intestate delivered the wheat to defendants under
a contract that they should pay for it at the market
price whenever the intestate should name the time,
and that defendants had the right to use the
wheat as they thought proper, then there was a
sale, and not a bailment.-Reherd's Adm'r v. Clem,
(Va.) 10 S. E. 504.

2. Where there is no evidence that wheat de-
livered by plaintiff's intestate to defendants was
to be returned to plaintiff's intestate either in
kind or identity, but defendants' own testimony
shows that they received and commingled it with
their other wheat, ground it as their own, sold the
flour, and never, during the 18 months which
elapsed between its delivery and the burning of
defendants' mill, tendered either the wheat itself,
or in kind, or flour, to plaintiff's intestate, nor after
the fire tendered him any of the wheat which was
taken from the mill, and sold by defendants as
their own, nor any of the proceeds of the sale, and
the receipt itself shows that the delivery of the
wheat was on a contract of sale which transferred
the property therein to defendants, leaving nothing
ambulatory but the price, which was to be paid at
market rates, when the seller should fix the day, a
verdict for plaintiff not commensurate with the
amount he is entitled to, on the theory of a sale,
is unwarranted, and ground for a new trial.-Re-
herd's Adm'r v. Clem, (Va.) 10 S. E. 504.

When title passes.

3. A contract of sale of a quantity of guano
provided that notes taken by the buyer for sales of
the guano were to be forwarded and held as col-
lateral security for the payment of notes executed
by him to the seller, and that the proceeds from
such sales were to be held in trust by him for the
payment of his notes due the seller. Held, that
the delivery of the guano under this contract passed
the title thereto to the buyer.-Upshur Guano Co.
v. Malloy, (N. C.) 10 S. E. 472.

4. By contract between plaintiff and one C., the
latter undertook to sell and deliver on plaintiff's
schooners a certain quantity of lumber to be trans-
ported at plaintiff's risk to E., and there inspected,
measured, and paid for. Two cargoes so transport-
ed to E. were attached by a creditor of C. Held,
that plaintiff is entitled to recover them in an
action of claim and delivery, title having passed to
him upon the delivery of the lumber on his vessels.
-Albemarle Lumber Co. v. Wilcox, (N. C.) 10 S.
E. 871.

Warranty.

5. A contract of sale of cotton, "to be of the
average grade of middling and nice, good stains or
tinges, and not more than one bale in four to be as
low as that," constitutes a warranty. - Love v.
Miller, (N. C.) 10 S. E. 685.

6. As the true quality of cotton cannot be as-
certained by inspection of a sample drawn from a
bale, and as the purchaser had no opportunity to
inspect it before delivery, the warranty will be
deemed to have extended to latent defects, and
not to have been merely for a certain grade ac-
cording to a particular mode of inspection.-Love
v. Miller, (N. C.) 10 S. E. 685.

7. In an action for breach of warranty of a
mule, though a preponderance of evidence shows
that in age and soundness it did not come up to the
warranty, yet, where the evidence shows no dam-
age to plaintiff by reason thereof, a verdict for de-
fendant is warranted.-Thompson v. Martin, (Ga.)

10 S. E. 369.

was small, and its value inconsiderable, it being
old rope, fit only for junk, defendants could not
be prejudiced by the admission of the testimony
of one of the plaintiffs to the effect that one of the
defendants had, when the trade was negotiated,
recommended the material highly, and said it was
in good order.-Jones v. Wilson, (N. C.) 10 S. E. 79
Latent defects.

10. Where, on the surface of a car-load of corn
sold, the corn is sound, but, beginning beneath the
surface, at a distance of about two feet, the corn is
musty and "blue-eyed," there is a latent defect,
delivery and acceptance being made without break-
ing bulk or unloading the car.-Miller v. Moore,
(Ga.) 10 S. E. 360.

of corn in bulk, to be delivered on board by the
11. The contract of sale embracing 30 car-loads
car-load at the point of destination, a defect of
quality in some of the corn accepted and paid for
will not justify the buyer in rejecting 10 other car-
loads subsequently tendered according to the con-
tract, neither of the parties electing or intending
to rescind or abandon the contract in whole or in
part.-Miller v. Moore, (Ga.) 10 S. E. 360.

Recovery of price paid.

12. In an action to recover the price paid for
certain goods, plaintiffs' evidence tended to show
that they ordered from defendants a quantity
of herring, to be of that year's catch; that when
they attempted to use them, about a month after
they had been shipped, they were discovered to be
soft, defective, without brine, and apparently of
the last year's catch; that plaintiffs could sell
none of them; and that the amount paid for them
was a total loss. Defendants' evidence tended to
show that the herring were of that year's catch,
and were shipped in good condition, properly sup-
plied with brine, packed in tight kegs; that there
was stamped on the bill for such fish, "All tsh
in kegs shipped at purchaser's risk only. We ship
same in good order and condition; there our re-
sponsibility ceases;" that payment was made with-
out complaint, and no complaint was made for
more than two months, before which time they re
ceived from plaintiffs another order. Held, that
the evidence warranted a verdict for plaintiffs.-
Woolf v. Falvey, (Ga.) 10 S. E. 270.
Conditional sales.

13. A written agreement by which a piano is
rented at $10 per month, and the owner agrees that
when $300, the value of the piano, is paid in such
monthly payments or otherwise, the title to the
piano shall vest in the renter, shows a sale upon a
condition precedent, and is within Code W. Va. c.
74, 3, providing that a reservation of title on a
sale of personalty shall be void as to creditors of
the purchaser, unless a notice of such reservation
is duly recorded.-Baldwin v. Van Wagener, (W.
Va.) 10 S. E. 716.

14. Where, in a contract for the sale of personal
property on credit, there are no words of convey-
ance, nor any retention of a lien, and it is expressly
provided that the title shall remain in the vendor
until the entire price is paid, the transaction is not
a mortgage, but a conditional sale, and the vendor
may take possession on default in payment of any
note given for the purchase money.-Pate v. Oli-
ver, (N. C.) 10 S. E. 709.

Separable Controversy.

See Removal of Causes.

Service of Process.

SET-OFF AND COUNTER-
CLAIM.

When allowable, see Landlord and Tenant, 12.
When allowable.

1. Recoupment of damages by a defendant
cannot be allowed unless the right thereto grow

out of the same transaction as that on which the
plaintiff's case is based.-Clark's Cove Guano Co.
v. Appling. (W. Va.) 10 S. E. 809.

2. Defendant may show by way of set-off that
plaintiff failed to comply with his contract in per-
forming the work for which recovery is sought,
and that he was thereby compelled to pay out
money to make good the defects in the plaintiff's
work.-Natural Gas Co. v. Healy, (W. Va.) 10 S.
E. 56.

3. In an action on a contract a counter-claim for
damages arising from breach of contract is allow-
able, especially where such counter-claim arises
out of the transaction set forth in the complaint as
the foundation of plaintiff's claim, as provided by
Code N. C. § 244, subd. 1.-McKinnon v. Morrison,
(N. C.) 10 S. E. 513.
When allowable

ages.

- Unliquidated dam-

4. Unliquidated damages cannot be the subject
of a set-off.-Clark's Cove Guano Co. v. Appling,
(W. Va.) 10 S. E. 809.

Independent transactions.

5. In an action for trespass on plaintiffs' land
by cutting timber on it, an injury caused by plain-
tiffs to defendants' land by raising a mill-dam so
as to back up the water on it is not "connected
with the subject of the action," within Code N.
C. § 244, par. 1, relating to counter-claims.-Baze-
more v. Bridgers, (N. C.) 10 S. E. 888.

Pleading.

6. Under Code Va. § 3298, allowing a set-off
which is so described in the plea, or in an annexed
account, as to give plaintiff notice of its nature,
but not otherwise, and section 3303, providing that
a defendant who thus files a plea or account shall
be deemed to have brought an action, and his
claim shall be open to the usual defenses, defend-
ant, in an action of debt on bond, with collateral
conditions, is not entitled to a set-off, where the
only plea filed is "condition performed. "-Bote-
tourt County v. Burger, (Va.) 10 S. E. 264.

other expenses.-Carson v. Sumter County, (S. C.)
10 S. E. 875.

Custody of prisoners.

3. When a prisoner, legally sentenced, is placed
in charge of a special constable to convey to jail,
the legality of his custody by the officer depends
upon the validity of the special deputation of the
officer, and not upon the sufficiency of the mittimus
directing the jailer to confine the prisoner.-State
v. Armistead, (N. C.) 10 S. E. 872.
Failure to execute process.

4. In answer to a rule against a sheriff, he set
up that an affidavit of illegality was tendered him
by defendant in execution, and that he suspended
the levy of the execution on land and returned it
to court in good faith, believing that there was an
issue raised by the affidavit requiring the judg
ment of the court. The execution was levied on
land, and it was not shown that plaintiff in execu-
tion suffered any special damage or loss by the
sheriff's action. Held, that it was not an abuse of
discretion for the court to discharge the rule,
though the affidavit in itself was not sufficient to
arrest the execution.-Glenn v. Winn, (Ga.) 10 S.

E. 368.

SPECIFIC PERFORMANCE.
Adequate remedy at law.

1. A contract in which defendant binds him-

self in a penal sum for the performance of certain
work, and plaintiff binds himself to pay for such
work when completed, does not entitle plaintiff
of the contract may be compensated in damages.-
to a decree for specific performance, as a breach
McCarter v. Armstrong, (S. C.) 10 S. E. 953.
Requisites of contract.

2. Since a contract to convey a right of way
across contiguous tracts of land owned by a hus-
band and wife, respectively, cannot be enforced as
against the wife, it lacks mutuality, and cannot be
enforced at the suit of the husband and wife.-
Shenandoah Val. R. Co. v. Dunlop, (Va.) 10 S. E.

10 S. E. 256.
Evidence.

10. Where defendant has set up as a counter-
claim plaintiff's promise to keep insured a horse
that he had sold defendant, testimony of the latter
that he told plaintiff that the horse was ailing is
admissible, as being corroborative of defendant's
other evidence that plaintiff was to keep the horse
insured, and to notify him of the necessity of keep-
ing the premiums paid up.-McKinnon v. Morri-
son, (N. C.) 10 S. E. 513.

SHERIFFS AND CONSTABLES.
Appointment.

1. When a justice of the peace, under Code
N. C. § 645, in writing, appoints a special con-
stable without words restricting the authority,
this confers a general power to serve all process,
and perform all the duties, in regard to that par-
ticular case, which a regular constable could do if
present.-State v. Armistead, (N. C.) 10 S. E. 872.
Fees.

2. Gen. St. S. C. § 2437, which provides that
a sheriff, when carrying prisoners from one place
to another, shall be paid "for every mile going
and returning, besides all necessary expenses, six
cents, entitles a sheriff to all railroad fares paid
by him, in addition to the six cents per mile and

239.
contract for sale of land, the issue being whether
3. In an action for specific performance of
agent who sold the land to complainants was
authorized to sell, one of the respondents and the
agent gave nearly all the testimony regarding such
authority. Their testimony was directly contra-
sale was made after the expiration of the time in
dictory, and that of the respondent was that the
dence showed that respondent had previously put
which the agent was authorized to sell. The evi-
the land in the hands of one agent to sell, and was
averse to placing it in the hands of any other.
The agent testified that the respondent had previ-
ously stated to him substantially the same facts
relative to the transaction as the latter had test:
fied to at the trial. Held, that specific perfo.....
ance would not be decreed.-Blair v. Sheridan,
(Va.) 10 S. E. 414.

4. Where, after the execution of a contract to
grant to a railroad company a right of way across
land, in consideration of which the company stipu
lated to perform certain acts, a deed of the right of
tions, the contract is merged in the deed, and can-
way was executed, containing different stipula
not be specifically enforced.-Shenandoah Val. R.
Co. v. Dunlop, (Va.) 10 S. E. 239.
Pleading.

5. Under a prayer for general relief, plaintiffs
are entitled to a decree for a specific performance
of the stipulations in the deed, although not prayed
for specifically. Shenandoah Val. R. Co. v. Dun-
lop, (Va.) 10 S. E. 239.

same amount.

1. In an action under Code Va. 1887, §§ 406-408,
to try the genuineness of coupons cut from Vir-
ginia state bonds, and tendered for taxes, the com-
monwealth can question the genuineness of the
signature to the bonds without first pleading non
est factum. Following Com. v. Hurt, 9 S. É. 148.
-Commonwealth v. Tunstall, (Va.) 10 S. E. 414.
2. Under Act N. C. 1868, c. 14, the state of North
Carolina issued 2,000 bonds of $1,000 each, to the
Chatham Railroad Company, receiving in return
mortgage bonds of the railroad company to the
The state bonds were issued in vi-
olation of the constitution, and were void. The
railroad company surrendered 1,703 of the invalid
state bonds and 297 valid bonds to the state, and
received in return its mortgage bonds. Const. art.
4, § 9, provides that the supreme court shall have
original jurisdiction of claims against the state, and
may report its findings thereon to the legislature
for action. Const. 1880, art. 1, § 6, provides that
the general assembly shall not pay, "either directly
or indirectly," any debt or bond incurred or issued
by the convention of 1868, with certain exceptions,
unless after submission of such a proposition to the
voters of the state. Plaintiffs became the owners
of 140 invalid state bonds, receiving them in pay-
ment of iron furnished the Chatham Railroad Com-

pany, and presented a claim against the state, al-
leging that it held the valid bonds surrendered by
the railroad company in trust for their benefit.
Held, that the state did not receive the valid bonds
in exchange for the mortgage bonds of the railroad,
coupled with any trust in favor of plaintiffs or oth-
ers holding any like claims, but with intent to se-
cure it against the invalid bonds not surrendered;
and that the inhibitory clause of the constitution
embraces not only the invalid bonds themselves,
but every claim, legal or equitable, growing out of
them, and the supreme court has no jurisdiction of
plaintiffs' claim.-Baltzer v. State, (N. C.) 10 S. E.

153.

State boards.

3. The provision that the state board of educa-
tion "may sue and be sued," in Code N. C. § 2503,
which incorporates the board, is a sufficient con-
sent of the state that the board may be sued.-
Granville County Board of Education v. State
Board of Education, (N. C.) 10 S. E. 1002.

4. The consent of the state is not necessary be-
fore bringing an action against the state board of
education to compel the board to issue its warrant
on the state treasurer for money alleged to be due
a county board of education, as the duties sought
to be enforced are purely ministerial. Granville
County Board of Education v. State Board of Ed-
ucation, (N. C.) 10 S. E. 1002.

Stock.

sons, and one of them has paid more than his
share, he may, by having such payment entered on
the fi. fa., have full power to control the fi. fu., as
securities in f. fa. control the same against the
principal or co-securities, and shall not be compelled
to sue the co-debtors for the excess of payment on
rowed by the members of a firm, in their individ-
such judgment. Held that, where money is bor-
ual names, for the firm business, and one of the
partners pays off the judgment on a note given for
the money, he can control the execution against
his co-obligees for reimbursement, and may trans-
fer the same to another person, who would have
the like right.-O'Bryan v. Neil, (Ga.) 10 S. E. 598.
SUNDAY.

Violation of Sunday laws.

Under Code W. Va. c. 149, §§ 16, 17, provid-
ing that persons laboring on the Sabbath day shall
be subject to fine, but that no forfeiture shall be
incurred for the transportation on Sunday of the
mail, or of passengers and their baggage, or for
running any railroad train, or for carrying fire-
arms on that day "by any person having the right
to do so, "an indictment cannot be sustained against
a railroad company for running trains on Sunday.
State v. Norfolk & W. R. Co., (W. Va.) 10 S. Ě.

813.

TAXATION.

See, also, Constitutional Law, 10, 11.
By cities, etc., see Municipal Corporations, 9, 10.
Of costs, see Costs, 9, 10.

Taxable property-Situs.

1. Bonds belonging to the estate of a decedent
are taxable at his last domicile, without regard to
the residence of his executors.-City of Staunton
v. Stout's Ex'rs, (Va.) 10 S. E. 5.

Levy.

2. An order of the county commissioners, levy-
ing a license tax for selling liquor, and specifying
"Schedule B & C taxes same as state's," is suffi-
for which the taxes were levied, as the constitu-
ciently definite without specifying the purposes
tional provision requiring the special object to
which a tax is to be applied to be stated in the
-Parker v. Wayne County, (N. C.) 10 S. E. 137.
levy applies to taxes levied by the legislature only.
Collection.

*

3. Act Va. 1887, Ex. Sess., p. 257, providing
for the "recovery * #
of taxes * ** due
the commonwealth, for the payment of which
papers purporting to be genuine coupons of the
commonwealth have been tendered, " declares (sec-
tion 1) that they "may be recovered in the circuit
poration in which said taxes shall have been as-
court having jurisdiction over the county or cor-
sessed." Held, that the corporation court of Win-
chester has no jurisdiction over an action to re-
cover such taxes.-Smith v. Clark, (Va.) 10 S. E. 4.

4. There was no abuse of discretion in denying
an injunction to restrain the collection of city taxes
imposed under an ordinance, where complaint was
made of the non-enforcement of the ordinance
against other property than that of plaintiff, but
the validity of the ordinance was not impeached,
nor was there any tender of any part of the unpaid
tax assessed.-Augusta Factory v. City Council of
Augusta, (Ga.) 10 S. E. 359.
Death of collector.

5. In so far as unpaid tax executions belong to

Street.

See Municipal Corporations, 8.

SUBROGATION.

Payment of mortgage, see Homesteads, 8, 9.
Of partner.

Code Ga. 3599, provides that when judg
ments have been obtained against several per-

they are subject to the equities existing between
him and the tax-payer, resulting from the true state
of their accounts with each other; and the admin-
istrator of the collector may in a proper case be
perpetually enjoined from enforcing them, neither
the state nor the county being a party to the liti
gation, and no injunction being sought against
them, or either of them.-Dorsett v. Brown, (Ga.)
10 S. E. 274.

Payment-Recovery back.

6. Code Va. 1887, § 410, provides that where a
tender of coupons purporting to be cut from state

Who may maintain action.

2. In an action of trespass, where there is evi-
dence of title to the land in controversy in a
stranger to the suit; that he was in possession,
and authorized defendant to cut the timber, etc.,
—it is proper for the court to charge that, if plain
tiff was not the owner of the locus in quo, but it
belonged to another, and the owner was in the
actual possession of the same, and authorized de-
fendant to enter and cut timber, then plaintiff,
though in possession, cannot maintain his action
of trespass against defendant.-Roberts v. Pres-
ton, (N. C.) 10 S. E. 983.
Damages.

3. In an action for possession of land, where
plaintiff's title is denied, and title and possession
are shown to be in plaintiff, he may recover nomi-
nal damages for simple trespass, though no issue
involving the question of simple trespass is sub-
mitted, and the charge made by the complaint is
forcible trespass accompanied by slander of title.
Harriss v. Sneeden, (N. C.) 10 S. E. 477.

4. In trespass to recover the value of timber
cut and carried away, the court properly refused
to allow plaintiff to testify as to how much the
land was damaged by cutting off the timber.-
Coody v. Gress Lumber Co., (Ga.) 10 S. E. 218.

TRIAL,

See, also, Appeal; Certiorari; Deposition; Error,
Writ of: Exceptions, Bill of; Judgment; Jury;
New Trial; Practice in Civil Cases; Reference;
Witness.

In criminal cases, see Criminal Law, 25-29.
Conduct of trial.

1. The court had a right to inquire of the jury
whether it was a question of law or fact on which
they disagreed, and to tell them that, if it was a
question of law, he could assist them by instruct-
ing them what the law was.-Central R. Co. v.
Neighbors, (Ga.) 10 S. E. 115.

Submission of issues.

2. Under Code Civil Proc. N. C. § 391, provid-
ing that "issues arise upon the pleadings where a
material fact or conclusion of law is maintained
by the one party and controverted by the other, "
it is error to submit an issue concerning which
there are no allegations in the pleadings.-For-
tiscue v. Crawford, (N. C.) 10 S. E. 910.

3. In an action for unlawfully issuing a mar-
riage license to plaintiff's daughter, the court
submitted two issues, to-wit: (1) Did the de-
fendant sign the licenses in blank, and send them
to Merrit Cheek, as his deputy in Chapel Hill,
and did Cheek deliver the licenses to Thomas
Marks on his application? (2) Did Merrit Cheek,
acting as the deputy of the register of deeds, issue
the license to marry set forth in the complaint,
without reasonable inquiry as to whether the fe-
male named in said license was under 18 years of
age?" Held, that their substitution in place of the
single issue requested by plaintiff, to-wit, "Did the
defendant without reasonable inquiry issue the
marriage license as alleged?" was not prejudicial
to plaintiff, as the facts involved in the first issue
were not disputed.-Cole v. Laws, (N. C.) 10 S F.
172.

4. The complaint alleged that E. and C. execut-
ed to plaintiff a mortgage on certain lands; that
defendant F. purchased the equity of redemption;
that in order to perfect the title of F. it was agreed
that plaintiff should sell the land under the mort-
gage, and F. should bid it off for the amount due
thereon; that after the sale F. was to pay plaintiff
the amount in cash, and plaintiff was then to can-
cel the mortgage, and execute a deed to F.; that
plaintiff executed the deed, but it was delivered to
F. without plaintiff's authority; that plaintiff had
received partial payments from F., but at the time
of receiving them did not know that the deed had
been delivered; that the mortgage had not been
canceled. Defendants denied the allegations. The
court submitted the following issues: (1) Did E.
and C. execute the mortgage? (2) Did F. agree to

bid off the land for the amount due, to be paid in
cash to plaintiff, and to be applied to the mortgage,
and was the payment of the bid to be a condition
precedent to the conveyance of any title by plain-
tiff to defendant F. (3) Did defendant F. bid off
the land at the sale in pursuance of said agreement!
(4) Did plaintiff, in expectation of a compliance by
defendant F. with his contract, cause a deed of the
land to be prepared, and was the deed delivered to
said F. without the knowledge, consent, or author-
ity of plaintiff? Held, that the issues fairly pre-
sented the questions raised on the pleadings.-
Propst v. Fisher, (N. C.) 10 S. E. 295.
Reception of evidence.

5. The court properly refused to recall the ju.
ry to hear evidence that had not been offered dur-
ing the trial.-Russell v. Davis, (N. C.) 10 S. E. 256.
Arguments of counsel.

6. An instruction to consider the evidence
without reference to any prejudice removes any
objection to argument of counsel, where the court
was not requested to interpose during such argu-
ment.-Reavis v. Orenshaw, (N. C.) 10 S. E. 907.
7. After defendant's counsel had spoken to the
jury for two hours, it was not error for the court
to urge him to hurry, as the case had already con-
sumed more time than its importance demanded,
especially as the counsel was permitted to con-
tinue.-Polhill v. Brown, (Ga.) 10 S. E. 921.

S. Upon the trial of an action for damages it is
error for the court to permit the counsel for the
plaintiff, over the objection of the defendant, to
read to the jury, upon the question of the measure
of damages, extracts from reported cases, showing
large damages held not excessive. - Ricketts v.
Chesapeake & O. Ry. Co., (W. Va.) 10 S. E. 801.
Instructions.

9. Code N. C. § 418, requiring the court in
charging the jury to "state, in a plain and cor-
declare and explain the law arising thereon," is
rect manner, the evidence given in the case, and
not complied with where the court reads to the
jury full notes of all the testimony in the cause,
and tells them that he does this to refresh, and not
to control, their recollection of the testimony, that
it is their duty to remember the testimony, and that
they ought to rely in the last resort on their own
recollection.-State v. Boyle, (N. C.) 10 S. E. 696.
10. The refusal of an instruction is not error,
where another is given containing the same propo-
sitions of law as applied to the facts.-Simmons v.
McConnell's Adm'r, (Va.) 10 S. E. 838.

11. It is not error for the court, on instructing
the jury, to state the testimony without expressing
an opinion as to its truth.-Massey v. Wallace,
(S. Č.) 10 S. E. 937.

12. Instructions need not be given in the lan-
guage of the request, but it is sufficient if they
are given in substance.-Bethea v. Raleigh & A.
A. L. R. Co., (N. C.) 10 S. E. 1045; Cariton v. Wil-
mington & W. R. Co., Id. 516.

13. When, in an action for injuries to a servant,
the jury return into court and are recharged on
the question of plaintiff's negligence, at their re-
quest, the court need not add anything respecting
defendant's negligence; the request not covering
that point.-Parker v. Georgia Pac. Ry. Co., (Ga.)
10 S. E. 233.

14. Where a jury, in a negligence case, returns
into court to be recharged, the court does not un-
duly press them to arrive at a verdict in saying to
them that they are as capable as any jury will
ever be to reach a verdict, and expressing the
opinion that if they follow the rules laid down they
will have no trouble in agreeing.-Parker v. Geor-
gia Pac. Ry. Co., (Ga.) 10 S. E. 233.

15. The court has the right to volunteer an ad-
ditional charge on the general rule as to finding
according to a preponderance of the evidence.—
Parker v. Georgia Pac. Ry. Co., (Ga.) 10 S. E. 233.

16. Where the instructions sought are plainly
implied in those given to the jury, failure to charge
in express terms as requested is not error.-Parker
v. Georgia Pac. Ry. Co., (Ga.) 10 S. E. 233.

17. In an action.to set aside a deed for fraud
and undue influence, where there is evidence of