Volume 1 — Georgia Appellate Reports

<p>Certiorari, from Glynn, superior court — Judge Parker. ■ January 19, 1906.</p>

<p>1. The decision of every issue of fact is exclusively for the jury.</p> <p>2. A verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed.</p> <p>3. Where there is conflict as to any material issue of fact, it is erroneous to direct a verdict.</p>

<p>Action for breach of contract, from city court of Brunswick— Judge Gale. February 7, 1906.</p>

<p>Certiorari, from Clinch superior court — Judge Parker. February 15, 1906.</p>

<p>1. There was no error in refusing to strike the plaintiff’s petition, and the judgment complained of was demanded by the evidence.</p> <p>2. The affection and sense of duty which should naturally exist on the part of a child towards an aged and dependent parent is a good consideration to support a contract making provision for her support.</p> <p>3. The signing of a mutual undertaking to perform a specific common object does not necessarily render a contract unilateral. Civil Code, § 3661; Wilson v. First Presbyterian Church, 56 Ca. 554.</p>

<p>This case was heard, upon both the law and the evidence, by the trial judge. The evidence was such as to justify the judgment rendered.</p>

<p>Complaint, from city court of Baxley — Judge Thomas. June 19, 1906.</p>

<p>1. The rule is well settled' that a bailee can not dispute or deny the title of his bailor. By the acceptance of the bailment the bailee impliedly admits the title of his bailor, and he- is estopped thereafter from disputing it.</p> <p>2. The rule above given is subject to exception. While the bailee can in nq ease set up a jus tertii in himself when the goods are claimed by a third person, he may refuse to deliver to the consignee, but he does so , at his peril.</p> <p>3. A common carrier must deliver only in accordance with the bill of lading; and if he delivers to a third person, the onus is upon him to esta.blisli the superiority of the title to which he has yielded. If it is claimed that the hill of lading was procured by fraud, the carrier must clearly establish that fact before he could disregard its directions.</p> <p>4. No fact or circumstance of fraud, imposition, or mistake, however, will excuse a common carrier from responsibility for delivery to the wrong person.</p> <p>5. The evidence fully warranted the verdict, and the trial judge did not abusé his discretion in refusing to grant a new trial.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. January 17, 1906.</p>

<p>Complaint, from city court of Atlanta — Judge Calhoun. February 10, 1906.</p>

<p>Action for damages, from city court of Atlanta — Judge Keid. January 18, 1906.</p>

Action for damages, from city court of Atlanta — Judge Reid. March 10, 1906. To the facts stated in the opinion it may be added, that the injury to the plaintiff was occasioned by being struck on the head by the corner of a swinging window that was being lowered by the motorman from the roof immediately above the car platform to its frame just in front of where the motorman stood to drive the car, as the plaintiff stepped on the front platform to enter the car.

<p>1. The general demurrer to the petition was properly overruled.</p> <p>2. This court is a court for the correction of errors in law and in equity alone. It has no authority to entertain an assignment of error that the verdict is contrary to the evidence, if there is any evidence at all to support the verdict. This ground in the motion for new trial is addressed to the discretion of the trial judge, upon whom is imposed the duty of being satisfied with a verdict before he approves it.</p> <p>3. Where it is sought to impeach a witness by proof of contradictory statements previously made by him as. to,matters relevant to his testimony and to the case, this renders admissible in his favor testimony as to his general good character.</p> <p>4. We have examined the other exceptions made in the record, but find no reversible error in any of them.</p>

<p>Petition for certiorari, from Fulton superior court — Judge Pendleton. March 8, 1906. 7</p>

<p>Certiorari, from Tattnall superior court — Judge Rawlings. April 2, 1906.</p>

<p>The bill of exceptions in this case must be dismissed, upon the authority of Newberry v. Tenant, 121 Ga. 561, Kibben v. Coastwise Dredging Co., 120 Ga. 899, and Ha/rrell y. Tift, 70 Ga. 730.</p>

<p>1. In a suit by the owners against the hirers for the negligent killing of two mules while in their possession and while being used in the business for which they were hired, one of the defenses being that in hiring the mules it was understood that the owners assumed the risk of a.ll injuries to the mules, and that the hirers were not to be responsible for any injuries to them, and that with this understanding the mules were hired, and there being evidence supporting this contention, the judge should have charged the jury the law applicable to the issue presented by this defense, and his failure to do so was error. If this contention was the truth of the contract of hire, the hirers of the mules would not be liable in damages for any injuries to the mules while in their possession, and when used in the purpose of the bailment, unless such injuries resulted from the gross neglect or willful misconduct of themselves or their agents.</p> <p>2. A written request embodying the principle of law resulting from the foregoing statement of facts, and applicable to the issue of liability thus made, should have been submitted by .the judge in his charge to the jury, and his refusal to do so was error.</p> <p>3. The contract of hire being one of mutual benefit, the hirer, in the absence of any agreement to the contrary, is bound only to exercise ordinary diligence in taking care of the property; and in such case it was error to charge the jury the code sections defining “extraordinary diligence” and “gross neglect.” Such instruction was calculated to mislead or confuse the jury in applying the_ facts to the proper rule of diligence.</p> <p>4. Where one of the main issues in the case, as determining the question of liability, was as to the manner in which the tree was cut that fell on the mules and killed them, it was error in the court, over objection, to admit the testimony of a witness describing, a stump which was pointed out to him by others.as the stump from which the said tree was cut, his knowledge of the identity of the stump being derived solely from information given to him by others.</p> <p>5. We have examined the other exceptions made in the record, and find no ^'reversible error in any of them.</p>

<p>1. A written notice of the sanction of the writ of certiorari, and of the time and place of hearing, is amendable in the superior court when the certiorari is called for hearing, by striking the date appearing in such notice and inserting in lieu thereof the date when service of the notice was actually made or waived; such amendment based on the affidavit of the attorney for the plaintiff in certiorari, who made said service or secured the waiver thereof.</p> <p>2. Where the attorney for the defendant in certiorari signed a waiver of the written notice of the sanction of the writ, and of the time and place of hearing, in the following language: “Written notice of the sanction of the writ of certiorari, as prayed in this petition, and of the time and place of hearing, waived,” the court did not err in refusing to dismiss the certiorari because of a non-compliance with the requirements of section 4644 of the Civil Code.</p> <p>3. A statement in the justice’s court by the attorney for the defendant, that if the attorney for the plaintiff insisted on a judgment on certain grounds which the said attorney for the defendant urged against such judgment as illegal, he had no objection to the judgment being entered on said grounds did not amount to a consent, so as to estop the defendant from attacking the validity of the judgment.</p> <p>4. A judgment rendered in a justice’s court on an unliquidated claim for damages; without other proof than the affidavit of the plaintiff attached thereto, is illegal.</p>

<p>1., A landlord does not waive his right of action against his tenant merely by allowing a subtenant or assignee of the original tenant to remain in possession of the premises, even though he accept payment of the rents from the subtenant or assignee, with knowledge of such subletting or assignment. The original tenant may be released from liability by an agreement with the landlord for the substitution, or by the landlord’s electing to proceed against the subtenant as his own tenant.</p> <p>2. A ground of a motion for a new trial, based on the newly obtained, though not newly discovered, testimony of a witness, who had been adjudged insane prior to the bringing of the suit, and who was in the State Sanitarium at the time of the trial, but who subsequently has been found capable of giving testimony, is so similar to the ground of newly discovered testimony as to be governed by substantially the same rules.</p> <p>3. A person who has been adjudged insane is not, in all cases, incompetent as a witness. His testimony is admissible if he has sufficient understanding to apprehend the obligations of an oath and to be capable of giving a correct account of the matters he has seen or heard in reference to the questions at issue; and whether he has that understanding is a question to be determined in each ease, the weight to be given to his testimony being finally a question for the jury.</p> <p>4. In this case the trial judge did not abuse his discretion in his action .upon the motion, which was similar in nature to that indicated in the second headnote.</p>

<p>Breach of contract, from Toombs- superior court — Judge Raw-lings. April 2, 1906.</p>

<p>Certiorari, from Johnson superior court — Judge Rawlings. June 11, 1906.</p>

<p>1. “The law leans against the destruction of contracts on the ground of uncertainty, and a contract will not be déclared void on that ground, unless, after reading it and interpreting it in the light of the circumstances under which it was made, and supplying or rejecting words necessary to carry into effect the reasonable intention, of the parties, their , intention can not be fairly collected and effectuated.”</p> <p>2. A note dated on March 25, 1904, and payable on “the 1st day of November,” without specifying a year, is,'in the absence of anything in the instrument requiring a contrary construction, to be construed as maturing on the first day of November of the year named.</p> <p>3. In such cases parol testimony is admissible in a court of law to show the actual date intended.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. January 20, 1906.</p>

<p>1. In the hearing of a habeas corpus to determine the custody of a ehild, the trial judge is invested with a broad discretion, which, however, is not arbitrary or unlimited, but is to be guided and governed by rules of law. When it appears that upon such a hearing the judge was influenced by a misconception of the law and of his powers in the matter, a new trial will be granted, that the discretion may be exercised in accordance with the true rule.</p> <p>2. Upon a contest as to the custody of a child between the father and a person who acquired the custody of the child peaceably, it is not required that the testimony against the father’s fitness be overwhelming; it is necessary only that the proof bo clear and satisfactory, and that a strong case be made out.</p> <p>3. In such eases the welfare of the child is the paramount consideration.</p> <p>4. When a court is asked to lend its aid to put the infant into the custody of the father and to withdraw him from other persons, the trial judge should look into all the circumstances and ascertain whether it will be for the real permanent interest of the infant; and if the infant be of sufficient discretion, his wishes should also be consulted.</p>

<p>To maintain an action of trover, the plaintiff must show title in himself, or the right of possession wrongfully withheld from him by the defendant.</p>

<p>1. The transferee of a bill of lading may maintain an action ex contractu against the carrier for failure to deliver to him all or any portion of the goods specified in the bill of lading; and this is true whether the loss of' the goods or the shortage occurred before or after he acquired title to the bill of lading.</p> <p>2. A railroad company which in its bill of lading has agreed to deliver ■ goods to a connecting carrier and which does deliver a portion of the goods to the connecting carrier, the remainder of the goods being lost, may be sued for the shortage, as a breach of the contract of carriage, in the county in which it undertook to deliver to the connecting carrier.</p> <p>3. Owing to imperfections in the pleadings, special directions are given in connection with the reversal of the judgment.</p>

<p>1. Against one who, before goods were sold and delivered, guaranteed in writing payment therefor, on the faith of which guaranty the sale was made, a recovery may be had upon a petition setting forth the account, a copy of the contract of guaranty, a refusal to pay the account by the principal debtor, notice by the creditor to the maker of the guaranty, before the goods were sold and delivered, that the same was accepted, and alleging that on the faith of said guaranty the goods represented by the account sued on were sold and delivered as requested in said guaranty'.</p> <p>2. This would be true whether said writing, called a guaranty in the suit, was technically a guaranty, or was a contract of suretyship. In either ease there was a valid consideration for said contract; and it would be wholly immaterial, in determining the liability of the party who made the written obligation referred to, whether he did so as guarantor or as surety.</p> <p>3. Where the terms of a written contract of guaranty, or suretyship, are ambiguous, they will be construed most strongly against the maker of the contract.</p> <p>4. The contract sued on in this case, under the above rule of construction, was a continuing guaranty, and bound the maker thereof for all goods furnished within a reasonable time, on the faith of said guaranty; and the application by the creditor of payments made by the parties for whose benefit the guaranty was given, did not concern the defendant, the maker of the guaranty, so long as the balance due on the account was for goods sold and delivered within reasonable limits as to time and amount.</p>

<p>1. In a suit by an employee, against a railway company, for an injury received in the running of the ears, where the negligent thing complained of existed independently of the acts of the plaintiff or of a fellow-servant, a presumption arises, upon proof of the injury having been so received, that the company was negligent and that the plaintiff was not at fault.</p> <p>2. A servant may recover from his master for an injury occasioned by a dangerous instrumentality negligently maintained by the master, although it appear that the servant was not ignorant of the existence of such dangerous instrumentality, if it is shown that at the time of the injury the servant was rendered oblivious or otherwise incapable of exercising his information as to the existence of the dangerous thing, on account of the engrossing character of the work at hand or other excusing circumstances bi-ought about by-proper attention to duty, and not by his own carelessness. :Tlie requirement in the Civil Code, § 2012, that “it must . . appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof,” is subject to the foregoing limitation.</p> <p>3. Where the railway company by which the servant is employed uses the tracks of another Railway company for the operation of its trains thereon, the former company is liable to its servant for injuries received by him on account of a negligently constructed low overhead bridge, spanning such tracks, without “telltales” or other means -of warning.</p> <p>4. An amendment to the petition, which merely varies the acts of negligence,. but which does not complain of any different wrong or injury from that set forth in the original petition, is not subject to the objection that it sets forth a new cause of action.'</p>

<p>1. One whose property rights in his trade-mark or trade name have been infringed, and whose business interests have been damaged by fraudulent acts and unfair trade, has an election of remedies. Tie may sue at law for the damages that he has suffered, or he may proceed in equity for an accounting, injunction, etc.</p> <p>2. When suit in such ease was brought in the city court of Atlanta for damages alone, and no affirmative equitable relief was asked for, the court erred in dismissing the same on the ground that it had “no jurisdiction, the matters complained of being cognizable in equity.”</p>

<p>Certiorari, from Emanuel superior court- — -Judge Rawlings. May 14, 1906.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. • May 26, 1906.</p>

<p>1. In this State, by statute, where the grand juries, at two several terms of the court, act upon a bill of indictment against a person charged with crime or a misdemeanor, and each fails to find the bill “true,” it is a bar to any further prosecution of the same person for the same offense, whether under the same or another name or charge, and such defense may be pleaded in bar or given in evidence under the general issue.</p> <p>2. The highest evidence of the action of the grand juries in such a matter would be the entry of their return upon the minutes of the court. In the absence of this degree of proof, resort to secondary evidence may be had, and the defense may be established by any other competent testimony. After the absence of a higher degree of proof has been accounted for, individual grand jurors, having knowledge of the facts, are competent as witnesses upon such an issue.</p>

<p>1. Where the trial judge undertakes to state to the jury the contentions of the defendant, he should do so accurately and not in a manner likely to-disparage the defense as actually set up.</p> <p>2. One charged with the offense of stabbing may successfully defend by ■ showing either that the stabbing was done in self-defense, or that it was done under other circumstances of justification. A charge by the court, to the jury which in effect limits the defendant’s right of justification to the defense of his life or limb is therefore erroneous.</p>

<p>1. Where a defendant is on trial for assault with intent to murder, the intention to kill must be proved, and is a question of fact, the determination of which is the exclusive province of the jury. To charge the jury in such a- ease that if they believed defendant committed an assault as charged in the bill of indictment, and that the offense would have been murder if death had resulted as a consequence, then the jury would be authorized to find the defendant guilty of the offense of assault with intent to murder, is reversible error.'</p> <p>2. Nor is the error cured by a limitation upon that portion of the charge, by reference to the indictment, in these words: “committed an assault upon A. T. Daniel, as charged in the bill of indictment.”</p> <p>3. The charge requested, “If you believe that if the defendant had killed Daniel under the circumstances proven in this case he would not have been guilty of the offense of murder, then I charge you that you can not convict the defendant of the offense of assault with intent to murder,” was a correct statement of a principle of law applicable in this case, the benefit of which the defendant was-entitled to receive. It was, however, not reversible error to refuse to give it in charge to the jury, in view of the charge given upon this subject.</p>

<p>Indictment for seduction, from Miller superior court — Judge Seabro.ok. December 15, 1906.</p>

<p>1. Although a claim or a defense may be asserted or resisted under a clause of the constitution, unless a construction of such clause of the constitution is involved this court is not required to certify the question to the Supreme Court. Where the meaning of the language used in the constitutional provision is unambiguous and undisputed, or where the recognized construction which has been given such a provision is unchallenged, no question of construction is involved. No such question is presented in the mere determination of whether a given state of facts establishes or disestablishes a claim or a defense, asserted or resisted under an unquestioned construction of a constitutional provision. If the particular question of construction sought to be raised has been passed upon directly by the Supreme Court, such question will not be certified to the Supreme Court for repetition of its former decision.</p> <p>2. The finding of the trial court against the plea of former conviction was not unauthorized, it appearing that, while both indictments were for assault with intent to murder, the assaults were separate, were upon two different individuals, and were not in response to a joint attack of the persons assaulted, although one of the assaults immediately followed the other.</p> <p>3. The charges complained of were not erroneous. The law against shooting at another was not involved in the case, nor was the law as to simple assaults; hence the court did not err in refusing to charge on these subjects. Each verdict was fully warranted by the evidence.</p>

<p>Accusation of carrying concealed weapon, from city court of Macon — Judge Hodges. December 15, 1906.</p>

<p>1. The statements made by the prisoner while under arrestj even if they amounted to a confession of guilt, were not voluntary and induced without “the slightest hope of benefit or the remotest fear of injury.” ■ It was therefore error to admit such statements in evidence.</p> <p>2. Where all the evidence in the case wholly fails to connect the defendant with the commission of the offense charged, but, on the contrary, presents reasonable hypotheses of his innocence, a verdict of guilty is without evidence to support it, and therefore contrary to law, and such verdict, on motion for a new trial, should be' set aside on this general ground.</p>

<p>Accusation of maliciously killing hog, from city court of Wrights-ville — Judge Burch presiding. December 10, 1906.</p>

<p>There being no error of law complained of, and the evidence, while weak, being legally sufficient to authorize a conviction, this court has no • power to interfere with the discretion of the trial judge in refusing to grant a new trial.</p>

<p>Accusation of larceny from the house, from city court of Moultrie — Judge Shipp. December 21, 1907.</p>

<p>Indictment for robbery,^from Bibb superior court — Judge Felton. December 31,-1906.</p>

<p>Complaint, from city court of Waycross — Judge Myers. June 12, 1906.</p>

<p>1. The facts presented were not sufficient to show that the grand juror, whose competency was challenged on the ground that he was no longer a citizen of the county at the date of his service, had so far proceeded with the act of changing his domicile as to make him ineligible; therefore the verdict against the plea in abatement was proper under the evidence.</p> <p>2. In the main case the evidence authorized the verdict of guilty.</p>

<p>Powell, J. 1. The accusation was sufficient, as against the demurrers of the defendant.</p> <p>2. It is good ground of challenge to a juror in a city court, if the objection be timely made, that such juror served upon the jury in the same court at the next preceding term.</p> <p>3. Upon the trial of a person charged with cheating and swindling by making false representations as t.o the ownership of property, claim affidavits, bonds, etc., filed by third persons to a levy upon certain property, as the property of the defendant, are not admissible in evidence.</p> <p>4. Certified copies of duly recorded instruments shown to be in the possession of the defendant are admissible in evidence against him, in a criminal ease, as against the objection that the original is the 'highest evidence, unless he voluntarily offers to produce the originals. Farmer v. State, 100 Ga. 41.</p> <p>5. The evidence in this ease is, as a matter of law, insufficient to sustain the verdict. Judgment reversed.</p>

<p>An indictment under the act of 1903 (Acts 1903, p. 44) amending the Penal Code, §221 (which provides “for the posting of lands and for the punishment of persons hunting thereon”), alleging that the accused did on the first day of December, 1905, . . hunt with firearms upon the land of [A], said lands being then and there posted by having two cards on said land . . forbidding all persons to hunt on said lands, and the said [A] having registered his name in the register for posting lands in the clerk’s office in sa.id county as required by law,” is defective, and sets forth no offense under the statute, and should have been quashed on demurrer. Under the requirements of the above' act, the indictment should allege, that the notice had been posted by the landowner in two or more places on each tract of land; that the landowner had registered his name in “the register for posting lands,” after first having stated, etc., that said two notices had been posted; and that at the time of registering he gave a description of the lands, by giving the district in which the lands were located, the number of the lots, or other description sufficient to put the public on notice of the lands referred to.</p>

<p>Indictment for larceny after trust, from Fulton superior court— Judge Boan. December 1, 1906.</p>

<p>1. Although a distress warrant can not be levied upon property which has already been seized under judicial process, such distress warrant may be placed in the hands of the levying officer, and, upon a rule to distribute the fund, may assert its lien.</p> <p>2. The general rule obtaining in the marshaling of assets and securities, that if one creditor by virtue of a lien or other interest can resort to two funds and another creditor to only one of them, the former must seek satisfaction out of that fund which the latter can not touch, is subject to the limitation that such marshaling must not be applied to the detriment of a third person with an equity equal to or greater than that of the creditor seeking to invoke the rule. Beneficiaries of a homestead have such an equity and interest in the homestead estate as to be within the protection of this limitation.</p>

<p>Action for damages, from city court of Bicbmond county — • Judge Eve. August 13, 1906. ■</p>

<p>1. The offense of receiving stolen goods is a distinct crime, but the guilt of the principal, whether known or unknown, must be shown before a conviction of the accessory is authorized.</p> <p>2. The essential facts necessary to be proved to show the commission of the offense by the principal must also be proved on the trial of the accessory.</p> <p>3. Proof of the value is indispensable to show guilt of larceny, and likewise is absolutely necessary to be shown before the accessory (charged with receiving stolen goods) can lawfully be convicted.</p> <p>4. The assignments of error are sufficiently specific; but there was no error in admitting the evidence to which objection was made.</p> <p>5. The court can not take judicial cognizance of the fact that cotton is a thing of value. An accusation of receiving stolen goods must be as particular and full, as to the descriptive averments of the crime to which the defendant is charged with being an accessory, as if he were charged with being a principal; and all material allegations and even immaterial ones, unless they be wholly impertinent and irrelevant to the cause, must be proved.</p>

<p>Certiorari, from Bibb superior court — Judge Felton. June 11, 1906.</p>

<p>Action for damages, from city court of Atlanta — Judge Keid. April 28, 1906.</p>

<p>Action for damages, from city court of Atlanta — Judge Calhoun. May 1, 1906.</p>

<p>1. An oral agreement which relates to a subject-matter not within the statute of frauds, and which contains mutual promises, is not unilateral; nor is the contract rendered unilateral because only one of the parties, signed a subsequently written letter stating the terms of the contract.</p> <p>2. “Where a party seeks damages for the violation of a contract by the other party, the measure of his damages is not what he has suffered by performing his part, but what he has suffered by the failure of the other party.”</p>

<p>Action on insurance policy, from city court of Savannah — • Judge Norwood. January 29, 1906.</p>

<p>Hill, 0.' J. 1. The declaration as amended is good as against a general demurrer.</p> <p>2. The principle of law contained in the Civil Code, §3830,' that “if the plaintiff hy ordinary care could have avoided the consequences \to him'self caused hy the defendant’s negligence, he is not entitled to recover,” having been clearly and distinctly raised by the answer and the evidence, ■ it was reversible error for the court not to have given this law in charge to the jury, even without any request to do so. Atlanta Ry. Co. v. Gardner', 122 Ga. 92, 93 (7).</p> <p>3. Where one of the grounds in the motion for new trial is the failure of the court to charge the above principle of law, and the question is made before this‘court that there is no sufficient verification of this ground, the court will examine the record and bill of exceptions to ascertain if such is the fact; and where it appears from the record that said ground of the motion wa& presented to the trial court, considered, and overruled, and it further appears that the entire charge delivered to the jury had been approved by the judge, and was at that time a part of the record, and, from'an examination thereof, it is manifest that the court did not give in charge the foregoing principle, such facts, taken together, will be considered by this court as a sufficient verification of said ground of the motion. Colson v. Meyers, 80 Ga. 499 (3).</p> <p>4. The error of the court set out in the second headnote requiring a new trial, a decision on the other assignments of error is not necessary.</p> <p> Judgment reversed. </p>

<p>Certiorari, from Chatham superior court — Judge Cann. June 33, 1906.</p>

<p>The plaintiff having failed to prove the case as laid, nonsuit was proper.</p>

<p>1. Where the petition is indefinite as to material allegations, and attention is called to the defect by a timely and appropriate special demurrer, which is overruled by the court, and defendant duly excepts, in the absence of an amendment curing the defect this court has no alternative but to reverse the judgment.</p> <p>2. It is suggested that the present statutory privilege of filing pauper’s affidavit is subject to abuse, and that remedial legislation should be had on the subject. - •</p>

<p>Action for damages, from city court of Floyd county — Judge Hamilton. January 30, 1906.</p>

<p>Accusation of riot, from city court of Elberton — -Judge Proffitt.</p>

<p>Indictment for being intoxicated on highway, from city court of Douglas — Judge Eoan. December 17, 1906.</p>

<p>Appeal, from Bibb superior court — Judge Felton. April 24, 1906.</p>

<p>Certiorari, from Elbert superior court — Judge Holden. March 14, 1906.</p>

<p>Certiorari, from .Hall superior court — Judge Kimsey. January 30, 1906.</p>

<p>1. It is proper to dismiss a certiorari where it does not affirmatively appear from the record that the writ was applied for within thirty days after the final determination of the case.</p> <p>2. Where the only portion of the record showing the date of the judgment complained of is an unverified recital of the date of the trial, appearing' in the certiorari bond, this is not sufficient.</p> <p>3. Petitions for certiorari are not amendable.</p> <p>4. Aliunde proof is not admissible to show that the writ of certiorari was applied for within the time prescribed.</p> <p>5. It is absolutely essential to the validity of exceptions to the answer of the magistrate to the writ of certiorari that such exceptions be specific in pointing out the alleged deficiencies.</p> <p>6. Where the answer of the magistrate fails to disclose that a final judgment has been rendered in the justice’s court, and no exceptions are filed pointing out this deficiency, and upon the hearing the judge of the superior court dismisses the certiorari, this judgment is correct, and, irrespective of any other alleged reasons therefor, will be affirmed.</p>

<p>Certiorari, from Gordon superior court — Judge Fite. March 7, 1906.</p>

<p>No error of law appearing, this court will not disturb the verdict of a jury, where there is evidence to support their finding. The right of the jury to settle disputed issues of fact is supreme and exclusive'. Davis v. Kirkland, ante, 5. This court was created for the correction of errors of law and in equity.</p>

<p>The discretion of the justice of the peace in refusing to grant a continuance of a ease, on the written agreement of the attorneys for both* parties that the ease should be continued, will not be interfered with by this court, especially when the- exercise of such discretion by the justice of the peace has, on certiorari, been approved by the judge of the superior court.</p>

<p>Trover, from city court of Macon — John R. L. Smith, judge pro hac vice. July 11, 1906.</p>

<p>Damages, from city court of Elberton — Judge Proffitt. February 15, 1906.</p>

<p>1. Although it is the duty of .the trial judge to construe a written contract, still if instead of doing so he submits the same to the jury fer construction, the judgment will not be reversed therefor, where it appears that the proper construction of such contract would have been adverse to the contention of the complaining party.</p> <p>2. There was sufficient evidence to support the verdict.</p>

<p>1. A judgment obtained by revival of a dormant judgment by scire facias in the name of a plaintiff as transferee, instead of in the name of the original plaintiff, suing for the use of the transferee, as required by the Civil Code, § 5384, can not be treated as a void judgment, unless it appears that the court rendering such judgment did not have jurisdiction.</p> <p>2. There can be no judicial inspection behind a judgment to discover defects that could have been cured by amendment. Such irregularities (if not cured by judgment) can only be taken advantage of by a proper-proceeding to set aside the judgment.</p> <p>3. In an issue formed on a motion to distribute money between judgments, one plaintiff in fi. fa. can not attack the judgment of another plaintiff in fi. fa. on the ground of irregularities previous to the judgment. The defects, to be subject to objection, must be such as are not amendable.</p> <p>4. Consequently, where the revived dormant judgment, dating from its revival, is older than another, judgment, which carries with it no special lien on tlie fund, all the questions involved in the revival by scire facias are res adjudicata. The court can not inquire or consider whether any other than the plaintiff in the judgment before him has been plaintiff in the original judgment revived by scire facias, and can only award the fund in dispute to the older lien. (</p>

<p>Certiorari, from Catoosa superior court — Judge Fite. February Í0, 1906.</p>

<p>1. Under the act of 1904 (Acts 1904, p. 79, sec. 17), an assignment by an-, employee of a railway company of his wages, earned and to be earned,, up to a specified date, for the purpose of securing a loan of money, is-void as to that part of his wages not earned a.t the date of the assignment.</p> <p>2. A suit at law by the assignee against the railway company, for that, part of the wages earned by the assignor at the date of the assignment,, can not be maintained, unless .the railway company assented to the-assignment. Resort to a court of equity is necessary to enforce a partial assignment of a debt, in the absence of the assent of the debtor to-such partial assignment.</p>

<p>Complaint, from city court of Macon — Judge Hodges. June 29, 1906.</p>

<p>1. “Bail may surrender their principal in vacation to the sheriff, or in open court, in discharge of themselves from liability.” Penal Code, § 935. Producing or presenting a principal in court is not all. that is required to discharge the obligation and relieve securities from their liability under a criminal bond. In order for a surrender of the principal in open court to be effective, the attention of the court must be called to the presence of the defendant principal, and the intention to surrender him must be definitely expressed and under-stood.</p> <p>(а) The highest evidence of surrender is an exoneretur entered upon, the minutes.</p> <p>(б) “There is no evidence here at all of a. surrender into custody. Being in court is one thing, being in custody another.” Williams v. Jenkins, 53 Ga. 167.</p> <p>2. A proceeding by scire facias to forfeit a criminal recognizance is a civil case, distinctly separate from the criminal indictment, and ancillary thereto for one purpose only, — the securing of the defendant’s presence. The rule nisi and scire facias may be disposed of by a judgment of dismissal, with judgment for costs only, without invalidating the appearance bond of the defendant or relieving his securities.</p> <p>3. If the defendant is called in court on the sounding of his ease, the uttering and repeating- of the ancient and customary words of formal forfeiture becomes a useless and perfunctory ceremonial. The real beginning of the proceeding to forfeit a recognizance being the issuance of the rule nisi and its signature by the judge, a dismissal of the rule nisi, or a discharge therefrom by the court in passing upon the answer, will not prevent a subsequent forfeiture of the bond, where the sureties have neither surrendered their principal nor paid the costs.</p>

<p>Complaint, from city court of Elberton — Judge Proffitt. February 14, 1906.</p>

<p>Action for damages, from city court of Washington — Judge Hardeman. April 25, 1906.</p>

<p>Action for breach of contract, from city court of Monroe— Judge Arnold. July 3,1906.</p>

<p>Certiorari, from Gordon superior court — Judge Fite. March 7, 1906.</p>

<p>Where it is apparent, from the uncontradieted evidence, that there is a total failure of consideration as to the contract sued on, it is not error to direct a verdict in favor of the defendant.</p>

<p>1. The evidence in the case was such as to authorize the charge upon the subject of voluntary manslaughter.</p> <p>2. In charging the jury tliat a defendant is justifiable if he does the killing “in self-defense, or in the defense of habitation, property, or person, against one who manifestly intends or endeavors by violence or surprise to commit a felony on either,” it is inaccurate and misleading to add to the correct definition of a felony (“an offense for which the offender, on conviction, shall be punished by death or imprisonment in. the penitentiary, and not otherwise”) the following: “If one man unlawfully kills another, that is a felony. That is what the law means by a felony. It is used in contradistinction or distinction of a misdemeanor, such an offense as an assault and battery. Got no right to kill a man for a, mere assault, or assault and battery. Would have the right to kill a man to prevent him from killing you — if the other man is actually trying to kill you.”</p>

<p>The first grant of a new trial by the judge of the superior court upon a certiorari from a city court will not be disturbed, when the judgment rendered in the city court was not demanded by the evidence, Brantley v. Taylor, 121 Ga. 475.</p>

<p>Action for damages, from city court of Polk county — Judge Irwin. February 9, 1906.</p>

<p>Where the sheriff has levied a common-law fl. fa. upon a crop in the field,, but neglects to sell the same, and is ruled by the plaintiff in fl. fa. for his failure, to make the money, it is not sufficient answer that subsequently to the levy the landlord* of the owner of the crop carried the crop away and appropriated it to the payment of a lien due him, superior to that of the plaintiff in fi. fa.; but so far as the answer to such a rule denies that the crop was of the value alleged by the plaintiff in fi. fa.., it is. good and should not be stricken.</p>

<p>No error of law being assigned, a verdict supported by tlie evidence and approved by the trial judge will not be set aside by this court.</p>

<p>Petition for certiorari, from Pulaski superior court — -Judge Martin. January 11, 1907.</p>

<p>Indictment for kidnapping, from Henry superior court — Judge Reagan. December 22, 1906.</p>

<p>1. A party can not impeach a witness he introduces, unless it be shown that he is entrapped by such witness; but the jury are not, for that mere reason (applicable to the party only), required to believe such witness in preference to others. Consequently, though the State introduce a witness whose testimony, if believed, may show the innocence of the accused and contradict the evidence of another witness, previously introduced, which established his guilt, the defendant is not thereby necessarily entitled to an acquittal. The credibility of both witnesses, and the comparative credibility of each is still matter to be determined by the jury.</p> <p>2. This court will not grant a new trial in a criminal cause unless some principle of law has been clearly violated, or there is manifestly no evidence to sustain the verdict; the more especially where the presiding judge, in the exercise of his discretion, has refused the application in the court below, when all the circumstances attending the trial must have been fresh in his recollection.</p>

<p>Indictment for cruelty to child, from Stephens superior court —Judge Kimsey. December 3, 1906.</p>

<p>Appeal, from Richmond superior court — Judge Hammond. March 3, 1906.</p>

<p>1. Although a copy of the charge of the court has been approved and filed, the trial judge has the power to change the same, by correcting errors made in transcribing.</p> <p>2. The testimony of a witness to a fact of -which he swears he has personal knowledge is not rendered inadmissible by the further showing that he also knows it from hearsay.</p> <p>3. “The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him.” When the object is to show bias, great latitude should be allowed.</p> <p>4. Where a witness had testified on a former trial, as to one of tjie most vital questions in the case, that it would have been impossible for the deceased to have fallen from a ear door if certain bars had not been removed from across the same, and, on the trial under review, testified that he had studied over the matter and found it to be different; whereupon he was being subjected to the following cross-examination: “Q.. ‘What do you now say, what do you swear now, do you take it back or stand to what you swore?’ Ans. ‘I will take it back. I will leave it to any railroad man, he could easily have gone under it or over it, because it is in the center of the cab-door.’ Q. ‘So you take it back, do you?’ Ans. ‘I take that question back I answered there.’ Q. ‘Mr. Yance, when you swore it before, were you swearing the truth?’”; and opposing counsel interrupted the examination with the following objection: “That is a totally improper question;” upon which the court ruled, “Yes, I don’t think that is proper: “Held, that counsel was within the limits of legitimate cross-examination.</p> <p>5. In a suit against a railway company for the homicide of an employee through the alleged negligence of a fellow-servant, an instruction to the jury, that if the plaintiff proves that the death of the deceased employee was occasioned by the railway company in the running of itó cars, and nothing further appears, a prima facie case of liability is made out, is erroneous.</p> <p>(a) Such an error is not rendered harmless by giving in a subsequent portion of the charge the correct law on the subject, unless the court so plainly instructs the jury that the charge first given is incorrect as that the jury can not be confused and misled.</p> <p>6. In a suit against a railway company for the homicide of an employee, in order to authorize a recovery the plaintiff must cause it to appear both that the defendant was negligent and that the employee was free of fault; but when the death of the employee is caused in the running of the train, either one or both of these elements, according to the nature of the case, may be prima facie supplied by the proof of the injury being so received.</p> <p>7. Under the statute in this State, an employee of a railway company does not assume the risk of injury from the negligence of a coemployee, and it is not error for the court, in a proper case, so to instruct the jury.</p> <p>8. Although an employment may be fraught with certain known dangers, yet if, notwithstanding those dangers, the conditions are such that the servant by the exercise of due care may perform the duties of ¡j;he employment without probable injury, the servant, in assuming the risks of these dangers by entering or remaining in the employment, does not assume the risk of an independent, unexpected supervening danger produced by the negligence of the master, or, in eases of railway companies, by the negligence of a fellow-servant.</p> <p>9. It is erroneous for the judge, in his charge, to assume or to instruct the jury that certain things, not directly made so by law, are or are not negligent.</p>

<p>Where a defendant filed two pleas, and tendered evidence which was admissible under one of them, though not under the other, the court properly overruled an objection to its admissibility.</p>

<p>Certiorari, from Greene superior court — Judge Lewis. December 17, 1906.</p>

<p>Certiorari, from McIntosh superior court — Judge Seabrook. May 29, 1906.</p>

<p>Claim, from city court of LaG-range — Judge Harwell. January 19, 1906.</p>

<p>Action for damages, from city court of Newnan — Judge Freeman. July 30, 1906.</p>

<p>Where A, in consideration of a sum of money loaned him by B, promises to do labor for B until such money is repaid, and C, who desires A released from that contract, orally promises to pay B the money which has so been loaned, in consideration of B’s surrendering his contract with A, the contract between B and C is an original undertaking, and is not required to be in writing, under the statute of frauds.</p>

<p>Petition for certiorari, from Miller superior court- — -Judge Sheffield. August 14, 1906.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. April 7. 1906.</p>

<p>1. Subject to a few exceptions (as for instance as to torts wbieb a garnisliee may have committed, against a defendant) a judgment creditor may by garnishment acquire a control over the dioses in action of the defendant and thereby in effect bring Suit against his debtor’s debtor. And though by garnishment the creditor may stand in the debtor’s shoes as to dioses in action, he enjoys the privilege cum onere.</p> <p>2. For the converse is' likewise true: “ Creditors can not reach by garnishment any assets which the debtor himself could not recover from the garnishee.” Tim v. Franklin, 87 Ga. 95. “What one can not recover himself can not be recovered by garnishment against him.” Bates v. Forsyth, 69 Ga. 365.</p> <p>3. Consequently, as to a fund in the hands of a garnishee to be advanced under a contract and in pursuance thereof and held for one special purpose only: as the debtor can not compel its payment to other purposes foreign to the contract, neither can the garnishing creditor extend his rights beyond those of the defendant.</p> <p>4. As to assets in the hands of a garnishee belonging to a non-resident of this State, such garnishee is entitled to set off any indebtedness owed by said non-resident defendant in garnishment, even though such indebtedness be not due. The question as to whether such garnishee is or is not indebted to the non-resident defendant, or has assets of such defendant in his hands, should be ascertained by a comparison of their respective claims, and answer made accordingly. Civil Code, § 3755.</p>

<p>Illegality, from city court of LaGrange — Judge Harwell. March 19, 1906.</p>

<p>Claim, from city court of Moultrie — Judge Humphreys. March. 15, 1906.</p>

<p>Complaint, from city court of Dublin — Judge Burch. January 20, 1906.</p>

<p>This case, as to petition, plea, and evidence, is substantially identical with the case of Elgin Jewelry Go. v. Estes, 122 Ga. 807. It was therefore error to direct a verdict for the plaintiff.</p>

<p>CoHijilaint, from city court of Nashville — -Judge Peeples. August 1, 1906.</p>

<p>Action for damages, from city court of Valdosta — Judge Smith. August 29, 1906.</p>

<p>Complaint on note, from city court of Moultrie — Judge Humphrreys. March 20, 1906.</p>

<p>1. The petition as amended sets forth a cause of action, and the court did not err in overruling the defendant’s demurrer.</p> <p>2. The court erred in directing a verdict.</p> <p>3. No other error appears.</p>

Complaint, from city court of Atlanta — Judge Calhoun. May 22, 1906.' The suit was for a balance alleged to be due upon a contract for installing certain wall show-cases in the defendant’s storehouse.

<p>Action on insurance policy, from city court of Atlanta — Judge Reid. March 29, 1906.</p>

<p>1. The settlement of disputed issues of fact is wholly within the province of the jury; and it is not within the power of this court to set aside their verdict, unless it appears that it is without any evidence to support it. Where disputed issues of fact, each supported by a number of witnesses, have been settled by the jury, under fair and appropriate instructions by the court, and the verdict has been approved by the trial judge, the judgment of the lower court will not be disturbed, unless grave and material error has been committed.</p> <p>2. The error must be such as induced or largely contributed to the erroneous finding, and such an error that if a new trial is granted, the result should in all probability be different on another trial.</p> <p>S. While it is error to allow a witness to testify that the “deceased appeared to be a careless man; that was my experience with him,” the judgment will not be reversed on that ground, where the record discloses that similar testimony had previously during the trial, without objection thereto, been allowed to be introduced, or where it appears there was proper positive evidence of the same fact.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. March. 28, 1906.</p>

<p>Action for damages, from city court of Richmond county— Judge Eve. August 7, 1906.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. March 22, 1906.</p>

<p>1. An officer called to respond by a rule nisi is, if the rule be made absolute, liable either to have an execution issued against him or to be attached for contempt. Consequently it is error to strike from the answer of such officer any meritorious matter of defense which will tend to prevent the issuance of the rule absolute.</p> <p>2. Until traversed, the answer of a sheriff is to be accepted as true, and is conclusive as to all matters therein contained, and evidence will not be heard to dispute it. When such answer is traversed, any issues of fact arising upon the traverse to the answer must be submitted to a jury, except where there is an express agreement to submit such issues to the court.</p> <p>3. A mortgage which describes the mortgaged property as “all crops of cotton, corn, or other agricultural products grown or cultivated by ■ said R. B. B. in Laurens county, during or for .the year 1905,” is not void for uncertainty.</p> <p>4. A mortgage in which the property mortgaged is described as “all my crops corn,' cotton, etc., now up and growing, on about 240 acres of land, all the above property is in Jackson district, county and State aforesaid,” ma.y be explained by parol evidence so as to point out and identify such property, and is good as between the parties to the mortgage.</p>

<p>In order to be superior to the title of a bona fide purchaser without actual notice, a statutory or short homestead under the Civil Code, §2866, must contain a description of the property sought to be exempted sufficiently definite to impart constructive notice.</p>

<p>Complaint, from Worth superior court — Judge Spence. June 4, 1906.</p>

<p>Motion to vacate judgment, from city court of Moultrie — Judge Humphreys. January 26, 1906.</p>

<p>A sold tobacco which was shipped to B, the vendee. Upon receipt of the tobacco, B notified A that it was held subject to his order, for reasons stated. B, not hearing for several weeks from A in answer to his proposition to rescind, sold the tobacco to 0, who sold to D, and D sold to E. These purchases were all bona fide and for value. A brought suit against E to recover1 the tobacco. Reid, that;,the sale to B was not rescinded, and A could not recover the tobacco ©r its value from E.'</p>

<p>Action for damages, from city court of McRae — Judge McRae. February 6, 1906.</p>

<p>Action for damages, from city conrt of Richmond county — • Judge Eve. January 5, 1907.</p>

<p>Certiorari, from Clarke superior court — Judge Brand. December 7, 1906.</p>

<p>Action on insurance policj’, from city coprt of Atlanta — Judge lieid. June 20, 1906.</p>

<p>1. The plaintiff, in his petition, alleged, that his sick wife was received, by the defendant for treatment in its hospital, where the sick and injured were received for treatment, for compensation; that she died at said hospital, and that the defendant, without his knowledge or consent, mutilated and cut up the body, “to gratify professional curiosity, or for some other unlawful purpose.” Held, that the petition stated a cause of action.</p> <p>(a) The right to the possession of the dead body of his wife for preservation and burial belongs to the husband. Any unlawful and unauthorized mutilation of the remains would be an invasion of this-right, for which an action for damages would lie.</p> <p>(Z>) In such an action damages will be allowed for mental suffering and injury to the feelings, although no actual pecuniary loss is alleged or proved.</p> <p>2. The Medical College of Georgia is not a public institution of the: State because it is designated by law as a branch of the University of Georgia; and it is liable for the torts of its agents in the conduct of its business and within the scope of their authority. Therefore, where it conducts a hospital for the treatment of the sick and injured for compensation, it is liable in damages for the unlawful and unauthorized mutilation of the remains of a patient who died at the hospital; and this would be true whether the college or the hospital was compensated for the board, lodging, and treatment of such patient, or not.</p> <p>3. Public eleemosynary institutions are liable for the torts of their agents the same as private business corporations, if they have any property or are in receipt of any income, not exclusively devoted to public charity, out of which a judgment against them can be satisfied.</p>

<p>1. A brought suit against B for slander for using of and concerning him the following words: “It is the general belief among the negroes and a great many white people that A broke open' the smoke-house of C, a negro, and stole therefrom a quantity of meat and syrup. ” A plea of justification was insufficient which alleged that B had used such words and that his statement as to the existence of such belief of A’s guilt was the truth. The plea should have averred further that A was in fact guilty of the crime imputed to him by the report and belief which B had repeated. The proof necessary to establish a plea of justification in such case would be A’s guilt of the crime imputed to him as shown by a preponderance of the testimony. Proof of the fact that it was the common report and belief in the neighborhood that A was guilty would not be sufficient. “Tale-bearers are as bad as tale-makers, ” and it is no defense that the speaker did not originate the slander, but heard it from another.</p> <p>2. The court erred in instructing the jury that the plea of justification would be established by a preponderance of the evidence showing that ’ the statement ma.de by B, as to the existence of the general belief that A was guilty of the crime imputed to him, was true.</p> <p>3. The court erred in refusing a written request to charge embodying the principle stated in the first headnote.</p> <p>4. The court also erred in admitting testimony to the effect that it was “the general belief and report of the neighborhood that A was guilty of breaking open the smoke-house of C, and stealing his meat and syrup,” in support of the plea of justification. Such evidence would be admissible in mitigation of damages.</p>

<p>1. When the counter-affidavit to a distress warrant is dismissed, there i» no case before the court. The dismissal of the counter-affidavit carries with it the replevy bond. There can be no judgment entered; for the distress warrant, without the counter-affidavit, is already a judgment and fi. fa.</p> <p>2. Where a check is deposited in aid of a bond and to strengthen the security, the transaction is a bailment. The application of the cheek to any other purpose than that for which it was deposited is a conversion on the part of the bailee, and entitles the bailor to recover by trover the check, or the value thereof, with interest.</p> <p>3. The bailee is such an agent of the bailor as that he is required not only to use the property for the special object only for which he was entrusted with it, a.nd in conformity with the purposes of the trust, but to act in good faith where the interests of his principal are concerned.</p>

<p>Complaint, from Macon superior court — Judge Littlejohn. January 8, 1906.</p>

<p>Action for damages, from city court of Valdosta — Judge Smith. July 31, 1906.</p>

<p>' Action for damages, from city court of Waycross — Judge Myers. December 29, 1906.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. January 9, 1907.</p>

<p>1. The verdict of the jury was in accordance with the law of the ease as announced by the Supreme Court, on the exception to the judgment on the demurrer. '</p> <p>2. There was no error in refusing to grant a mistrial for the alleged improper argument of counsel.</p>

<p>Action for damages, from city court of Jefferson — Judge Stark. December 36, 1906.</p>

<p>1. In an action of deceit growing out of wilful misrepresentations of material facts, made to induce another to act, and upon which he did act to his injury, it is not reversible error to charge that “if the defendant did not wilfully conceal from the plaintiff some fact which he should have stated, he would not be liable.” The affirmative wilful statement of a falsehood in reference to a particular matter necessarily includes the concealment of the truth as to that matter.</p> <p>2. Where suit was brought for the value of property which plaintiff was induced to part with because of certain deceitful statements made to him by the defendant, damages were liquidated, and interest was properly allowed on the value of the property. .</p> <p>3. No error of law was committed, and the verdict was .fully warranted by the evidence.</p>

<p>Accusation of abandonment of child, from city court of Dublin —Judge Burch. „ January 21, 1907.</p>

<p>Accusation of assault and battery, from city court of Blakely— Judge Jordan. January 11, 1907.</p>

<p>Where the solicitor of a city court is by law designated and required to represent the State in the Supreme Court, in all writs of error from said city court, and the copy bill of exceptions is not served upon such solicitor (unless service be acknowledged and copy waived by him), the writ of error will be dismissed.</p>

<p>Accusation of unlawful sale of liquor, from city court of Dublin —Judge Burch. January 14, 1907.</p>

<p>Garnishment and claim, from Pike superior court — Judge Reagan. May 7, 1906.</p>

<p>Conviction of manslaughter, from Tift superior court — Judge Mitchell. January 16, 1907.</p>

<p>1. A plea to a suit in the State court, setting up the pendency of bankruptcy proceedings and asking for a stay of the suit, must show that the debt sued on is one from which a discharge would be a release, and that application for a discharge had been made, or that the time for such application had not elapsed.</p> <p>2. The suit in the State court will not he stayed on the application of a co-debtor with the defendant, against whom no bankruptcy proceedings are pending.</p> <p>3. Where a corporation holds out a person as its officer, it is bound by acts apparently within the scope of his authority, notwithstanding a by-law or other limitation upon the power of the officer, not known to a party dealing with him, as such officer.</p> <p>4. One who writes his name upon the back of an otherwise complete note, merely for the purpose of guaranteeing the payment, is apparently a surety only, and not liable as an indorser. Where he is sued on the note as joint maker, and makes no objection by demurrer or plea to the form of the suit, he is bound by the judgment.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. January 21, 1906.</p>

<p>Appeal, from Irwin superior court — Judge Martin. December 26, 1906.</p>

<p>Motion for new trial, from Effingham superior court — Judge Seabrook. December 29, 1906.</p>

<p>Indictment for assault with intent to murder, from Cobb superior court — Judge Gober. January 23, 1907.</p>

<p>1. Where, in a criminal case, the evidence for the State is wholly negative in character, and is opposed by evidence for the defendant which is definite, positive, and unimpeached, and which clearly establishes the innocence of the accused, the negative testimony must yield to the positive evidence, and a verdict reached in disregard of this rule is contrary to law. Where the testimony of witnesses who testified positively may be true without it being necessary to reject any of the negative testimony as untrue, and the testimony can be harmonized without discrediting any witness, it is .the duty of the jury to prefer the positive testimony. Penal Code, §985; Civil Code, §5165.</p> <p>2. It is the duty of a trial court to see that defendants in criminal eases are tried by a jury such that not even the suspicion of bias (leaning) or prejudice (prejudgment) can attach to any member thereof. If .a defendant charged with misdemeanor believes or has reason to believe that one, or any number, of the jurors put upon him is not impartial, he has the right to have the juror or jurors tested, if he makes the request properly and before the jury is sworn.</p> <p>3. “When the challenge to the poll is thus made, it is the duty of the court to put the juror upon his voir dire, and to ask him such questions as will test his fairness and impartiality. He may ask him, or cause him tó be asked by counsel, the statutory questions prescribed for use in the trial of felonies, or such othdr questions as will, test his impartiality between the State and the accused.” Wells v. State, 102 Ga. 659; Oob6 v. State, 45 Ga. 11.</p>

<p>Accusation of cheating, etc., from city court of Blakely — Judge Jordan. January 15, 1907.</p>

<p>1. Where the question in a case is one of fact, every presumption is in favor of the verdict of the jury, that they found what was the truth about the matter; and the record must affirmatively show that the verdict was contrary to law, before it can be set aside. Maddox v. Cross, 80 Ga. 105.</p> <p>■ 2. Where two verdicts have been rendered in favor of the same party on substantially the same issues of fact, and two new trials have been granted by the presiding judge, the rule of discretion applicable to the first grant of a new trial has no application; and if the evidence on the last trial, although conflicting, supported the second verdict it should not be set aside.</p>

<p>Accusation of assault and battery, from city court of Blakely — ■ Judge Jordan. January 11, 1907.</p>

<p>This case is controlled by. the decision of this court in Mullcey v. State, ante, 521. . .</p>

<p>Indictment for larceny after trust, from Clarke superior court— Judge Cobb presiding. January 5, 1907.</p>

<p>Although the defendant and his associates, by their very reprehensible conduct, may have violated not only the laws of decency, hut also several sections of the Penal Code, there is no evidence in the record to-justify the verdict against him for the offense of riot. To constitute the offense of riot there must be not only a common intent on the part of two or more persons to do an unlawful act of violence or some other act in a violent and tumultuous manner, but also concert of action in the furtherance of such intent.</p>

<p>Accusation of unlawful sale of liquor, from city court of Swainsboro — Judge Mitchell. February 11, 1907.</p>

<p>Indictment lor cheating and swindling, from city court of Floyd county — Judge Hamilton. February 14, 1907.</p>

<p>Talking outside of a ehurcli where a congregation of persons was lawfully assembled for divine services, which the evidence failed to show was sufficiently loud to disturb such congregation or any member thereof, was not “indecently acting” within the meaning of the Penal Code, §418. The conduct of the defendant, as shown by the evidence, did not make a violation of this section, and the verdict against him was wholly without evidence to support it; and his motion for a new trial should have been gvanted.</p>

<p>Indictment for employing another’s servant, from Tift superior court — Judge Mitchell. January 16, 1907.</p>

<p>1. While some latitude should be allowed to trial judges in stating reasons for their rulings on questions of evidence, it is never proper for them to make any statement in the hearing of the jury indicating judicial disparagement of the testimony on one side, or judicial approval of the testimony on the other side.</p> <p>2. In the exercise of the right to ask questions of witnesses for the purpose of bringing out the whole truth of the ease, the presiding judge should not intimate any opinion upon the facts, or use any expression that might prejudice the rights of either party. He should at all times keep safely within the positive limitations of the law as prescribed by §4334 of the Civil Code.</p>

<p>Where a petition in equity is filed praying a general accounting between, the plaintiff and the defendant, and the ease is fully heard by an auditor, who reports in favor of one of the parties a certain sum, and a decree of the court is accordingly entered, such decree may be successfully urged under a plea of res judicata, in defense to a suit subsequently brought against the plaintiff by the defendant, on promissory notes which were in general terms referred to in the pleadings in the former case as matters to be considered in the accounting, and which were actually introduced in evidence before the auditor.</p>

<p>1. A judge whose father is the first cousin of the grandfather of the defendant in a criminal ease is disqualified to sit therein, under the Civil Code, §4045.</p> <p>2. The defendant may successfully urge such disqualification, by a timely motion for a. new trial, when it is made to appear that the facts upon which such disqualification is based were unknown to him and his counsel until after verdict. The rule precluding the losing party from complaining of the disqualification of a juror by reason of an unknown relationship to him will not be extended so as to apply where the disqualification exists as to the presiding judge.</p>

<p>1. While a carrier is not to he regarded as an insurer of his passenger’s safety against every possible source of danger, it is none the less his duty to use extraordinary care and diligence to protect the passenger from injuries, including injuries by fellow passengers or third persons. As a part of this protection, the carrier is bound to use that extreme care and caution contemplated of very prudent and thoughtful persons to anticipate an injury threatened to the passenger by fellow passengers or third persons.</p> <p>2. Whether, in the exercise of the extraordinary care required, the carrier should have apprehended that an intoxicated passenger, who was armed with a pistol and who had been shooting it while on the train, would jump from the train at a station and fire the pistol into the coach, injuring another passenger, is a question to be decided by the jury, and not by the court on demurrer.</p>

<p>1. A writ of error will not be dismissed by this court for mere informality or lack of formal statements, where the alleged errors sought to be corrected can be clearly gathered from the bill of exceptions alone, or from an examination of the bill of exceptions and the record transmitted therewith.</p> <p>2. A demurrer to a plea of a defendant in an action on , a written contract promising to pay a stated sum of money, which plea set up a parol contract made before the execution of the written contract, by the terms of which payments on said contract were to be made in specifics, and not in money, was properly sustained.</p> <p>3. The title of the holder of a conditional contract of sale, transferred or indorsed in writing, can not be inquired into unless it appears that the inquiry would in some way protect the defendant or let in a meritorious defense; but an entry on the contract in these words, “Eor value received, we hereby guarantee the payment of the within conditional purchase contract, and waive presentation, demand, protest, notice .of nonpayment, and notice of protest,” is not a transfer nor an indorsement. These words conveyed no title either in the paper or the property described therein, did not make the plaintiff a holder of the instrument in question, and gave the plaintiff no right of action against the maker.</p> <p>4. Consequently it was error to admit such contract in evidence, and to direct a verdict for the plaintiff.</p>

<p>Action for breach of warranty, from city court of Dublin— Judge Burch. January 21, 1907.</p>

<p>Complaint, from city court of Macon — Judge Hodges. February 23, 1907.</p>

<p>Certiorari, from Tift superior court. Motion to dismiss.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. March 30, 1906.</p>

<p>Foreclosure of lieu, from city court of LaGrange — Judge Harwell. January 19, 1906.</p>

<p>Action for damages, from Macon superior court — Judge Little-john. July 27, 1906.</p>

<p>1. Where, by statute, jurisdiction over a subject-matter is conferred upon county authorities, and therein the power to do certain things is expressed, the further power to contract in regard to that subject-matter is to be implied; and a part of this implicit power is the authority to use discretion as to the details of such contracts, subject only to the limitations imposed by the statutes or public policy of the State.</p> <p>2. There is nothing in the statutes or' public policy of this State which prohibits the proper county authorities from making a contract with the owner of a mill site, near which a public highway, including a bridge, is to be erected, whereby the mill owner deeds to the county the right of way for the highway and contributes to the erection of the bridge on condition that he shall have the right to join his mill-dam to the piers of the bridge and use them as bulkheads, unless such an arrangement would manifestly endanger the safety or convenience of the public.</p> <p>3. The jurisdiction of determining whether such an arrangement will be detrimental to the good of the public, or of the county in its corporate capacity, is primarily vested in the county authorities having in charge the subject-matter of roads and bridges.</p>

<p>1. Section 428 of tlie Penal Code, as amended by the act of 1897 (Acts 1897, p. 39), is by its terms made applicable only in those counties, cities, or other localities where the sale of spirituous, malt, or intoxicating liquors “is prohibited by law, high license or otherwise.”</p> <p>2. The sale of liquor is not “prohibited by law, high license or otherwise,” in Bartow county. Therefore, an indictment in that county for an alleged violation of the said section as amended' was invalid, and a conviction thereon was contrary to law, and must he set aside.</p>

<p>1. Where, in the progress of a trial, the plaintiff submits testimony which the defendant moves to exclude on the ground that the plaintiff has no pleadings to authorize its introduction, and the judge announces that he will sustain the motion, and to meet such ruling the plaintiff immediately offers, and the court allows, an amendment to his pleadings, and thereupon both parties and the court proceed with the trial, with the impression manifestly prevailing upon the minds of all that the effect of allowing the amendment is to reinstate the testimony, and the defendant gives active acquiescence to the recognition of this putative status, after verdict based on such testimony the defendant will be estopped from contending that the testimony should be suppressed from the record, even though no affirmative action was taken by the court reinstating it.</p> <p>2. The principle announced in Johnson v. Mtna Ins. Co., 123 Ga. *404, and in Thornton v. Travelers Ins. Co., 116 Ga. 122, is applicable in this case.</p> <p>3. A verdict will not be set aside for immaterial error. An error in the admission of testimony tending to support a fact over which there is no conflict in the evidence is immaterial.</p>

<p>A petition alleging that the defendant has damaged the plaintiff $100, for that the defendant, without warrant, right, or authority, took possession of a designated strip of land, has kept possession thereof ever since, and is now in possession, contrary to the plaintiff’s right and the law, enjoying the annual profits therefrom, while the same is the right and property of the plaintiff, who has the legal title thereto, and the prayer of which petition is for process only, makes a case respecting title to land; and a city court has no jurisdiction thereof.</p>

<p>Claim, from city court of Albany-^-Judge Crosland. _ March. 13, 1906.</p> <p>Powell, J.,. being disqualified, Judge Hammond, of the Augusta circuit, was designated to preside in his stead.</p>

<p>Action for damages, from city court of Bainbridge — Judge Harrell. June 9, 1906.</p> <p>Powell, J., being disqualified, Judge Hammond, of the Augusta circuit, was designated to preside in his stead.</p>

Action on insurance policy,, from city court of Bainbridge— Judge Harrell. March 13, 1906. Judge Little-john, of the Southwestern circuit, Judge Roan, of the Stone Mountain circuit, and Judge Hammond of the Augusta circuit were designated to preside instead of the Judges of this court, who were disqualified.

<p>Petition to remove cause, from city court of Hall county— Judge Prior. May 25, 1906.</p>

<p>Certiorari, from Walker superior court — Judge Wright. February 23, 1906.</p>

<p>1. B was convicted of a misdemeanor and fined foi'ty dollars. He agreed with A that if A would pay his fine and clothe and feed him, he would work for him for ten months. This contract was made between A and B, and A paid for B the forty-dollars fine and ten dollars for clothing. C proposed to A that he would take his contract with B and pay him the amount of money which he had advanced to B, if B would consent to it. Both A and B agreed, and C thereupon gave his note for the amount of money which A had paid out for B, and B then worked for C for eight months. Eeld, that the note was valid. Evans v. Griffin, ante, 327.</p> <p>2. No error of law was committed, and the evidence warranted the verdict.</p>

<p>Garnishment, from city court of Dublin — Judge Burch. April 9, 1906.</p>

<p>1. The Court of Appeals was created by constitutional amendment lawfully submitted to the people for ratification at the general State election held October 3, 1906. In pursuance of the provisions of the amendment, the Governor of the State issued a proclamation on October 12, 1906, declaring that the amendment had been duly ratified. Held, that the Court of Appeals was established on the date of the Governor’s proclamation. Held further, that the Court of Appeals had jurisdiction of a writ of error signed by the judge of a city court December 31; 1906.</p> <p>2. There was no error in the ruling of the court complained of, and the issues in the case were fully and fairly submitted to the jury. The evidence clearly authorized the verdict.</p>

<p>1. A corporation is responsible for the acts of its agents in the business of their employment, just as an individual is liable; and whether the agent was acting within the scope of his employment, when he committed a tortious act, is a question of fact for the jury.</p> <p>2. One has the right, by himself or his agent, to protect his property and his tenants from acts of malicious mischief or trespass, hut he is responsible for the manner in which such right is exercised, and is liable for any injury inflicted, beyond the limits of reasonable force, in prevention or protection.</p> <p>3. The evidence in this case, pertinent to the foregoing well-established principles of law, is weak and barely supports the verdict, but the trial judge was satisfied.</p>

<p>Trover, from city court of Dublin — Judge Burch. January 14, 1907.</p>

<p>1. A contractor’s bond was executed with express reference to tlie contract, plans, and specifications. Held, that all three instruments must be construed together, and the obligations of the bond must.be determined in connection with the terms and conditions of the contract, plans, and specifications.</p> <p>2. The allegations of the petition as amended constitute a cause of action,* and it was error to sustain a general demurrer thereto.</p>

<p>Garnishment, from city court of Douglas — Judge Eoan. January 28, 1907.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. Jan-' nary 29, 1907.</p>

<p>1. In a criminal ease in which, the guilt of the defendant is dependent wholly on circumstantial evidence the jury should be instructed that if the proved facts are consistent with innocence, the defendant is entitled to an acquittal. ■</p> <p>2. An allegation of ownership in A. B. as to two gallons of whisky is not sustained by proof that four gallons of whisky, contained in two two-gallon jugs, had been purchased1 jointly by A. B. and two others, and was in the custody of C. D. and A. B. at the time of the larceny, in the absence of any proof that there had been a, division of the whisky, and in the absence of any evidence by which one of the two-gallon jugs could be identified or distinguished from the other.</p> <p>3. Proof of an inculpatory admission will not authorize a charge upon the subject of confession. “There is a very wide distinction between admitting the main fact and admitting some minor or subordinate fact or series of facts which could be true whether the main fact existed or not.” A confession is a voluntary admission of guilt; an admission, as applied to criminal cases, is the avowal of a fact or of circumstances from which guilt may be inferred, but only tending to / prove the offense charged and not amounting to a confession of guilt.</p>

<p>Trover, from city court of Washington — Judge Hardeman. February 1907.</p>

<p>Illegality, from city court of Monticello — A. Y. Clement, judge pro hac vice. February 8, 1907.</p> <p>At the regular April term, 1895, of the county court of Jasper county, a judgment was rendered in favor of L. O. Benton & Brother v. Barney Goodman and Aaron Fish. Upon this judgment an execution was issued on April 1, 1895, and on the same day was entered upon the execution docket of the county court, and also upon the execution docket of the superior court. On December 13, 1901, the sheriff made an entry of nulla bona upon the execution, and on the same date this entry was recorded upon the execution docket of the superior court, but it was not recorded upon the execution docket of the county court. On September 10, 1906, the execution was levied upon property of Aaron Fish, one of the defendants in execution. An affidavit of illegality was filed.</p>

<p>1. Where a person is arrested on a warrant charging him with bastardy, and, upon an investigation by a justice of the peace, is required to give the bond provided for in the Penal Code, § 1250, and, upon failure to give such bond, is bound over to appear before a court of competent jurisdiction to answer to the charge of bastardy, there is no charge or case against the defendant until an accusation, indictment, or presentment is preferred.</p> <p>2. Consequently a person so bound for his appearance can not, as a matter of right, demand a. trial or a discharge; an order entered on the minutes allowing such demand is a nullity, and it is not error to refuse at the succeeding term to grant an order discharging him.</p>

<p>1. The intention of the General Assembly in the passage of the act of 1900, relating to attorney’s fees (Acts 1900, p. 53), was evidently dual. It conferred a benefit on the debtor, by relieving him from the burden of attorney’s fees, while foreseeing, as a consequence thereof, relief to the public from the expense of the litigation thus prevented. When complied with, the debtor saves the attorney’s fees; the public saves the expense of trial.</p> <p>2. The “return day” of a term of court is the last day a suit can be filed to be returnable to that term. Keeping in view the manifest intention of the legislature and conserving the plainly beneficial effect of the act in question, the term “return day,”- therein contained, is to be presumed to have been used to convey the same meaning which had generally and legally been applied to it previously to its passage. John- . son v. State, ante, 195.</p> <p>3. Hence, where suit had been brought upon a promissory note, containing provision for attorney’s fees, and it was admitted that the written notice of intention to sue had been duly given, and it was uncontradicted that payment of the debt and interest thereon was not made until several days after the last return day, it was error to enter a judgment relieving the defendant from the attorney’s fees.</p>

<p>Certiorari, from Montgomery superior court — Judge Martin. November 17, 1906.</p>

<p>Action for damages, from city court of Brunswick — Judge Gale. September 8, 1906.</p>

<p>Petition for certiorari, from Ware superior court — -Judge Parker. November 16, 1906.</p>

<p>A discharge in bankruptcy is a good defense to a suit brought by a plaintiff who, being surety on the defendant’s bond as a trustee in bankruptcy in another bankruptcy estate, further became his surety upon notes at bank discounted to raise the money wherewith the defendant paid off a misappropriation of the funds of the bankrupt estate in his hands, and, .as such surety on the notes, has had to pay them, by reason of the defendant’s failure so to do. The debt existing in the plaintiff’s favor by reason of his having been compelled to pay the notes upon which he became surety at the bank is not “created by the bankrupt’s fraud, embezzlement, misappropriation, or defalcation, while acting as an officer or in any fiduciary capacity,” within the purview of the national bankruptcy act, §17 (a).</p>

<p>Trover, from city court of Baxley- — -Judge Thomas. October 10, 1906.</p>

<p>Motion to dismiss the writ of error.</p>

<p>Motion to set aside judgment, from city court of Atlanta — r Judge Reid. October 39, 1906.</p>

<p>Action for breach, of contract, from city court of Atlanta' — ■ Judge Reid. November 2é, 1906.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. November 22, 1906.</p>

<p>If a defendant, with leave of the court, expressed by formal order, has demanded a trial in accordance with the statute, and at the succeeding term it appears that by fault of the prosecuting officer, who had actual notice of the allowance of the demand, the same was not placed upon the minutes, the court should, upon motion, cause the same to be entered nunc pro tunc; and, if the State does not proceed to trial and the other statutory conditions are fulfilled, should discharge the defendant.</p>

<p>1. The rule that the existence of a fact testified to by one positive witness is to be believed rather than that such fact did not exist because many witnesses, who had the same opportunity of observation, swear that they did not see or know of its having transpired, does not apply when one of two persons having equal facilities for seeing or hearing a thing swears that it occurred, and the other that it did not. Weeks v. State, 79 Ga. 37; Atlanta & W. Pt. Railroad v. Johnson, 66 Ga. 260; Cobb v. State, 27 Ga. 649.</p> <p>'2. While the fact that positive testimony affirmatory, and positive testimony contradictory thereof, has been introduced in a given ease, would, without more, render a charge upon the subject of positive and negative testimony inapplicable and improper, still, if in the same case negative testimony was also introduced, a proper charge upon that subject would not be erroneous.</p> <p>:3. Where, under the evidence, the rule embodied in section 985 of the Penal Code can properly be given, the judge should also, and in connection therewith, give an instruction that the jury, in weighing the testimony, of such witnesses, must consider and pass upon the question of their credibility. Grant v. State, 122 Ga. 744 (5).</p> <p>4. In any ease it is error to give in charge to the jury the rule in regard to positive and negative testimony embodied in the Penal Code, §985, without stating the qualification that other things must be equal, and the witnesses of equal credibility, and that the rule does not apply as to those witnesses who have each given positive, though conflicting, testimony, some swearing that a certain thing transpired, and others equally positively that it did not.</p>

Certiorari, from Pulaski superior court — Judge Martin. June 27, 1906. By the Supreme Court. 1. The county-court act of 1879, now contained in the Civil Code, §4193 et seq., in so far as it denies to a party in a case involving $50 or less the right of a trial by jury, is violative of that provision of the constitution which declares that trial by jury shall remain inviolate. 2.

<p>Accusation of gaming, from city court of Jeffersonville — -Judge Shannon. March 14, 1907.</p>

<p>Russell, J. 1. The constitutionality of the act of December 20, 1898, amending section 341 of the Penal Code by inserting therein, after the word “any,” and before the word “pistol,” the words “kind of metal knueks,” being the only question involved in this ease; and the question having been certified to the Supreme Court, and that court having held adversely to the contention of the plaintiff in error, and that said act is not unconstitutional, an affirmance of the judgment of the trial court, in overruling the demurrer based upon the contention that said amendatory act was unconstitutional, must result.</p> <p> Judgment affirmed. </p>

<p>Indictment for furnishing liquor to minor, from Gordon superior court — Judge Fite. November 24, 1906.</p>

<p>1. A materialman’s lien is not complete as such until there is a judgment fixing the amount.</p> <p>2. In order to foreclose and perfect such lien so as to bind the owner of real estate for the price of material furnished a contractor, there must be a judgment against the contractor, where no privity exists between the materialman and the owner of the property.</p> <p>3. The filing of a suit to foreclose a materialman’s lien, claim of which has been previously filed in accordance with law, does not of itself create such lien; and the existence of such lien may be prevented.</p> <p>•(«) There is a difference between a claim of lien and the lien itself when established in accordance with § 2804 of the Civil Code.</p> <p>(T>) The contractor must be sued with the owner of the realty sought to be subjected to the special lien, and the owner’s liability as to amount and in all other respects can be no greater than the contractor’s.</p> <p>4. Consequently, where the contractor is discharged in bankruptcy prior to the judgment creating the lien, and his liability is thereby annulled, the lien can not thereafter be foreclosed against the property of the owner and a judgment be rendered against him. It would require an equitable action to protect the plaintiff in the rights sought to Be asserted under the circumstances. Hudson v. Lamar, 121 Ga. 835; Bell v. Dawson Grocery Co., 120 Ga. 628.</p>

<p>Appeal, from Fulton superior court — Judge Pendleton. November 22, 1906.</p>

<p>Indictment for larceny from house, from Chatham superior •court — Judge Cann. February 7, 1907.</p>

<p>Accusation of gaming, from city court of Macon — Judge Hodges. March 9, 1907.</p>

<p>1. The evidence in this case authorized the conviction of the defendant. “A father who within this State wilfully and voluntarily abandons his child before it is born, and persists in the abandonment afterwards, leaving it in a dependent and destitute condition, is guilty of a misdemeanor.”</p> <p>2. While the right of cross-examination, thorough and sifting, should not be abridged, nevertheless, even upon cross-examination, where an answer to a question propounded to a witness is refused by the court, and such refusal is assigned as error, it must appear that counsel, on the trial, stated to the court, either what he expected to prove, or (if that is impracticable or impossible) what he desired to prove, by the answer to such rejected question. Upon failure of such statement to the trial court, this court can not review the alleged error.</p> <p>3. In the absence of evidence sufficient to rebut the presumption of paternity, arising from the marriage relation, it is not error to refuse to charge that the defendant would not be guilty of abandonment if the jury are satisfied that the defendant never acknowledged the paternity , of the child, and has always denied it.</p> <p>4. The issue as to whether or not the abandonment is wilful is not illustrated by the conduct or sayings of the reputed father, unless it be shown by the evidence that he is not such father.</p>

<p>Accusation of riot, from city court of Griffin — Judge Hammond. March 13, 1907.</p>

<p>Certiorari, from Morgan superior court — Judge Lewis. March 9, 1907.</p>

<p>1. Where the defendant in a criminal case has employed counsel of his own choice to represent him, and upon the call of the ease such counsel is not present, but the defendant notifies the court that he is en route and will arrive upon the first train, such counsel being absent by reason of an unintentional misstatement by the solicitor-general, and the court overrules a motion to postpone until counsel can arrive, and forces the defendant to trial with the advice only of an attorney then and there appointed by the court, a new trial will be ordered. Delh v. State, 100 Ga. 61; McArver v. State, 114 Ga. 514.</p> <p>2. Under the evidence in this ease, the defendant was not guilty of the crime of robbery.</p>

<p>1. Certiorari to the superior court will lie from the verdict of the jury in a justice’s court, without regard to the judgment. Civil Code, §4149. And where such a verdict has been rendered, it is not necessary that either the petition for certiorari or the answer of the magistrate should show the final judgment. It is the verdict, and not the formal judgment following that verdict as matter of course, which must be attacked. Section 4149, supra, affords an exception to the general rule that a final judgment must be shown. It is based upon the reason that justice’s courts have no power to grant new trials; and the party injured by a verdict of the jury in a justice’s court must go to the superior court, or the verdict will stand.</p> <p>'2. But while, in a case where there has been an .appeal to a jury in a justice’s .court, “the certiorari is to correct the verdict,” the answer of the magistrate must show that there was a verdict, and what verdict, if any, was rendered.</p> <p>3. Consequently, where the answer of the magistrate did not verify the allegations of the petition for certiorari, as to the rendition of a verdict by the jury, and no exceptions were taken, to require an answer more explicit, there was no error on the part of the judge of the superior court in overruling the certiorari. Assignments of error in a petition for certiorari which are not verified by the answer of the original trial •court present nothing for determination by the superior court or the Court of Appeals.</p>

<p>Certiorari, from Hall superior court — Judge Kimsey. January 30, 1906.</p>

<p>In an action for damages, brought by a servant against the master, for injuries sustained, where evidence is adduced from which the incompeteney of the plaintiff’s fellow-servants with whom he was put to work may be inferred, and that he did not have equal opportunity with the master to know this fact, and it is doubtful, from the evidence, whether the work was one requiring skill, or merely strength, and whether the injury was caused by negligence or by incompetency, the questions in doubt should be submitted to the jury, and it is error to award a nonsuit.</p>

<p>Action on bond, from city court of Fayetteville — Judge Hollingsworth. January 24, 1907.</p>

Action for breach of contract, from city court of Atlanta— Judge Reid. September 11, 1906. Mrs. Wilkes sued for $300 damages on account of the failure -of the defendant storage company to deliver to her, on demand, ■certain household goods that she had entrusted to it for keeping.

<p>Motion for costs and fees, from city court of Sandersville— Judge Burch presiding. October 25, 1906.</p>

<p>Action for damages, from city court of Sandersville — Judge Hyman. October 24, 1906.</p>

<p>3. A declaration against a railway company, merely alleging the delivery oí certain trunks and tlieir contents into its custody, and a failure to redeliver, but not alleging that the trunks were to be transported or carried as baggage, or otherwise, does not set out a cause of action against the railway company as -a carrier of baggage, but only as a warehouseman or a depository.</p> <p>2. One who, having been a passenger, arrives with his baggage at destination, surrenders his checks, opens up the trunks in the baggage-room, and afterwards leaves the trunks in the baggage-room by permission of the baggage clerk, upon a statement that he will be going off again next day and will then recheek them, can not hold the railway company responsible, as a carrier of baggage, for the destruction of the trunks by fire during the night.</p> <p>(a) The transaction, if not merely a personal one between the owner of the trunks and the baggage clerk, charges the railway company with no higher responsibility than that of a depository.</p> <p>(b) This is so notwithstanding the owner of the trunks may have been the holder of a mileage book, good for transportation on the railway company’s trains.</p>

<p>Rowell, J. 1. A petition in an action of trover which sets out a description of the property, and 'its value, title thereto in the plaintiff, possession in the defendant, and a refusal to deliver on demand, is good against general demurrer. Phelan v. Vestner, 125 ©a. 825.</p> <p>2. The defendant can not, by special demurrer, compel the plaintiff to disclose the evidence by which he proposes to prove title.</p> <p>3. In such a petition an allegation that a named third person delivered the property to the defendant does not tend to deny the plaintiff’s title, but merely aids the description of the property. Phelan v. Vestner, supra.</p> <p>4. The court erred in sustaining the demurrers, general and special.</p> <p> Judgment reversed. </p>

<p>1. Where, by oversight, inadvertence, or otherwise, the defendant is put on trial upon an indictment alleging the homicide of a living man, and, upon the mistake being discovered, a verdict of not guilty is-entered, such acquittal can not be pleaded in defense to another indictment charging the same defendant with the homicide of another person, although it was the intention in the first instance to indict and prosecute for the killing of the person last mentioned, and no other transaction was contemplated, in the original indictment or trial, by the grand jury, the prosecutor, or the State’s counsel.</p> <p>2. The trial judge has the power to correct errors in the stenographic report of his charge, even after it has been filed as part of the record, under his approval.</p> <p>3. A new trial will not be granted for refusal to grant a written request to charge, where the request contains an inaccuracy of law, where it is not adjusted to the proof or the defendant’s statement, or where it is fairly covered by the general charge.</p> <p>4. Minor verbal inaccuracies in the charge, not calculated to mislead the jury, do not constrain the grant of a new trial.</p> <p>5. In the absence of a' timely written request, no error can be successfully assigned upon the failure of the judge to charge upon the impeachment of witnesses.</p> <p>-6. While dying declarations should be received with caution, slight preliminary proof will justify the judge in prima facie admitting them, for final submission to the jury.</p> <p>7. It is proper for the court to instruct the jury that he passes only prima facie upon the admissibility of dying declarations, and that the jury are the judges not only of the weight to be given them, but also as to whether they were made under such circumstances as to be entitled to consideration at all.</p> <p>8. The credibility of the witnesses is exclusively for the jury.</p> <p>9. Newly discovered evidence, cumulative or impeaching in its character, . does not require the grant of a new trial.</p> <p>10. A verdict not unsupported by evidence will not be set aside by this court, though the proof of the defendant’s guilt may not be altogether satisfactory.</p>

<p>Accusation of misdemeanor, from city court of Dalton — Judge Longley. February 23, 1907.</p>

<p>Accusation of larceny from house, from city court of Sylvester —Judge Park. February 23, 1907.</p>

<p>Accusation of cruelty to animal, from city court of Sylvester— Judge Park. February • 22, 1907.</p>

<p>Indictment for assault with intent to murder, from Dooly superior court — Judge Whipple. March 2, 1907.</p>

<p>1. The act of the General Assembly, making it illegal for any person “to procure money or other thing of value on a contract to perform services, with intent to defraud” (Acts of 1903, p. 90), like every criminal statute, is to be strictly construed. It can not be construed as an act to compel payment of debts or performance of contract. The offense being denominated cheating and swindling, it can not be proved without proof of loss and damage, but this, though necessary, is merely incidental. The paramount, controlling, ever-essential element of the offense, which must he proved to have been coexistent with the debt or contract, is the intent to defraud.</p> <p>2. A conviction under the act of 1903 is not authorized where the evidence merely shows that the defendant, upon a comparison of accounts with the hirer, is indebted to the latter for an unpaid balance of account. The State is obliged to select a certain definite transaction (unless it prefers, either in the same or different counts, to charge more than one), as to which it must be proved that the defendant, with the intent of not performing the service, procured a definite sum or definite articles of value, with the definite, fraudulent purpose of causing loss or damage, and of thereby cheating the hirer. A prosecution under this act will not lie for injury to any one except the hirer.</p> <p>3. The act of 1903, supra, creates two distinct offenses, the commission of either of which, if the act done was induced by an antecedent fraudulent intent, causes the actor to be deemed a common cheat and swindler. It creates two new classes of law-breakers. In the one class are included those who contract to perform services with intent to procure money or other thing of value and do not intend to perform the service. The second class is composed of those who, after having made a contract, procure money or other thing of value, with fraudulent intent not to perform the services contracted to be rendered. The statute makes two distinct offenses, and the defendant is entitled to know whether he is charged with both or only one of them, and, if only one, which one he is required to answer. And he must be so charged' as to enable him to plainly know of which offense he stands accused, and thus be able to prepare his defense.</p> <p>4. This statute was not intended to provide a means of having an ac- ■ counting and to secure effectual settlements £>y laborers and croppers at the end of the year, although it be true that the dread of a criminal sentence is more effective than a worthless fi. fa. Advancements which may have been procured by the employee with honest intentions can .not be taken into account together with advancements fraudulently procured, and the assumption made, after deducting credits due the employee, and striking a balance, that such balance was procured in fraud by the defendant. The intent to defraud must be shown to have existed at some particular time, and with reference to a particular advancement.</p>

<p>Certiorari, from Morgan superior court — Judge Lewis. March 9, 1907. :</p>

<p>1. A liquor dealer who in one county receives by mail an order for intoxicating liquor from a minor in another county, and who fills the order by shipping the liquor by express to the latter county, where it is delivered to the minor, may be indicted and punished in either of the counties named, for a violation of the Penal Code, § 444.</p> <p>2. A liquor dealer who ships whisky to a customer not personally known to him does so at his peril; for if the customer prove to be a minor or other person to whom the furnishing of intoxicating liquors is forbidden, the .dealer’s ignorance of that fact will not excuse him from criminal responsibility.</p>

December 7, 1906. Hill, C. J., and Russell, J., being disqualified, Judges Cann, of the Eastern circuit, and Gober, of the Blue Ridge circuit, were designated to preside in their stead.

<p>1. When duress is relied upon to defeat a contract, the facts set out in the plea must be sufficient to show duress in law.</p> <p>2. A plea alleging that the notes sued on were given by the defendant to the plaintiff through fear of the threatened prosecution and imprisonment of the former by the latter on some “pretended charge, or some pretended crime which the .defendant had not committed,” did not set forth -facts which in law amounted to duress.</p> <p>3. A threat of arrest, imprisonment, and prosecution does not constitute duress, unless the person so threatened is charged with having committed an act or acts constituting a crime or misdemeanor.</p>

<p>Action for damages, from city court of Atlanta — Judge Beid. September 8, 1906.</p>

<p>Rule, from city court of Douglas — Judge Roan. September '20, 1906.</p>

<p>Action for damages, from city court of Atlanta — Judge Eeid. November 24, 1906.</p>

<p>Action on guaranty, from city court of Wrightsville — Judge Faircloth. November 19, 1906.</p>

<p>The duty of inspecting the condition of cars used in its trains is one of . the absolute duties of a railway company, as a master, in relation to its employees. This applies to cars received from connecting carriers as well as to its own cars.</p> <p>(а) A part of this duty is to see that the ears are not unsafely loaded.</p> <p>(б) As to ears loaded by connecting carriers the master is allowed a reasonable time after receiving such cars to make an inspection, before negligence can be imputed to him.</p> <p>(c) This duty of inspection may be performed through employees hired for that purpose, the master being responsible for the negligence of such inspector in the performance of the duty.</p> <p>(d) Where the duty of inspection has been delegated to an employee, such employee, generally speaking, assumes the risk of all dangers incident to making the inspection.</p> <p>(e) If a master lias “set a trap” for liis inspector by sending him to inspect, or knowingly permitting him to inspect a ear which the master has himself improperly and unsafely loaded in another department of the work, whereby the inspector encounters a danger not reasonably to be anticipated by him, the master will be liable to him for injuries received in attempting to make the inspection in the ordinary manner.</p> <p>(f) If a dangerously-loaded car be received from a connecting carrier, the master is not liable for injuries received by his inspector in attempting to inspect such car, unless the master have actual knowledge of its dangerous condition and fail to warn the inspector of such dangers.</p> <p>(g) The fundamental proposition involved is that the master is under the duty of inspecting the cars and of ascertaining dangers in them; the inspector has the same duty; presumptively the knowledge, actual and constructive, of each is equal; and where the servant knows of a danger or has equal means with his master of ascertaining it, he assumes it as a risk of the employment.</p> <p>(h) The petition in the present case was properly dismissed upon demurrer.</p>

<p>Certiorari, from Whitfield superior court — -Judge Fite. October 9, 1906.</p>

<p>Trover, from Walton superior court — Judge Brand. October 8, 1906.</p>

<p>Distress warrant, from city court of Fayetteville — ’Judge Hollingsworth. August 28, 1906.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. January 6, 1906.</p>

<p>Action for damages, from city court of Atlanta — Judge Calhoun. January 28, 1907.</p>

<p>Complaint, from city court of Eloyd county — Judge Hamilton. November 38, 1906.</p>

<p>Accusation of misdemeanor, from city court of Americus— Judge Crisp. February 15, 1907.</p>