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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. sey v. Western Union Telegraph Co. (S. C.) 9.
App.) 83.

"Deliver,” as applied to a telegram, means
While a telegraph company is bound prompt- transmit and deliver."-Kirby v. Western Un-
ly to deliver a message sent in cipher if it un- ion Telegraph Co. (S. C.) 10.
dertakes to transmit it, it is not chargeable with
the knowledge of the meaning of the words:- damages makes out a case by proving long de

*An addressee of a telegram in an action for
Bashinsky v. Western Union Telegraph Co. (Ga. lay in delivery and damages resulting therefrom.
App.) 91.

-Kirby v. Western Union Telegraph Co. (S. C.)
In an action brought for failure to deliver in 10.
reasonable time a cipher telegram, held, that de-
fendant had the right to be informed in the per gram held not reasonable, unless telegraph com-

Special damages for failure to deliver tele-
tition as to the meaning of the telegram so as
to enable it to prepare its defense.Bashinsky pany had notice.--Kirby v. Western Union Tel-
v. Western Union Telegraph Co. (Ga. App.) 91. egraph Co. (S. C.) 10.
Where it is alleged that damages have result-

*Telegram held not to lead telegraph compa-
ed from the failure to promptly deliver a cipher ny to believe that failure to deliver promptly
message which embodies a contract, the fulfill

. ble conveyance sent for her.-Kirby v. Western
would cause the addressee to miss a comforta.

title
ment of which would have been profitable to
plaintiff, the latter must translate such cipher t'nion Telegraph Co. (S. C.) 10.
telegram in the petition.-Bashinsky v. Western *Telegraph company held not liable for puni.
Union Telegraph Co. (Ga. App.) 91.

tive damages for delay in delivering telegram.--
Where the alleged loss and damage and the Todd v. Western Union Telegraph Co. (S. C.)

433.
question as to whether there was a contract or
not and whether such contract if performed by *In an action for delay in delivering a tele
the addressee included commissions can be de- gram directing the recipient to furnish a car
termined only by the knowledge of the contents riage at a railway station, plaintiff cannot show
of a cipher telegram, a special demurrer to the mental anguish on account of not being able to
allegation that a contract was lost by delay in get the carriage for his wife and children where
delivery and that plaintiff would have made com- they were not mentioned in the telegram.-
missions is properly sustained.-Bashinsky, v. Todd y. Western Union Telegraph Co. (S. C.)
Western Union Telegraph Co. (Ga. App.) 91. 433.

*The right of action of the sendee of a tele Where a wife received a delayed telegram that
gram is for the tort from breach of a legal duty her husband would not return that night and to
of which a justice court has no jurisdiction. -- go to her father's, the court cannot say that her
Western Union Telegraph Co. v. Cooper (Ga. driving through the forest with her infant at
App.) 517.

night to her father's home was a voluntary act.
*A contract for sending a telegram is made Cloy v. Western Union Telegraph Co. (Š. C.)

972.
with the sender, and any action by the sendee
for delay in delivery must be an action ex delicto *Verdict for delay in delivery of telegram
for negligent breach of public duty.-Western held excessive, as including punitive damages,
Union Telegraph Co. v. Cooper (Ga. App.) 517, where there was no evidence of willfulness.-

*In the transmission of a telegram, the tele- Cloy y. Western Union Telegraph Co. (8. C.)
graph company is the agent of the sender, to 972.
whom, and not to the company, the recipient *Telegram held insufficient to warn telegraph
must look for damages from error in transmis company of mental anguish caused by the re
sion.- Western Union Telegraph Co. v. Cooper cipient being left at home without protection in
(Ga. App.) 517.

the night.-- Cloy v. Western Union Telegraph
*Suit in an action for failure to deliver a tel.Co. (S. C.) 972.
egram held sufficient presentation of claim with-
in conditions of message.-Smith v. Western Un-

TENDER.
ion Telegraph Co. (S. C.) 6.

*Addressee of message held to have cause of *A petition alleging tender of the amount of
action for mental anguish for failure to deliver a debt, with interest, was sufficient though
telegram.-Smith v. Western Union Telegraph plaintiff did not allege how much in dollars and
Co. (S. C.) 6.

cents she tendered on the date named.--Askew
*A telegraph company is not liable for delay

V. Thompson (Ga.) 854.
in delivering telegram received after closing
hours, if the office hours are reasonable and the

TERMS.
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 y. Western Union Telegraph Co.
(S. C.) 6.

TESTAMENT.
*Resulting exposure and sickness cannot be
said as a matter of law not to have been rea See “Wills."
sonably anticipated from failure to deliver tel-
egram.- Dempsey v. Western Union Telegraph
Co. (S. C.) 9.

TESTAMENTARY CAPACITY.
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.

THEFT.
Unexplained delay in delivery of a telegram See “Larceny."
for nearly 17 hours raises the question of will-
fulness.- Dempsey v. Western Union Telegraph
Co. (S. C.) 9.

TICKETS.
Allegation in action for delay in delivery of For carriage of passengers, see "Carriers
telegram held sufficient to give notice to defend-

9, 12.
*Point annotated. See syllabus,

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recover

TIMBER.

TRESPASS.
See "Logs and Logging."

Accrual of limitations, see "Limitation of AC

tions," & 2.

Ejection of trespasser, see "Carriers," & 12.
TIME.

Injuries to trespassers, see "Railroads," $ 7.

Restraining cutting of timber, see “Injunction,"
For filing exceptions to auditor's report, see

"Reference," $ 2.
For performance of contract, see "Contracts,” | 1. Actions.
$ 2.

*In trespass, plaintiff cannot

for
For presentation of claims against county, see mesne profits, which, under Civ. Code 1895, $8
"Counties," $ 5.

4997, 4998, are recoverable in ejectment in one
For record 'on execution docket of entry on ex- action.--Cobb v. Wrightsville & T. R. Co. (Ga.)
ecution, see "Execution," $ 5.

862.

Where a woman claimed land as remainder-
TITLE.

man, and alleged that she was the daughter of

the grantee for life, but failed to allege that she
Color of title, see "Adverse Possession."

was the daughter of the man whose child under
Condemnation affecting title, see “Eminent Do- the deed she must also be, she could not recover
main," $ 5.

for_trespass on the land.-Cobb v. Wrightsville
Conveyance of title in trust, see "Trusts,” $ 2. & T. R. Co. (Ga.) 862.
Estoppel to assert, see "Estoppel," $ 1.

Actual possession held sufficient to authorize
In another as defense for sheriff's failure to levy a recovery of damages to the freehold in an
fi

. fa., see "Sheriffs and Constables," 1. action for trespass against a wrongdoer.--South-
Of statutes, see "Statutes," $ 2.

ern Ry, Co. v. Thompson (Ga.) 1044.
Passing title on sale, see “Sales," $ 5.
Reformation of deed in chain of title, see "Ref-
ormation of Instruments," § 2,

TRESPASS TO TRY TITLE.
Reservation of title on conditional sale, see
"Sales," $ 9.

See "Ejectment."
Tax titles, see "Taxation,” $ 7.
Verbal declarations affecting, see "Property."

TRIAL,
TORTS.

See "New Trial"; "Reference"; "Witnesses,"

Trial of right to property levied on, see “At-
Causing death, see “Death," $ 1.

tachment,” $ 5; "Execution," $ 3.
Liabilities of particular classes of persons.

Proceedings incident to trials.
See “Corporations," $ 3; "Municipal Corpora-

See "Continuance."
tions," § 6.

Entry of judgment after trial of issues, see
Employés, see “Master and Servant," § 13.

"Judgment," $ 2.

Place of trial, see "Venue," $ 2.
Particular torts.
See “Conspiracy," $ 1; "Fraud”; “Libel and Trial of actions by or against particular classes

of
Slander"; "Negligence"; "Trespass."

See "Carriers," $83, 10, 11; "Husband and
Maritime torts, see “Collision.”

Wife," 8 3; "Master and Servant," § 12;
Rernedies for torts.

"Municipal Corporations,” § 6; "Railroads,"
See “Action," § 1; “Arrest," § 1; "Trial,” $ 11.

88 8-11.
Elements of compensation, see "Damages," $ 2. | Trial of particular civil actions or proceedings.
Joinder of actions ex delicto and ex contractu, See "Ejectment," 8.3; “Libel and Slander,”
see "Action," $ 2.

$ 4; "Negligence," $ 4.
Set-off of cause of action ex delicto against For breach of contract, see "Contracts,” s 6.
cause of action on notes, see "Set-of and For causing death, see "Death," $ 1.
Counterclaim," $ 2.

For compensation of broker, see "Brokers," § 4.
*Where a vendor fraudulently makes a sec- For death caused by operation of railroad, see
ond conveyance of the same land, a cause of "Railroads," $ 8.
action ex delicto arises in favor of the first For death of animals caused by operation of
vendee.-McLendon Bros. v. Finch (Ga. App.) railroad, see “Railroads," $ 10.
690.

For death of servant, see “Master and Servant,"

8 12.
TOWNS.

For delay in transportation or delivery of ship-

ment, see "Carriers," $ 3.
See "Counties" ; "Municipal Corporations”; For injuries from fires caused by operation of
"Schools and School Districts," $ 1.

railroad, see "Railroads," $ 11.
Dedication of property to, see “Dedication," § 1. For loss or injuries to shipment, see “Carriers,”

8 4.

For personal injuries, see “Carriers," $$ 10, 11;
TRANSCRIPTS.

"Highways,". $.2; "Master and Servant,” Š
As evidence, see "Evidence," § 8.

12; “Municipal Corporations," $ 6.
of record for purpose of review, see "Criminal on bill or note, see "Bills and Notes," $ 6.
Law," 8 30.

On insurance policy, see "Insurance," $ 9.
To set aside fraudulent conveyance, see "Fraud-

ulent Conveyances," $ 3.
TRANSITORY ACTIONS.

Trial of criminal prosecutions.
See "Venue," § 1.

See "Criminal Law," $8_16-25; “False Pre-

tenses" ; "Forgery"; "Homicide," $ 6; “Lar.
TREES.

ceny,” & 2; "Rape," § 1.

For enticing away servant, see "Master and
See "Logs and Logging."

Servant," $ 14.
*Point annotated. See syllabus.

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For offense against labor contract law, see "Mas *Where there was no conflict in the evidence,
ter and Servant," $ 2.

and it demanded a verdict for the defendant,
For offense against liquor law, see "Intoxicating the court under Civ. Code 1895, $ 5331, did not
Liquors," 8 6.

err in directing one.-Brockhan v. Hirsch (Ga.)

468.
$ 1. Course and conduct of trial in gen-
eral.
*Where the uncontradicted evidence demanded

El G2)
*To entitle defendant in an action for breach a verdict for defendant, it was not error to
of contract to the opening and conclusion of direct it.-Walker v. O'Neill Mfg. Co. (Ga.)
the argument he must, before the introduction 475.
of any evidence, admit facts authorizing a ver *Where plaintiff's petition shows that in law
dict for plaintiff.--Crankshaw v. Schweizer Mfg. he is not entitled to recover, it is not an abuse
Co. (Ga. App.) 222.

of discretion for the judge to raise the question
*Where a compliance with warranties was and dismiss the action.—Robinson-Humphrey
essential to recovery on a contract, and defend Co. v. Wilcox County (Ga.) 614.
ant alleged a breach, he was not entitled to
open and close.-Crankshaw v. Schweizer Mfg. ry.-King Mfg.Co. v. Walton (Ga. App.) 115.

*Perplexing questions of fact are for the ju-

i dan
Co. (Ga. App.) 222.

*A verdict should not be directed unless there
*A partial plea of justification will not entitle is no issue of fact, or unless the proved facts
defendant in slander to open and conclude.- can sustain no other finding than that directed.
Taylor v. Chambers (Ga. App.) 309.

--Davis v. Kirkland (Ga. App.) 209.
*To entitle defendant to open and conclude,

*Where there is any conflict as to any mate-
he must admit in his pleadings sufficient facts rial issue, it is error to direct a verdiet.--Davis
to authorize a verdict for the amount claimed.-

v. Kirkland (Ga. App.) 209.
E. Van Winkle Gin & Machine Works v. Pitt-
man (Ga. App.) 379.

*The decision of every issue of fact is es.
clusively for the jury.-Davis v. Kirkland (GL.

1.
*Oral admissions by defendant held insuffi-

App.) 209.
cient to entitle him to open and close.-E. Van

de
Winkle Gin & Machine Works v. Pittman (Ga.

*Where plaintiff's evidence supports the case
App.) 379.

made by the pleading, it is error to direct a non-

suit.-Adams v. Haigler (Ga. App.) 330.
In an action on a note providing for attor-
ney's fees, an admission in the answer as to

*Where plaintiff's own

testimony fairly
the execution of the note, with a denial as to shows that he had no cause of action, a non-
notice of intention to sue, is insufficient to en-

suit was properly granted.--- McCook v. Dublin
title defendant to open and close.-E. van Win- & S. W. R. Co. (Ga. App.) 491.
kle Gin & Machine Works v. Pittman (Ga. *Plaintiff having failed to prove his case as
App.) 379.

laid, the court should award a nonsuit, and, de
*Where, in an action on a note by a corpora direction of a verdict in its favor was error-

fendant having introduced no testimony, the
tion, defendant admits the execution of the
note, such admission, with the presumption of Caudell v. Southern Ry. Co. (Ga. App.) 699.
corporate existence, makes a prima facie case *Upon a motion for nonsuit, the eridence must
for plaintiff entitling defendant to open and be taken in its most favorable view for plain-
Jose.-E. Van Winkle Gin & Machine Works v. tiff.--McCaskill v. Walker (N. C.) 1073.
Mathew's (Ga. App.) 396.

*If there is any evidence to go to the jury,
*Where, in an action on contract, defendant, or if plaintiff makes out a prima facie case, a
by his pleadings, admits a prima facie case for nonsuit will not be granted.—Jonesville Mfg. Co.
plaintiff, he is entitled to open and conclude.-v. Southern Ry. (S. C.) 422.
Stiles v. Shedden (Ga. App.) 515.

*Where a party has in his possession evidence

which would render certain a fact material to
§ 2. Reception of evidence.
*Whether a case shall be opened after nonsuit withholds such evidence, the court on demur

his suecess, otherwise left in doubt, and he
has been made is in the discretion of the court.
--- Noore v. Central of Georgia Ry, Co. (Ga. will presume the fact was against him.-

rer to the evidence introduced by his adversary
App.) 63.

Kirchner v. Smith (W. Va.) 614.
*Where no objection is made to evidence when
offered, a motion to strike it out is properly $ 5. Instructions to jury-Province of
denied.-Lee v. Unkefer (S. C.) 313.

court and jury in general.

*A requested charge held objectionable as con-
83. Arguments and conduct of counsel. taining an intimation of opinion as to the

Remarks of counsel to jury, not introducing amount of proof necessary to overcome a rebut-
any material fact not disclosed by the evidence, table presumption.-Vickers v. Hawkins Ga.)
but merely oratorical, held not ground for de-

14.
claring a mistrial.- Western & A. R. Co. v. *A positive affirmation by the trial judge of
York (Ga.) 183.

a statement of counsel that a given fact would
#Judgment against telegraph company revers-

be evidence of another held error.--Georgia Ry,
ed for misconduct of plaintiff's attorney in ar-

& Electric Co. v. Baker (Ga. App.) 88.
gument.-Kirby v. Western Union Telegraph Co.

An instruction in an action against a care
(S. C.) 10.

rier for damage to goods shipped held pott
Taking case or question from jury, the carrier was liable.-Georgia S. & F. Ry.

roneous as being an expression of opinion that
Where there is a confliet in the evidence, it Co. v. Barfield (Ga. App.) 236.
is error to direct a verdict.-Hester v. Gairdner
(Ga.) 165.

*An instruction assuming that certain acts
That the allegations of an amended petition

or omissions pot directly made so by law are
are different from those of the original

or are not negligence is erroneous.--Atlanta

tition | B. A. L. Ry. Y. McMapus (Ga. App.) 238.
does not raise a question of fact for the jury.
-Ilester y. Gairdner (Ga.) 165.

A request to charge held properly refused
* Where the evidence made out a prima facie

erroneously assuming that the evidence disclo
case, the grant of anonsuit was error.-Jen- which plaintiff was injured.--Horton 4.

unexplained falling of an engine rod
kins v. Jones (Ga.) 354.

board Air Line Ry, (N. C.) 993.
*Point annotated. See syllabus.

$ 4.

an

i 6. Necessity and subject-matter. not submit the question to the jury.-Southern

*Mere failure, in instructing the jury, to give Ry. Co. v. Broughton (Ga.) 470.
the definitions of such words as "delivery” and

*Failure to present to the jury a contention
"delivered," is not cause for a new trial.—Cor-

not pertinent to any issue is not cause for a
dele Sash, Door & Lumber Co. v. Wilson Lum-

new trial.-Cordele Sash, Door & Lumber Co.
ber Co. (Ga.) 860.

V. Wilson Lumber Co. (Ga.) 860.
It is error to omit to charge the principles of

*Defendant cannot complain that an abstract
law applicable to proper contentions of either
party authorized by the pleadings and sustain: principle of law pertinent to the issue was not

given in charge, where the court made clear
ed by the evidence.-Georgia Ry. & Electric Co. The specific application of the principle. -Crank-
8. Baker (Ga. App.) 88.

shaw v. Schweizer Mfg. Co. (Ga. App.) 222.
*Where, in an action by a railway employé *Where one of the issues was no contract or a
for personal injuries, the principle of law con- certain definite contract, charges applicable to
tained in Civ. Code 1895, $ 3830, was distinct the nature of a contract which had not been
ly raised, it was reversible error not to give this shown to exist were properly refused.-Virginia
law in charge.--Seaboard Air Line Ry. v. Bos- Bridge & Iron Co. v. Crafts (Ga. App.) 322.
tock (Ga. App.) 136.

*The charge should be applicable to the issues
*An instruction as to impeachment of a wit- presented.-Virginia Bridge & Iron Co. v. Crafts
Dess held substantially correct.-Atlanta & W. (Ga. App.) 322.
P. R. Co. v. Hudson (Ga. App.) 500.

*Instructions inapplicable to the pleadings
*It is error to refuse a special instruction and the evidence should not be given.-Stiles
asked as to a particular phase of the case pre V. Shedden (Ga. App.) 515.
sented by the evidence. --Patterson V. North
Carolina Lumber Co. (N. C.) 437.

Where an answer denies title to the land in

controversy in plaintiff and also sets up adverse
87. - Form, requisites, and suffi- | possession, it is proper to refuse to charge only
ciency.

on the question of adverse possession.—Langston
Where the evidence in foreclosure showed v. Cothran (S. C.) 956.
that plaintiff was president of the corporation
mortgagor without controversy, the

*A request to charge is properly denied, where

court
should not so have charged as to leave the jury there is no evidence on which to base it.-
with the impression that it was an open ques. Langston v. Cothran (s. C.) 956.
tion.- Nelson v. Spence (Ga.) 697.

*In a suit involving a location of the bound-
Where the judge begins his instructions: ary line between tracts as partitioned among

the heirs of a decedent, an instruction held er-
"Now, in this case, I charge you," etc.—the use
of the words, “in this case," held not calculaied roneous because ignoring certain facts.--Douglas
to mislead the jury into believing that the only Land Co. v. T. W. Thayer Co. (Va.) 1101.
issue in the case is the one then referred to.-

§ 9. Requests or prayers.
Wrightsville & T. R. Co. v. Gornto (Ga.) 769.

In the absence of written request, it is not
If the court correctly instructs as to the law error to omit to charge on the subject of im-
applicable to the issues, failure to “affirmative peachment of witnesses.—Brown v. McBride
ly" state the contention of the parties is not (Ga.) 702.
cause for a new trial.--Wrightsville & T. R. Co.
V. Gornto (Ga.) 769.

*Held not error to fail to charge that de-
An instruction that the Supreme Court had ceased was under the duty of exercising ordinary

care before entering the crossing when such in-
passed upon the fact that the acts set out instruction is not requested in writing.-Wrights-
the declaration made a case in court held_erro ville & T. R. Co. v. Gornto (Ga.) 769.
Deous.-Georgia Ry. & Electric Co. v. Baker
(Ga. App.) 88.

Failure to charge that, if the negligence of de-
issues and instruct that it is the main issue, trial, no request therefor having been made.-
The court should not single out one of several ceased and that of the railroad

were equal

, plain-

till could not recover, was not cause for new
to be determined by the evidence of witnesses Wrightsville & T. R. Co. v. Gornto (Ga.) 769.
who testified on the stand, where material docu-
mentary cvidence was introduced.-Stiles v. *In the absence of a request for more specific
Shedden (Ga. App.) 515.

instructions, a charge in general terms as to a
*Misleading instructions should not be given. presumption of negligence arising from proof
-Stiles v. Shedden (Ga. App.) 515.

of damage by fire from an engine held not

ground for a new trial.-Southern Ry, Co. v.
*Instruction held erroneous as to charge on Thompson (Ga.) 1014.
the facts.-Yarborough v. Southern Ry. (S. C.)
936.

*In an action for killing stock in the absence

of written request, failure to instruct as to
*Instructions as to preponderance of evidence ordinary and reasonable care and diligence"
in a civil action held not misleading.-Horn v.
Southern Ry. (S. C.) 963.

held not error.--Atlantic & B. Ry. Co. v. Smith

(Ga. App.) 542.
*An instruction must not call special atten-
tion to a part only of the evidence, and the

*It is not error to refuse a written request
fact which it tends to prove, and disregard oth to charge, where so far as it is sound it is cost
er evidence relative to the issue.- Douglas Land ered by the general charge.---Davidson & Grin-
Co. v. T. W. Thayer Co. (Va.) 1101.

stead v. Waxelbaum & Bro. (Ga. App.) 687;

Same y. Waxelbaum Co. (Ga. App.) CS8.
8.

Applicability to pleadings and A general exception to a charge as not suffi-
evidence.

ciently full as to the distinction between a cor-
*The submission to the jury of matters not poration and a partnership, and not setting
within the issues is error.-Humphreys v. Smith forth a contention of defendant, presents no
(Ga.) 26.

question on a writ of error.-Davidson & Grin-
It is error to submit to the jury matters not stead v. Waxelbaum & Bro. (Ga. App.) 687;
within the issues.- McGregor v. Battle (Ga.) 28. Same v. Waxelbaum Co. (Ga. App.) 688.
*Where there is no evidence on which a re-

*Defendant's request to charge held covered
covery for a particular element of alleged dam- by instructions given.-Horton y. Seaboard Air
ages could lawfully be made, the judge should Line Ry. (N. C.) 993.

*Point annotated. See syllabus.
58 S.F.-78

*Failure to instruct not to regard evidence as No particular form is required in the submis-
to wealth of telegraph company in action for sion of issues to the jury, and if the issues sub-
non delivery of message held not reversible er- mitted substantially present the issues as rais-
ror.-Smith v. Western Union Telegraph Co. (S. ed by the pleadings, it is sufficient.Ormond
C.) 6.

v. Connecticut Mut. Life Ins. Co. (X. C.) 997.
*Where the judge gave a charge in general *In an action for tort, a verdict for plain-
and comprehensive terms covering the law of tiff "for punitive damages" was not illegal be
the case and no requests were made for a more cause excluding the idea of actual damages.-
definite statement thereof, no error is shown.- Fields v. Lancaster Cotton Mills (S. C.) 608.
Dempsey y. Western Union Telegraph Co. (S.
C.) 9.

$ 12. Waiver and correction of irregn.

larities and errors.
*Defendant could not object that the instruc-

Failure of the jury to obey a direction of
tions given were general principles of law, the court with reference to the return of their
where no specific instructions were requested.- verdict held waived by counsel's failure to ob-
Rochester v. Bull (S. C.) 766.

ject thereto before the verdict was received, if
*It is not error to refuse a requested charge they had knowledge of the facts.–Robert R.
covered by the general charge.-Thompson v.

Sizer & Co, v. G. T. Melton & Sons (Ga.) 1055.
Seaboard Air Line Ry. (S. C.) 1094.
10. Construction and operation.

TRIAL OF RIGHT OF PROPERTY.
*An exception to an excerpt from the charge
because of incompleteness is not good where See “Attachment," $ 5; “Execution," $ 3.
the incompleteness is supplied by the context.
-Spence v. Morrow (Ga.) 356.

TROVER AND CONVERSION.
The court having properly charged that the
power of the court to grant relief by reforma- Joinder of causes of action for breach of con-
tion of an instrument for mistake is exercised tract with action for conversion, see "Action,"
with caution, that the court subsequently in $ 2.
structed that plaintiff must prove by a pre-
ponderance of evidence that such mistake had

TRUSTEE PROCESS.
been made in order to overcome the prima facie
presumption arising on the face of the instru- See “Garnishment."
ment was not error requiring a new trial.-
Nelson v. Spence (Ga.) 697.
*An erroneous instruction is not rendered

TRUSTEES.
harmless by a subsequent instruction stating
correctly the law, unless the court so plainly In bankruptcy, see "Bankruptcy," $ 3.
instructs the jury that it cannot be confused Limitations against, as bar to action by cestui
and misled.- Atlanta & B. A. L. Ry. y. Mc que trust, see "Limitation of Actions," $ 3.
Manus (Ga. App.) 258.
Where, in an action to recover damages for

TRUSTS.
changing the grade of a street, the court in-
structed as to the measure of damages, there Combinations to monopolize trade, see "No
was no material error in failing to charge that nopolies," 8 1.
any enhanced value should be set off against the Reference in suit involving trust relations, see
damages proved.-City of Macon v. Daley (Ga. "Reference," $ 1.
App.) 540.

Trust deeds, see "Chattel Mortgages"; "Mort-
The omission to give an instruction under the gages."
instructions given held immaterial.-Schofield
v. Little (Ga. App.) 666.

& l. Creation, existence, and validity.

Where a wife acknowledged holding the title
*An instruction that punitive damages could to land purchased with money furnished by her
be awarded for failure to deliver a telegram is husband and thereby created an express trust
pot reversible error, when followed by an in- ( in his favor, limitations did not run against
struction that it could only be given on proof his right to enforce the trust until ber dis-
of willfulness.- Dempsey v. Western Union Tel- avowal of its existence.-Dison y. Dixon
egraph Co. (S. C.) 8.

C.) 604.
*In an action for injuries to plaintiff's wife *A grantee in a conveyance of real estate
by the alleged negligence of defendant's chauf-held a trustee ex maleficio for the benefit of a
feur, an instruction that, if negligence of the third person.-Virginia Pocahontas Coal Co.
agent in charge of the automobile caused the v. Lambert (la.) 561.
injury, the principal would be liable, was not
objectionable for failure to charge only for in 12. Construction and operation.
juries proximately caused by the agent's neg- trust.-Webby, Borden (N. C.) 1083.

*A trust held an active and not a passive
ligence.-Rochester v. Bull (S. C.) 766.
*An instruction in an action for personal fectuate the intention of grantor, held, that

*Trust deed construed, and, if necessary to ef-
injuries as to punitive damages held not erro-
neous.---Horn y. Southern Ry. (S. C.) 963.

certain clause might be transposed and placed

first in the deed.--Pope v. Patterson (S. C) HI.
*An instruction that plaintiff could not re-
cover without affirmatively proving by the pre-

*Trust deed construed, and intention of grant-
ponderance of evidence that her injury was due beneficiaries on the execution of the deed, but

or held not to be to rest the legal title in the
to the negligence of defendant was not mislead-

to vest the same in the trustee until a sale of
ing.-Horn v. Southern Ry. (S. C.) 963.

graptor's request or his death; and, it being
$11. Verdict.

the duty of the trustee to convey on grantor's
* A verdict finding for plaintiff as damages a

request, the statute of uses did not execute the
certain sum, including costs, is not void for un-

use. - Pope v. Patterson (S. C.) 945.
certainty, though it is without the province of *Where an estate of real property is confered
the jury' to determine the question of costs. to the use of another, and no duty imposed on
Southern Ry. Co. v. Oliver & Morrow (Ga. the trustee, by operation of the statute of uses
App.) 244.

such estate passes to the cestui que trust; but,
*Point annotated. See syllabus.

VE

1.

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