Corporate stock, see "Corporations," § 2.
STOLEN GOODS.
See "Receiving Stolen Goods."
Carriage of passengers, see "Carriers.” Liability of street railway company for torts of servant, see "Corporations," § 3.
See "Highways"; "Municipal Corporations," §§ 3, 5, 6.
SUBLETTING.
See "Landlord and Tenant," § 1.
To arbitration, see "Arbitration and Award," § 1.
*One who purchases property against which are two recorded mortgages and pays off the sen- ior mortgage out of the purchase money, held not subrogated to the rights of the senior mort- gagee.-Ragan v. Standard Scale Co. (Ga.) 31.
SUMMARY PROCEEDINGS.
For possession of personal property, see "Pos- sessory Warrant.
Recovery of possession by landlord, see "Land- lord and Tenant," § 4.
Judicial notice in criminal prosecution of works of necessity, see "Criminal Law," § 6. Keeping open of saloon on, see "Intoxicating Liquors," $$ 5, 6.
*A barber who shaves on Sunday the members of a club in the clubhouse for compensation vio- lates Pen. Code 1895, § 422.-McCain v. State (Ga. App.) 550.
Shaving members of a club at a room in the clubhouse is none the less a violation of Pen. Code 1895, § 422, because the compensation is voluntary, and the work is confined to members of the club.-McCain v. State (Ga. App.) 550.
See "Principal and Surety."
SURFACE WATERS.
See "Waters and Water Courses," § 1.
SURRENDER.
Of bailment, see "Bailment."
Of principal on bail bond, see "Bail," § 1. of written instrument for cancellation, see "Cancellation of Instruments."
*When the creditors or the obligee in a bond Of devisees or legatees, see "Wills," § 4. given by a receiver recovered judgment against the receiver and the surety on his bond, and the surety paid the judgment, such surety is sub- rogated to the rights of the creditors to enforce
the liability incurred by a bank on account of Of member of beneficial association, see "Bene-
its participation in the breach of trust.-Ameri- can Nat. Bank of Macon v. Fidelity & Deposit Co. of Maryland (Ga.) 867; Exchange Bank of Macon v. Same, Id.
*Grantees of a mortgagee in possession, though affected with record notice of the See "False Pretenses." rights of a mortgagor's heirs to redeem, are subrogated to all the rights of their grantor.- Francis v. Francis (S. C.) 804.
To corporate stock, see "Corporations," § 2.
Jurisdiction of Supreme Court to restrain col- lection of tax, see "Courts," § 4.
Laws imposing tax as impairing obligation of contract, see "Constitutional Law," § 3.
*Point annotated. See syllabus.
Laws imposing tax as denying equal protection | by Code 1899, c. 31, § 25 [Code 1906, § 884].-- of law, see Constitutional Law," § 5. Toothman v. Courtney (W. Va.) 915. Specific tax on bank presidents, see "Banks and Banking," § 1.
Suit to restrain state officer from collecting license tax as suit against state, see "States," § 2. Tax receipts as evidence of title, see "Property." Tax records as documentary evidence in crim- inal prosecution, see "Criminal Law," § 11.
§ 5. Collection and enforcement against persons or personal property. The misspelling of an official's name to a tax execution does not invalidate it, where the of- ficial authorized another to sign it or actually adopted the signature.-Vickers v. Hawkins (Ga.) 44.
The addition of the letters "T. C." to the sig- nature to a tax execution sufficiently indicates collector.-Vickers v. Hawkins (Ga.) 44.
See "Counties," § 4; "Schools and School Dis- that the official issued it in his capacity as tax tricts," § 1.
Bridge taxes, see "Bridges," § 1.
Occupation or privilege taxes.
See "Intoxicating Liquors," § 3; "Licenses," $ 1.
§ 1. Nature and extent of power in general.
The supreme taxing power of the state is vested in the Legislature, and its exercise of the power is presumed valid and constitutional.- Ware Shoals Mfg. Co. v. Jones (S. C.) 811.
The word "property," as used in the Constitu- tion (Civ. Code, § 5883), does not require the taxing of public property or any of the lawful instrumentalities of government.-Penick v. Foster (Ga.) 773.
*Where a foreign corporation has paid license, as required by Act 1893, 21 St. at Large, p. 409, to do business in the state, it may also be required by Act 24 St. at Large, p. 462, to pay an additional annual tax based on the value of its property in the state.-British-American Mortgage Co. v. Jones (S. C.) 417.
3. Liability of persons and property. *The Constitution and statutes, dealing with taxation, are to be interpreted in the light of the fundamental principles that public property and the various instrumentalities of government are not subject to taxation.-Penick v. Foster (Ga.) 773.
General terms in the Constitution or the stat- utes providing for the collection of taxes are never allowed their full literal import, if the effect is to require that to be done which the law does not authorize or to violate funda- mental principles.-Penick v. Foster (Ga.) 773. *The general rule is that public property and the various instrumentalities of government are not subject to taxation.-Penick v. Foster (Ga.) 773.
*Bonds issued by a municipality for loans are not taxable unless there is clear language in the law showing that such was the intent of the lawmakers.-Penick v. Foster (Ga.) 773.
There is not in the tax law of the state any terms expressly declaring that bonds of the state, or of its various political subdivisions, are sub- ject to tax.-Penick v. Foster (Ga.) 773.
Bonds issued by a municipal corporation in the state in the hands of a resident of the state are not taxable by the state nor any county thereof.-Penick v. Foster (Ga.) 773.
§ 4. Levy and assessment.
*An undivided interest in land, or mineral un- derlying land, cannot properly be entered and taxed on the land book; and a deed founded on a sale of such interest for nonpayment of taxes will be set aside.-Toothman v. Courtney (W. Va.) 915.
*The entry in the land book of an undivided interest in land, or mineral underlying land, and sale and deed for taxes thereon, is not cured
Under the express provisions of Act Dec. 13, 1882 (Acts of 1882, p. 47), a tax execution against unreturned wild land was properly is- sued by the tax collector.-Vickers v. Hawkins (Ga.) 44.
A tax fi. fa. held to recite the necessary juris- dictional facts required by statute.-Vickers v. Hawkins (Ga.) 44.
Facts held sufficient to authorize an inference that an officer adopted the signing of his name to a tax execution by another as his own sig- nature. Vickers v. Hawkins (Ga.) 44.
Application to enjoin county auditor from collecting income tax under Civ. Code 1902, §§ 328-331, denied, plaintiff having an adequate remedy at law under Civ. Code 1902, § 413.- Fleming v. Power (S. C.) 430.
*Civ. Code 1902, § 413, held not to provide an adequate remedy against alleged illegal license taxes imposed on a corporation under the license tax act of 1904 (24 St. at Large, p. 462), as amended by the act of 1905 (24 St. at Large, p. 827).-Ware Shoals Mfg. Co. v. Jones (S. C.) 811.
§ 6. Sale of land for nonpayment of
An undivided interest in land, or mineral un- derlying land, cannot properly be entered and taxed on the land book; and a deed founded on a sale of such interest for nonpayment of taxes will be set aside.-Toothman v. Courtney (W. Va.) 915.
*Bill to set aside tax deed of undivided inter- est in land, or minerals underlying land, held required to tender purchase money and taxes subsequently paid, as a condition precedent to the setting aside of the deed.-Toothman v. Courtney (W. Va.) 915.
TELEGRAPHS AND TELEPHONES.
Argument and conduct of counsel in action Opinion evidence in action for failure to de- against telegraph company, see "Trial," § 3. liver telegram, see "Evidence," § 10. Requests for instructions in action for delay in delivery of telegram, see "Trial," § 9. Review of questions of fact and findings in ac- tion for failure to deliver telegram, see "Ap- peal and Error," § 16.
§ 1. Regulation and operation. Petition held to state no cause of action for delay in delivery of telegram.-Seifert v. West- ern Union Telegraph Co. (Ga.) 699.
An allegation in an action against a telegraph company for failure to deliver a message from the wife to the husband that she was damaged to the amount of his salary held properly strick- en on demurrer.-Glenn v. Western Union Tel- egraph Co. (Ga. App.) 83.
It is error to sustain a general demurrer to a petition for failure to deliver a telegram, which sets forth a breach of contract implied from the
*Point annotated. See syllabus.
public duty owing by the defendant which would | ant of plaintiff's intention to show that defend- entitle plaintiff to recover nominal damages.- ant knew why message was important.-Demp- Glenn v. Western Union Telegraph Co. (Ga. App.) 83.
While a telegraph company is bound prompt- ly to deliver a message sent in cipher if it un- dertakes to transmit it, it is not chargeable with the knowledge of the meaning of the words. Bashinsky v. Western Union Telegraph Co. (Ga. App.) 91.
sey v. Western Union Telegraph Co. (S. C.) 9. "Deliver," as applied to a telegram, means "transmit and deliver."-Kirby v. Western Un- ion Telegraph Co. (S. C.) 10.
damages makes out a case by proving long de- *An addressee of a telegram in an action for lay in delivery and damages resulting therefrom. Kirby v. Western Union Telegraph Co. (S. C.) 10.
gram held not reasonable, unless telegraph com- Special damages for failure to deliver tele- pany had notice.-Kirby v. Western Union Tel- egraph Co. (S. C.) 10.
In an action brought for failure to deliver in reasonable time a cipher telegram, held, that de- fendant had the right to be informed in the pe- tition as to the meaning of the telegram so as to enable it to prepare its defense.-Bashinsky v. Western Union Telegraph Co. (Ga. App.) 91. Where it is alleged that damages have result- ny to believe that failure to deliver promptly *Telegram held not to lead telegraph compa- ed from the failure to promptly deliver a cipher would cause the addressee to miss a comforta message which embodies a contract, the fulfill-ble conveyance sent for her.-Kirby v. Western ment of which would have been profitable to plaintiff, the latter must translate such cipher telegram in the petition.-Bashinsky v. Western Union Telegraph Co. (Ga. App.) 91.
Where the alleged loss and damage and the question as to whether there was a contract or not and whether such contract if performed by the addressee included commissions can be de- termined only by the knowledge of the contents of a cipher telegram, a special demurrer to the allegation that a contract was lost by delay in delivery and that plaintiff would have made com- missions is properly sustained.-Bashinsky v. Western Union Telegraph Co. (Ga. App.) 91.
*The right of action of the sendee of a tele- gram is for the tort from breach of a legal duty of which a justice court has no jurisdiction.- Western Union Telegraph Co. v. Cooper (Ga. App.) 517.
*A contract for sending a telegram is made with the sender, and any action by the sendee for delay in delivery must be an action ex delicto for negligent breach of public duty.-Western Union Telegraph Co. v. Cooper (Ga. App.) 517. *In the transmission of a telegram, the tele- graph company is the agent of the sender, to whom, and not to the company, the recipient must look for damages from error in transmis- sion.-Western Union Telegraph Co. v. Cooper (Ga. App.) 517.
*Suit in an action for failure to deliver a tel- egram held sufficient presentation of claim with- in conditions of message.-Smith v. Western Un- ion Telegraph Co. (S. C.) 6.
*Addressee of message held to have cause of action for mental anguish for failure to deliver telegram.-Smith v. Western Union Telegraph Co. (S. C.) 6.
Union Telegraph Co. (S. C.) 10.
*Telegraph company held not liable for puni- tive damages for delay in delivering telegram.— Todd v. Western Union Telegraph Co. (S. C.) 433.
*In an action for delay in delivering a tele- gram directing the recipient to furnish a car- riage at a railway station, plaintiff cannot show mental anguish on account of not being able to get the carriage for his wife and children where they were not mentioned in the telegram.- Todd v. Western Union Telegraph Co. (S. C.) 433.
Where a wife received a delayed telegram that her husband would not return that night and to go to her father's, the court cannot say that her driving through the forest with her infant at night to her father's home was a voluntary act. -Cloy v. Western Union Telegraph Co. (S. C.) 972.
*Verdict for delay in delivery of telegram held excessive, as including punitive damages, where there was no evidence of willfulness.- Cloy v. Western Union Telegraph Co. (S. C.) 972.
*Telegram held insufficient to warn telegraph company of mental anguish caused by the re- cipient being left at home without protection in the night. Cloy v. Western Union Telegraph Co. (S. C.) 972.
*A petition alleging tender of the amount of a debt, with interest, was sufficient though plaintiff did not allege how much in dollars and cents she tendered on the date named.—Askew v. Thompson (Ga.) 854.
*A telegraph company is not liable for delay in delivering telegram received after closing hours, if the office hours are reasonable and the message so received may be transmitted with- in a reasonable time after the office is open next Of leases, see "Landlord and Tenant," § 1. day. Smith v. Western Union Telegraph Co.
Whether sender of telegram used every means See "Wills." § 1. to minimize his mental suffering on delay of message held for the jury.-Dempsey v. Western
Union Telegraph Co. (S. C.) 9.
Unexplained delay in delivery of a telegram See "Larceny." for nearly 17 hours raises the question of will-
fulness.-Dempsey v. Western Union Telegraph
Allegation in action for delay in delivery of For carriage of passengers, see "Carriers," telegram held sufficient to give notice to defend-
*Point annotated. See syllabus.
For filing exceptions to auditor's report, see "Reference," § 2.
For performance of contract, see "Contracts," § 2.
For presentation of claims against county, see "Counties," § 5.
For record on execution docket of entry on ex- ecution, see "Execution," § 5.
Color of title, see "Adverse Possession." Condemnation affecting title, see "Eminent Do- main," § 5.
Conveyance of title in trust, see "Trusts," § 2. Estoppel to assert, see "Estoppel," § 1.
In another as defense for sheriff's failure to levy fi. fa., see "Sheriffs and Constables," § 1. Of statutes, see "Statutes." § 2. Passing title on sale, see "Sales," § 5.
Reformation of deed in chain of title, see "Ref- ormation of Instruments," § 2.
Reservation of title on conditional sale, see "Sales," § 9.
Tax titles, see "Taxation," § 7.
Verbal declarations affecting, see "Property."
Causing death, see "Death," § 1.
Liabilities of particular classes of persons.
See "Corporations," § 3; "Municipal Corpora- tions," § 6.
Employés, see "Master and Servant," § 13.
Where a woman claimed land as remainder- man, and alleged that she was the daughter of the grantee for life, but failed to allege that she was the daughter of the man whose child under the deed she must also be, she could not recover for trespass on the land.-Cobb v. Wrightsville & T. R. Co. (Ga.) 862.
Actual possession held sufficient to authorize a recovery of damages to the freehold in an action for trespass against a wrongdoer.-South- ern Ry. Co. v. Thompson (Ga.) 1044.
TRESPASS TO TRY TITLE.
See "Conspiracy," § 1; "Fraud"; "Libel and Trial of actions by or against particular classes Slander"; "Negligence"; "Trespass." Maritime torts, see "Collision."
See "Action," § 1; "Arrest," § 1; "Trial," § 11. Elements of compensation, see "Damages," § 2. Joinder of actions ex delicto and ex contractu, see "Action," § 2.
Set-off of cause of action ex delicto against cause of action on notes, see "Set-Off and Counterclaim," § 2.
*Where a vendor fraudulently makes a sec- ond conveyance of the same land, a cause of action ex delicto arises in favor of the first vendee.-McLendon Bros. v. Finch (Ga. App.)
See "Counties"; "Municipal Corporations"; "Schools and School Districts," § 1. Dedication of property to, see "Dedication," § 1.
TRANSCRIPTS.
As evidence, see "Evidence," § 8.
See "Carriers," §§ 3, 10, 11; "Husband and Wife," § 3; "Master and Servant," § 12; "Municipal Corporations," § 6; "Railroads,' §§ 8-11.
Trial of particular civil actions or proceedings. See "Ejectment," § 3; "Libel and Slander," For breach of contract, see "Contracts," § 6. § 4; "Negligence," § 4. For causing death, see "Death," § 1.
For compensation of broker, see "Brokers," § 4. For death caused by operation of railroad, see "Railroads," § 8.
For death of animals caused by operation of railroad, see "Railroads," § 10.
For death of servant, see "Master and Servant," § 12.
For delay in transportation or delivery of ship- ment, see "Carriers," § 3.
For injuries from fires caused by operation of railroad, see "Railroads," § 11.
For loss or injuries to shipment, see "Carriers," § 4.
For personal injuries, see "Carriers," §§ 10, 11; "Highways," 8 2; "Master and Servant," g 12; "Municipal Corporations," § 6.
Of record for purpose of review, see "Criminal On bill or note, see "Bills and Notes," § 6. Law," § 30.
TRANSITORY ACTIONS.
See "Venue," § 1.
On insurance policy, see "Insurance," § 9. To set aside fraudulent conveyance, see "Fraud- ulent Conveyances," § 3.
Trial of criminal prosecutions.
See "Criminal Law," 88 16-25;
tenses"; "Forgery"; "Homicide," § 6; "Lar- ceny," ," 8 2; "Rape." § 1.
For enticing away servant, see "Master and Servant," § 14.
*Point annotated. See syllabus.
For offense against labor contract law, see "Mas- ter and Servant," § 2.
For offense against liquor law, see "Intoxicating Liquors," § 6.
1. Course and conduct of trial in gen- eral.
*To entitle defendant in an action for breach of contract to the opening and conclusion of the argument he must, before the introduction of any evidence, admit facts authorizing a ver- dict for plaintiff.-Crankshaw v. Schweizer Mfg. Co. (Ga. App.) 222.
*Where a compliance with warranties was essential to recovery on a contract, and defend- ant alleged a breach, he was not entitled to open and close.-Crankshaw v. Schweizer Mfg. Co. (Ga. App.) 222.
*A partial plea of justification will not entitle defendant in slander to open and conclude.- Taylor v. Chambers (Ga. App.) 369.
*To entitle defendant to open and conclude, he must admit in his pleadings sufficient facts to authorize a verdict for the amount claimed.- E. Van Winkle Gin & Machine Works v. Pitt- man (Ga. App.) 379.
*Oral admissions by defendant held insuffi- cient to entitle him to open and close.-E. Van Winkle Gin & Machine Works v. Pittman (Ga. App.) 379.
In an action on a note providing for attor- ney's fees, an admission in the answer as to the execution of the note, with a denial as to notice of intention to sue, is insufficient to en- title defendant to open and close.-E. Van Win- kle Gin & Machine Works v. Pittman (Ga. App.) 379.
*Where, in an action on a note by a corpora- tion, defendant admits the execution of the note, such admission, with the presumption of corporate existence, makes a prima facie case for plaintiff entitling defendant to open and close.-E. Van Winkle Gin & Machine Works v. Mathews (Ga. App.) 396.
*Where, in an action on contract, defendant, by his pleadings, admits a prima facie case for plaintiff, he is entitled to open and conclude. Stiles v. Shedden (Ga. App.) 515.
§ 2. Reception of evidence.
*Whether a case shall be opened after nonsuit has been made is in the discretion of the court.
-Moore v. Central of Georgia Ry. Co. (Ga. App.) 63.
*Where no objection is made to evidence when offered, a motion to strike it out is properly denied.-Lee v. Unkefer (S. C.) 343.
3. Arguments and conduct of counsel. Remarks of counsel to jury, not introducing any material fact not disclosed by the evidence, but merely oratorical, held not ground for de- claring a mistrial.-Western & A. R. Co. v. York (Ga.) 183.
*Judgment against telegraph company revers- ed for misconduct of plaintiff's attorney in ar- gument.-Kirby v. Western Union Telegraph Co. (S. C.) 10.
§ 4. Taking case or question from jury, Where there is a conflict in the evidence, it is error to direct a verdict.-Hester v. Gairdner (Ga.) 165.
That the allegations of an amended petition are different from those of the original petition does not raise a question of fact for the jury. -Hester v. Gairdner (Ga.) 165.
*Where there was no conflict in the evidence, and it demanded a verdict for the defendant, the court under Civ. Code 1895, § 5331, did not err in directing one.-Brockhan v. Hirsch (Ga.) 468.
*Where the uncontradicted evidence demanded a verdict for defendant, it was not error to direct it.-Walker v. O'Neill Mfg. Co. (Ga.) 475.
*Where plaintiff's petition shows that in law he is not entitled to recover, it is not an abuse of discretion for the judge to raise the question and dismiss the action.-Robinson-Humphrey Co. v. Wilcox County (Ga.) 644.
*Perplexing questions of fact are for the ju- ry.-King Mfg. Co. v. Walton (Ga. App.) 115.
*A verdict should not be directed unless there is no issue of fact, or unless the proved facts can sustain no other finding than that directed. -Davis v. Kirkland (Ga. App.) 209.
Where there is any conflict as to any mate- rial issue, it is error to direct a verdict.-Davis v. Kirkland (Ga. App.) 209.
*The decision of every issue of fact is ex- clusively for the jury.-Davis v. Kirkland (Ga. App.) 209.
made by the pleading, it is error to direct a non- suit.-Adams v. Haigler (Ga. App.) 330.
*Where plaintiff's evidence supports the case
*Where plaintiff's own testimony fairly shows that he had no cause of action, a non- suit was properly granted.-McCook v. Dublin & S. W. R. Co. (Ga. App.) 491.
*Plaintiff having failed to prove his case as laid, the court should award a nonsuit, and, de- fendant having introduced no testimony, the direction of a verdict in its favor was error.- Caudell v. Southern Ry. Co. (Ga. App.) 689.
*Upon a motion for nonsuit, the evidence must be taken in its most favorable view for plain- tiff.-McCaskill v. Walker (N. C.) 1073.
*If there is any evidence to go to the jury, or if plaintiff makes out a prima facie case, a honsuit will not be granted.-Jonesville Mfg. Co. v. Southern Ry. (S. C.) 422.
*Where a party has in his possession evidence which would render certain a fact material to his success, otherwise left in doubt, and he withholds such evidence, the court on demur- rer to the evidence introduced by his adversary will presume the fact was against him.- Kirchner v. Smith (W. Va.) 614.
85. Instructions to jury-Province of court and jury in general.
A requested charge held objectionable as con- taining an intimation of opinion as to the amount of proof necessary to overcome a rebut- table presumption.-Vickers v. Hawkins (Ga.)
*A positive affirmation by the trial judge of a statement of counsel that a given fact would be evidence of another held error.-Georgia Ry. & Electric Co. v. Baker (Ga. App.) SS.
An instruction in an action against a car- rier for damage to goods shipped held not er- roneous as being an expression of opinion that the carrier was liable.-Georgia S. & F. Ry. Co. v. Barfield (Ga. App.) 236.
*An instruction assuming that certain acts or omissions not directly made so by law are or are not negligence is erroneous.-Atlanta & B. A. L. Ry. v. McManus (Ga. App.) 258.
A request to charge held properly refused as erroneously assuming that the evidence disclosed an unexplained falling of an engine rod by which plaintiff was injured.-Horton v. Sea- board Air Line Ry. (N. C.) 993. *Point annotated. See syllabus.
*Where the evidence made out a prima facie case, the grant of a nonsuit was error.-Jen- kins v. Jones (Ga.) 354.
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