Volume 10 — Georgia Appellate Reports

Complaint; from city court of Atlanta — Judge Keid. The Yatesville Banking Company brought suit against the Fourth National Bank, and laid two counts in the petition.

<p>Certiorari; from Fulton superior court — Judge Ellis.</p>

<p>Action on contract; from city court of Griffin — Judge Clark presiding.</p> <p>J. E. Drewry, as agent for G. B. Wesley, made a contract in writing, in September, 1909, for the sale of 15 bales of cotton to Douglas Boyd, at 11% cents per pound, the bales to average 500 pounds each, and to be delivered in October, 1909. The writing recited a consideration of $1, paid by Boyd, and was signed: “J. E. Drewry, for G. B. Wesley,” and was also signed by Boyd. The suit is for damages on account of Wesley’s refusal to deliver the ■cotton. The verdict is for the amount sued for, — the difference between the contract price and 14% cents per pound, the alleged market price during October, 1909, with interest. Wesley moved for a new trial, on the grounds that the verdict was contrary to law and to the evidence; the motion was refused, and he excepted.</p> <p>At the trial Drewry testified: “Some time in the latter part of August, 1909, Green B. Wesley came into my office with H. H. Bass. I am a warehouseman, and Mr. Wesley was trying to sell 15 bales of cotton for fall delivery, and Mr. Bass had offered to buy it at 11% cents. Mr. Wesley asked my advice about making the sale. I told him I thought he could do a little better, and advised him to wait a little. He then told me to sell for him 15 bales of cotton at a price above 11% cents per pound, and make a contract for him to that effect, and not to let the price go below 11% without selling. A few days later I sold the cotton for him to Mr. Douglas Boyd, and signed the contract which was sued on in this case. A short time after this, Mr. Wesley, the defendant, came to town, and I told him that I had sold the cotton for him and made a contract for him, and he said, ‘I will sign it/ I said, T have already signed it for you; I sold it to Mr. Douglas Boyd and he has the contract in his office/ Mr. Wesley said it was ‘all right/ No money was paid at the time of signing the contract. Mr. Wesley never gave me any written authority to sell the cotton, but he did give me verbal authority to sign — make a contract. I am not certain whether or not Mr. Wesley asked me, after the contract had been signed, as to when he was to deliver the cotton; but I think I may have told him that he could deliver it in October or November. . . When he first authorized me to sell the 15 bales of cotton for him for fall delivery, he said nothing about any date of delivery, but just told me to sell the 15 bales of cotton, leaving that with me.” The plaintiff testified that the defendant refused to deliver any cotton on the contract. It was also testified that cotton of the grade called for in the contract was worth 14% cents on the first of November, and “was never less than that during the fall.” No evidence was introduced by the defendant.</p> <p>It was contended on the part of the defendant that the contract for the sale of the cotton was the contract of Drewry, and not of the defendant, and that Drewry had no authority to make it.</p> <p>cited Civil Code (1910), §§ 3570, 3574, 3222, and the dissenting opinion in Brandon v. Pritchett, 126 Ga. 286, and requested that the question involved be certified to the Supreme Court, in order that a motion to review that case might be presented.</p> <p>cited Dozier v. Mc-Whorter, 117 Ga. 788-9; Brandon v. Pritchett, supra; Smith v. Farmers Mut. Ins. Asso., Ill Ga. 739; Colquitt v. Smith, 76 Ga. 709; Brown v. Colquitt, 73 Ga. 59.</p>

<p>The errors assigned as to rulings upon the trial and as to charges of the court are not well taken. There is sufficient evidence to support the verdict, subject only to a small error in calculation, which may be cured by direction given in connection with the judgment of this court.</p>

<p>Complaint; from city court of Atlanta — Judge Beid.</p>

<p>Complaint; from city court of Waycross — Judge McDonald.</p>

<p>Accusation of carrying pistol without license; from city court of BicbmoncV county — Judge W. F. Eve.</p>

<p>An indictment for simple larceny, charging that the defendant, on the 19th day of October, 1910, “in the county aforesaid, of the personal goods of W. T. Lockett then and there being found, to wit, 100 pounds of seed cotton, of the value of $10,” did take, etc., is insufficient, as against a special demurrer calling for a more definite description of the property alleged to have been stolen.</p>

<p>Indictment for attempt to wreck train; from Greene superior court — Judge Walker.</p>

<p>Motions for continuance, made at the term at which the indictment is found, while addressed to the discretion of the court, stand upon a different footing from such motions made at a subsequent term. In such cases the discretion of the court should be liberally exercised in favor of a fair trial, no less than that the trial should be speedy, and every facility should be afforded a defendant for presenting his defense as fully as he might be able to do were the case tried at a subsequent term. Reasonable opportunity for the defendant to prepare his defense should not be sacrificed in the interest of speed.</p>

<p>There was no error in overruling the general demurrer; and the special demurrer was not well taken.</p>

<p>Accusation of carrying weapon without license; from city court of Macon — Judge Hodges.</p>

<p>Accusation of gaming; from city court of Sparta — Judge Moore.</p>

<p>1. The evidence amply authorized the verdict of guilty.</p> <p>2. Under the rulings of the Supreme Court, it was not reversible error for ■ the trial judge to leave the bench during the argument of counsel and step into an adjoining room for a few moments without the consent of counsel; it appearing that he was all the time within hearing, and that , no motion for mistrial was made, nor any other objection urged at the trial.</p>

<p>Certiorari; from Montgomery superior court- — -Judge Martin.</p>

<p>Trover; from city court of Macon — Judge Hodges.</p>

<p>Accusation of cheating and swindling; from city court of Lump-kin — Judge Hickey.</p>

<p>Indictment for murder — conviction of manslaughter; from Laurens superior court — Judge Martin.</p>

<p>The evidence is extremely weak and unsatisfactory, but this court can not say, as a matter of law, that the witness against the defendant committed perjury.</p>

<p>Accusation of larceny; from city court of Sandersville — Judge Jordan.</p>

Indictment for murder; from Laurens superior court — Judge Martin. Robert Carswell was convicted of voluntary manslaughter. From the evidence it appears, that on his going into the store of Lee Royal, the deceased, the latter charged him with having been “dodging around” his (Royal’s) house after his twelva-year-old daughter.

<p>Accusation of larceny; from city court of Sandersville — Judge Jordan.</p>

<p>Accusation of assault and battery; from city court of Sanders-ville — Judge Jordan.</p>

<p>Accusation of misdemeanor; from city court, of La Grange— Judge Harwell.</p>

<p>Í. There was no error in charging the jury that, when a witness has been impeached by contradictory statements previously made, he may be sustained by proof of general good character.</p> <p>2. The evidence authorized the verdict, and no error of law appears.</p>

<p>The record discloses no reversible error.</p>

Accusation of pointing weapon at another; from city court of' Sandersville — Judge Jordan. 1. The accusation set out in fhe plea of former jeopardy omitted to state the kind of weapon pointed by the accused, or the name of the person at whom it was pointed.

<p>Action for damages; from Decatur superior court — Judge Frank Park.</p>

<p>In overruling the motion for a continuance, the court did not commit such an abuse of discretion as, in the light of all the facts of the ease, requires a reversal.</p>

<p>Abandonment, as a criminal offense, contains two essential ingredients: separation from the child, and failure to supply its needs. The offense is not complete until there is a conjunction of these two ingredients, as mere absence from one’s child is not of itself a criminal offense. The crime of abandonment begins and continues as long as there is a failure on the part of the father to perform his parental duty, and consequent dependence of the child. Where it appears that an absent father has for the two years immediately preceding the finding of the accusation against him, failed and refused to provide for his dependent child, the time when the original separation took place is entirely immaterial. The continuing dependency of the child vitalizes the offense, and the fact that the absence, and even the dependency, began more than two years prior to the accusation affords no ground for the interposition of the statute of limitations.</p>

<p>Motion to open default; from city court of Atlanta — Judge Beid.</p>

<p>Certiorari; from Brooks superior court — Judge Thomas.</p>

<p>Accusation of sale of liquor; from city court of Swainsboro— Judge H. R. Daniel.</p>

<p>Indictment for burglary; from Bibb superior court — Judge Felton.</p>

<p>Indictment for sale of liquor; from Pike superior court — Judge Daniel.</p> <p>Meadows testified, that Stocks, chief of police, gave him 25 cents and an empty bottle to get whisky from the defendant, and he went into her house and bought whisky from her, pajdng her 10 cents for it, and returned the bottle, with this whisky in it, and 15 cents in change, to Stocks, who was waiting in front of the-house; also that his own character was bad and sometimes he would not believe himself on oath. Stocks testified, that he searched Meadows, found he had no whisky or money, gave him 25 cents and an empty bottle, and waited outside while Meadows went in the defendant’s house, and in a few minutes Meadows returned the bottle to him, with whisky in it, and 15 cents; that the defendant pleaded guilty in the mayor’s court; and that Meadows’s character was bad and he would not believe him on oath. These were the only witnesses introduced for the State. The defendant made the following statement to the jury: “Ben Meadows came to my house a few days before, this time, and had a basket and some whisky in it. He came in, got something out of the basket, and went out. I never sold him any whisky in my life. I was ironing when he came in, and he asked me for some whisky, and I told him I did not have any, and he went out.”</p>

<p>Conviction of voluntary manslaughter; from Pulaski superior court — Judge Martin.</p>

<p>1. “The courts judicially know that the term ‘greenback’ is the popular name used to designate a certain species of the currency of the United States.”</p> <p>2. The evidence amply authorized the verdict of guilty, and no error of law appears.</p>

<p>Certiorari; from Laurens superior court — Judge Martin.</p>

<p>Indictment for the sale of liquor, etc.; from Bibb superior court —Judge Felton.</p>

<p>Certiorari; from Tift superior court — Judge Thomas.</p>

<p>Conviction of attempting to wreck train; from Warrer. superior court — Judge Walker.</p> <p>The indictment charged Wilson with “the offense of felony— attempting to wreck train, for that the said . . Wilson, in the county aforesaid, on the 19th day of January, . . 1911, with force and arms, did unlawfully attempt to wreck a railroad train, locomotive, car, coach, and passenger train No. 2 of the Georgia Eailroad, which was then and there being used and run on the railroad track of the Georgia Eailroad for the purpose of travel and transportation, and which was then and there in motion and moving in the direction of Augusta, Ga., from Atlanta, Ga., and same was done then and there by placing a long piece of iron and a cross-tie, a piece of wood, on and across said railroad track, a point on said railroad track between Oamak, Ga., and Mesena, Ga., contrary to the laws of said State,” etc. The defendant demurred to the indictment generally, and on the ground that it charged two separate and independent offenses in the same count. Exception is taken to the overruling of the demurrer, and also to the refusal of a new trial. The motion for a new trial was based on the grounds that the verdict was unsupported by evidence, that the court erred in not charging the jury in reference to circumstantial evidence, and that the court erred in refusing to allow the engineer of the train in question to testify, in response to a question, propounded by counsel for the defendant, that the railroad on which the obstruction was placed, and on which he was running the engine at the time alleged in the indictment, was the property of the •Georgia Eailroad and Banking Company, and was operated by the Louisville and Nashville Eailroad Company and the Atlantic -Coast Line Eailroad Company as lessees; the court rejecting this testimony on the ground that it was immaterial and irrelevant.</p>

<p>Indictment for assault with intent to murder; from Greene superior court — Judge James B. Park.</p>

<p>1. A house may be a “lewd house,” within the purview of section 382 of the Penal Code (1910), which makes it criminal for any person to maintain a lewd house or place for the practice of fornication and adultery, though the house may be devoted chiefly to the carrying on of some other vocation (a boarding-house or hotel, for example), if lewd women are accustomed to frequent there and to carry on their practices therein.</p> <p>2. In order to convict an innkeeper of maintaining a lewd house, on the theory that, along with other guests, he allows lewd women to stop at his inn and ply their vocation, it is necessary to show that the innkeeper had knowledge, actual or implied, of the unlawful practices that were going on. Such knowledge may be shown directly or circumstantially, and, where the accused himself was in personal charge of the inn, one of the methods by which he may be charged with this knowledge is to show that his house had acquired a general reputation in the community of being a place in which fornication and adultery were commonly prac- ■ ticed; the sufficiency of such testimony being for the jury.</p> <p>3. It is no ground for the exclusion of the testimony of one who swears that he knows the general reputation of a house, or of a person, as to lewdness, that he can not tell the number of persons whom he has heard speak of the matter, or give the names of those from whose conversation he has gained his knowledge of the general reputation as to which he testifies. His examination and cross-examination go to the jury together, to be given such weight as it seems to them to be entitled to under all the circumstances disclosed by his testimony as a whole.</p> <p>4. “The hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.” Words may constitute conduct, and, when that conduct is otherwise relevant in the case, the fact that ■ the person used these words may be proved, notwithstanding the ordinary rule against the admission of hearsay.</p> <p>5. It is not necessary, in order to make out the offense specified in section 382 of the Penal Code (1910), that the State should show any particular act of fornication or adultery to have been committed, if the evidence, either directly or circumstantially, is such as to satisfy the jury that the house was kept and maintained as a lewd house; that is, if, not- ' withstanding lack of proof as to any particular act, the circumstances are such as to satisfy the jury that the practice of fornication and adultery actually went on in the house.</p>

<p>Accusation of sale of liquor; from city court of Greenville — Judge Revill.</p>

<p>Indictment for larceny from house; from Floyd superior court —Judge Maddox.</p>

<p>Indictment for murder; from Eabun superior court — Judge Jones.</p>

<p>In prosecutions under section 110 of the Penal Code (1910), for the in veigling of a child, it is necessary for the State to show that the accused either “forcibly, maliciously, or fraudulently” enticed or carried the child away. Where the child alleged to have been inveigled is above the age of discretion, though under the age of 18, these elements are not sufficiently made out by showing that the child went away in corn-pan}' with the defendant, especially where the State’s own evidence shows that the child went of its own free will and accord, and not as the result of any inveigling on the defendant’s part.</p>

<p>Conviction of voluntary manslaughter; from Cherokee superior court — Judge Morris.</p>

<p>Accusation of sale of liquor; from city court of Sylvester— Judge Williamson.</p>

<p>1. The evidence authorizes the conviction.</p> <p>2. The charges complained of were not erroneous.</p> <p>3. Under the Penal Code (1910), § 1056, where the judge is requested to put his “charge” in writing, he violates the statute, and a new trial must be granted, if he gives to the jury any instruction, not in writing, as to how they shall consider the case to be submitted to them, or how they shall make a verdict.</p>

<p>1. The evidence authorizes a conviction.</p> <p>2. Ordinarily it is not cause for a mistrial in a criminal case that the solicitor-general merely tenders illegal testimony, where the court refuses to admit it, and instructs the jury not to consider it.</p> <p>3. The charge of the court was not subject to the assignments of error made against it.</p>

<p>1. Where the jury can reasonably infer, from the evidence, that an allegation of negligence which would authorize a recovery has been proved, a nonsuit should not be granted.</p> <p>2. The presumption of negligence against the employer “in ease death results from injury to the employee,” created by the act of 1909 (Acts 1909, p. 160), is a part of the integral right to recover, and is not a'lone a rule of evidence, and is applicable only to causes' of action arising subsequently to the passage of the act in question.</p>

<p>Complaint; from city court of Leesburg — Judge Long.</p>

<p>A contract fori the sale of personalty, reserving title in the seller until the purchase-money has been paid, to be valid and binding as to third persons, must be recorded as required by the Civil Code (1910), §§ 3318, 3319. Otherwise, the sale is absolute as to third persons; and where the purchaser subsequently gives the property to another, the property generally becomes subject to the debts of the latter, reduced to judgment, especially where the, creditor of the donee in possession had no actual notice of the existence of the conditional contract of sale, and that the property covered by that contract had not been paid for, and extended credit on the faith thereof.</p>

<p>Complaint; from city court of,Cartersville — Judge Foute.</p>

<p>Complaint; from city court of Monroe — Judge Stone.</p>

<p>Action for damages; from city court of Valdosta — Judge Cranford.</p>

<p>Complaint; from city court of Nashville — W. G. Harrison, judge pro hae vice.</p>

<p>Complaint; from city court of Dublin — Judge Hawkins.</p>

<p>1. The evidence authorizes the verdict.</p> <p>2. It was not error for the judge to charge the jury, in an action against a railroad company for killing stock, that it was within their discretion to enhance the damages by adding interest thereto at the rate of 7 per cent, per annum, hut expressed merely in an aggregate sum in ■ their verdict.</p>

<p>Action for damages; from city court of Dublin — Judge Hawkins.</p>

<p>1. A plaintiff can not successfully maintain an action of trover for timber cut and carried away from land, where he has not had any possession of or title to the timber, except in so far as title to the land or possession thereof may have canned with it title to the timber, and the only semblance of title he shows to the land is a deed not connected with any source of title, under which he shows only transitory acts of possession, which had ended prior to the time the timber was cut.</p> <p>2. Bare possession of land, though not coupled with title, gives the possessor certain rights; but these rights end when the possession is abandoned.</p>

<p>Complaint; fiom city court of Jeffersonville — Judge Shannon.</p>

<p>Indictment for burglary; from Richmond superior court — Judge H. C. Hammond.</p>

<p>Accusation of disturbing school; from city court of Carrollton— Judge Beall.</p>

<p>Where a baseball player and an umpire become involved in a quarrel over a point in the game, and while the umpire is advancing toward the player with his hand in his pocket the player pulls a pistol and kills the umpire, a verdict finding the player guilty of voluntary manslaughter is not contrary to law, nor without evidence to support it.</p>

<p>This case is controlled by Mulkey v. State, 1 Cía. App. 521 (57 S. E. 1022).</p>

<p>Indictment for assault with intent to rape; from Floyd superior court — Judge Maddox.</p>

Accusation of misdemeanor; from city court of Macon — Judge Hodges. The accusation charged Lewis Herndon with selling alcoholic, spirituous, malt, and intoxicating liquors, and with keeping such liquors on hand at his place of business. There was a general verdiet of guilty.

<p>Accusation of carrying pistol without license; from city court of Ocilla — Judge Oxford.</p>

<p>1. The evidence authorizes the conviction.</p> <p>2. It is a violation of the statute of this State for a person to keep intoxicating liquors on hand at his place of business, “whether the package, bottle, or barrel is open or unopened.”</p> <p>3. The written request to charge on the subject of mere transient possession of liquors at one’s place of business was properly refused, because there was no evidence on which to base it.</p> <p>4. In a prosecution for keeping intoxicating liquor on hand at one’s place of business, the State may show, and the jury may consider, the fact, that the accused has registered as a retail liquor dealer and paid the United States government tax therefor, even though the act approved August 21, 1911 (Acts 1911, p. 180), is not applicable, and though a prima facie case of guilt is not made out by the introduction of this evidence.</p> <p>5. One who has paid the tax and obtained a license under what is known as the “near-beer act” (Acts 1908, p. 1112) is not entitled thereby to keep on hand at his place of business any alcoholic, spirituous,' malt, or intoxicating liquors. The only liquors he is authorized to keep on hand are such as, if drunk to excess, will not produce intoxication.</p>

<p>Accusation of carrying pistol without license; from city court of Jackson — Judge Fletcher.</p>

<p>If a person, being in possession of a house, makes an executory sale thereof to a lewd woman for the purpose that she may conduct it as a lewd house, and she thereupon occupies it and devotes it to that purpose, he stands in such an accessorial relationship to her act as to be indictable under the provisions of the Penal Code (1910), § 382, which makes it a misdemeanor for any person to “maintain and keep a lewd house.”</p>

<p>Indictment for sale of liquor; from Kabun superior court— Judge J. B. Jones.</p>

<p>1. Where the court sentences a misdemeanor convict in the alternative, directing that he labor upon the public works as the proper authorities of the county may direct, for the space of 12 months, with the privilege of paying a designated fine and costs at any time after entering upon said public works, and thereupon be discharged from custody, and it appears that shortly after the imposition of the sentence, and while the defendant was in the custody of the public authorities of the county, he made a tender of the fine and costs to the sheriff of the county, it was the duty of the sheriff to accept the fine and costs as thus tendered, and to notify the proper authorities, who held the custody of the defendant under the sentence, that it had been fully complied with by the payment of the fine and costs to him; and, upon receiving this notice from the sheriff, it was the duty of the officer holding the custody of the defendant under this sentence to discharge him from further custody.</p> <p>2. Where a sentence with the alternative of a fine has been imposed in a misdemeanor case, the defendant has the right, as a matter of law, to pay, within a reasonable time, the money required by that part of the sentence; and, upon payment or tender thereof to the sheriff of the county within a reasonable time, he is entitled to be discharged from any further custody under the sentence.</p>

<p>Accusation of sale of liquor; from city court of Macon — Judge Hodges.</p>

<p>Habeas corpus; from city court of Camilla — Judge Dasher.</p>

<p>Accusation of violation of game law; from city court of Blakely —Judge Bambo.</p>

<p>1. Where, prior to an announcement of ready, by both sides, the judge makes a complimentary remark as to credibility of one of the State’s witnesses, subsequently sworn as a witness in the case, .the remark ‘being made in the hearing of the jury, and thereafter the defendant, without objection, goes to trial before the jury and is convicted, it is too late to complain for the first time, by motion for a new trial, that the judge erred in making the remark referred to.</p> <p>2. The defendant was indicted for assault with intent to murder, and was convicted of unlawfully shooting at another. He can not complain that the judge erred in charging the jury as to the law of voluntary. manslaughter. It conclusively appears that he could not have been injured by such charge.</p> <p>3. The evidence amply authorizes the verdict, and no error of law appears.</p>

<p>Accusation of misdemeanor; from city court of Biehmond county — Judge W. F. Eve.</p>

<p>Indictment for larceny from house; from Bibb superior- court— Judge Felton.</p>

<p>Attachment; from city court of Atlanta — Judge Reid.</p> <p>•The Puffer Manufacturing Company sold to the defendants a soda fount and apparatus for $530, of which sum the defendants paid $25 cash and $25 on delivery of the fount, executing for the balance a series of monthly promissory notes containing the usual clause that, in the event of default in the prompt payment of one note, the holder might at his option elect to treat the entire series as due and collectible. The defendants paid $150, and, on their refusal to pay the balance, the plaintiff instituted suit in a justice’s court on the five notes past due at that time, aggregating $75. The'defendants pleaded that the consideration of the notes had totally failed, in that the apparatus was utterly unsuited for the purpose for which it was bought. They further pleaded, by way of recoupment, that through leakage in certain paads of the apparatus, they had sustained a loss of $50 worth of syrups and mineral waters. Judgment against the plaintiff was asked, for $100, for breach of contract, and also for $150 as the amount paid on the purchase-price of the apparatus. On appeal to the superior court the' jury found a verdict in favor of the defendants. Subsequently the plaintiff instituted suit on the other notes, by levying a purchase-money attachment on the apparatus. The defendants pleaded res judicata, and, on the trial of this issue, introduced the pleadings and the verdict and judgment in the former suit. There was no other evidence, and the judge directed the jury to return a verdict sustaining the plea of res judicata. The plaintiff excepts to this ruling.</p>

<p>1. It is well settled that, to support an action of trover, the plaintiff must show either title in himself at the time when the suit was commenced, prior possession, or the right of possession.</p> <p>2. “Where a bill of lading is attached to a draft drawn on a third person, it will be treated as security for the draft, and neither title to the goods, nor right to the bill of lading, will pass to the drawee until, as required therein, he accepts, or accepts and secures, or pays the draft, as the case may be.”</p> <p>3. While the general rule is that where one orders goods to be shipped by a common carrier, and the order is accepted and the goods shipped, a delivery to the carrier is a delivery to the purchaser, the carrier being the agent of the purchaser to receive them, and when this is done the title passes from the vendor to the vendee, this general rule is subject to exception. If for any reason the seller, at the time of the shipment and delivery of the goods to the common carrier, takes a bill of lading to his own order, and attaches thereto a draft for the purchase-money, he thereby expresses his intention to retain the title until the draft is paid, or accepted and secured; and, where this method of shipment is adopted, the carrier becomes the agent of the seller or consignor, and would be authorized to deliver the goods only on a surrender to it of the bill of lading.</p> <p>4. This case is fully controlled by the decision of this court in Moss v. Sell, 8 Ga. App. 588 (70 S. E. 18), and the decision of the Supreme Court in Erwin v. Harris, 87 Ga. 335 (13 S. E. 513).</p> <p>5. The judgment in favor of the plaintiff was unauthorized, and a non-suit should have been awarded.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis.</p>

<p>The amendment did not set forth a new cause of action, but merely corrected and amplified one phase of the ease as previously pleaded, and therefore the court erred in disallowing it.</p>

<p>Affidavit of illegality; from city court of Asbburn — Judge Tip-ton.</p>

<p>Action for damages; from city court of Eiehmond county— Judge W. E. Eve.</p> <p>Hudson was a night yard-conductor of the Charleston & Western Carolina Eailway Company, whose duty it was, among others, to receive cars delivered by a connecting carrier to the railroad. Jackson was a night engineer, employed by the defendant railroad companies, to wit, the Louisville & Nashville Eailroad Company and the Atlantic Coast Line Railroad Company, as lessees, and it was his duty among others, to deliver the ears.of his employer to the Charleston & Western Carolina Railway Company. On November 1, 1909, at night, Jackson, in the discharge of his duties, delivered 23 ears to the last-named company in its yards in Richmond county. When Jackson and his crew reached the yards for the purpose of making a delivery of these cars, he asked Hudson where he wanted the cars placed, and Hudson replied, “On track No. 1.” When Jackson called the switchman on that track, Hudson signaled Jackson to stop, whereupon the conductor who was with Jackson and his crew signaled Jackson to go ahead, and Jackson endeavored to move the line of cars. He could not move them, and, seeing that he could not do so, requested his fireman to get down and help him find out the trouble, and both Jackson and his fireman got down off the engine, and began to inspect and examine the cars for the purpose of finding out the trouble. They claimed that the air was§ “cut out,” and Jackson accused Hudson of cutting it out. Hudson replied that he knew nothing of it, and that, if Jackson said that he did it, he lied. Immediately Jackson jumped on his engine, got a revolver out of his box, and wrongfully, willfully, and unlawfully shot Hudson, billing him almost instantly.</p> <p>Suit was brought to recover for this homicide, on two grounds: (1) That Jackson, in committing the homicide, was acting within the scope of his duty as. the agent of his employer, the railroad company, and that the act was committed by him while he was in the actual performance of and in connection with the discharge of his duties as such employee, and therefore that the defendants were responsible for this tort of their agent; and (2) that Jackson was an unfit and improper person to act as an engineer; that he habitually carried a pistol while on duty, had an ungovernable temper, and was an incompetent man to discharge the work of an engineer, was a dangerous man, who was apt to use his pistol without provocation or justification, and did use it many times while in the employ of the defendants, and these facts were fully known to the defendants who, notwithstanding, employed him and continued to keep him in their employment. A general demurrer filed to the petition was overruled, and the case came to this court on exception to that judgment.</p>

<p>Affidavit of illegality; from city court of Covington — Judge</p> <p>Wbaley.</p>

Action for damages; from city court of Atlanta — Judge Eeid. Butler sued the Atlanta Buggy Company for damages on account of personal injuries. The court overruled a demurrer to the petition, and, after the introduction of testimony for the plaintiff, granted a nonsuit; and the latter judgment is here for review.

<p>Complaint; from city court of Eastman — Judge Griffin.</p>

<p>Money rule; from city court of Atlanta — Judge Reid.</p>

Action for contribution; from city court of Ocilla — Judge Oxford.

<p>Certiorari; from Bichmond superior court — Judge H. C. Hammond.</p>

<p>Action for damages; from city court of Vaycross — Judge Lank-ford.</p>

<p>Foreclosure of lien; from city court of Covington — Judge Whaley.</p>

<p>Certiorari; from Chatham superior court — Judge Charlton.</p>

Action for damages; from city court of Thomasville — Judge W. H. Hammond. The petition alleges, that the defendant damaged the plaintiff in the sum of $200, by reason of negligence hereinafter set forth; that a .claim in writing (a copy of which is set forth) was presented to the defendant by the plaintiff, in which payment of the amount of the damage was demanded, and that payment was refused.

<p>Certiorari; from Fulton superior court,</p>

<p>Money rule — appeal; from-Walton superior court — Judge Brand.</p>

<p>Complaint; from city court of Nashville- — Judge Buie.</p>

<p>Appeal; from Chatham superior court — Judge Charlton.</p>

<p>Certiorari; from Floyd superior court — Judge Maddox.</p> <p>The work ou account of which a laborer’s lien was claimed was done in a furniture store, under an agreement that the plaintiff was to be paid $25 per month for his work. He testified: “I was manager of Mr. Pace’s store, and did all the work in connection with the running of the said store, including the keeping of the books, looking after his collections, and the selling of the merchandise. I also opened up the store in the morning, swept up the store, and, with the assistance of the liveryman hauling the furniture, loaded and unloaded it on the dray.”</p>

Garnishment; from city court of Nashville — Judge Cranford. The plaintiff in fi. fa., through his attorney, made affidavit and bond for garnishment, in ordinary form, and the process of garnishment issued thereon was served on the administrator of the deceased ancestor of the defendant in fi. fa.

<p>Certiorari; from. Decatur superior court — Judge Frank Park.</p> <p>The railroad company was sued in a justice’s court for damages on account of the killing of a cow by its cars, and a verdict was rendered against it for the alleged value' of the cow. The case came to this court on exceptions to the overruling of the defendant’s petition for certiorari, in which it was alleged that the verdict was contrary to law and the evidence.</p> <p>At the trial the plaintiff testified, that his cow had been coming home every night until the night of July 10, 1902, but did not come home on that night, and he found her dead the next morning near the public-road crossing west of the defendant’s station at Climax, and within a few feet of the railroad track, with injuries described, indicating that she had been killed by an engine. The defendant introduced two witnesses, one of whom testified as follows: “I am an engineer on the Atlantic Coast Line Eailroad. I killed a cow on the date spoken of and about the same place spoken of, at the hour of 11:45 a. m. I did not kill this cow at this place at night. I did not have time to stop my engine. I was running about 35 or .40 miles an hour when I saw the cow. My engine was equipped with all the modern improvements and was in good shape. When I first saw the cow it was about 50 yards from me, on my right, and running towards the track. I was looking ahead carefully. When I saw the cow running towards the track I applied brakes and blew whistle. I tried to head her off by blowing whistle, but could not. I put on service brakes and checked the speed of my engine to about 20 miles an hour, when I struck the cow. I knocked her off on the south side of the track as she was crossing. I put on all the power of my service air-brakes, but could not stop in time to save the cow. The emergency brakes are not allowed to be used, only in case of emergency, or when in danger of human life. I used all ordinary care and diligence to prevent killing the cow or injuring it, but could not do it. I saw the cow coming out of the woods, toward the track, and, had the woods not been near the track, probably I might have seen the cow in time to have saved knocking her off.” The other.witness for the defendant testified: “I was fireman on the engine . . at the time this cow was killed which Mr. Whitaker is suing for. Mr. Poundstone [the preceding witness] blew his whistle and put on brakes, at which time I was putting in fire, and as soon as "he did this I jumped to my box on the left of the engine and looked ahead and saw the cow running to cross the track. Mr. Poundstone put on service brakes, which is the highest power brakes allowed to be used except in case of emergency. The engineer is not allowed to put on emergency brakes except in cases where there is danger to human life or serious danger to the train itself. Mr. Poundstone did all he could to prevent killing the cow, but could not do so under the circumstances. I rang the bell to frighten the cow away. The brake held perfectly, but could not stop the train in that distance.”</p> <p>cited: 9 Ga. App. 254; 7 Ga. App. 138; 3 Ga. App. 197; 119 Ga. 521.</p> <p>cited: 7 Ga. App. 566, 780; 6 Ga. App. 308, 499.</p>

<p>Certiorari; from Bibb superior court — Judge Felton.</p>

<p>Accusation of sale of liquor; from city court of Sylvester— Judge Williamson.</p>

<p>Possessory warrant lies only for the recovery of personal property. Immature growing crops are not “personal property,” but are realty; hence, possessory warrant is not one of the remedies allowed to the landlord against his cropper, under the provisions of the Civil Code (1910), § 3706, so far as such crops are concerned.</p>

<p>Complaint; from city court of Atlanta — Judge Reid.</p>

<p>An order refusing to allow a demand for trial in a criminal case to be spread upon the minutes of the court is not such a final judgment as will support a bill of exceptions.</p>

<p>Accusation of discharging pistol on highway ;• from city court of Dublin — Judge Nawkins.</p>

<p>Accusation of larceny; from city court of Blackshear — Judge Milton.</p>

<p>Accusation of sale of liquor; from city court of Fitzgerald— Judge Wall.</p>

<p>Accusation of sale of liquor; from city court of Dublin — Judge Hawkins.</p>

<p>Conviction of manslaughter; from Glascock superior court— Judge Walker.</p>

<p>Where a city council tries a person for the violation of a municipal ordinance, a judgment of guilty may be rendered by a mere majority vote, unless the charter of the city otherwise provides.</p>

<p>No error appears.</p>

<p>Accusation of assault and battery; from city court of Houston county — Judge Brunson.</p>

Complaint; from city court of Brunswick — Judge Krauss. It appears from the record that P. W. Fleming borrowed $500 from John A. Ward, and gave therefor a promissory note, dated February 6, 1903, and due one year after date, with interest from date at the rate of eight per cent, per annum. The note was indorsed by B. A. White Jr., M. Elkan, and Fred Baumgartner.

<p>Accusation of carrying pistol without license; from city court of Montieello — Judge Thurman.</p>

Certiorari; from Liberty superior court — Judge Seabrook. Suit in tbe county court was brought against the Seaboard AirLine Railway, to recover damages for a tort. The court sustained a general demurrer to the petition. On certiorari, the superior court affirmed the judgment; and the judgment of the superior court is here for review.

<p>Trover; from city court of Tifton — Judge E. Eve.</p>

<p>Trover; from city court of Monroe — Judge Stone.</p>

<p>Complaint; from city court of Atlanta — Judge Reid.</p>

<p>Complaint; from city court of Ocilla — Judge Oxford.</p>

Trover; from city court of Atlanta — Judge Reid. Kaufman engaged Jones & Company to crate and pack his furniture and to ship it to him from Norfolk, Virginia, to Atlanta, Georgia. Jones & Company shipped the goods by the Seaboard Air-Line Railway, taking the bill of lading in their own names.

<p>Complaint; from city court of La Grange — Judge Harwell.</p>

<p>Trover; from city court of Washington — Judge Wynne.</p> <p>cited: 4 Ga. .App. 733 (4), 739; 111 Ga. 668-72; 117 Ga. 161; 118 Ga. 543.</p> <p>cited: 7 Ga. App. 354, 519; 67 Ga. 672.</p>

<p>1. In this State the rule is well settled that a person has a right to procure an insurance policy on his own life, and to assign it to one who has no insurable interest in his life, provided it be not clone by way of cover for a wager policy; and th.e intention of the insured in taking out the policy and in making the assignment, and of the assignee in accepting the assignment, are questions of fact, for determination by a jury.</p> <p>2. There is some evidence in the present case tending to show that the policy contract was valid, and that the assignment thereof was made in good faith, for a valuable consideration.</p> <p>3. Query: Where the evidence shows that an assignment or sale by the insured, of a policy of insurance, to one who had no insurable interest in his life was made with the knowledge of the insurance company, and the company subsequently received the premiums directly from the assignee for three years, and the policy provided that after two years it would be incontestible on any ground, would not the company be es-topped from contesting the validity of the policy? And even if not estopped, could the company make any contest of the validity without first tendering back the premiums which it had received from the. assignee of the policy?</p> <p>4. Where the assignee of a policy of insurance, which provides that the assignment is “subject to proof of interest of the assignee,” makes timely proof of loss, in which he states that he holds the policy as an absolute purchaser for value, and not as collateral security, and subsequently, in reply to letters from the insurance company, asking for proof of interest, writes to the company that his interest is that of an absolute purchaser for value, and repeats the same statement to a special agent of the company, sent to him by the company for the purpose of finding out the interest of the assignee and making a settlement with him of the policy, this is a substantial compliance with the provision of the assignment requiring proof of interest by the assignee.</p> <p>5. There was no error in excluding the'testimony of the agent of the insurance company through whom the application for the policy was made, to the effect that he disapproved the policy because in his opinion it was a wager policy; and in also rejecting the testimony that in the town where the insured lived, there was a great deal of speculation in policies of insurance.</p> <p>6. The exceptions made to portions of the' charge of the court are without merit; and the written requests to charge were substantially covered by the general instructions.</p> <p>7. No error of law appears, and the verdict is supported by some evidence.</p>

<p>Certiorari; from Jasper superior court — Judge J. B. Park.</p>

<p>Certiorari; from Grady superior court — Judge Frank Park.</p>

<p>Attachment; from city court of Macon — Judge Hodges.</p> <p>The Dannenberg Company sued Salant & Salant,“alleging, that the defendants sold to the plaintiff 100 dozen shirts at $3 per dozen, to be shipped from New York to Macon, and to correspond with a sample dozen shirts left with the plaintiff when the contract was made; that subsequently the contract 'was'mutually rescinded, except as to 78 dozen shirts; that when the 78 dozen shirts were received by the plaintiff it refused to accept them, because they were inferior and wholly unlike the samples; that immediately upon discerning this fact shirts like the samples were demanded of the defendants, and they refused to ship any others; that thereafter they were notified that the plaintiff refused to accept the shirts, because of their inferior quality and failure to come up to samples, and that they were held subject to their order and without insurance; that the market value of the shirts, according to the sample dozen, was $4.50, instead of $3 per dozen, and the suit was for the difference between the market price and the contract price. The answer admitted a sale of 100 dozen shirts and the subsequent mutual rescission except as to the 78 dozen. It was denied that the sale was by sample, or that the 78 dozen delivered were inferior, or that there was any breach of warranty. The answer averred also that the defendants had sued the plaintiff, in New York, for the purchase-price of the 78 dozen shirts; that the suit was pending, and that the defense thereto was based upon the same allegations as made in the plaintiff’s declaration here. The evidence was in conflict on the issues made by the pleadings, and therefore, the finding of the judge, who, by consent, acted without a jury, must be considered as conclusive on these issues. The evidence further showed that the shirts were shipped from New York on March 8, and received in Macon on March 20. On March 24 the plaintiff wrote to the defendants complaining of the condition and quality of the shirts; that they were not up to the samples, and that they were held subject to the defendants’ order, without insurance. On March 29 the defendants wrote to the plaintiff: “We will have to ask you to keep the goods shipped to you, as they are certainly what was sold to you.” On April 1 the plaintiff wrote to the defendants, again notifying them that the goods were held subject to their order, uninsured, and asking for shipping instructions. On April 4 the defendants wrote, positively declining to accept a return of the shirts, or to make any disposition of them. On May 14 the plaintiff began suit by attachment, and some time thereafter the defendants sued the plaintiff, in New York, for the purchase-price. Subsequently to this correspondence and the filing of suit, the shirts were being injured by being kept in stock, “getting dusty and rat eaten,” and deteriorating in value, and, in order to prevent further loss in the shirts, the plaintiff sold as many of them as it could. The trial resulted in a finding in favor of the plaintiff,'of $117, and the defendants’ motion for a new trial was overruled.</p>

<p>1. To render admissible secondary evidence of a lost mortgage purporting to have been made in another State, it must be shown that the lost original mortgage was executed in conformity with the law of that State. Proof that the signing of a paper in the State of Florida was</p> <p>' attested by two witnesses, neither of whom signed officially, is insufficient to prove its legal execution as a mortgage, since the law of Florida requires a mortgage to be attested by an officer.</p> <p>2. A levying officer may, at his own risk, deposit with a bailee, for' safe keeping, personal property which he has subjected to levy; and in thus depositing it he does not relinquish possession, but merely selects an agent to retain possession in his behalf. The possession of this agent is still the possession of the levying officer; and a conversion of the property by the bailee, though it consist of nothing more than his failure to deliver on demand, entitles the officer to proceed by trover. Any agreement of a levying officer, affecting the disposition of property which has been subjected to a levy, is contrary to public policy, and void, if it tends to defeat, or in any wise affects, the legitimate result of the legal proceeding of which the levy forms a part.</p>

<p>Action for damages; from city court of Tifton — Judge Hve.</p>

<p>These eases are controlled by the decision this day rendered in Hansford v. national Banh of Tifton, ante, 270.</p>

<p>1. The evidence authorizes the verdict.</p> <p>2. Under the Civil Code (1910), §§ 2782 et seq., an employee .(or one in his right) suing for injuries inflicted upon him by the alleged negligent acts of fellow servants in railway employment is not barred from recovery by his contributory negligence, unless it amounts to a failure, to exercise ordinary care.</p> <p>3. Contributory negligence on the employee’s part may consist in a violation of a valid rule promulgated by his employer. However, when an employer offers in evidence a rule, for the purpose of showing that the employee has been guilty of negligence by violating it, the employee may avoid the effect of it by showing that the master made it, not in good faith and with the intention that it should be obeyed, but merely for the purpose of shielding himself behind it in the event that an employee, who was expected to violate it, should be injured; or. may. show that the employer has waived or abrogated the rule by knowingly allowing continuous and customary violations of it by his employees generally. '</p> <p>(a) Where a railway company promulgates rules for the guidance of its' employees, they will be most strongly construed against the company, and if it be doubtful whether they cover the act in question, they will not be sufficient to render that act, if committed by the servant, negligence per se.</p> <p>(b) If it be at all doubtful as to whether the rule was intended to apply to a particular kind of service, and it is shown that both before and after its promulgation that service had been, with the master’s knowledge, constantly performed by the employees in violation of the terms of the rule, the evidence of the practice of the employees in this respect is relevant, not only (where a waiver of the rule is relied on)- to prove the waiver, but also to aid in the construction of the rule itself.</p> <p>4. Depositions taken under provisions of the Civil Code for use in a pending ease may, in the discretion of the court, be read in evidence, notwithstanding the presence of the ivitness at the trial.</p> <p>5. For the court to state to the jury the allegations of the petitioner and the insistences of counsel is not violative of the code section against the judge’s expressing or intimating an opinion upon the facts.</p> <p>6. The trial was free from error, and no reason appears for granting a new trial.</p>

<p>Complaint; from city court of Bainbridge — Judge Harrell.</p>

Complaiut; from city court of Miller county — Judge Bush. R. L. Z. Bridges sued D. Phillips, as indorser, on a note'made by George Owens, payable to Phillips, and indorsed- as follows: “ For value received I transfer and assign to Bainbridge • State Bank the within note and mortgage, with full recourse on me.

Garnishment — appeal; ^ from Elbert superior court — Judge Walker. By the will of A. G. Worley, which was probated in 1907, his widow took an estate for life, and after her death the property was to be equally divided between his seven children, except that his son G. A. Worley was to account for a difference of $150.91. The part of the estate which would have come to this son amounted to $3,150.91.

<p>Levy and claim; from city court of Forsyth — Judge Cabaniss.</p>

<p>Trover; from city court of Montieello — Judge Thurman.</p>

<p>Bail-trover; from city court of Bainbridge — Judge Harrell.</p>

<p>Trover; from city court of Savannah — Judge Davis Ereeman.</p> <p>cited,, Ferguson v. McGowan, 124 Ga. 669</p>

<p>Attachment; from city court of Albany — Judge Crosland.</p>

<p>Complaint; from city court of Fitzgerald — Judge Wall.</p>

<p>Action for penalty; from city court of Douglas — Judge McDonald.</p>

<p>1. The judgment of the United States circuit court remanding a case to the State court from which it has been removed is final, and it is the duty of the State court to receive jurisdiction and proceed with the trial.</p> <p>2. Courts will draw every, reasonable deduction to uphold contracts of insurance. A contract of fire insurance issued in the name of a dead man as the insured will not for that reason alone he held invalid. Unless it appears to the contrary, the company will be presumed to have known the fact that tlie'person named as the insured was dead, and that the contract was made for the benefit of the person or persons representing the estate. And especially is this true where the policy itself expressly provides that, “Wherever in this policy the word ‘insured’ occurs, it shall be held to include the legal representatives of the insured.”</p> <p>3. The administrator on the estate of the insured is the proper personal ‘ representative to sue on a policy contract issued in the name of the ■ intestate.</p> <p>4. Where the amount of the verdict was substantially less than the amount claimed in the proofs of loss and sued for, a verdict for attorney’s fees and damages was unauthorized. Besides, the question of law involved'" in the present case was sufficiently doubtful and important to rebut • ,1¡he. .existence of bad faith on the part of the company in its refusal to pay the policy, and in contesting its validity.</p>

<p>Action, for deceit; from city court of Macon — Judge Hodges.</p>

<p>Complaint; from city court of Tifton — Judge E. Eve.</p> <p>The Stimpson Specialty Company sued Parker on a promissory note given by him for the purchase-price of a manhine described in the contract of purchase embodied in the note as a “sausage mill, ^ 40 coffee mill.” The defendant filed a plea of total failure of consideration, in which he set up that the mill was bought as a sausage mill, and not as a coffee mill, and that it was worthless for the .purpose for which it was bought. The contract does not disclose whether the mill was to be used exclusively as a sausage mill or as a coffee mill, or for both purposes. The defendant assumed the burden of proof as to the plea of total failure of consideration, and testified, that he bought the machine “to be used solely as a sausage mill;” that he endeavored to use it as a sausage mill, but was unable to do so, for when it was put in operation the “gear gave way,” and he was unable to run it, and it was not suited for the purpose intended; that he had never ran a machine of this kind before; that about two weeks after the machine had been received he “showed it to . . the agent” who had sold it to him, and this agent “agreed to write to his house about it;” that he did not use the machine for the purpose of grinding coffee, and did not know whether it would have done that work; if the machine had been sold as a coffee mill for $175, he presumed it was worth that amount. When the machine was delivered, it had no attachment for grinding coffee, although.it was actually made for the purpose of grinding coffee, and the sausage attachment was afterwards put on. Another witness testified, that he was present when the machine was received, and that he and the defendant put it up, but that they were never able to use it for grinding meat; that the raw-hide gear was not sufficient to run the mill; that “it was completely worn out and mashed together.” There is no evidence that the defendant, on discovering the defects of the machine or that he was unable to operate it as a sausage mill, made an offer to return it or rescind. So far as appears, he kept the machine from the time he received it until the suit was filed (about six months), without complaint further than may be inferred from his statement that he showed the mill to the agent, “ who agreed to write to his house about it.”</p> <p>The judge (who, by consent, tried the case without the intervention of a jury) rendered judgment in favor of the defendant; and the plaintiff excepted.</p>

<p>1. Ordinarily, only those standing in the relation of creditors at the time of the transfer can attack a transfer of property, on the ground that it was made to hinder, delay, or defraud creditors. If subsequent creditors desire to attack the transfer on that ground, they must show that at the time they extended credit they had no notice of the transfer, and that they were, by some fraud, actual or constructive, induced' to extend credit on faith of the ownership of the property. First Natl. Banh v. Bayless, 96 Ga. 684 (23 S. E. 851) ; Sims v. Albea, 72 Ga. 751; Horn v. Boss, 20 Ga. 210 (3), (65 Am. Dec. 621); Hagerman v. Buchanan, 45 N. J. Eq. 292 (17 Atl. 946, 14 Am. St. Rep. 732, and monographic note appended thereto).</p> <p>2. A sale of property, if otherwise bona fide made, is not void as to a preexisting creditor of the vendor merely because he retains the possession after the sale.</p>

<p>Action for damages; from city court of Macon — Judge Hodges.</p> <p>On March 4, 1910, certain contiguous suburbs of considerable area were annexed to the City of Macon, as a result of an election held under a special act of the General Assembly. In'this new territory were a number of highways which had been previously kept up by the county authorities; and one of these was known as Giles street. Early in the night of March 11, 1910, Mrs. Morris, the plaintiff, started to the home of her sister, who lived on Giles street. She had never previously been on the street. She left the street-car at a near-by point, and, while going down Giles street on what' was not, strictly speaking, a sidewalk, but was a part of the street (on its edge nearest the property line), which</p> <p>was commonly used by pedestrians, she fell into an unguarded sewer-opening and was injured. The contour of the street surface was such as to hide the opening from any one approaching from the direction from which she came, especially at night, but could easily be seen by any one approaching from the opposite direction. The danger of the situation was inherent in the method of its original construction by the county authorities. She sued the city for damages because of her injury, and recovered a verdict for $1,000. No negligence on the plaintiff’s part is asserted; it is also practically conceded that the sewer was originally constructed and maintained by the county authorities in a negligent way; the defense of the city is that it did not know of this defect in the highway and that it had not had control over this new territory long enough for negligence to be imputed to it for not discovering and relieving the dangerous situation.- The case comes to this court on exceptions of the citjq the overruling of a demurrer to the petition, and to the refusal of a new trial. .</p>

<p>Indictment for arson; from Monroe superior court — Judge E. T. Daniel.</p> <p>cited: Ga. Reports: 57/482; 85/535; 86/357; 93/557; 97/209; 103/430; 109/158, 516; 110/293; 111/139; 117/235; 119/118; 123/278; 125/741; Ga. App. Reports: 2/492; 3/653; 6/105, 776; 7/197.</p>

<p>Action for damages; from city' court of Waycross — Judge Lank-.ford presiding.</p>

<p>Action for damages; from city court of Cartersville — Judge Route.</p> <p>The Riverside Milling and Power Company sued the railway company, alleging, in substance, that on or about March 29, 1907, certain cars loaded with corn and billed to the plaintiff arrived in Cartersville, Georgia, from Kansas City, via the defendant’s railroad, but, as the corn had been ordered delivered over a different line of railroad, the plaintiff was not obligated to accept it when tendered on the defendant’s tracks; that on being notified that these cars of corn were in Cartersville, the plaintiff inquired of the defendant whether the defendant would protect transit on said cars, “ transit ” meaning milling-in-transit privileges, which would allow the plaintiff the right to take the corn and convert it into meal and ship it in its manufactured state to other points on a much lower rate than the rate for shipment of m&al originating in Cartersville; and, on April 4, 1907, the defendant notified the plaintiff that it would accord the plaintiff, milling-in-transit privileges at Cartersville, as to the corn in these ears; and, after receiving this notice, and relying upon milling-in-transit privileges being accorded, and upon its ability to dispose of the meal manufactured 'from this corn at the market price, without loss, if such privileges were accorded, the plaintiff accepted the cars of corn, ground the corn into meal, and sold and reshipped it. The defendant, however, after the corn had been ground into meal, refused to accord to the • plaintiff the milling-in-transit privileges promised, and required the plaintiff to pay the same rate of freight on the meal as would have been required had the corn originated at Cartersville. The plaintiff had made contracts for the sale of the meal and shipped it,' before it was notified that the defendant would refuse to accord milling-in-transit privileges. The defendant, by representing to the plaintiff that it would accord such privileges, induced the plaintiff to purchase the corn and contract for the sale of the meal, and caused the plaintiff the loss’ of $160, for which the plaintiff sues, this sum being the difference between the amount of the freight, demanded by the defendant and paid by the plaintiff on this meal, and the amount which should have been paid at milling-in-transit rates. It is alleged that if the defendant had not promised to aer cord milling-in-transit rates as stated above, the plaintiff would not have paid the freight or accepted the corn, not being obligated so to do. The petition specifies the points to which the meal was shipped, and the freight rates, and gives the name of the defendant’s agent who informed the plaintiff that it would be allowed milling-in-transit privileges; and copies of the bills of lading are exhibited.</p> <p>A general demurrer to the petition was sustained, and the plaintiff excepted. The defendant filed a cross-bill of exceptions, alleging error in the overruling of a special demurrer.</p> <p>cited: Savannah, Florida & Western Ry. Co. v. Bundich, 94 Ga. 778; Georgia Railroad v. Creety, 5 Ga. App. 427.</p> <p>cited: Georgia Railroad v. Creety, supra; Barnes on Interstate Transportation, §§ 253-6, 418, 463.</p>

<p>Certiorari; from Fulton superior court — Judge Bell.</p> <p>Powell, J., being disqualified, Judge Conyers, of the Brunswick circuit was designated to preside. • .</p> <p>The question certified by the Court of Appeals to the Supreme Court was whether the provisions of the act of 1899 as to determination of the boundary line between counties where disputed (Civil Code of 1910, §§ 473, 474, 475) are repugnant to the constitution of Georgia (article 1, section 1, paragraph 23), as being an attempt to confer judicial power upon the secretary of State.</p>

<p>The action being for breach of contract, and the evidence not authorizing the conclusion that the minds of the parties (who negotiated with each other by correspondence) ever met upon the same thing in the same sense, and, therefore, there being no proof that a contract ever existed between them, judgment was properly rendered in favor of the defendant.</p>

<p>Action, for damages; from city court of Fitzgerald — Judge Wall.</p>

<p>1. If an agent is employed in order to obtain the. benefit of his expert knowledge or skill in any particular business or profession, he may be clothed with discretion as to the time, quantity, and nature of service to be rendered by himself; and in such case he is liable alone for the proper exercise of this discretion for the benefit of his principal. Where one agrees to exercise his skill as an expert in determining whether anything should be done, and, if so, what, or to decide that nothing is necessary to be done, as the case may be, this agreement is a sufficient consideration to support a contract obligating the opposite party to pay for such services; and the contract may be just as valid as if the duties to be performed were minutely specified.</p> <p>2. In any contest over the performance or non-performance of such a contract, of course, the legal maxim, “id certum est quod certum reddi potest,” would control. There was no error in overruling the demurrer.</p>

<p>1. Under the Civil Code (1910), § 4126, providing that, on cash sale of cotton and certain other agricultural products, title does not pass by delivery, until the cash is in fact paid, .a sale so intended by the parties is no less a cash sale because actual payment of the cash is not made concurrently With delivery, but is temporarily deferred to meet the convenience of the parties in making a settlement. r</p> <p>2. While it is true that if a concealed principal sues upon a contract made by his agent in the latter’s name, the defendant may set off any counter-claim he has against the agent with whom he contracted, as if he were the principal, whether the counter-claim grows out of the contract in question or not, still this doctrine does not apply where the person contracted with by the agent becomes the moving party and attempts to hold the concealed principal, and it appears that he who is thus moving did nothing and gave up nothing on faith of the agent’s apparent priricipalship.</p> <p>3.' One who has the right of possession of personal property which is converted by a stranger or a mere wrong-doer may sue in trover and recover the full value of the property, though his right of possession be held under a qualified title and only for some special purpose, such as security for a debt; still the plaintiff’s recovery in such a ease is held for • the benefit of himself and for all others in community of title or possession with him, as their respective interests may appear. Whenever a plaintiff who, though having a right of possession, has it only for the special purpose of securing a debt brings trover against the person for whose benefit he would, if he recovered the full value of the property, hold the overplus beyond his debt, the court, on the trial of the trover c.ase, will adjust the matter by limiting the amount of his recovery to the amount of the debt.</p>

<p>Appeal; from Walton superior court — Judge Brand.</p> <p>W. O. Dean, for plaintiff in error. O. Roberts, contra.</p>

<p>Certiorari; from Richmond superior court — Judge H. C. Hammond:</p>

<p>Under the Mississippi statute (Code of Mississippi (1906), § 4851), which provides, “Every bill of lading or other instrument in the nature or stead thereof, acknowledging receipt of property for transportation, shall be conclusive evidence in the hands of a bona fide holder for value, whether by assignment, pledge, or otherwise, as against the person or corporation issuing the same, that the property has been so received,” where a transportation company has issued a bill of lading for so many bales of cotton, weighing so many pounds, and describes it as being marked with certain letters of the alphabet, and the company tenders to a bona fide holder of the bill of - lading the specified number of bales, which in fact weigh less than the weight stated, and' are marked with different letters, and the holder of the bill of lading accepts the cotton, but stipulates that he does not accept it in satisfaction of the bill of lading, and sues the carrier, and it appears that the marks on the cotton were immaterial in fixing its value, held, that the carrier may show that the cotton tendered by it was the identical cotton received by it, despite the discrepancy in marks; but it is liable for the shortage in weight.</p>

<p>Complaint; from city court of Waynesboro — Judge Davis.</p>

<p>Levy and claim; from city court of Leesburg — Charles H. Beazley, judge pro hac vice.</p>

<p>Certiorari; from Decatur superior court — Judge Frank Park.</p>

Action for damages; from city court of Bichmond county — Judge W. F. Eve. Anchors sued the Charleston & Western Carolina Bailway Company for the loss of an eye, resulting from alleged acts of negligence as set out in the petition. The case came to this court on exceptions to the overruling of a demurrer to the petition.

<p>Action for damages; from city court of Sandersville — Judge Jordan.</p>

<p>1. The petition set out a cause of action, both in form and in substance, and the demurrer, general and special, was properly overruled.</p> <p>2. In cases where two or more acts of negligence, or other wrongs, are set forth, either one of which alone, or in connection with others alleged, caused or contributed to the injury for which suit is brought, the plaintiff is not requiréd to elect upon which alleged act of negligence or wrong he will go to trial, but he can recover such damages as he has sustained, whether the damages arise from one or from all of the acts of negligence or wrongs alleged, provided the evidence shows that the injury was proximately caused by some one of the acts of negligence or other wrongs; that is, the plaintiff is entitled to recover damages either for negligence or for wilful misconduct as alleged on the part of the defendant, according to the proof.</p> <p>3. Excerpts from the charge, in effect embodying the foregoing principle of law, were not erroneous.</p> <p>4. A new trial will not be granted for newly discovered testimony merely cumulative and impeaching in character, and which probably would ' not produce a different result.</p> <p>5. The record discloses no material error, and the verdict is supported by some evidence.</p>

<p>The plaintiff having failed to prove his ease as laid, the court did not err in awarding a nonsuit. The facts in the present case differentiate it from the case of Evans v. Griffin, 1 Ga. App. 327 (57 S. E. 921). In that case the undertaking of the defendant to assume the obligation of the original debtor, and the absolute release of the latter by the creditor in connection with the assumption of the original debtor’s debt by the defendant, created an original undertaking on the part of the defendant; in the present case, as the original debtor was not released, the obligation of the defendant was merely one of suretyship, and therefore was required to be in writing.</p>

<p>■Garnishment; from city court of Cordele — Judge Whipple 'presiding.</p>

<p>Certiorari; from Paulding superior court — Judge Edwards.</p>

<p>1. A provision in the charter of a city, authorizing the mayor and council to require all male residents of the municipality, between the ages of sixteen and fifty years, who have resided in the city for thirty days, to work the streets of the city, or to pay a commutation tax in lieu thereof, is valid and enforceable as provided therein, although the general law of the State designates the persons subject to road duty, where the alternative road law is in effect, as “between the age of twenty-one and fifty years.”</p> <p>2. A local law for the county of Dooly, in which the city of Vienna is located, providing' that the county convicts shall work the main streets through the city of°Vienna, does not affect the validity of the charter provision stated in the first headnote. Both local law and charter provisions can be enforced, and there is no conflict between the two.</p>

<p>No material error of law appears; and there is some evidence to support the verdict.</p>

<p>Trespass; from city court of Quitman — Judge McCall.</p>

<p>Complaint; from city court of La Grange — Judge Harwell.</p>

<p>Complaint; from city court of Covington — Judge Whaley.</p>

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

<p>Appeal; from Pike superior court — Judge R. T. Daniel.</p>

<p>Appeal; from Greene superior court — Judge Walker.</p>

<p>Action for damages; from city court of Atlanta — Judge Calhoun.</p>

<p>Complaint; from city court of Swainsboro — Judge H. R. Daniel.</p>

<p>Action for damages; from city court of Sandersville — Judge Jordan.</p>

<p>1. A suit for damages which had been sustained by the plaintiff more than five years prior to the issuance of the attachment against one who was a non-resident throughout that period was barred by the statute of limitations.</p> <p>2. The plaintiff’s right to proceed, by attachment depended upon the non-residence of the defendant. • The allegation that the defendant was a non-resident was not stricken by amendment, and could not have been stricken without resulting in the dismissal of the case; and the absence or non-residence of a debtor who never resided in this State is no reply to the statute of limitations.</p>

<p>Certiorari; from Bibb superior court — Judge Felton.</p>

<p>Complaint; from city court of Swainsboro — Judge H. E. Daniel.</p>

<p>Accusation of malicious mischief; from city court of Sanders-ville — Judge Jordan.</p>

<p>1. The law of this State declares that “any circumstances which would place a prudent man upon his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due.” The character and sufficiency of the circumstances in a particular case which should place a prudent man on his guard are to be determined as questions of fact by the jury, and not by the' judge as questions of law.</p> <p>2. The promise to pay the interest on a negotiable note is as much a part of the contract as the promise to pay the principal. Principal and interest constitute one debt. When the note is sold to a third person before the principal is due, but when installments of interest are past due, and remain unpaid, and the fact of non-payment appears on the face of the note or is actually known to the purchaser, it is for the jury to determine whether these facts were circumstances sufficient to put the purchaser, as a prudent man, on his guard and to furnish to him warning that the maker of the note had some defense. Proof of these facts authorizes the jury to find that the purchaser bought the note with notice that it was then dishonored; and he would not be protected in his title against any defense that the maker could make if the note were sued on by the original payee.</p> <p>3. There was evidence to support the plea of total failure of the consideration for which the note was given, and no reason appears for the grant of another trial.</p>

Action for damages; from city court of Sandersville — Judge Jordan. The notice referred to in tbe decision was as follows: “State of Georgia, Washington County.

<p>1. The allegations of the plea of fraud set out a good defense.</p> <p>2. The rule that parol testimony shall not be received to change or add to the terms of a written contract does not apply where the alleged contract was procured by fraud. In such case the contract is not binding upon the party defrauded, and may be rescinded at his instance.</p> <p>3. There was no error, and the verdict is supported by some evidence.</p>

<p>Accusation of sale of liquor; from city court of Houston county— Judge Brunson.</p>

<p>Complaint; from city court of Leesburg — Judge Long.</p>

Action for damages; from city court of Atlanta — Judge Eeid. The plaintiff’s husband (on whose estate she was administratrix) was killed on an interstate train. He was a fireman of the defendant, engaged in interstate commerce. The plaintiff originally brought suit in two counts under the South Carolina statute, and two counts under the Federal statute; but the court excluded the two counts- under the South Carolina statute, upon the ground that the Federal statute applied.

<p>Levy and claim; from city court of Jeffersonville — Judge Shannon.</p>

<p>' Certiorari; from Paulding superior court — Judge Edwards.</p>

Certiorari; from Fannin superior court — Judge Morris. A judgment against Higdon & Williamson, a partnership, was rendered in .a justice’s court. After execution was issued, Williamson, one of the partners, paid off the debt; and the justice of the peace who had issued the execution entered thereon a recital of the fact of Williamson’s having made the payment, and thereupon transferred the execution to him.

<p>Trover; from city court of Bainbridge — W. V. Cugter, judge pro</p> <p>hac vice.</p>

<p>Money-rule; from city court of Lumpkin — Judge Hickey.</p>

<p>Certiorari; from Paulding superior court — Judge Edwards.</p>

<p>Action on contract; from city court of Eastman — Judge Griffin.</p>

<p>Levy and claim; from city court of Eastman — Judge Griffin.</p>

<p>Certiorari; from Gwinnett superior court — Judge Brand.</p>

<p>Certiorari; from Ware superior court — Judge Parker.</p>

<p>,Action for damages; from city court of Baxley — Judge Sellers.</p>

<p>Motion to vacate verdict; from city court of Moultrie — Judge McKenzie.</p>

<p>Trover; from city court of Douglas — Judge Lankford.</p>

<p>Motion to tax costs; from city court of Macon — Judge Hodges.</p>

<p>Accusation of assault and battery; from city court of Fitzgerald —Judge Wall.</p>

<p>Certiorari; from Thomas, superior court — Judge Thomas.</p>

<p>Accusation of misdemeanor; from city court of Albany — Judge Crosland.</p> <p>The accusation charged J. L. 'Williams with “the offense of misdemeanor, for the said defendant . . unlawfully and with force of arms, by false representation of his, the said J. L. Williams’, own respectability, wealth, and mercantile correspondence and connections, did obtain a credit, and thereby defraud G. W. Wallace of $5.00 in money. He, the said J. L. Williams, on the day and year aforesaid, purchased of the said G. W. Wallace merchandise in the sum of $5.00, and gave to the said G. W. Wallace his, the said J. L. Williams’, check [described]; said check being drawn on the Bank of Thomasville; and he, the said J. L. Williams, at the time of the giving of said cheek, knew that he had no money in or account with said bank; thereby defrauding the said G. W. Wallace out of $5.00, contrary to the laws of said State,” etc. On conviction the accused made a motion in arrest of judgment, on the ground that the accusation was fatally defective, because: (a) There is no charge that the defendant injure,d the person alleged to have been defrauded. (T)) There is no allegation that there was any loss or damage to the said Wallace, (c) There is no allegation that the check was not paid by the bank on which it was drawn. (d) There is no allegation that there were no funds sufficient to cover the check at the said bank at the time the check was made or presented, or at the time the check could be presented, (e) There is no allegation that any money or article of value was delivered by the said Wallace to the defendant. To the overruling of this motion the defendant excepted-</p> <p>Citations in brief of counsel for plaintiff in error: Ga. Rep. 97/199; 120/858; 109/52, 53; Gat. App. Rep. 2/154, 696; 4/510; 8/119.</p>

<p>Certiorari; from Fulton superior court — Judge Bell,</p>

<p>Accusation of misdemeanor; from city court of LaGrange — Judge Harwell.</p>

<p>Accusation of violation of prohibition law; from city court of Macon — Judge Hodges.</p>

<p>Accusatiou of cheating and swindling; from city court of Swainsboro — Judge H. R. Daniel.</p>

<p>Indictment for assault with intent to rape; from Gordon superior court — Judge Fite.</p>

<p>Action for damages; from city court of Floyd county — Judge Eeece.</p>

<p>The court erred in not compelling the plaintiff to state her ease more definitely, in response to the special demurrer.</p>

<p>Complaint; from city court of Sandersville — Judge Hawkins presiding.</p>

<p>Complaint; from city court of Sandersville — Judge Jordan.</p>

<p>Motion for new trial; from city court of Monroe — Judge Stone.</p>

<p>Appeal; from Wilcox superior court — Judge Wbipple.</p>

<p>Complaint; from city court of Springfield — Judge J. Hartridge Smith.</p>

<p>Where a railroad company, in pursuance of an agreement with a warehouse company, places one of its cars on a side-track in front of .the warehouse, for the purpose of having the car loaded with cotton stored in the warehouse, for immediate shipment, the railroad company to pay for the work of loading, and the cotton is loaded on to the ear by employees of the warehouse company, properly marked as to destination, and with name of consignor and consignee, this is a delivery to the railroad company as a common carrier of the cotton, and the rail; road company would be responsible to the owner of the cotton for its destruction by fire while in its possession.</p>

<p>This case is fully controlled by the decision of this court in Maine v. Mow-ell, 7 Ga. App. 311 (66 S. É. 804). The ease of Gable Piorno Go. v. Maneoek, 2 Ga. App. 73 (58 S. E. 319), is distinguishable from the present case on the facts.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge Beid.</p>

<p>1. It is only when the terms descriptive of property intended to be conveyed by a written instrument are manifestly too meager, imperfect, or uncertain to serve as adequate means of identification that the court can, as a matter of law,, adjudge the description to be insufficient. “Whether such terms will serve to identify the premises is a question of fact, and not of law.”</p> <p>2. Parol evidence is admissible in aid of a defective description of personal property in a bill of sale.</p> <p>3. Failure to record in time may subject the holder of a bill of sale to the risk of loss by reason of the superior diligence of the holder of some junior lien created by contract, but if he really has obtained title prior to the creation of a lien by law, his title will not be defeated by the mere failure to record. It is not essential to the validity of a reservation of title embraced in a written contract for the sale of personalty that the contract be recorded. A bill of sale may be admissible as evidence though it has not been recorded; and especially is the failure to record not a good ground of objection to its introduction when there is evidence that actual notice of it was brought home to the • party sought to be .affected by the instrument.</p> <p>4. The court did not err in overruling the objection as to the attestation of the bill of sale. Inasmuch as the specific objection was not made that the bill of sale was inadmissible for want of proof of proper execution, the necessity for such proof was waived. Furthermore, the admission, in the petition for certiorari; that the bill of sale was signed by the parties to whom it purported to have been executed must be treated as an abandonment of the objection, upon the hearing in the superior court.</p> <p>5. Tlie requirement of § 4203 of the Civil Code (1910), as to attestation, is merely a provision for the admission of the paper to record.</p>

<p>Complaint; from city court of Atlanta — Judge Callioun.</p>

<p>1. A violation of the statute which forbids one to be drunk or intoxicated within the curtilage of any private residence not in his exclusive possession may be manifested by his indecent condition or acting. The indecent condition may exist in the degree of the intoxication, even if there be no harmful act and no unbecoming language or loud and violent discourse. *</p> <p>2. The evidence authorized the verdict of guilty.</p>

<p>Indictment for larceny; from Fulton superior court — Judge Roan.</p>

<p>1. It is a violation of the law for a person to keep on hand intoxicating liquors at his place of business when it is closed, as well as when it is open to the public for the purpose of business.</p> <p>2. As all engaged in the commission of a misdemeanor are principals, one may be guilty of keeping intoxicating liquor at his place of business, or on hand at the place of business, though it be disclosed by the evidence that he was not the owner of the liquor, but merely kept it on hand as an employee or agent of the owner, at the place of business where he worked, provided that it was a public place of business.</p> <p>3. In contemplation of the general prohibition law, even a menial employed by another may have a place of business. His business may consist only of discharging the duties devolving upon him under the terms of his employment; and the place of business of his employer will be his place of business if it be. the place where the performance of his duties is required.</p> <p>4. The evidence authorized the verdict.</p>

<p>Indictment for misdemeanor; from city court of Covington— Judge Whaley.</p>

<p>Accusation of sale of liquor; from city court, of Carrollton— Judge Beall.</p>

<p>Accusation of carrying pistol without license; from city court of LaGrange — Judge Harwell.</p>

<p>Certiorari; from Putnam superior court — Judge J. B. Park.</p>

<p>Indictment for bigamy; from Coweta superior court — Judge B. W. Freeman.</p>

<p>The petition for certiorari alleging that bond and security were given as required by law, and having been duly sanctioned, and it not affirmatively appearing from the answer of the mayor, or otherwise from the record, that this allegation was untrue, the court erred in dismissing the certiorari upon the ground that bond and security had not been given by the applicant as required by law.</p>

<p>1. In a criminal case tlie trial is not completed until á verdict lias been rendered.</p> <p>2. Where the judge presiding in a criminal trial leaves the county of the trial while the jury is deliberating upon its verdict, and goes to an adjoining county, the pending trial is vitiated, and a verdict thereafter returned by the jury is a nullity.</p> <p>3. The assignments of error other than those ruled upon above are without merit.</p>

<p>1. It is not necessary in an indictment for perjury to set out, either literally or in substance, the form of the oath alleged to have been administered to the defendant as a witness in the judicial investigation in which the perjury is alleged to have been committed. The jury can plainly understand.this ingredient of the offense if it is alleged in the indictment that the oath administered to the defendant was a lawful oath, and if the time, place, and nature of the investigation, and the authority of the tribunal in which the perjury is alleged to have been committed, are so distinctly stated as to exclude every other inference than that the oath administered was in substance that prescribed by law, and that it was consciously taken by the accused when he testified as a witness. Generally, the form of oath administered to a witness is immaterial; and that it was a lawful oath may sufficiently appear without setting out the oath in full.</p> <p>2. An act of the General Assembly conferring power upon municipal authorities to try all violators of ordinances of the municipality, and to sentence those adjudged to be guilty, and to fine them, imprison them, or compel them to work in a chain-gang upon the public streets, creates, by charter, a court. “Every court has power . . to administer oaths in an action or proceeding pending therein, and in all other cases, when it may be necessary, in the exercise of its powers and duties.” Civil Code (1910), § 4644 (5).</p> <p>3. In a trial before a municipal court composed of a board of commissioners any member of the board may administer an oath to a witness.</p> <p>4. 'Proof that an ordinance was passed by the town council of a municipal corporation will support an allegation that it was passed by the general council of the corporation. In view of the fact that the charter of Kingston provides for only one municipal body, the variance between the term “ town council, ” as used in the charter, and the term “general council,” as used in the presentment, in reference to this municipal body, is not material.</p> <p>5. It is essential that the materiality of the testimony alleged to. have been false should be made to appear in the indictment; and a day certain upon which the alleged perjury was committed must be stated. In the case at bar the allegations of the indictment sufficiently conform to these requirements.</p> <p>6. There was no error in overruling the demurrer.</p>

<p>Accusation of sale of liquor; from city court of Dublin — Judge Hawkins.</p>

<p>Conviction of manslaughter; from Washington superior court— Judge Rawlings.</p>

<p>No error of law was committed, and the evidence warranted the verdict.</p>

<p>Conviction of manslaughter; from Jasper superior court — Judge J. B. Park.</p>

<p>Where a municipal ordinance authorized the mayor to impose sentence in the alternative of a fine or work on the public streets of the city, and the mayor sentenced a person in the following language: “Fine $50, or 60 days at hard labor on,” the sentence was not void for uncertainty because it was not dated and the place where the alternative part of the sentence was to be executed was not stated. Under the ordinance, the only place where that part of the sentence imposing hard labor could have been executed was “upon the public■ streets” of the municipality. It was not erroneous for the judge hearing an application for discharge on habeas corpus, on account of the alleged uncertainty of the sentence, to permit the mayor who heard the case and imposed the sentence to insert therein the date, and to add thereto the words “the public streets of Blakely,” although the amendment was not necessary.</p>

<p>Indictment for arson; from Coffee superior court — Judge Parker.</p>

<p>Accusation of larceny; from city court of Vienna — Judge Lassiter.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall.</p>

<p>Indictment ior perjury; from Morgan superior court — Judge Walker presiding.</p>

<p>Indictment for misdemeanor; from city court of LaGrange— Judge Harwell.</p> <p>The indictment alleged, in substance, that W. R. O’Neal “did defraud and cheat Robert Hutchinson in the sum and out of thirty dollars in money of the value of thirty dollars, by using the following deceitful means and artful practice,- to wit: On said day and date said O’Neal presented to said Robert Hutchinson, assistant cashier of the LaGrange National Bank, a corporation, a check on the Third National Bank of Atlanta, for thirty dollars, and payable to order of said W. R. O’Neal, and purporting to be signed by W. J. O’Neal, for the purpose of having the same cashed, and the same was- cashed at the said LaGrange National Bank by said Hutchinson, the said Hutchinson relying on the representation made by said W. R. O’Neal that said check was good and would be paid upon presentation; and, said Hutchinson believing that said cheek was good and would be paid when presented to said Third National Bank of Atlanta, he, said Hutchinson, said assistant cashier, paid to said W. R. O’Neal said sum of thirty dollars, in money of value of thirty dollars on and for said check which was worthless and said W. R. O’Neal knew was worthless, and payment of said check was refused by said Third National Bank, no funds being in said Third National Bank subject to said check, all of which said W. R. O’Neal knew, and knowing his said representation to be false, which was false and intended to be false, and by reason of said false representation, said Hutchinson was defrauded and cheated as aforesaid in the sum of thirty dollars.” It is admitted that the evidence proved all the allegations of the indictment except the allegation as to the person who was defrauded and cheated, and as to the ownership of the $30. The evidence as to ownership was that Robert Hutchinson, as assistant cashier, paid the check presented to him by the accused, “with the funds of the LaGrange National Bank;” that the $30 so paid was not his property, but was the property of the bank. The assistant cashier testified that after the check which he had cashed out of the funds of the bank had been returned to the bank, it remained in the cash drawer of the bank as a cash item against him, for about two days, ancl that then he took the $30 out of his pocket and “made it good to the bank;” that this was in accordance with the custom of the bank that where any loss accrued to the bank through his work, it was to be sustained by him. There was no printed rule on the subject, but the bank required him to make the loss good, where it occurred by his negligence or fault.</p> <p>It is alleged that the court erred in refusing a timely written request of the defendant that the jury be instructed as follows: “If you find that the defendant defrauded the LaGrange National Bank by presenting to its officers this check in evidence, and you find that R. E. Hutchinson did not sustain a loss until after he had ascertained and knew the check was worthless (if it was worthless), and R. E. Hutchinson paid the check, knowing it was worthless at the time he paid it, then the defendant would not be guilty in this ease.”</p>

<p>Certiorari; from Wayne superior court — Judge Conyers.</p>

<p>Action on insurance policy; from city court of LaGrange — Judge Harwell.</p>

<p>Action on insurance policy; from cit)1’ court of Moultrie — Judge McKenzie.</p>

<p>Certiorari; from Pulaski superior court — Judge Martin.</p>

<p>Action for damages; from city court of Floyd county — Judge Eeece.</p>

<p>Appeal; from Bibb superior court — Judge Felton.</p>

<p>Appeal; from Fulton superior court — Judge Ellis.</p>

<p>Complaint; from city court of Tifton — Judge R. Eve.</p>

<p>Conviction of voluntary manslaughter; from Putnam superior court — Judge J. B. Park.</p>

<p>1. Neither section 4172 of the Civil Code (1910), providing that adverse possession of personalty for four years gives a title by prescription, nor section 4496, providing that actions for injuries to personal property shall be brought within four years, nor any other provision of the code, properly construed, limits the period within which suits to recover personal property may be brought.</p> <p>2. A valid statute of this State ii^ existence at the date of the adoption of the code, but omitted therefrom through mistake or oversight, is still of force, unless expressly or by necessary implication repealed by a subsequent statute, or by some provision of the code,</p> <p>3. Section 2 of the limitation act approved March 6, 1856, providing that “all suits for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought within four years after the right of action accrues, and not after,” though omitted from the code, is still of force, having been omitted by mistake or oversight, and there being_ nothing in the code, or in any subsequent act, which expressly or by necessary implication repeals this section.</p> <p>4. In a trover case, demand and refusal are necessary only as evidence of conversion, and need not be proved where conversion is otherwise shown.</p> <p>.5. No facts sufficient to relieve the action from the bar of the statute of limitations are alleged, and the court did not err in dismissing the petition, upon a demurrer raising the point that the action was barred.</p>

<p>1. In a suit on a promissory note, where the defendant admitted the execution of the note and that the plaintiff was the lawful holder, and assumed the burden of establishing an affu-mative defense, it was erroneous to charge that the burden was on the plaintiff to make out his case by a preponderance of the evidence. A prima facie right to recover having-been admitted and the burden assumed by the defendant, this instruction was calculated to mislead and confuse the jurors, and induce them to solve any doubts by finding against the plaintiff, especially as the evidence was close and a verdict for either party would have been authorized.</p> <p>2. The evidence of a party as a witness on a previous trial of the case, contained in a brief of the evidence agreed to by his attorney and approved by the court and filed as a part of his motion for a new trial, is competent and admissible for the purpose of impeachment, proper preliminary proof for its introduction having been made.</p>

<p>Complaint; from city court of Cairo — Judge Singletary.</p>

<p>Levy and claim; from city court of Miller county — Judge Bush.</p>

<p>Complaint; from city court of Nashville — Judge Lankford pre- ' siding.</p>

Garnishment; from city court of Madison — Judge Anderson. By consent of the creditors of the Anderson Dry Goods Company, which was insolvent, E. W. Butler took charge of its stock of goods, and, after notice to all the creditors, and by their consent, sold the goods to W. E. Shepherd Company, received the' purchase-price, and disbursed it, according to an agreed pro rata, among the creditors.

<p>Levy and claim; from city court of Fitzgerald — Judge Wall.</p>

<p>Complaint; from city court of Jefferson — Judge Stark.</p>

<p>Appeal; from Paulding superior court — Judge Price Edwards.</p>

Complaint; from city court of Vienna — Judge Strozier. This was a suit by the administrators of the estate of D. C. Clemons, deceased, to recover from W. B. Peavy money and property which they allege he received from the estate of D. C. Clemons while acting as an executor under the will of the decedent, and failed to account for.

<p>Action for damages; from city court of Atlanta — Judge Reid.</p>

<p>Complaint; from city court of Atlanta — Judge Calhoun.</p>

Action for damages; from city court of Elberton — Judge Meadow presiding. The plaintiff bought a ticket from Cannon, in Franklin county, to Hardeash in Elbert county, a flag station on the line of the defendant’s railway. The conductor carried him beyond his station. Upon observing that the train was not slowing down at the flag station, the plaintiff immediately went to the conductor and called his attention to the fact that he was being carried beyond his station.

Appeal; from Fulton superior court — Judge Bell. Suit was brought in a justice’s court against District Grand Lodge No. 18, G. D. O. O. F. of Georgia, for the amount of a policy issued to the plaintiff’s husband, John C. Shelton, by which, in consideration of his agreement, on becoming a member of West End Lodge No. 7687 of the G. D. O. O. F., to comply with the laws of the said order, especially those set out on the reverse side of the policy, the Bureau of Endowment of the…

<p>Complaint; from city court of Miller county — Judge Bush.</p>

<p>Where process is prayed against a named person, and there is nothing in the petition to indicate .an intention on the part of the plaintiff to name any other person as defendant, the suit must he construed as having been brought only against the party named in the prayer. In such a case, the clerk has no authority to annex a process directed to a different person, nor can the petition be amended by striking the name of the defendant from the prayer and substituting in his stead that of the person named in the process.</p>

<p>Action for damages; from Elbert superior court — Judge Meadow,</p>

<p>Appeal; from Fulton superior court — Judge Ellis.</p>

<p>Certiorari; from Grady superior court — Judge Frank Park.</p>

<p>1. The right of one whom the court judicially knows to have been legally appointed and commissioned as solicitor of a city court can not be brought in question by plea in abatement to an accusation drawn by him.</p> <p>2. The removal of an officer from the county for which he was elected or appointed, to another county in this State, does not vacate the office, until the fact has been judicially ascertained.</p>

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

<p>One occupying the relation of employee to the owner of a livery stable can not, although he works in the stable, be convicted either of keeping intoxicating liquors at a public place, or of keeping such liquors on hand at his place of business, when the uncontradicted evidence discloses affirmatively that the liquors were not his, and wholly fails to show that he aided or abetted the owner in storing the liquors in the stable or had any knowledge that they were there.</p>

<p>Affidavit of illegality; from city court of Wrightsville — Judge Kent.</p>

<p>Action for slander; from city court of Thomasville — Judge W. H. Hammond.</p>

<p>Action for damages; from city court of Cordele — Judge Strozier.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin.</p>

<p>1. The application for mandamus nisi must be denied. The exact point is ruled in Moore V. Reid, 110 Ga. 248 (34 S. E. 211). The acceptance of the writ of error and its filing by the agent of the plaintiff in error can not be treated otherwise than if they had been his own acts. “After a judge has certified a bill of exceptions, and the plaintiff in error has, by serving and filing the same and by causing it and the specified portions of the record in the case to which it relates to be transmitted to the Supreme Court, accepted the certificate of the judge as sufficient, it is too late to apply to this court for a mandamus to compel the judge to certify further respecting such bill of exceptions. Rogers v. Roberts, 88 Ga. 150 [13 S, E. 962], The above is true although'counsel for the plaintiff in error may, before receiving from the judge the certified bill of exceptions, have orally expressed some dissatisfaction with the certificate and requested an addition thereto. The proper course in such case, if counsel regarded the certificate as incomplete, would have been to decline to receive and act upon it, and then apply to this court for a mandamus.”</p> <p>2. The recitals of fact as to the only assignment of error contained in the bill of exceptions not being certified to be true, and it appearing, on the contrary, that the statement of material facts in the bill of exceptions is denied by the trial judge, the writ of error must be dismissed.</p>

<p>Complaint; from city court of Macon — Judge Hodges.</p>

<p>1. The argument of counsel, being based upon an inference unsupported by evidence and irrelevant to the merits of the cause, was presumably, prejudicial to a fair consideration by the jury, of the rights of the opposite party, and, the latter’s counsel having properly objected thereto and moved for a mistrial, it was error not to grant a mistrial.</p> <p>2. Otherwise than as above stated, the trial was free from error. 1</p>

<p>. Complaint; from city court of Tifton — Judge E. Eve.</p>

<p>The filing of a bond conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence of the municipal court, or of the superior court, or the filing of a proper affidavit in fox-ma pauperis in lieu of a bond, is a condition precedent to obtaining a writ of certiorari in a case where one seeks to review the judgment of a municipal court. The bond must be approved by the clerk of the municipality uxxder which the court exists, if there be one, and it must be conditioned for the appearance of the defendant to abide the final judgment of the superior court, as well as of the mayor’s court, and a defect in either respect is fatal. Consequently it is not error for a judge of the superior court to refuse to sanction a petition for certiorari when it appears, from an inspection of the bond tendered, and attached to the petition, that it is neither conditioned as required by law, nor approved by the municipal officer charged by law with the duty of approving it.</p>

<p>1. Reasonable certainty as to essential statements is sufficient to enable pleadings to withstand a special demurrer. Complete particularity of statement is not required where a reasonable inference, from the statements made; readily suggests the facts.</p> <p>(a) In an action against a railroad company for damages due to negligently setting out fire, the manner in which the fire was set out must be alleged, but, from the very nature of the eas'e, it is not always within the power of the plaintiff to state the particular agent, servant, or employee who actually started the fire; and the omission on the part of the plaintiff to specify the particular employee to whose negligence the injury was traceable will not subject the petition to special demurrer.</p> <p>2. While the best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of the ordinary, or of another who has examined the records in the proper court of ordinary, that no letters of administration upon the estate are shown by those records, still, where a witness testifies to the effect that no administration has ever been granted upon the estate of a named person, and no objection is interposed at the time the testimony is offered, it will be assumed that the witness has made the requisite examination of the records, and testifies from knowledge derived therefrom; for “unless it affirmatively appears that evidence is hearsay, it is not to be excluded as such, where it is of a nature which admits of its resting on the personal knowledge of the witness.”</p> <p>5. When there is no administration nor any necessity for administration, realty descends to the heirs at law. The evidence in the present case was sufficient to show that the intestate died before the time of the fire which was alleged to be the cause of the injury and damage.</p> <p>4. The verdict was authorized by the evidence. There was no error in the ruling upon the testimony complained of, nor in the charge of the court to which exception is taken.</p>

<p>Indictment for disturbing divine worship; from Baker superior court — Judge Frank Park.</p>

<p>Appeal; from Upson superior court — Judge B. T. Daniel.</p>

Complaint; from city court of Eastman — Judge G-riffin. The plaintiffs sold goods to the manager of a corporation in process of organization. The capital stock of the corporation was stated in the application for charter and in the charter itself as $20,000. The full capital’stock was never subscribed or paid in; indeed, only 10 per cent. — that is, $2,000 — was ever subscribed or-paid in. The corporation became bankrupt without having paid the plaintiffs’ bill in full.

<p>Action for damages; from city court of Macon — Judge Hodges.</p>

<p>1. There was no error in striking the defendant’s answer. In the absence of any effort to amend it, the averments of the answer were too vague and indefinite to present a defense, either as a plea of tender or as a plea of failure of consideration.</p> <p>2. There was no error in refusing a nonsuit. The suit was upon an account for the price of a certain beverage. The plaintiff introduced in evidence, without objection, a tripartite contract, signed by the defendant, as “dispenser,” and by the plaintiff as “distributor,” in which the defendant agreed to purchase and dispense a certain quantity of such beverage, manufactured by the third party to the contract. The fact that a third party was the manufacturer would not relieve the defendant from his obligation to the plaintiff under this contract.</p> <p>3. The court erred in excluding testimony offered by the defendant to the effect that the beverage purchased by him was intoxicating. The’ contract between the plaintiff and the defendant required the plaintiff to sell and deliver to the defendant a non-intoxicating beverage. Ordinarily, where one purchases intoxicating liquor in a State in which the sale of such intoxicants is authorized by law, and the contract provides that it is to be performed in that State, he is liable for the purchase-price; and the fact that under the contract the liquor is delivered to the purchaser in a State in which the sale of intoxicating liquors is unlawful would present no defense to an action brought to recover the purchase-price. However, the ruling of the trial court, to the effect that, though the beverage sold might be intoxicating, that fact alone would not relieve the defendant from paying for it (though generally a correct statement of law in the abstract), was error, because the court overlooked the provisions of the contract involved, which required the delivery of a non-intoxicating- beverage.</p>

Action for damages; from city court of Richmond county— Judge W. E. Eve.

<p>Certiorari; from Floyd superior court — Judge Maddox.</p> <p>ON MOTION ROR REHEARING.</p> <p>Hill, C. J. The ruling embodied in the first paragraph of the decision conclusively decides this ease and renders unnecessary a discussion of the other questions raised.</p> <p>In one of the grounds of the petition for certiorari it is insisted that the recorder’s court of the city of Rome does not exist, having been abolished on August 10, 1909. In this view of the case it was entirely immaterial, in the consideration of the certiorari by the judge of the superior court, whether the charter of the City of East Rome still exists or has been repealed. It is strenuously insisted by counsel for the plaintiff in error that the act which sought to include the territory embraced in the City of East Rome within the corporate limits of Rome was ineffectual for that purpose, because the legislature, six days after the passage of that act, passed an act amending the charter of East Rome; and it is also insisted that the assumption that the charter of East Rome has been repealed, in the opinion of the Supreme Court in Ivey v. Borne, 139 Ga. 386 (58 S. E. 853), is mere obiter, because the question was not directly presented or involved, and we are asked to certify this question to .the Supreme Court. Under the terms of the constitutional amendment creating this court, we are not permitted to uselessly certify questions to the Supreme Court. It is only when an answer to the certified question is material to the proper determination of the cause that we are permitted to certify questions for instructions. Since the Supreme Court decided in Bass v. Milledgeville, 133 Ga. 177 (50 S. E. 59), that the writ of certiorari can not be used to bring in question the legal existence of the court to which the writ is directed, the judge of the superior court was necessarily compelled to refuse to sanction the writ of certiorari. The application for rehearing is denied.</p>

<p>Certiorari; from Habersham superior court — Judge J. B. Jones.</p>

<p>Complaint; from city court of Savannah — Judge Davis Freeman.</p>

Action for damages; from city court of Moultrie — Judge McKenzie. lYhen this case was previously before this court the judgment of the lower court, dismissing the petition on general demurrer, was reversed, it being the opinion of this court that the allegations of the petition set forth a cause of action.

<p>Conviction of manslaughter; from Colquitt superior court — Judge Thomas.</p>

Complaint; from city court of Elberton — Judge Grogan. Suit was brought in the city court against C. A. Bice, as trustee for W. E. Bice and the children of W. B. Bice, upon an account for provisions, clothing, plows, guano, etc. The petition was dismissed on demurrer, on the grounds that no cause of action was stated, and that the claim was not enforceable in a court of law.

<p>Action on contract; from city court of Atlanta — Judge Eeid.</p> <p>Ezzell sued the J.- I. Case Threshing Machine Company for $708.50, on account of an alleged breach of contract. The petition alleges, that on August 1, 1910, the petitioner entered into a contract with the defendant (a copy of which is exhibited), whereby it was to deliver to him a described traction engine, for which he was to pay $1,250; that before he contracted with the defendant, it “sent one J. D. Perryman to petitioner’s home . . for the purpose of selling petitioner the property described in said contract; that petitioner and the defendant company agreed that petitioner was to purchase 300,000 feet of saw-timber in the woods, and that, for the purpose of conveying the logs from the woods to petitioner’s sawmill, the traction engine above described would save petitioner $2 per thousand on said timber, thus saving petitioner the sum of $600 on this particular location of timber; . . that the representative of the defendant company returned to Atlanta and 'waited until petitioner could negotiate and close the trade for said timber. As soon as petitioner found that he could get the 300,000 feet of timber he notified the defendant company that he would buy the timber, provided he could get the traction engine to haul said timber to his sawmill. The defendant company immediately sent their representative to petitioner’s home again, and, as a result of his visit, the contract above referred to was entered into by petitioner in good faith. On the basis of this contract petitioner purchased 300,000 feet of timber, and expended the sum of $25 for bridges and roads for the purpose of using said engine. After petitioner had built his roads [and] purchased the timber, he received notice from the defendant company to report to MeFall, Alabama, as the engine was ready to be loaded. In response to said notice petitioner left his home and carried with him three men, and went to MeFall, Alabama, and paid out for railroad fare the sum of $23, for board $24, time (three days) for four men, at ' $3 per day, $34, paid for hauling water to the engine $5, paid for help to load the engine $5, man going for head blocks $3.50, making a total amount paid out and lost by petitioner of $708.50, on account of defendant’s failure to carry out said contract. Petitioner alleges that the defendant company, although they had accepted the contract, notified him to go and load the engine on the train, wired him after he got to McFall to remain there, and kept him there for three days, wantonly and without cause refused to allow petitioner to load said engine, wilfully and wantonly disregarded their solemn contract entered into, and refused to deliver to petitioner the property described in the contract. . . Petitioner alleges that he complied with all the conditions of said contract.” The contract referred to as attached to the petition is in the form of an order, addressed to the J. I. Case Threshing Machine Company and signed by the plaintiff, directing shipment of a described traction engine, for which the plaintiff agrees' to pa3>- $1,350. The order contains the following stipulations: “As a condition thereof it is fully understood and agreed that said machinery is purchased as second hand, and not warranted. No representation made by any person as an inducement to give and execute this order shall bind the company. The company assumes no liability^ for non-delivery, non-shipment, delay in shipment or transportation.” The name of J. D. Perryman appears in the order as “salesman.”</p> <p>The defendant demurred generally, and on the following grounds: That it did not appeal- what authority Perryman had to represent the defendant, or that he was such an agent as that assurances or statements made by him would bind the defendant; that it did not appear whether the representations made byr Perrynnan were in parol or in writing, and, if in writing, no copy of the writing was exhibited; that the petition failed to set out a copy of the plaintiff’s letter to the defendant; that it appeared from the contract exhibited that no representation made by any person as an inducement to execute the contract bound the defendant; that the alleged damages were speculative and conjectural, and were too vague and indefinite to constitute the basis of recovery; and that, special damages not being recoverable, and there being no prayer for general damages, the plaintiff should not recover.</p> <p>cited: Cable Co. v. Powell, 3 Ga. App. 73; Langston v. Postal Telegraph-Cable Co., 6 Get,. App. 833; 1 Am. & Eng. Ene. L. (2d ed.) 987; Baldwin v. Daniel, 69 Ga. 782 (5); Biggers y. Equitable Mfg. Co., 124 Ga. 1045; Stimpson Computing Scale Co. y. Taylor, 4 Ga. App. 567; Hand v. Armstrong, 34 Ga. 233, 235; Christophulos Café Co. y. Phillips, 4 Ga. App. 819.</p>

<p>Action for damages; from city court of Douglas — Judge McDonald.</p> <p>Stalvey sued Peterson for damages on acebunt of injuries to a pair of horses and a buggy, caused by their falling into an unprotected well on land owned by the defendant, on becoming frightened and breaking loose while being driven to a house on the land by Joe Teaser, to whom the plaintiff had hired them, and who, it was alleged, was a tenant of the premises. The defendant, in his answer, denied that Joe 'Teaser was his tenant, and denied that the condition of the well was the proximate cause of the injury. The trial resulted in a verdict against the defendant, and he moved for a new trial, alleging that the verdict was without evidence to support it. The motion was overruled and he excepted.</p> <p>cited: Garner y. Town of East Point, 7 Ga. App. 630, and cases cited therein.</p> <p>cited: City of Atlanta v. Wilson, 59 Oa. 544; City Council of Augusta v. Hudson, 94 Ga. 135.</p>

<p>1. When it becomes necessary for the purpose of enforcing his rights, a party plaintiff may amend by substituting the name of another person in his stead, suing for his use.</p> <p>2. The evidence demanded the verdict rendered, and there was no error in overruling the motion for a new trial.</p>

<p>Complaint; from city court of Atlanta — Judge Reid.</p>

<p>1. When an appeal is entered from a judgment of a justice’s court to a jury-in the superior court, the former court loses all jurisdiction of the ease; and if, by mistake, an appeal from the same judgment to a jury in the justice’s court is subsequently entered, and a verdict is returned on the latter appeal and a judgment entered thereon, the latter proceedings are mere nullities.</p> <p>2. If the defendant in a suit in a State court desires a stay of the proceedings therein, because of his having been adjudicated a bankrupt, until the application for his discharge can be heard and decided by the bankruptcy court, or if he desires to set up his discharge as a defense to such suit, he must plead the adjudication or the discharge. After judgment lias been rendered in the State court he can not attack the validity of the judgment therein and move the court to set aside the ■ judgment or to treat it as a “nullity,” either because of the pendency of the bankruptcy proceedings or because of his discharge in bankruptcy from the debt on which the judgment is based. Bankruptcy proceeding's must be pleaded and proved, if relied upon. Courts Other than a bankruptcy court will not take judicial cognizance of such proceedings.</p>

<p>As even tlie plaintiff’s evidence demanded a verdict for the defendant, the errors assigned upon the charge of the judge are immaterial. There was no testimony in behalf of the plaintiff other than such as required a finding that the casualty was a pure accident; but even if the usua.l presumption of negligence applicable to injuries resultant from the operation of the trains of a railroad company could be said to have arisen, the presumption was fully rebutted.</p>

<p>Complaint; from city court of Statesboro — Judge Strange.</p>

<p>Complaint; from city court of Atlanta — Judge Calhoun.</p>

<p>Certiorari; from Walker superior court — Judge Maddox.</p>

<p>1. Where an owner of land contracts with another to sell it at a stipulated price, to be divided into instalments becoming due at specified times, and further stipulates that in the event the instalments are not paid when they mature, the owner shall be paid a specified sum as rental for the land, the legal effect of the contract is to create the relation of landlord and tenant between the parties, with, an option to the tenant to purchase the land upon the terms and conditions set forth in the contract.</p> <p>2. Where, after the execution of such a contract, and before the first instalment of the purchase-price becomes due, the parties mutually agree upon a rescission of so much of the contract as relates to a purchase of the land, the owner lias a lien upon the crops grown upon the premises •described in the contract, both for rent and for supplies furnished by bim which, were necessary to make the crop.</p>

<p>Action on contract; from city court of Ashburn — Judge Tipton.</p>

<p>Complaint; from city court of Ocilla — Judge Oxford.</p>

<p>Action for damages; from city court of Tifton — Judge R. Eve.</p>

<p>Action for damages — appeal; from Habersham superior court— Judge J. B. Jones.</p>

<p>Levy and claim; from city court of Nashville — Judge Buie.</p>

<p>An action upon a contract for the price of goods sold and' delivered can not by amendment be converted into a suit for money had and received to the plaintiff’s use.</p>

Action for damages; from city court of Atlanta — Judge Eeid.. The suit was for the alleged wrongful homicide of the plaintiff’s son by the defendant. The petition was as follows : “Georgia, Fulton County. To the City Court of Atlanta: “The petition of Mrs. M. C. Fuller shows the following facts: 1,. The defendant is Miss Jennie Inman. 2. Defendant is a resident of said State and county. 3.

<p>Action for damages; from city court of Sandersville — .Judge Jor-</p> <p>dan.</p>

<p>Complaint; from city court of Tifton — Judge E. jEve.</p>

<p>Action on contract; from city court of Floyd county — Judge Reece.</p>

<p>Action on bond; from city court of Lumpkin — Judge Nicholson presiding.</p>

<p>1. “Promissory notes are evidence of tlieir own value, in an action of trover.”</p> <p>2. “In an action of trover the issue is one of title, and not of debt. Consequently, neither the defendant in such an action, wherein bail is required, nor the surety on his bond, can set up as a defense the discharge of the defendant in bankruptcy pending the action. This is true although the plaintiff -elects to take a money verdict for the damages alleged to have been sustained.”</p>

<p>Action on contract; from city court of Cartersville — Judge Foute.</p>

<p>Certiorari; from Gordon superior court — Judge Fite.</p>

<p>Forfeiture of bond; from city court of Hartwell — Judge Hodges.</p>

<p>Attachment — appeal; from Murray superior court — Judge Fite.</p>

<p>Action for damages; from city court of Carrollton — Judge Beall.</p>

Trover; from city court of Nashville — Judge Buie. On. July 15, 1908, an action of trover was brought by the Citizens Bank of Valdosta against J. P. Peeples. The defendant replevied the property. The plaintiff claimed the property under a note containing a retention of title, alleged to have been given by the defendant to one Griffith for the purchase-price of one black, cross-eyed mare mule and one black horse, being the same property which was described in the petition.

<p>Complaint; from city court of Dublin — Judge Hawkins.</p>

Certiorari; from Elbert superior court — Judge Meadow. Lee S. Brown brought suit in a justice’s court against Lewellyn Bowen, upon a promissory note given for the premium due on an insurance policy issued upon the life of the defendant by the Fraternal Life Association.

<p>Action for damages; from city court of-Athens — Judge West.</p>

<p>1. Where a check is indorsed to a bank “for collection and credit for deposit” to the account of the payee, the bank is the agent of the payee to collect, and title to the check does not pass to the bank, in the absence of an agreement to that effect, evidenced otherwise than by the language of the indorsement.</p> <p>2. Such an agency may be revoked by the payee at any time before collection, and may be terminated by instructing the bank upon which the check is drawn to withhold payment.</p> <p>3. Following the decision in Schofield Manufacturing Oo. v. Gochram, 119 Qa. 901 (47 S. E. 208), where the owner of a cheek delivers it to a bank for collection, and, before the proceeds are remitted, the bank fails and is placed in the hands of a receiver, the owner is not entitled to priority over the general creditors of the bank.</p> <p>4. The probability that the drawer of a check given in settlement of a debt will request the drawee to withhold payment, when instructed so to do by the payee, and that the drawee will comply with such request, is so legally certain as to support an action for damages against a telegraph company for failing to deliver a message from the payee to the drawer, containing such an instruction.</p> <p>5. The petition set forth a cause of action, and should not have been dismissed on demurrer.</p>

<p>Forfeiture of recognizance; from city court of Houston county— Judge Brunson.</p>

<p>Complaint; from city court of Statesboro — Judge J. Hartridge Smith presiding.</p> <p>The suit was upon a promissory note dated September 12, 1906, and due January 12, 1907, payment of which was secured by a deed to land. Contemporaneously with the note and the deed the defendants executed a writing in which they agreed that in consideration of advances aggregating the principal of the note sued on, they would deliver to the plaintiffs, for sale for account of the defendants, one bale of upland cotton for every ten dollars which had been or might be advanced. This instrument was not signed by the plaintiffs. The writing further provided : “All cotton I deliver for sale or remittances I may make to J. S. Wood & Bro. shall' at their option be applied, first to the credit of any open account I may owe them and to the payment of damages aforesaid, up to the time of a final settlement; and that the above note or notes shall remain in full force, until such settlement.” The defendants filed an answer setting up that the note was given to secure the plaintiffs for advances made to the defendants upon 45 bales of upland and 48 bales of sea-island cotton which had been shipped to the plaintiffs as factors, to be sold by them for the defendants’ account; that when the note was executed, the plaintiffs agreed to hold'.the cotton “until the same was ordered sold by the defendants that in violation of this agreement the plaintiffs sold the cotton at reduced prices, to the damage of the defendants in a named sum; that if the sea-island cotton had been held and sold on December 12, 1906, it would have been worth 34% cents per pound, and if the upland cotton had been held and sold “about the 2d day of December, 1906,” it would have' been worth 11% cents per pound. The answer avers that the cotton was actually sold by the plaintiffs without any instructions so to do'from the defendants, on a date prior to the dates above mentioned and for a less price than it was worth on those dátes. The defendants base their right to recoupment upon, the facts just recited. A demurrer to the answer was overruled, and the defendants prevailed at the trial. The plaintiffs assign error upon the refusal of a new trial, and also upon the refusal to strike the' defendants’ answer.</p>

<p>The individual assets of a member of a partnership can not be subjected ' to a judgment against the partnership alone and not against the individual partners.</p>

<p>Where one contracts with the owner of a house to install therein a heating plant of a certain character and quality, and the plant actually-installed is inferior to that contracted for, the measure of the owner’s damage is the sum required to make the plant conform to the specifications fixed by the contract. This rule is not in a particular case varied by reason of the fact that the contractor offers to make the necessary changes for a specified sum, and to give bond for the faithful performance of the work.</p>

<p>Where a purchaser fails to take and pay for goods sold, and the measure of the seller’s damages is the difference between the contract price and . the market price at the time and .place of delivery, before the seller can conclude the purchaser upon the question of damages by a resale of the rejected goods it is essential that he should notify the purchaser of his intention to resell. A petition for damages, brought by a seller of goods against a purchaser who refused to take and pay for the goods, is subject to demurrer when it neither alleges the market value of .the goods at the time and place of delivery, nor that after notice to the purchaser the goods were resold by the seller and a price less than the agreed price realized at the resale.</p>

<p>Action for breach of warranty; from city court of Hartwell.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid.</p>

<p>Certiorari; from Richmond superior court — Judge Hammond.</p>

<p>1. A contract between the father and mother of minor children, under the terms of which it is agreed that the parties shall thereafter live in a state of separation, each having the custody of the children at specified intervals of time, the father to pay for the education of the children, there being no express stipulation as to who shall support and maintain them, does not release the parental rights of the father to the mother, within the meaning of the Civil Code (1910), § 3021, nor relieve the father from the legal obligation resting upon him to support the children.</p> <p>2. Where such a contract has been entered into and the mother pays for necessary medicine and the services of a physician for such minor children, she may maintain an action against the father for the amount thus expended.</p>

<p>Action for damages; from city court of Americus — Judge Little-john.</p>

<p>While a cropper has a “mortgageable interest” in the crop, this interest can not be subjected to levy and sale under the mortgage, until the cropper acquires title, and this he can not do “until there has been an actual division and settlement” with the landlord.</p>

<p>Complaint; from city court of Floyd county — Judge Eeece.</p>

<p>Action for damages; from city court of Floyd county — Judge Beeee.</p>

<p>Complaint; from city court of Fitzgerald — Judge Wall.</p>

<p>Action for damages; from Hart superior court — Judge Meadows.</p> <p>The action was brought in a justice’s court, to recover $95.75, embracing three items of alleged damages, and was tried on appeal in the superior court. In the cause of action attached to the summons it was alleged, that 10 head of live stock were delivered at Maryville, Tenn., to a connecting carrier of the defendant, to be delivered to the plaintiff at Hartwell, (3-a.; that there was unreasonable delay in delivery, caused by the negligence of the defendant; that the stock were not properly watered and fed, and were exposed to bad weather, which resulted in colds, distemper, and other diseases, and thereby reduced the market value of the stock in the sum of $80; that the defendant collected $10 for watering and feeding the stock, when $5 was the proper charge; and that the collectible rate of freight on the shipment was $59.25, and the defendant exacted $70, an overcharge of $10.75.</p> <p>The defendant demurred, on the ground that the plaintiff had combined a suit on contract with an action ex delicto. The demurrer 'was overruled, and exception was duly taken to this judgment. Over objection of the defendant, the plaintiff was permitted to amend by alleging that the defendant received the stock “as in good order,” and was liable under § 2752 of the Civil Code of 1910, for $80, damages. The objection was that the amendment set forth a new cause of action; and exception was duly taken to the allowance of this amendment.</p> <p>The defendant answered, that it did not feed and water the stock, and that it made no charge therefor; that it did not receive from the plaintiff any part of the freight charges, but they were paid by the shipper to the initial carrier, the Louisville & Nashville Railway Company; that the defendant did not damage the stock, but delivered the shipment to the plaintiff promptly, in the condition in which it was received from the initial carrier. By amendment the defendant pleaded a special contract made with the initial carrier, under the terms of which, as a condition precedent to the recovery of damages for injury to the stock, the plaintiff was required to give written notice to the agent of the delivering carrier, before the stock was removed from the place of shipment and mingled with other stock.</p> <p>The plaintiff recovered the full amount sued for, and the defendant’s motion for a new trial was overruled.</p>

<p>Indictment for burglary; from Taliaferro superior court — Judge . Walker.</p>

<p>Conviction of stabbing; from city court of Griffin — Judge Flynt.</p>

<p>Accusation of cheating and swindling; from city court of Dublin — Judge Hawkins.</p>

<p>Where one interested in a business conducted by a corporation agreed orally with a creditor of the corporation, in consideration of a loan made to the promisor, to be used in the business, that he would see the debt of the corporation paid, and would likewise see that all future obligations of the corporation to the creditor were discharged, the agreement was not void under the statute of frauds, and the promisor .was liable to the creditor both for the amount of the past-due indebtedness and for the value of goods afterwards sold the corporation upon the faith of his promise.'</p>

<p>A motion by a defendant to set aside a verdict and judgment against Mm was properly overruled, when it appeared that the defense relied on by the movant was contained in a proposed amendment to the answer, a copy of which was exhibited with the motion, and the original answer did not contain enough to amend by. If in such a case the motion should be granted, the amendment' would not be allowable, and the court would be compelled to strike the original answer and again enter up verdict and judgment in the plaintiff’s favor.</p>

Indictment for misdemeanor; from Catoosa superior court— Judge Fite.

<p>MotiQns to dismiss wrii of error.</p>

<p>Accusation of sale of liquor; from city court of Houston county —Judge Brunson.</p>

<p>Accusation of sale of property to defraud lienholder;:fróm city court of Wrightsville — Judge Kent.</p>

<p>Indictment for misdemeanor; from Brooks superior - courts— Judge Thomas.</p>

<p>'lpAhe words “place of business,” as used in the statute defining burglary, mean any house, other than a “ dwelling, mansion, or storehouse,” occupied' aá' a place of business, in which valuable goods are contained. The allegations of the indictment were sufficient to show that the “place of business” alleged to have been broken into and entered with intent to commit a larceny was a house, and that valuable goods were contained therein.</p> <p>2. If the words “place of business,” with the context, were insufficient to .. show that “the place of business” was a house, it was a formal defect,-to be reached by special demurrer, and was cured by the verdict.</p>

<p>. Accusation of keeping lewd house; from city court of Savannah— Judge Davis Freeman.</p>

<p>Accusation of assault and battery; from city court of Réidsville —Judge Collins.</p>

<p>1. Where there are good and bad counts in an indictment, the court may strike the bad counts without quashing the whole indictment.</p> <p>2. Where one on trial for larceny is shown to have recently been in possession of the property described in the indictment, and it further appears that the same had been stolen, it is permissible for the State to prove that at the place where, and the time when, the stolen goods were found, there were found numerous other articles of the same kind which had likewise been stolen. Russell, J., dissents.</p> <p>3. The requests to charge, so far as legal and pertinent, were fully covered by the general charge, which fairly presented the issues involved. The evidence fully supports the verdict, and there is no error in the record.</p>

<p>Indictment for assault with intent to rape — conviction of assault and battery; from Colquitt superior court</p>

<p>Conviction of larceny; from city court of Floyd county — Judge</p> <p>Beece.</p>

<p>Certiorari; from Burke superior court — Judge H. C. Hammond.</p>

<p>Conviction of manslaughter; from Colquitt superior court— Judge Thomas.</p>

<p>Accusation of cheating and swindling; from city court of Sparta —Judge Moore,</p>

<p>Indictment' for larceny; from Colquitt superior court — Judge Thomas.</p>

<p>Indictment for wife-beating; from Crisp superior court — Judge Whipple.</p>

<p>Indictment for sale of liquor; from Coffee superior court— Judge Parker.</p>

<p>Accusation of misdemeanor; from city court of Sparta — Judge Moore.</p>

<p>Indictment for sale of liquor; fr6m Spalding superior court-judge E. T. Daniel.</p>

<p>Accusation of gaming; from city court of Blackshear — Judge Milton.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton.</p>

<p>Certiorari; from Greene superior court — -Judge J. B. Park.</p>

<p>The defense of misadventure or accident being directly involved under the. evidence, it was error to fail to instruct the jury upon this theory of defense, even without a written request.</p>

<p>1. The mandatory requirement of § 1056 of the Penal Code (1910) that, when requested by either party before argument begins, the judges shall “write out their charges and read them to the jury, and it shall be error to give any other or additional charge than that so written and read,” is not complied with when in the charge as written there appears a notation as follows: “§ 1010, Code 1895, volume 3, read if statement made by defendant; erase if none.” The charge, as given, not appearing in the record, and the evidence being conflicting, the failure to comply with this requirement of the statute demands a new trial.</p> <p>2. The-evidence being conflicting upon the question as to whether any offense was committed at the time and place alleged in the indietment, and whether, if so, the accused was the perpetrator, it was error to reject evidence that a person in the presence of the State’s witness, who had identified the accused as the perpetrator of the offense, had been heard making inquiry as to the identity of the person who had used the profane language described in the indictment.</p> <p>3. The law relative to circumstantial evidence should have been charged.</p> <p>4. There was sufficient evidence to authorize the verdict, and except as above indicated, no material error was committed.</p>

<p>Certiorari; from Putnam superior court — Judge J. B. Park.</p>

<p>1. The front porch of a dwelling-house covered 'by a roof is a part of the dwelling-house, and the larceny of property from the front porch is, in contemplation of lap», a larceny from the dwelling-house.</p> <p>2. There was sufficient evidence to show that the value of the property alleged to have been stolen exceeded $50.</p> <p>3. Where, during the trial of a criminal case, the jury were, by consent, allowed to disperse, and one of the jurors heard a conversation between a witness for the State and a third person, in which the accused was denounced by the witness as having stated a falsehood, in his statement to the jury, as to a material fact, this denunciation had presumptively an effect on the mind of the juror, detrimental to the accused; and this presumption was not fully rebutted by the affidavit of the juror that it. did not influence his finding. In the interest of a fair and impartial trial and the finding of a verdict based solely on the evidence, unaffected by any extraneous circumstance, another trial should have been granted.</p> <p>4. The other assignments of error are without merit.</p>

<p>Indictment for arson; from Henry superior court — Judge R. T. Daniel.</p>

<p>Indictment for keeping lewd house; from Thomas superior court —Judge Thomas.</p>

<p>Accusation of affray; from city court of Dublin — Judge Hawkins.</p>

<p>Habeas corpus; from city court of Monticello — Judge Thurman.</p>

<p>Indictment for assault with intent to murder; from Terrell superior court — Judge Worrill.</p>

<p>Conviction of manslaughter; from Screven superior court— Judge Eawlings.</p>

<p>Accusation of sale of liquor; from city court of Americus— Judge Hixon.</p>

<p>Accusation of misdemeanor; from city court of Madison — Judge Anderson.</p>

<p>Accusation of cheating and swindling; from city court of Madison — Judge Anderson.</p>

<p>Accusation of abandonment of child; from city court of Reidsville — Judge Collins.</p>

<p>Certiorari; from Jackson, superior court — Judge Brand.</p>

<p>Complaint; from city court of Monroe — Judge Stone.</p>

<p>Complaint; from city court of Americus — Judge Hixon.</p>

<p>Indictment for murder; conviction of manslaughter; from Laurens superior court — Judge Martin..</p>

<p>Indictment for larceny from house; from Wilkes superior court —Judge Walker.</p>

<p>Where a petition in due form was filed in a court having jurisdiction of the parties and of the subject-matter, but, by clerical omission, the petition was not addressed to any court, and the clerk of the court in which the petition was filed attached process thereto, and the same was duly served on the named defendant, and he appeared and made a motion to dismiss the petition, because not addressed to the court in which it was filed, and because the clerk was not authorized to attach the process, the petition was amendable by inserting therein the court in which it was filed and to which it was intended to be addressed.</p>

<p>Certiorari; from Berrien superior court — Judge Thomas.</p>

Action for damages; from city court of Madison — Judge Anderson. The action was against E. W. Butler and the mayor and council of Madison, as joint tort-feasors. The petition, as amended, set forth the following facts: On April 7, 1893, plaintiffs bought from Butler, then mayor of Madison, and the mayor and council, a lot in a cemetery owned by the City of Madison, to be used as a family burying ground, and received a deed' thereto.

<p>Accusation of assault and battery; from city court óf Millen— Judge Milton.</p>

Action on bond; from city court of Carrollton — Judge Beall. Taylor and Brooks, as trustees of Wesley Chapel school district in Carroll county sued Matthews as principal, and Griffin as surety, on a bond given by Matthews as treasurer of a former board of trustees of the school district.