 8 per cent, as stipulated for in the there was a superior outstanding title in a third deed of trust. --Alston v. Connell (N. C.) 441. person.-Ilixon v. Callaway (Ga. App.) 1120.
* Plaintiff failing to obtain decree for specific *A sheriff may be allowed to answer a rule performance of parol contract to convey land to show cause why he failed to levy a fi. fa, at held entitled to recover the price paid.-McMilany time before the rule is made absolute.- lan v. McMillan (S. C.) 431. Hixon v. Callaway (Ga. App.) 1120.
*Where an officer fails to levy a fi. fa. on property in the defendant's possession or to
SPEED. make the money within the time prescribed by law, injury to the plaintiff is presumed. - Hixon Of vessel, see "Collision," § 1. F. Callaway (Ga. App.) 1120. SHIPPING.
SPIRITUOUS LIQUORS. See "Collision"; "Wharves."
See “Intoxicating Liquors." § 1. Carriage of goods. A carrier not having been informed of con
STARE DECISIS. signee's intention not to be bound by the established custom of consignees to pay wharfage See "Courts," $ 2.
*Point annotated. See syllabus.