Volume 11 — Georgia Appellate Reports

<p>1. The writ of error will not be dismissed because .the April adjourned term, 1911, of the trial court is designated in the bill of exceptions as the “July adjourned term, 1911,” since it appears from the record that the trial in fact occurred in the month of July, 1911. Where the identity of the trial which it is sought to review by the bill of exceptions with the trial set out in the record is unequivocally established by the record itself, the particular designation applied to the term as a matter of nomenclature may be disregarded, as immaterial.</p> <p>2. The excerpts from the judge’s charge upon which error is assigned would, if standing alone, be amenable to criticism, but, viewing them in connection with the immediate context, and considering the instructions as a whole, the charge was free from error and manifestly not prejudicial to the accused.</p> <p>3. The evidence- authorized the verdict.</p> <p>4. Verdicts are to be given a reasonable intendment, and not to be rendered ineffectual, when the true meaning of the finding can be readily ascertained. In every instance a verdict should be construed in the light of the maxim that that is certain which can be rendered certain.</p>

<p>Certiorari; from Wayne superior court — Judge Conyers. November 9, 1911.</p>

<p>Action for breach of contract; from city court of Atlanta-*-Judge Reid. December 2, 1911.</p>

<p>Certiorari; from Decatur superior court — Judge Prank Park. November 16, 1911.</p>

<p>Accusation of cheating and swindling; from city court of Dublin — Judge Hicks. January 20, 1912.-</p>

<p>Accusation, of keeping lewd house; from city court of Savannah Judge Davis Freeman. December 21, 1911.</p>

<p>Where, in the trial of a person indicted for the offense of assault with intent .to murder by shooting at another with a deadly weapon, the evidence authorizes an inference that the accused shot without malice and without a specific intention to kill, it is error, requiring a new_ trial, to refuse to charge the law in reference to the statutory offense of shooting at another.</p>

<p>The ease is controlled by the decision this day rendered in Gaskin v. State (No. 3998), ante, 11.</p>

<p>Certiorari; from Quitman superior court — Judge Worrill. January 3, 1912.</p>

Indictment for forgery; from Paulding superior court — Judge Price Edwards. December 15, 1911. The accused was indicted for altering and publishing as true an answer to a summons of garnishment. The facts alleged in the indictment were as follows: In a suit pending in a justice’s court, summons of garnishment wae issued and served, and the garnishee filed an answer, admitting indebtedness in a named sum.

<p>Indictment for carrying concealed weapon; from Bryan superior court — Judge Sheppard. January 12, 1912.</p>

<p>Under the facts of this case, the showing as to -newly discovered evidence required a new trial.</p>

<p>Accusation of misdemeanor; from Cobb superior court — Judge Morris. January 20, 1912.</p>

<p>Certiorari; from Greene superior court — Judge J. B. Park. December 15, 1911.</p>

<p>1. Where one is-tried under an indictment for forging a deed and uttering the forged paper as true with fraudulent intent, a verdict finding the accused guilty “of uttering and publishing said deed” is a mere nullity, and amounts in law to an acquittal.</p> <p>2. Where a verdict in a criminal case is in legal effect an acquittal, the accused can not be again tried for the same offense, even though a new trial be granted upon his own motion. The exception in the bill of rights which prevents a plea of former jeopardy, where a new trial has been obtained at the instance of the defendant, applies only where there has been a conviction.</p> <p>3. The judgment of conviction being void on its face, a motion in arrest of judgment was the proper remedy; but, since the court should declaro void a judgment which is a mere nullity, whenever the matter is regularly brought to its attention, direction will be given that a judgment be entered discharging the defendant and declaring the judgment of conviction void and of no effect.</p>

<p>Accusation of assault and battery; from city court of Cairo— Judge Singletary. January 20, 1912.</p>

<p>Accusation of extortion; from city court of Fitzgerald — Judge Wall. September 6, 1911.</p>

Indictment for assault with intent to murder; from Baldwin superior court — Judge J. B. Park. January 11, 1913. The exception is to the refusal to grant an order discharging and acquitting the áccused on account of the failure of the State to put him on trial at the second term after his demand for trial had been allowed and entered upon the minutes of the court. The demand was made at the January term, 1911.

<p>Accusation of misdemeanor; from city court of Tifton — Judge B. Eve. February 17, 1912.</p>

<p>Indictment for sale of liquor; from city court of Brunswick— Judge Krauss. November 18, 1912.</p>

<p>Certiorari; from Hall superior court — Judge J. B. Jones. July 26, 1911.</p>

<p>Certiorari; from Ware superior court — Judge Parker. April 19, 1911.</p>

<p>Conviction of manslaughter; from Mitchell superior court— Judge Frank Park. July 3, 1911.</p>

<p>A juror who has agreed to a verdict may dissent from it at any time before it has been received by the court. A verdict should not be received when, upon the defendant’s exercise' of his right to poll the jury, it appears that a juror has not freely and voluntarily agreed to it, or that for any reason it is not the unanimous conclusion of the jury.</p>

<p>Action on contract; from city court of Covington — Judge Whaley. October 16, 1911.</p>

<p>Trover; from city court of Bainbridge — W. V. Custer, judge pro bae vice. September 27, 1912.</p>

<p>Complaint; from city court of Swainsboro — Judge H. R. Daniel. September 30, 1911.</p>

<p>Complaint; from city court of Baxley — Judge Sellers. April 15, 1911.</p>

<p>There is no principle of law that will justify a defendant in complaining of a verdict against him on the ground that it should have been for a larger amount. The error in the amount of the verdict (if error at all) did not injure the defendant; and in no case is error without injury a rational cause for complaint.</p>

<p>A contract with a building contractor stipulated that he should be paid a specified sum for the work, payable in monthly instalments in such sums as the architects might in writing certify to be due. The owner reserved the right to withhold the payment of any instalment when necessary to protect himself against any outstanding claims or liens for either labor or material. Held: (1) When the architects issued a certificate that a specified sum was due under the terms of the contract, the certificate was assignable, and the assignee could enforce it in a court of law, as a legal assignment of a particular fund. (2) In such a suit by the assignee it was not necessary that the petition should negative the existence of liens for labor or material. This was matter of defense.</p>

<p>Attachment; from city court of Nashville — Judge Buie. October term, 1911.</p>

<p>Trover; from city court of Statesboro — Judge Strange. November 2, 1911.</p>

<p>1. In the exercise of the police power of the State, the legislature may prohibit the killing of wild game or any traffic or commerce in it, if deemed necessary for its preservation or protection, or for the public good, and, to accomplish this end, may make it criminal for any person to sell or offer for sale any of such game, or to have in possession any such game during the closed season, whether the game which he sells or offers for sale, or has in his possession, was killed or taken within or without the State. '</p> <p>2. Under the terms of the act of 1911, commonly known as the’“game law” (Acts 1911, p. 137), it is unlawful to purchase or sell, or offer for sale, in this State at any time any of the game protected by the prohibitory section of the act, or to have in possession any of such game during the closed season specified in the act, without regard to where it was killed or taken, whether within or without the State. The legislature intended, by the explicit and broad provisions of the statute, to insure the preservation and protection of the game there specified within this State, by making the act of selling it or offering it for sale, or having it in possession during the elosed season, specific offenses, whether the game was killed or captured within the limits of the State,, or elsewhere.</p>

<p>Complaint; from city court of Atlanta — Judge Beid. November 11, 1911.</p>

<p>Complaint; from city court of Wrightsville — Judge Kent. December 5, 1911.</p> <p>On.or about August 9, 1910, the defendant gave to the plaintiff a written order for the purchase of a ginning outfit. The order was, on August 10, accepted in writing by the plaintiff. The contract as thus made provided that the machinery should be shipped to the defendant “at once.” There was a further stipulation in the contract as follows: “There are no verbal representations or agreements not herein expressed in writing. This contract is not binding upon the Georgia Agricultural Works unless and until accepted by them, in which event it is not subject to countermand.” At the time the order was given, the agent of the plaintiff told the defendant that the plaintiff did not have on hand all the machinery necessary to fill the order, but would procure some of it elsewhere and would ship,the machinery after assembling it. On August 12 the defendant telegraphed to the plaintiff, countermanding the order for the machinery, and immediately the plaintiff wrote to the defendant, declining'to assent to the countermand. Thereafter the plaintiff assembled the machinery and notified the defendant that the outfit was held subject to his order and would be stored and retained for him. The defendant having again declined to take and pay for the goods, the plaintiff brought suit for the agreed price. The defendant’s answer contains a general denial-of indebtedness and of the material allegations in the petition, and sets np the special defense that the plaintiff’s agent who negotiated the sale represented to the defendant that his gin-house was suitable for the accommodation of the machinery, with the exception of some minor changes to be made in the house, whereas in point of fact it was necessary to tear down and remodel the house entirely; that the defendant tore the house down and rebuilt it at an expense of $1,000, or other large sum. The defense really insisted on in the brief of the defendant’s counsel is not pleaded. There appears in the evidence a copy of a document dated August 9, 1910, and signed by the agent of the plaintiff who negotiated the sale, in which document the agent agreed that the order given by the defendant for the ginning outfit would not be binding on the defendant unless another order, given at the same time by the defendant to the E. D. Cole Manufacturing Company for an engine and boiler, should be accepted and the goods shipped. It appears, from the evidence, that the defendant did give an order to the Cole Manufacturing Company for an engine and boiler, and that this sale was negotiated by the same person who acted as agent of the plaintiff and sold the ginning outfit. It further appears that the engine and boiler were, under the terms of the order then given, to be shipped “at once.” Upon ascertaining that it would be necessary for the Cole Manufacturing Company to make the engine and boiler before they could ship them, the defendant countermanded this order, with the consent of the seller. He claims that the reason for his countermand of both of the orders was that he found that he would not be able to get the machinery in time to install it for the current ginning season.</p> <p>The president of the plaintiff company testified, that immedíátely upon receiving the defendant’s order for the ginning outfit, the plaintiff began to assemble the different parts of the machinery' necessary to make up the outfit, and that the machinery was assembled and gotten together in exact conformity with the order and within ten or twelve days after receiving the order. He further testified that there was no other contract or agreement touching the transaction between the plaintiff and the defendant concerning the original order. The plaintiff’s agent who negotiated the sale testified that he was not the agent of the R. D. Cole Manufacturing Company, but that, simply as a matter of convenience to the defendant, and in order to facilitate the delivery of the machinery, he took the order for the boiler and engine, and agreed with the defendant that unless the Cole Manufacturing Company accepted this order, he would not be compelled to take and pay for the ginning outfit. In a letter from the plaintiff to the defendant, acknowledging receipt of his countermand and declining acceptance of it, the plaintiff stated that the only contingency upon which the order for the ginning machinery was not to be accepted was the refusal of the Cole Manufacturing Company to accept the order for the engine and boiler. It is undisputed in the evidence that the Cole Manufacturing Company did accept the defendant’s order, and that his countermand thereof was assented to by that company. The case was submitted to the presiding judge without the intervention of a jury, and he found in favor of the defendant. The plaintiff excepts to this judgment.</p>

<p>Action for damages — appeal; from Dade superior court — Judge Eite. January 1, 1912.</p>

<p>Certiorari; from Bibb superior court — Judge Felton. January 10, 1912.</p>

<p>An unconditional promissory note can not be defeated by proof of an oral contemporaneous agreement that the promisee would never attempt to enforce the promise.</p>

<p>Misdemeanor; from city court of Brunswick — Judge Krauss. December 16, 1911.</p>

<p>Indictment for seduction — conviction of fornication; from Floyd superior court — Judge Maddox. February 17, 1913.</p>

<p>A representation, although false and fraudulent and made with intent to cheat and defraud, does not constitute the statutory offense of cheating and swindling, unless the person to whom the representation was made was in fact cheated and defrauded thereby. The accusation, therefore, fails to show the commission of any offense, and the demurrer should have been sustained.</p>

<p>Certiorari; from Sumter superior court — Judge Littlejohn. February 13, 1912.</p>

<p>Accusation of drunkenness on highway; from city court of Fitzgerald — Judge Wall. February 6, 1912.</p>

<p>1. The evidence supports the verdict.</p> <p>2. Where one is present aiding and abetting in the commission of a crime, and relies upon the defense that his presence and participation were due to coercion or compulsion by those who actually committed the offense, he must show such facts and circumstances as would indicate that he was in danger of present and immediate violence, and that he acted solely through such fear.</p> <p>3. The trial judge, with substantial fairness and accuracy, submitted to the jury the issue made by the evidence and the statement of the accused as to whether his presence and participation were voluntary or due to coercion.</p>

<p>Indictment for sale of liquor; from Early superior court — Judge Worrill. February 29, 1912.</p>

<p>'Conviction of shooting at another; from Early superior court— Judge Worrill. February 29, 1912.</p>

<p>Action, for damages — appeal; from Greene superior court — Judge J. B. Park-. July 27, 1911.</p>

<p>Indictment for gaming; from Campbell superior court — Judge Roan. August 26, 1911. •</p>

<p>Accusation of sale of liquor; from city court of LaGrange— Judge Harwell. October 7, 1911.</p>

<p>Complaint; from city court of Waynesboro — Judge Davis. October 24, 1911.</p>

<p>Action for damages; from city court of Dublin — Judge Hawkins. November 3, 1911.</p>

<p>1. One can not recover the price of intoxicating liquor sold in violation of law. The act done in disobedience of the law creates no right of action which a court of justice will enforce.</p> <p>2. A dealer in intoxicating liquors residing in Louisville, Kentucky, without an order, shipped by a common carrier whisky consigned to a person living in the State of Georgia. The shipment of liquor was followed by a letter from the consignor to the consignee, proposing to sell to him the liquor on credit for á. specified price. The consignee, under the impression that the liquor was a gift, had taken it from the express office and used it; and, when he subsequently received the letter from the consignor, proposing to sell, he refused to buy or to pay for the whisky.</p> <p>Held: The delivery of the whisky was made to the consignee in the State of Georgia, and if there arose under the facts, any implied assumpsit on his part to pay for the whisky, the implied contract was completed in the State of Georgia, where the sale of liquor is illegal; and the seller can not recover the value .thereof.</p>

<p>Conviction of manslaughter; from Pickens superior court— Judge Morris. November 29, 1911.</p>

<p>Action for damages; from city court of Athens — Judge West. December 4, 1911.</p>

<p>Accusation of misdemeanor; from city court of Tifton — Judge R. Eve. January 1, 1912.</p>

<p>Complaint; from city court of Douglas — Judge Lankford. December 22, 1911.</p>

<p>Habeas corpus — certiorari; from Dooly superior court — Judge Whipple. December 30, 1912.</p>

<p>Action on contract; from city court of Oglethorpe — Judge Greer. January 20, 1912.</p>

<p>Certiorari; from Wilkes superior court — Judge Walker. February 27, 1912.</p>

<p>1. A judgment is a decision or sentence of the law, pronounced by the court and entered upon its docket, minutes, or record. A mere oral decision is not a judgment from which an appeal can be entered, until it has been put in writing and entered as such.</p> <p>2. While the dismissal of a writ of error, by the Supreme Court or the Court of Appeals, operates as an affirmance of the judgment rendered by the court below, yet where no judgment has been rendered by the court below, the dismissal is a mere nullity, since there is no judgment to be affirmed.</p> <p>3. Where no judgment overruling a motion for a new trial has in fact been rendered, the mere prosecution of a‘ writ of error to this court, seeking to have reviewed an alleged judgment overruling the motion for a new trial in a criminal case, will not preclude the plaintiff in error from thereafter showing, from the record, that no judgment overruling the motion had been in fact rendered by the court below, and from insisting that the motion for a new trial, which had been duly filed, approved, and considered by the court below, be there heard and determined.</p>

<p>1. One placed, on trial in a criminal case will be held to have waived formal arraignment, unless, at the time of entering his plea of not guilty, he calls the attention of the court to the fact that he did not intend to waive arraignment. Merely striking from the printed waiver on the back of an accusation or indictment the words “waives formal arraignment” will not entitle the accused, after verdict, to take advantage of the fact that he was not formally arraigned, when at the time the plea was entered and before the trial was begun the attention of the court was not called to the fact that the accused had not waived arraignment.</p> <p>2. The plea of former suit pending is not applicable to an accusation in a criminal case. A trial and conviction or acquittal under one accusation is a bar to a trial under any other accusation charging the same offense, even though such accusation may have been pending at the time the trial was had.</p> <p>3. One present in court for the purpose of being tried under a criminal accusation may be placed on trial under another accusation charging an offense growing out of the same transaction and based upon a new affidavit, even though no warrant for the arrest of the accused was issued based upon the second affidavit.</p> <p>4. The evidence warranted the verdict and no sufficient reason appears for granting a new trial.</p>

<p>Indictment for larceny; from Liberty superior court — Judge Sheppard. December 7, 1911.</p>

<p>Indictment for assault with intent to murder; from Miller superior court — Judge Worrill. March 3, 1912.</p>

<p>Indictment 'for assault with intent to murder; from Miller superior court — Judge Worrill. February 3, 1912.</p>

<p>Indictment for assault with intent to murder; from Warren superior court — Judge Walker. February 27, 1912,</p>

<p>Indictment for carrying concealed weapon; from Pulaski superior court — Judge Martin. February 20, 1912,</p>

<p>Indictment for assault with intent to murder; from Early superior court — Judge Worrill. February 29, 1912.</p>

<p>1. The code of this State declares that “children who do not understand the nature of an oath are incompetent witnesses;” and wherever a child is offered as a witness, it is the duty of the trial judge to have a preliminary examination made of the child, for the purpose of deciding its competency according to this test; and where, on such examination, it manifestly and clearly appears that the child, was only eight years old, had no moral instructions whatever, did not know what she was doing when sworn as a witness in the case, and. had no knowledge whatever of the nature of an oath, it was error to permit the child to testify, over the objection of the accused.</p> <p>2. The conviction in the present case resting solely upon the evidence of a child whose preliminary investigation proved that it was wholly incompetent as a witness, because it had no knowledge of the nature,of an oath, the verdict was unauthorized, and a new trial must be granted.</p>

<p>Conviction of shooting at another; from Early superior court— Judge Worrill. February 29, 1912.</p>

<p>Where intoxicating liquor is kept in a room apparently used solely as a bedroom and adjoining the owner’s place of business, he can not be convicted of keeping such liquor on hand at his place of business, unless it appears that the room was used not in good faith, solely as a place of abode, but as a convenient cover or subterfuge for keeping the liquor for use in connection with his business. Where in such a ease the . evidence' as to the real purpose for which the room is being used is in conflict, and a finding that it was being used as a part of the place of business, and for an illegal purpose, is dependent upon inference, it is error to charge: “If one elects to make his place of abode at his place of business, then the keeping on hand of spirituous, malt, or intoxicating liquors is a violation of the law.”</p>

Complaint; from city court of Atlanta — Judge Reid. October 19, 1911.

<p>Complaint; from city court of Atlanta — Judge Reid. November 4. 1911.</p>

<p>Accusation of receiving stolen goods; from city court of Griffin— Judge Flynt. September 23, 1911.</p>

<p>Levy and claim; from city court of Madison — Judge Anderson. October 13, 1911.</p>

<p>Complaint; from city court of Nashville — Judge Buie. October 13, 1911.</p> <p>T. M. Peeples sued E. G. Solomons and J. J. Harper, as makers, for the amount of a promissory note payable to the Merchants and Farmers Bank or hearer (a copy of which was attached to the petition), alleging that the note was the plaintiff’s property. The defendants demurred as follows: (1) The petition does not state where the Merchants and Farmers Bank is located, or to which particular Merchants and Farmers Bank it refers. (2) The petition does not state when and where the plaintiff purchased the note from the bank, or the amount and value paid for it, if any. It, does not affirmatively appear that the plaintiff purchased the note for value, before maturity, and without notice of the defense. (3) It does not affirmatively appear that the plaintiff had the title and was the owner of the note at the time it was sued upon, and is now the owner. The court overruled the demurrer, and the defendants' excepted.</p> <p>When the case was called in this court a motion was made to dismiss the writ of error, because counsel for the plaintiffs in error had not served counsel for the defendant in error with a copy of their brief or written argument, as required by rule of court (Civil Code of 1910, § 6339).</p>

<p>1. “An agreement by a creditor to receive less than the amount of his • debt can not be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.”</p> <p>2. The evidence offered by the defendants in support of their plea of accord and satisfaction was wholly insufficient for the purpose, and, in connection with the evidence for the plaintiffs, demanded a verdict in behalf of the latter for the full amount sued for.</p>

<p>The trial court properly construed the contract of sale. There is no merit in any of the special assignments of error; and the evidence fully authorized, if it did not demand, the verdict.</p>

<p>Accusation of carrying concealed weapon; from city court of Sylvester — Judge Williamson. December 26, 1911.</p>

<p>Action for damages; from city court of Fitzgerald — Judge Wall. January 1, 1912.</p>

<p>Complaint; from city court of Macon — Judge Hodges. December 14, 1911.</p>

<p>Appeal; from Fulton superior court — Judge Ellis. December 9, 1911.</p>

<p>Complaint; from Brooks superior court — Judge Thomas, January 12, 1912.</p>

<p>A promise, though a mere nudum pactum when made, and consequently unenforceable against the promisor at the time when made, may become binding and enforceable, if the promisee subsequently furnishes the consideration contemplated, by doing what he was expected to do. Accordingly, where one made to another, residing in a different State, a written application for a loan of money, and therein stipulated that if the lender would incur the expense necessary to inspect and examine the security described in the application, and, after such inspection, should, reject the application, because of the insufficiency of the security, the applicant would pay a specified sum of money, this promise of the applicant, though a mere nudum pactum when made, became binding and enforceable as a contract, when the lender, before the offer was withdrawn, examined the property in the manner described in the application, and rejected the application, on account of the insufficient value of the security offered.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. December 20, 1911.</p>

Action on bond; from Brooks superior court — Judge Thomas. February 3, 1912. (Transferred from the city court of Quitman by the act abolishing that court. Acts 1911, p. 332.) Rountree, as surviving partner, claiming to be an execution creditor, brought an action to restrain Jones from committing waste on land which had been set apart as a homestead to the execution debtor. A temporary restraining order was granted, but was dissolved upon the hearing.

<p>The case is controlled by the decision in Small Co. v. Liberty Mills, 137 Ga. 565 (73 S. E. 846).</p>

<p>There being no evidence for the plaintiff which justified the allowance of interest in its favor, and the evidence also being too uncertain and indefinite in reference to the amount of freight for which the defendants were entitled to credit, the judgment refusing a new trial is reversed, in order, that upon another trial the evidence may be made more certain and definite as to these matters.</p>

<p>Certiorari; from Terrell superior court — Judge Worrill. February 17, 1912.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. February 28, 1912.</p>

<p>Certiorari; from Murray superior court — Judge Fite. February 19, 1912.</p>

<p>Where, in an action brought to recover damages against a county for injuries to live stock, alleged to have been due to the defective condition of a public bridge, the evidence failed to disclose that the bridge in question was erected after the passage of the act of December 29, 1888, creating a liability against counties upon such a cause of action, a verdict in favor of the plaintiff was unauthorized.</p>

Action for damages; from city court of Hall county — Judge Hodges presiding. February 22, 1912. Kiser sued Oglesby in the city court of .Hall county for damages 'alleged to have been sustained by the plaintiff in consequence of the negligent operation of an automobile by the defendant.

<p>Where, in an affidavit made as the foundation for an attachment, it is alleged that the defendant is a non-resident of the State and is indebted to the plaintiff in a named sum, an amendment is allowable, setting forth the nature and character of the indebtedness claimed.</p>

<p>Certiorari; from-Jeff Davis superior court — Judge Conyers. February 21, 1912.</p>

<p>Accusation of sale of liquor; from Tift superior court — Judge Thomas. March 11, 1912.</p>

<p>Indictment for larceny; from Worth superior court — Judge Frank Park. January 31, 1912.</p>

Certiorari; from Baldwin superior court — Judge J. B. Park. March 22, 1912 The plaintiff in error was convicted of the offense of simple larceny at the December term, 1911, of the county court of Baldwin county, on an indictment transferred from the superior court; and his counsel presented to the judge of the superior court of Baldwin county a petition for certiorari,' during the regular session of the January term, 1912.

<p>Accusation of misdemeanor; from city court of Lexington— Judge Cloud. February term, 1912.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. October 27, 1911.</p>

<p>1. The indictment sufficiently charged the offense of cheating and swindling, to withstand general demurrer.</p> <p>2. The special demurrers, to the effect that the deceitful means and artful practices by which the fraud was consummated are not sufficiently set forth, are not well taken.</p> <p>3. An indictment for cheating and swindling may be predicated of a false representation relating partly to matters of fact and partly to matters of opinion, where it is alleged that the loss to the prosecutor ensued through his acting upon the false representation as to the fact.</p> <p>4. To an indictment for cheating and swindling by false representations it is no objection that the false matters alleged were of such a nature that the person defrauded could, by making an independent investigation, have ascertained that they were false, before he acted upon them.</p> <p>5. An indictment is subject to demurrer if the descriptive terms relating to any material allegation are set forth in an alternative form. The word “or” is generally used as a disjunctive, and to express the notion that the two clauses which it connects are alternative; but this is not always so; it may properly be used to introduce a statement which is an amplification or explanation of a preceding statement. The use of the word in the present indictment was of the latter nature.</p> <p>6. Where an indictment alleges the making of a false statement, and the statement relates to a number of different facts, the indictment need not allege that loss resulted from each and all of these statements which proved untrue, but if it be alleged that any one of the material false statements resulted in loss, the indictment will be sufficient, so far as this point is concerned.</p> <p>7. Where no bona fide attempt is made to file a brief of evidence in accordance with the provisions of § 6093 of the Civil Code (1910), but a document is filed, and approved by the trial judge, which includes the documentary and oral evidence without abridgment, in violation of the provisions of that section, the reviewing court will determine only such assignments of error in the motion for a new trial as can be considered without reference to the evidence in the case.</p> <p>8. The trial judge was duly requested to put Ms charge in writing. As written out, the charge contained the following statement: At one place there was a note in parenthesis as follows: “ (Here the court reads Section 719 of Volume 2 of the Code of 1910, leaving off the words at the top, ‘other offenses of like character.’) ” In another place in the charge the following appears: “Here the court reads the indictment in full, leaving off the names of the grand jurors who returned it, and leaving off the entries on the back of the indictment.” In another place in the charge the following notation was made: “Here the court charged paragraph one of defendant’s request # 1.” In another place: “ Here the court charged paragraphs second and fourth of defendant’s request No. 2.” Held, that such a charge was not a compliance with the mandatory requirement of § 1056 of the Penal Code (1910), and the failure of the judge to write out his charge as prescribed by that section demands a new trial.</p> <p>9. On the trial of an indictment for cheating and swindling, in fraudulently . misrepresenting the value, on a specified date, of shares of stock in an alleged corporation, evidence as to the value of such stock both before and after the date of the misrepresentation may be material as illustrating the probable value of the stock on that date.</p> <p>10. Upon the trial of such an indictment a request to charge that if the jury believed that the defendant in good faith thought the purchase of the stock was a safe investment,- and honestly made a mistake as to its value, he could not be convicted, was pertinent and should have been given.</p> <p>11. In the trial of such a case evidence of purchases of shares of stock in the alleged corporation by persons other than the prosecutor, and the' price which such persons paid for the stock, was admissible, as a circumstance tending to illustrate the probable value of the stock, unless it appeared that such other purchases were also made as a result of misrepresentations made by the defendant.</p> <p>12. When it becomes material to prove that no charter has ever been granted to an alleged banking corporation, this fact must be proved by the testimony of some person who has examined the records in the office of the secretary of State, where, by law, the records of such incorporation are required to be kept.</p> <p>13. The document purporting to be a certificate of stock in the alleged banking corporation was prima facie not admissible, without proof as to the genuineness of the signatures of the alleged president and ' secretary of the corporation. If it should in fact appear, from the evidence, that this document was the one delivered by the defendant to the prosecutor as a certificate of stock in the alleged corporation, it would be immaterial whether the signatures of the alleged officers were genuine or not.</p> <p>14. The answer of the defendant, filed in the receivership proceedings involving the solvency of the alleged banking corporation, was not inadmissible for any reason assigned in the motion for a new trial.</p> <p>15. The original record of a petition in bankruptcy in the United States court and the original schedules thereto attached, are not admissible in evidence in the trial of an action brought in one of the courts of this State. A duly certified copy of such original records is the highest and best evidence.</p> <p>16. The foregoing headnotes deal with all the assignments of error which can be considered without reference to the evidence.</p>

Action for damages; from city court of Atlanta — Judge Reid. October 27, 1911. The plaintiff brought his action by attachment in the city court of Atlanta, claiming damages for personal injuries alleged to have been received by him while in the defendant’s employment as a locomotive engineer in the State of Alabama. The plaintiff pleaded, as the basis of his right to recover, § 3910 of the Code of Alabama of 1907.

<p>Certiorari; from Clay superior court — Judge Worrill. November 23, 1911.</p>

<p>Certiorari; from Tift superior court — Judge Thomas. November 8, 1911.</p>

<p>Certiorari; from Butts superior court — Judge R. T. Daniel. October 30, 1911.</p>

<p>Appeal; from Floyd superior court — Judge Maddox. December 6, 1911.</p> <p>Gordon sued the Southern Railway Company in a justice’s court for the loss of 20 sacks of corn. On appeal the ease was tried in the superior court, and the court directed a verdict for the plaintiff. The- defendant’s motion for a new trial was overruled, and it excepted.</p> <p>The following facts appeared from the evidence: A car-load of corn was shipped for the plaintiff from Nashville, Tennessee, to Cave Spring, a station on the defendant’s railway. The bill of lading was for “280 sacks of corn. Weight (subject to correction) 39200. . . Shipper’s load and count.” The way-bill was for the same number of sacks and same weight. When the car arrived at its destination its seal was intact, but when the defendant’s agent, on presentation of the bill of lading, pointed it out to the plaintiff’s agent to be unloaded, the seal had been broken, and it was found that there was a shortage of 20 sacks of corn. The missing corn was of the weight and value claimed in the suit. The motion for a new trial was on the grounds that the verdict was contrary to law and evidence, and on the following ground: “The court erred in not allowing the witness J. G. Gwinn to explain what was meant by the words ‘ shipper’s load and count,’ when defendant offered said testimony. Defendant expected to show by said witness that the words aforesaid meant that the shipper loaded the ears without the aid of the carriers (defendant), and that defendant never counted or checked what might be loaded in said ear, but took the shipper’s count, and it was understood that defendant would not be liable for a shortage; that there was a reduction in the freight charges when the shipper did its own loading; that there was a reduction in freight charges in the present case. Movánt contends that said testimony was admissible, and that said contract was binding on the shipper.”</p>

<p>Appeal; from Putnam superior court — Judge J, B. Park. November 17, 1911.</p>

<p>Complaint; from city court of Nashville — Judge Lankford. January 8, 1912.</p>

<p>The law requires of a carrier of passengers not only extraordinary care and diligence in conveying passengers safely to the agreed destination, but also kind, considerate, and decorous treatment of passengers by employees of the carrier while the relationship of carrier and passenger' continues; and any violation of this rule, by which a passenger is humiliated or mortified, or wounded in his feelings, is tortious conduct, for which the carrier is liable in damages. .</p>

<p>Indictment for forgery, etc.; from Liberty . superior court-judge Sheppard. December 14, 1911.</p> <p>The indictment charged J. M. Blount “with the offense of forgery, for that the said J. M. Blount, in the County of Liberty and State of Georgia aforesaid, on the 12th day of October, in the year of our Lord 1907, with force and arms, did falsely and fraudulently 'pass and tender in payment, and utter and publish, a forged and counterfeited check, knowing the same" to have been falsely and fraudulently forged and counterfeited, said check being as follows: ‘J. L. DeLoaeh, Naval Stores. Daisy, Ga., Oct. 12th, 1907. Pay to the order of Cap Hendry $94.50, ninety-four & 50/100 dollars. J. L. DeLoaeh. To the Tattnall Bank, Eeidsville, Ga./ said check being then and there endorsed on the back, ‘Cap Hendry / in that the said J. M. Blount did falsely and fraudulently endorse and procure to be endorsed on the back of said check the name of said Cap Hendry, without the knowledge or consent of said Cap Hendry, and did falsely and fraudulently pass and tender in payment the said check to one J. W. Hardee, knowing the same to have been falsely and fraudulently forged and counterfeited as aforesaid, and did receive certain lawful money of the Hnited States of America by reason of said forged and counterfeited endorsement of the name of Cap Hendry aforesaid, knowing the same to have been fraudulently and falsely forged and counterfeited; contrary to the laws of said State/’ etc.</p> <p>The demurrer was on the grounds that no offense is charged in the indictment, and that two separate and distinct offenses are charged in one count.</p>

<p>Appeal; from Hall superior court — Judge J. B. Jones. January 1, 1912.</p>

<p>Indictment for sale of liquor; from Early superior court — Judge Worrill. February 3, 1912.</p>

<p>Indictment for larceny after trust; from Haralson superior court —Judge Price Edwards. January 17, 1912.</p>

<p>Action for damages; from city court of Macon — Judge Hodges. February 16, 1912.</p>

<p>Certiorari; from Pulaski superior court — Judge Martin. February 15, 1912.</p>

<p>Accusation of sale of liquor; from city court of Newnan — Judge Post. February 23, 1912.</p>

Certiorari; from Richmond superior court — Judge H. C. Hammond. January 15, 1912.

<p>Indictment for burglary; from Wilkes superior court — Judge Walker. February 27, 1912.</p>

<p>Indictment for seduction; from DeKalb superior court — Judge Roan. February 24, 1912. ,,</p>

<p>Accusation of sale of liquor; from city court of Springfield— Judge J. Hartridge Smith. February 29, 1912.</p>

<p>Accusation of sale of liquor; from city court of Tifton — Judge R. Eve. March 7, 1912. ,</p>

<p>Action for damages; from city court of Macon — Judge Hodges. March 9, 1912.</p>

<p>Indictment for bigamy; from Haralson superior court — Judge Price Edwards. March 23, 1912.</p> <p>The date of the indictment was November 28, 1911. It charged Hulsey with having committed the offense of bigamy on October 29, 1906, and alleged that from January, 1907, till August 1,' 1911, he absconded from this State and concealed himself so that he could not be arrested, and was absent from the State for the said period of time. In the motion for a new trial it is alleged that the court erred in charging the jury as follows: “The State does not have to establish this particular allegation, as to his being out of the State, beyond a reasonable doubt. It has to bring such evidence as makes what is called a prima facie case. And then it is incumbent on the other side — the defendant — to explain whether he was here, or whether that part of the bill of indictment is true; and if it is found not to be true, as I say, upon an investigation of it, if he shows you — he does not have to show you beyond a reasonable doubt — if he shows to your reasonable satisfaction that he was here and the statute has not run against him, then that prima facie case of the State would be overcome, and he would be entitled to an acquittal on that ground.”' It is also alleged that the court erred in charging: “The State makes out a case when it shows that he left the State and was gone. This may be shown by admissions and confessions on his part, if they are shown to have been made in connection with any evidence that he was not seen in this county by the officers, and not seen in the community where he formerly lived!”</p>

Indictment for assault with intent to murder; from Chatham superior court — Judge Charlton. March 21, 1912. The indictment charged that the assault was committed upon W. B. Attaway, by striking him with a lamp.

<p>Where the act creating a city court provides that all criminal accusations filed therein shall be founded upon affidavits, such an accusation can not be broader than the affidavit, nor charge an offense different from that described in the affidavit. It follows that where an affidavit charged the unlawful sale of intoxicating liquors, a count in an accusation founded thereon which charged the accused with keeping intoxicating liquors on hand at his place of business should have been quashed on demurrer.</p>

<p>Conviction of shooting at another; from Floyd superior court— Judge Maddox. March 23, 1912.</p>

<p>Indictment for burglary; from Douglas superior court — Judge Price Edwards. April 19, 1912.</p>

<p>Accusation of gaming; from city court of Elberton — Judge Grogan. March 23, 1912.</p>

<p>Indictment for sale of liquor; from Coffee superior court — Judge Parker. March 16, 1912.</p>

<p>Certiorari; from Newton superior court — Judge Roan. March 28, 1912.</p>

<p>1. Where the owner oí a gin-liouse and machinery turns over to another its management, upon an agreement that the owner is not to share any losses resulting from the operation of the plant, but is to be paid for its use a sum equal to a half' of any net profits which may be received, no partnership relation is created, even as to third persons.</p> <p>2. The evidence was such as to authorize a finding that the presumption of negligence, which arose against the defendant who operated the gin, upon proof of the destruction by fire of the plaintiff’s cotton, had not been rebutted.</p>

<p>Complaint; from city court of Moultrie — Judge McKenzie. August 29, 1911.</p>

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

<p>The allegations in the answer showed a valid set-off, and the court erred in striking it.</p>

Action for damages; from city court of Sandersville — Judge Jordan- March 12, 1912. The suit was for damages claimed to have been sustained as a consecfuence of an automobile, owned and driven by the defendant, having run into a wagon owned by the plaintiff and being driven on one of the public highways. The collision occurred about seven o’clock at night, at a point where the highway was intersected by another public road.

<p>Complaint; from city court of Atlanta — Judge Calhoun. March 26, 1912.</p>

<p>1. Under the act creating the city court of Thomasville, as amended by the act approved August 22, 1907 (Acts 1907, p. 238), it is the duty of the trial judge to call the appearance docket, and, if no defense is filed on or before the call of the docket, the judge must, upon sufficient proof submitted by the plaintiff, render a judgment in his favor. There is nothing, however, in the provisions of the act creating the either court of Thomasville, or in its amendments, which abrogates the general rule that during the term the court has plenary power over all of its judgments and orders, and may modify or vacate them for good cause shown. . .</p> <p>2. Where, under the provisions of the act creating the city court of Thomasville, no defense is filed within the time • required by the act, and judgment is rendered in favor of the plaintiff, such a judgment will not be vacated, even during the same term, at the instance of a defendant who shows no reason good in law for his failure to appear and file his defense within the time required by the act. The discretion vested by law in the trial judge is a legal discretion and will be exercised only in eases where the defendant shows a legal reason for its exercise. No such reason having been shown in this ease, the judge properly held that he was without power or authority to vacate the judgment.</p>

<p>' Action for damages; from city court of Atlanta — Judge Reid. March 16, 1912.</p>

<p>Where the only assignment of error in a bill of exceptions brought to the Court of Appeals is upon the refusal to allow a demand for trial in a criminal case, no question is presented which the reviewing court can determine, and the writ of error will be dismissed.</p>

Action for damages; from city court of Dublin — Judge H. R. Daniel presiding. March 13, 1912. The action was to recover for damage to a car-load of bananas, alleged to have been caused partly by an unreasonable delay in transportation and partly on account of the negligent manner in which the goods were handled by the carrier. The plaintiff was nonsuited.

<p>Appeal; from Haralson superior court — Judge Edwards, January 16, 1912.</p>

<p>Where, in an instrument in the form of a note and mortgage for the purchase-price of a mule, it is stated that the purchaser agrees to pay for the mule if it should die, and that he assumes this risk in consideration of the credit extended, and purchases on his own judgment, he is not, upon the death of the mule, entitled to prove an express warranty of soundness, and defeat the purchase-price on account of a breach of such warranty.</p>

<p>Indictment for larceny; from Toombs superior court — Judge Hawkins. March 30, 1912.</p>

<p>Complaint; from city court of Macon — Judge Hodges. December 21, 1911.</p>

Action for damages; from city court of Atlanta — Judge Reid. September 12, 1911. Thomas L. Williams, a minor, by his next friend, sued the Southern Eailway Company and W. B. Eobinson, an employee of the company, to recover damages for personal injuries sustained by him in jumping from’ a trestle on its right of way, within the yard limits of what is known as Armour station, in Fulton county.

<p>Conviction of voluntary manslaughter; from Tattnall superior court — Judge Sheppard. July 19, 1911.</p>

<p>While there was no direct evidence of a sale of intoxicating liquor, there were circumstances proved from which the jury had a right to infer that such a sale was made by the accused, either for cash or on credit.</p>

<p>Action for breach of warranty; from city court of Thomasville— Judge W. H. Hammond. January 10, 1912.</p>

Action for damages; from city court of Savannah — Judge Davis Freeman. December 20, 1911. A general demurrer to the plaintiffs petition was sustained.

<p>1. The direction of a- verdict is in no sense interlocutory, but is a final judgment, from which a writ of error will lie.</p> <p>2. This was an action of trover, where the evidence of the plaintiff proved title, value, conversion, and demand and refusal before suit, and the defendant admitted these elements of the case, except conversion, as to which the evidence was in conflict. Consequently, the direction of a verdict for the defendant was erroneous.</p>

<p>Accusation of sale of liquor; from Walker superior court — Judge Maddox. April 17, 1912.</p> <p>Martin Fehn was convicted under an indictment charging him with having sold intoxicating liquor in Walker county on July 8, 1910. At the trial John Copeland testified, that “he was employed to go to the park or post and catch up with Martin Fehn or any other person for illegally selling whisky; he went up there and got a suit of soldier’s clothes, and on the 8th day- of July, 1910, right opposite where the gate is coming out from the reservation, and on the west side of the car line, at Martin Fehn’s place of business, bought two pints of whisky from the defendant, Martin Fehn, and paid 75 cents therefor.” It was testified, that “all the lands on the west side of the said car line, where Martin Fehn’s place of business is located, were in Walker county, Georgia; Fehn’s place was opposite where the gate is coming out of the reservation.” The defendant’s statement to the jury was, that “he did not know Copeland, and never saw him before, and sold Copeland no whisky at any time; he kept none and had sold none.” In addition to the general grounds, the motion for a néw trial was based on alleged newly discovered evidence, as contained in affidavits of several persons, as follows: “He [the affiant] knows Martin Fehn and knew him in 1910, and knows that said Martin Fehn had no place of business or business of any sort at Park City or in that section, or in Walker county, so far as deponent knows, on July 8, 1910; nor did said Fehn have any business there until July 12, 1910, or 14th.” There were affidavits as to the good character of these witnesses, and as to the ignorance of the movant and his counsel of the existence of such evidence until after the trial, etc.</p>

Indictment for felony; from Fulton superior court — Judge Thomas presiding. March 4, 1912.

<p>Complaint; from city court of Jeffersonville — Judge Shannon. March 14, 1912.</p>

<p>Where one was placed in charge of the business of a corporation by its board of directors, as its general manager, with authority to conduct the business in accordance with his judgment, and from time to time paid out his money in settlement of existing valid debts of the corporation, the payments being made with the knowledge and acquiescence of a majority of the board of directors, held, in a suit by him against the corporation, to recover the money so paid for its use and benefit, that the corporation was liable, and could not set up as a defense that money so paid was merely a voluntary payment, made without its authority.</p>

<p>Complaint; from Montgomery superior court — Judge Martin. April 25, 1911.</p>

<p>The allegations of the petition set forth a cause of action.</p>

<p>Action on contract; from city court of Greenville — Judge Revill. March 3, 1912.</p> <p>Freeman & Reeves sued Henry Gates for damages on account of the breach of a contract for the sale and delivery of cotton. The contract was in the following terms: “Greenville, Ga., 5/29, 1909. To Freeman & Reeves, Greenville, Ga. I hereby agree to sell and deliver to the said Freeman & Reeves 6 rectangular bales of cotton at 10 3/16 cents per pound, f. o. b. cars, reweighed at Greenville, Ga., for Freeman & Reeves (Weil Bros, classification), with deduction and additions for other grades according to Freeman & Reeves differences in effect on the day of delivery. Cotton tp -be delivered on or before the 25th day of October, 1909, in lots of not less than . . bales. Cotton to average 500 lbs. per bale. If cotton averages less than 500 lbs. per bale I will deliver a sufficient number of bales to bring up the average of this sale to 500 lbs. per bale. If cotton averages over 500 lbs. per bale, the excess to be settled for at the market price in cash on the date of delivery. Cotton sold above is cotton raised or to be raised by me or . .. tenants on Y. F. Freeman’s land in Meriwether county, State of Georgia, and is not to be settled for by the price of future contracts in New York, New Orleans, Liverpool, or elsewhere. [Signed] Henry Gates.</p> <p>“Greenville, Ga., 5/29, 1909. We accept the above contract with all its conditions and obligations. Executed in duplicate. [Signed] Freeman & Beeves.”</p> <p>The petition alleged, that the defendant failed and refused to deliver the cotton, or any part of it, to the plaintiffs on the 25th day of October, 1909, or at any other time, although the plaintiffs stood ready to receive and pay for it and demanded of him the delivery of the cotton in accordance with the terms of the contract (a copy of which was attached to the petition); that on the 25th day of October, 1909, cotton of the grade and character described in the contract was -worth and selling at 14 9/16 cents per pound in Greenville, Ga., the place of delivery under the contract; and that on account of the failure of the defendant to deliver the cotton and comply with the contract, he damaged the plaintiffs in the sum of $131.25, besides interest thereon from October 25, 1909, at seven per cent, per annum; for which judgment -was prayed.</p> <p>The defendant demurred, on the grounds that the petition failed to set forth a cause of action, that the alleged contract was unilateral and without any consideration moving to the defendant, and that the petition failed to allege that the plaintiffs tendered any money or offered to pay over to the defendant the price of the cotton. The demurrer was overruled.</p> <p>The defendant ans-wered, denying the allegations of the petition, and afterwards hied an amendment, as follows: Defendant delivered all of the cotton he raised in 1909 to the plaintiffs. He was their tenant and rented land from them for the year 1909, and paid them four bales of cotton grown and raised said year by him, as rent, and also turned over to them the balance of the cotton grown by him said year; and out of the proceeds of said cotton he paid plaintiffs in full his store account for supplies and dry goods and guano and note on mule farming; and plaintiffs never at any time demanded or called upon him for the said cotton grown by him in the year 1909, to be delivered on said contract, but the plaintiffs received all of said cotton and he was never called upon to deliver any cotton under said contract, and he supposed that the contract was at an end, he having been a tenant of the plaintiffs in 1910; and in March, 1911, after he had moved off the land of the plaintiffs, they came to his home and asked him to sign a note for some amount which they claimed he owed on account of the said cotton contract, and he refused, for the reason that he did not owe the plaintiffs anything ,on the contract. The defendant says that the contract was abrogated and nullified because of the facts here set out, and is not now binding on him; that he was released and relieved from the terms of said contract by the plaintiffs, who voluntarily received said cotton and paid him for the same at prices ranging from 12 to 13 cents per pound, knowing that the cotton was raised on said land said year, and that it was all of the cotton raised by him said year, and he stood ready and willing to deliver said cotton on said contract; that they accepted said cotton at the prices mentioned, well knowing that he had no other cotton with which to comply with said contract, and that they had their choice of accepting said cotton on said contract or at the prices mentioned. The court struck the amendment, on motion of the plaintiffs, on the ground that it contained no legal defense.</p> <p>At the trial the contract was introduced in evidence, the allegation as to the value of the cotton was proved, and it was testified that the defendant failed to deliver any cotton under the contract, and that the plaintiffs never at any time made a demand or request for delivery of cotton under the contract. The verdict was for the amount sued for. The defendant moved for a new trial, on the grounds that the verdict was contrary to law and evidence, and that the court erred in refusing to charge the jury that unless a demand was made for delivery of the cotton, there could not be a recovery. The motion was overruled, and the defendant excepted to each of the rulings stated.</p> <p>cited: Bashinski v. Lake, 9 Ga. App. 352-5; Code of 1910, §§ 4241, 4326-7, 4309.</p> <p>cited: Booth v. Saffold, 46 Ga. 278; Code of 1910, §§ 4246, 4316, 4326-7, 4226.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. December 30, 1911.</p>

<p>Appeal; from Catoosa superior court — Judge Fite. February 6, 1913.</p>

<p>Where a minor unlawfully took possession of money of another and appropriated it to his own use, no legal obligation was imposed upon his parent to repay the money to the owner, and an agreement or promise of the parent to do so was nudum pactum and. unenforceable.</p>

<p>Complaint; from city court of Oglethorpe — Judge Greer. January 23, 1912.</p>

<p>Appeal; from Fulton superior court — Judge Ellis. November 23, 1911.</p>

<p>Certiorari; from Richmond superior court — Judge H. C. Hammond. February 24, 1912.</p>

<p>Action for damages; from city court of Richmond county — Judge' W. F. Eve. March 20, 1912.</p>

<p>Complaint; from city court of Dublin — Judge H. E. Daniel presiding. March 14, 1912.</p>

<p>Appeal; from Fulton superior court — Judge Pendleton. March 4, 1912.</p>

<p>Where, in a contract of affreightment for the transportation of live stock, the shipper obligates himself to accompany the stock and feed and water them, he can not recover of the carrier damages for injuries to the stock, caused from failure to supply them with food and water, if he abandons the stock en route without making arrangements to have them fed and watered, and without making any demand upon the carrier to furnish facilities for the feeding and watering of the stock. Especially is this true where it appears that, at the point where it is claimed the carrier committed the breach of duty in failing to feed and water the stock, there was a stock pen in which the stock might have been unloaded, and no demand was made upon the carrier to supply' the owner with necessary vessels from which to feed and water the stock. In the absence of such a demand and of a refusal to comply therewith, the carrier can not be held liable as for breach of its obligation to furnish facilities for feeding and watering the stock.</p>

<p>Complaint; from city court of Oglethorpe — Judge "Wall presiding. April 20, 1912.</p>

<p>1. One who opens up or carries on the business of selling real estate on commissions, without having registered with the ordinary and paid the tax to the tax-collector as required by the Civil Code (1910), § 978, can not recover commissions accruing from the sale of such property.</p> <p>2. A person whose principal business is that of insurance agent is also engaged in carrying on the business of selling real estate, if lie, enters into a contract for the sale of such property on commission, and renders such service under the contract as would entitle him to his commission if he had complied with the law in reference to registering and paying the tax.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. March 22, 1912.</p>

<p>1. “While a valid contract of insurance can not lawfully be taken on the life of another by one who has no insurable interest therein, because it contravenes public policy, yet, as one has an insurable interest in his own life, he may lawfully procure insurance thereon for the benefit of any other person whose interest he desires to promote. Such a contract can not be defeated because of the want of insurable interest' in the beneficiary, when it appears that 'the person whose life was insured acted for himself,' at his own expense and in good faith, to promote the interest of the beneficiary, in taking out the policy. A contract so entered into is in no sense a wagering or speculative one.”</p> <p>2. It- appearing from the allegations of the petition that the right of action upon the policy sued on was in one other than the legal representative of the insured, the court did not err in sustaining a general demurrer to the petition, without reference to whether a temporary administrator is a legal representative within the meaning of that term as used in the policy.</p>

<p>Indictment for arson; from Wilkinson superior court — Judge Hawkins. May 6, 1912.</p>

<p>Under the ruling in Blount v. State, 9 Ga. App. 575 (71 S. E. 877), and rulings cited therein, the judge of the trial court was compelled to dismiss the motion for a new trial, because of the failure to comply with the order, passed during term, requiring that a brief of the evidence should be made out and tendered for approval within a specified time.</p>

Indictment for. involuntary manslaughter; from Fulton superior court — Judge R. T. Daniel presiding. April 20, 1912. The defendant was indicted for the offense of involuntary manslaughter in the commission of an unlawful act, it being charged that he unlawfully ran over and killed the person named in the indictment, with an automobile, at a point in the City of Atlanta, where Gordon street and Holderness street intersect and cross.

<p>Indictment for sale of liquor; from Early superior court — Judge Worrill. April 23, 1912.</p>

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

<p>Certiorari; from Decatur superior court — Judge Frank Park. May 12, 1912.</p>

<p>Accusation of larceny; from city court of Carrollton — judge Beall. May 14, 1912.</p>

<p>Action for damages; from city court of Moultrie — Judge McKenzie. October 21, 1911.</p>

<p>Indictment for larceny; from Laurens superior' court — Judge Hawkins. April 21, 1912.</p>

Certiorari; from Fulton superior court — Judge Bell. March 21, 1912.

<p>Where one who has entered into a binding agreement to take and pay for goods to he delivered in the future notifies the seller, before the time fixed for delivery, that he will not receive and pay for the goods if tendered at that time, the seller may treat the contract as rescinded and sue for whatever damages he has sustained at the time the purchaser' repudiated the contract. But this is not the exclusive remedy of the seller. He may z’efuse to agree to a rescission of the contract, and may treat it as continuing until the time arrives for performance, and if at that time the purchaser refuses to take and pay for the goods, after they are tezzdered to him in accordance with the terms of the contract, the seller may, under the provisiozis of the Civil Code (1910), § 4131, after notice to the purchaser, resell the goods at the place of delivery, acting for this purpose as the agent of the vendee, and recover the difference between the contract price and the price on resale. Decided August 6, 1912.</p>

<p>Complaint; from city court of Thomasville — Judge W. H. Hammond. March 21, 1912.</p>

<p>Action for damages; from city court of Columbus — Judge Tigner. May 11, 1912.</p>

<p>1. Where an indictment or special presentment is returned into court as a “true bill,” containing the names of as many as eighteen persons written in the face thereof as constituting the members of the grand jury who acted on it, and the minutes of the court show that these persons were the regularly impaneled grand jurors for the term, a manifest clerical error made by the foreman in failing to write his full name on the back of the indictment, following the indorsement “a true bill,” is immaterial.</p> <p>2. It is not a good ground for challenge to the array that the jurors heard the evidence relating to the commission of the offense, on the. trial of a special plea in abatement. The objection, if good at all, should be made to the poll.</p> <p>3. Continuances are in the sound discretion of the trial judge. No abuse of discretion in refusing a continuance appears in the present case.</p> <p>4. No error of law appears, and the evidence supports the verdict.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. May 24, 1912.</p>

<p>Conviction of assault with intent to rape; from Grady superior coprt — Judge Frank Park. May 13, 1912.</p>

<p>Accusation of gaming; from city court of Polk county — Judge Irwin. May 17, 1912. *</p>

<p>Indictment for arson; from Irwin superior court — Judge George. May 10, 1912.</p>

<p>Indictment for burglary; from Appling superior court — Judge Conyers. May 11, 1912.</p>

<p>Indictment for sale of liquor; from Cobb superior court — Judge Morris. May 11, 1912.</p>

<p>Certiorari; from Carroll superior court — Judge E. W. Freeman. May 27, 1912.</p>

<p>1. The evidence offered upon the subject of alleged dying declarations was sufficient to authorize the submission to the jury of the question whether or not, at the time the declarations were made, the declarant was in the article of death and conscious of his condition.</p> <p>2. A statement made by one who had received a mortal wound, that a named person had “assassinated”' him, is a statement of fact, and not a mere conclusion or expression of opinion, and, upon the trial for murder of the person who fired the shot, is admissible in evidence as a dying declaration, if sufficient foundation for its admission is first laid.</p> <p>3. While a trial judge should not so interrogate a witness as to intimate or express any opinion in reference to the weight of the evidence, oías to the guilt or innocence of the person on trial, still it is the right and duty of a trial judge, in a proper case, to assist in the elucidation of the truth of the transaction under investigation, and it is not error for him, for this purpose, to ask a witness questions pertinent to the issue and couched in appropriate language. The questions propounded by the trial judge in the present case were not subject to the criticism that they tended to impress the jury with the idea that, in the opinion of the trial judge, the accused should be convicted.</p> <p>4. The charge upon the subject of dying declarations, which is copied in the opinion herewith filed, is in exact accordance with previous decisions of the Supreme Court and of this court, and is sufficiently full and explicit, especially in the absence of any written request for more particular instructions.</p> <p>5. 'To the end that the trial should'be fair and impartial and conducted in an orderly way, it is the duty of the trial judge to regulate the conduct of counsel, parties, and witnesses, provided that in so doing he does not take away or abridge any right of a party under the law.</p> <p>6. The evidence wairanted the verdict, and there was no abuse of discretion in overruling the motion for new trial.</p>

<p>Indictment for murder; from Laurens superior court — Judge Hawkins. May 30, 1912.</p>

<p>1. To constitute the offense of embezzlement there must be Doth a wrongful conversion and a fraudulent intent; but where money of the principal is knowingly used by the agent for his own private benefit, and in violation of his duty to the principal, it is none the less embezzlement because at the time of the unlawful use the agent intended subsequently to restore the money. An officer or agent of a corporation can not take money of the corporation, entrusted to him or in his possession by virtue of his official relation or agency, and use it temporarily for his private benefit and avoid criminal responsibility by calling it a loan. The law calls such a transaction a wrongful conversion, from Which a fraudulent intent can be inferred. Applying the foregoing principle of law to the proved facts of this case and the inferenees fairly and reasonably deducible therefrom, the verdict of guilty was authorized.</p> <p>2. Where the evidence shows that the treasurer of a corporation took possession of notes executed by it, by virtue of his official position, and subsequently discounted them and deposited the proceeds to his personal account in banks outside the county in which the corporation was located and had its principal office and place of business, and failed thereafter to account for the funds or to pay them into the treasury of the corporation in that county, the venue of the offense of embezzlement, growing out of this wrongful conversion of the funds, was properly laid in the county where the corporation had its principal office and place of business, and where the treasurer obtained posses-sion of the notes and presumptively formed the criminal intent.</p> <p>3. An indictment charged the embezzlement of an aggregate sum of money, the aggregate embezzlement being made up of a series of specific criminal conversions extending through a continuous series of years, some without and some within the statute of limitations as to criminal prosecutions. As to the former the indictment contained an allegation of a statutory exception to the application of the statute. Seld: (a) The question as to the bar of the statute of limitations is fully -controlled by the decision of this court in Cohen v. State, 2 Ga. App. 689 (59 S. E. 4). (S) Evidence of all the acts of embezzlement, whether without or within the bar of the statute of limitations, was admissible for the purpose of showing fraudulent intent.</p> <p>4. The charge of the court, considered as a whole, was a full, fair, clear, and accurate presentation of the law as to all the material issues. It was most favorable to the contentions of the accused, and if any error was committed, it was not against, but in favor of the accused.</p> <p>5. The numerous assignments of error are without merit, and no reason appears that would warrant the grant of another trial.</p>

<p>Accusation of sale of liquor; from city court of Statesboro— Judge Strange. June 1, 1912.</p>

<p>Indictment for embezzlement; irom Spalding superior court— Judge Daniel. February 24, 1912.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. January 14, 1911.</p>

<p>Complaint; from city court of Tifton — Judge E. Eve. January 1, 1912.</p>

<p>Accusation of misdemeanor; from city court of Leesburg — Judge Long. July 11, 1911.</p>

<p>Certiorari; from Paulding superior court — Judge 'Edwards. June 20, 1911. ,, ' •</p>

Action on contract; from city court of Ashburn — Judge Tipton. January 17/1912. The Georgia Cotton Company sued Raney Brothers? for damages on account of the alleged breach of a contract for the sale and delivery of cotton. The court directed a’ verdict for the amount sued for.

<p>Complaint; from city court of Brunswick — Judge Krauss. December 16, 1911.</p>

<p>Action for libel; from city court of Brunswick — Judge Krauss. January 20, 1912.</p> <p>The verdict — which was alleged to be excessive — was for $750.</p>

<p>Complaint; from city court of Sandersville — Judge Jordan. January 9, 1912.</p>

<p>A sheriff, as a general rule, has no authority to serve process beyond the limits of the county in which the suit is brought and of which he is an officer.</p>

<p>Garnishment; from city court of Reidsville — Judge Collins. February 15, 1913.</p>

Complaint; from city court of Thomasville — Judge W. H. Hammond. March 29, 1912. Massey brought suit against Montgomery & MacIntyre, a firm composed of J. S. Montgomery Jr. and W. I. MacIntyre, on a promissory note made in the firm name. Neither the copartnership nor Montgomery made any defense.

<p>Certiorari; from Pike superior court — Judge R. T. Daniel. April 4, 1912.</p> <p>The railway company was sued in a justice’s court for damages on account of the killing of a cow by a locomotive. A verdict was rendered against the company, and in its petition for certiorari, the overruling of which is assigned as error, it is alleged that the verdict was contrary to law and without evidence to support it. The only eye-witness of the killing and the only person who testified as to the manner in which the locomotive was running was the engineer. He testified: “I was engineer on train that struck lilaintifE’s cow. . . I was pulling heavy freight-train, with very large engine, and was going down grade — pretty heavy grade. The point where the cow was hit was on a curve in the track— curve to my left. I was on the right side of the engine and was looking out all the while. It was impossible to see very far ahead at that point. The front of the engine obscured or obstructed so I wouldn’t see but a short distance ahead of the engine. When I saw the cow she was not more than 25 yards from the engine— about that, but, of course, I couldn’t tell exactly. I am sure it was not over that distance. The cow was' standing with her front feet on the track and her hind parts off. She didn’t move until the engine struck her. . . When I saw the cow [the engine] was so close to her that it was impossible to stop the train before it struck her. I was at my place on the engine all the while, and looking out, and I saw the cow as soon as it was possible to do so. . I just didn’t have time to do anything and couldn’t do anything to prevent it. . . It was in the night. . . It was not at a public crossing. There was no signal-post there indicating a public crossing.” The fireman testified, that he did not see the cow, that he was busy firing the engine, and was not looking out ahead, when the engineer told him that the cow had been struck.</p>

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

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

<p>Appeal; from Whitfield superior court — Judge Fite. April 11, 1912.</p>

<p>Action for damages; from city court of Moultrie — Judge McKenzie.</p> <p>On October'28 a car-load of mules was delivered to tbe Louisville & Nashville Eailroad Company at Columbia, Tennessee, to be shipped to the plaintiff at Moultrie, Georgia, over the lines of the Louisville & Nashville Eailroad Company to Montgomery, Alabama, and from that point to Albany, Georgia, over the Central of Georgia, atfid fromAlbany to Moultrie over the lines of the Georgia Northern Eailway. The ear reached Montgomery on Saturday afternoon, October 29, and remained there over Sunday, arriving at Moultrie on the afternoon of November 1. While at Montgomery the agent of the initial carrier fed and watered the stock. The shipment was made under a special contract of affreightment, signed by the initial carrier and the Columbia Mule Company, the consignor, which contained, among other things, the following stipulations: “Said shipper will load and unload said animals at his own risk, and feed, water, and attend the same at his own expense and risk while they are in the stock-yards of the carrier awaiting shipment, and while on the cars or at feeding or transfer points, or where they may be unloaded for any purpose. Should damage occur for which the said carrier may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed, for a stallion or jack, $150; for a horse or mule $100; mare and colt together $100; yearling colt $50; cow and calf together $35; domestic homed animals $30 each; yearling cattle, each, $15; calves, hogs, sheep, or goats, $5 each; chickens, ducks, and guinea-fowls, $2.50 per dozen. . As a condition precedent to the shipper’s right to recover any damages for loss or injury to said animals, he will give notice in writing of his claim thereof to the agent of the railroad company or other carrier, from whom he receives said animals, before said animals are removed from the place of destination above mentioned, or from the place of delivery of the same to said shipper, and before áaid animals are mingled with other animals.” Endorsed on the paper containing these stipulations was the following: “The attention of the shipper has been called to the terms, conditions, value, etc., herein named;” also, “Bill of lading accepted with full knowledge of all its conditions, shipper’s load and count.”</p> <p>When the mules reached Moultrie the plaintiff unloaded them . from the car and placed them in his barn in that city. The next clay several of the mules appeared to' be sick, and the plaintiff verbally notified the agent of the Georgia Northern Railway at Moultrie of this fact, and this agent in turn notified the Central of Georgia Railway Company, but did not notify the initial carrier. The agent at Moultrie promised the plaintiff to examine the stock, but, having been later informed that the stock appeared 'to be all right, did not make the examination. Shortly afterward eight of the mules died. On November 16, while the remainder of the mules were still in the plaintiff’s barn and before they had been mingled with other stock, the plaintiff caused written notice of the death of the eight mules and his claim for damages therefor to be served upon the agent of the Georgia Northern Railway Company at Moultrie. Suit was thereafter brought against the initial carrier for $1,950, as the value of these eight mules. The plaintiff testified, in substance, that the agent at Moultrie at first refused to permit him to take the mules from the car before the surrender of the bill of lading, which had not yet arrived, but finally agreed that he would turn the mules over to him as “railroad mules,” and that he might place them in his barn. It appears that the mules were shipped at a ..reduced rate of freight. The plaintiff testified, that, so far as he knew, the same rate was charged that was ordinarily charged for freight of that character; that he had made no agreement with the carrier in reference to the value of the stock, and that, so far as he knew, the shipper made no such agreement. There was no evidence, other than the statements appearing in the bill of lading, in reference to any agreement between the initial carrier and the shipper as to the value of the stock. There was evidence for the plaintiff that the actual value of the eight mules that died was $1,950. The plaintiff’s theory was that the mules had died as a result of having been fed decayed and poisoned food in Montgomery by an agent of the defendant. There was testimony that the death of the mules was the result of having eaten improper food within twenty-four or thirty-six hours before their death. There was also evidence that when the mules were fed by the plaintiff after they reached Moultrie, the food given was of the best quality and not defective in any respect. It appears, from the evidence, that within twenty-four or thirty-six hours before their arrival at Moultrie they were fed at Montgomery, Alabama, by an agent of the initial carrier. The verdict was for the amount sued for. The defendant’s motion for a new trial being overruled, it excepted.</p>

<p>Petition for certiorari; from Bibb superior court — Judge Harris. June 5, 1913.</p>

Trover; from city court of Camilla — Judge Dasher. August 13, 1911. The American Soda Fountain Company brought trover against the Spence Drug Company of Camilla, Georgia, to recover a certain “Innovation Soda Water Apparatus,” and on the trial elected to take a verdict for the proved value of the apparatus, and a verdict was accordingly directed in its favor. The defendant’s motion for a new trial was overruled.

<p>Appeal; from Floyd superior court — Judge Maddox. December 26, 1910.</p>

<p>Trover; from city court of Swainsboro — Judge H. E. Daniel. May 22, 1911.</p>

<p>Levy and claim; from city court of Swainsboro — Judge H. E. Daniel. May 22, 1911.</p>

Appeal; from Bryan superior court — Judge Sheppard. May 19, 1911. Pembroke National Bank brought suit in the county court against M. E. Carter, as maker, and Mattie R. Carter, doing business under the name of People’s Supply Company, and J. Morgan, us indorsers, of a promissory note signed by M. E. Carter, payable to the order of J. Morgan, and indorsed as follows: “People’s Supply Company, not incorporated,, by M. E. Carter, Mgr.

<p>Action for damages; from city court of Athens — Judge West. May 27, 1911.</p>

<p>. The court did not err in the charge complained of. The evidence authorized the verdict, and there was no error in overruling the motion for a new trial.</p> <p>(a) In charging the jury on the duty of a railroad company as to the use of appliances to prevent the setting out of fire by the operation of its engines, it is proper to instruct them that it is the duty of the railroad company to use “ordinary care and diligence to apply to its engines the best appliances in general use, the use of which is consistent with the practicable operation of its engines, and to use reasonable care and diligence in keeping same in good order.” The words “in general use,” etc., sufficiently qualify the words “best appliances,” preceding them, to overcome the objection that the language used imposes too heavy a burden upon the defendant. The charge is in exact conformity with the ruling in Southern Railway Co. v. Thompson, 129 Ga. 367 (7), 369 (58 S. E. 1044).</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. June 6, 1911.</p>

<p>Motion to amend judgment; from city court of Waycross — Judge T. A. Parker presiding. June 13, 1911.</p>

<p>Certiorari; from Tift .superior court — Judge Thomas. August 23, 1911. .....■</p>

<p>Attachment; from city court of Hartwell — Judge W. L. Hodges. July 13, 1911.</p>

<p>Complaint; from city court of Newnan — Judge Post. August 15, 1911.</p>

<p>Complaint; from city court of Zebulon — Judge Dupree. September 4, 1911.</p>

<p>Trover; from city court of Atlanta — Judge Reid. June 14,1911.</p>

<p>Complaint; from city court of Tifton — Judge R. Eve.- September 9, 1911.</p>

<p>Appeal; from Polk superior court — Judge Price Edwards. September 1, 1911.</p> <p>Thompson. Transfer Company sued Coplan in a justice’s court for $26.01, on an account for hauling goods. The defendant filed a plea and answer as follows: “(1) Defendant admits plaintiff’s account. .(2) Defendant says that plaintiff is indebted to him in the sum of $75.00, and this, sum he pleads as a set-off against the account of plaintiff, and asks for a judgment against plaintiff for the balance after giving him credit for the account sued upon; for that on the - day of May, 1909, plaintiff, who is a common carrier, received from the Seaboard Air-Line Railway Company one case of calico, of the value of $75.00, shipped from Knoxville, Tennessee, to defendant, and receipted said railroad for the same. After receiving said case of goods as above stated, plaintiff failed to deliver the same to defendant; for which plaintiff is liable. Defendant asks judgment in his favor for the sum of $48.50 and costs of suit.” The case was appealed to the superior court, and the plea was there amended as follows: “Defendant . amends the plea of set-off and says that he contracted with plaintiff to receive goods shipped to defendant from the railroads at Cedar-town and to haul and deliver them to defendant at his store at Cedartown. In pursuance of said contract the plaintiff did receive said goods from the railroad, but failed to deliver the same to defendant. Defendant predicates his plea of set-off on said contract of hauling and delivery, and sues for his damages, viz.,, the value of said goods, and prays judgment for same.” The plaintiff moved to strike the plea of set-off, on the ground that the plaintiff’s suit was upon an account, and the plea set up damages for a tort. The court sustained the motion, and, after striking the pipa of set-off, directed a verdict in favor of the plaintiff for the amount sued for. The defendant excepted.</p> <p>cited: Civil Code, § 4407; 104 Ga. 692, 696; 94 Ga. 140-1; 118 Ga. 119; 123 Ga. 727 (1); Cooley, Torts (1880), 91.</p> <p>cited: Civil Code, §§ 5668, 4340, 4406; 90 Ga. 416 (2); 3 Ga. App. 709 (1), 710; 70 Ga. 368 (1), 377; 116 Ga. 140 (2); 114 Ga. 924, 928; 5 Ga. App. 251; 8 Ga. App. 540 (1), 771; Cooley, Torts (2d ed.), 105, 106.</p>

<p>Action for damages; from city court of Nashville — Judge Buie, October 1, 1911.</p>

<p>Appeal; from Gordon superior court — Judge Fite. September 16, 1911.</p>

<p>Certiorari; from Columbia superior court — Judge Hammond. September 26, 1911.</p>

<p>Certiorari; from Richmond superior court — Judge Hammond. September 30, 1911.</p>

<p>Action for damages; from city court of Richmond county— Judge W. F. Eve. October 17, 1911.</p> <p>The petition alleges, that while the plaintiff was in the employ of the defendant railway company in the capacity of night hostler at its yards in the city of Augusta, it being his duty and that of his engineer to see that the main track in the yard was not blocked at night when engines came into the yard from the main line, he and his engineer, on the night of April 5, 1907, took the road engine and removed certain cars from the main track or night track and put them on the side track, and, while performing this duty, in removing cars from the night track, he was directed by his engineer to get on the ground and go back to see if the cars cleared the night track. On’ -examination he found that they did not quite do so, and from his position on the ground, in order to communicate with his engineer by signal, it was his duty to step out from the track, which he did, and this placed him on or near the night track. While in this position, and just as his engine and ears were clearing the track, an engine on the night track came up in his rear and struck him, producing injuries described. It is alleged, that the engineer on the engine that struck the plaintiff saw him in time to have stopped the engine and to have prevented the injury, and it was the duty of the said engineer, in moving his engine in the yard, to have given signal of his approach, by ringing the bell or blowing the whistle on the engine, but the engineer gave no signal; and the plaintiff, being at the time engaged in his duties, and owing to the noise of the movements of his own train of cars and other cars in the yard, did not hear the approach of the engine behind him that struck him, and could not have heard it by the exercise of ordinary care and diligence; and with respect to his injury he was wholly without fault.</p> <p>The defendant demurred generally and specially, the demurrer was overruled, and, after verdict for the plaintiff and the overruling of the defendant’s motion for a new trial, the case came to this court on exceptions to these rulings.</p> <p>92 Ga. 89; 134 Ga. 371, 712; 89 Ga. 756; 101 Ga. 420; 112 Ga. 914; 120 Ga. 971; 127 Ga. 566; 129 Ga. 389-91; 130 Ga. 143; 131 Ga. 160; 133 Ga. 664; 136 Ga. 872; 3 Ga. App. 1, 266, 272; 6 Ga. App. 454, 458, 463; 7 Ga. App. 342, 345, 381, 386; 2 Ga. App. 300; 5 Ga. App. 779; 85 Ga. 197; 124 Ga. 555; 145 U. S. 614; 147 U. S. 238.</p>

<p>Action for damages; from city court of Richmond county— Judge W. F. Eve. October 29, 1911.</p>

<p>Trover; from city court of Ashburn — Judge Tipton. October 19, 1910.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. October :27, 1911.</p>

<p>Appeal; from Whitfield superior court — Judge Fite. October 18, 1911.</p>

<p>Certiorari; from city court of Covington — Judge Wbaley. November 4, 1911.</p>

<p>Appeal; from Fulton superior court — Judge Ellis. October 28, 1911.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. October 2, 1911.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. April 17, 1912.</p>

Complaint; from city court of Richmond — Judge W. F. Eve. May 10, 1912. This was a suit by the Southern Tobacco Company against James P. Armstrong, on a promissory note for $3,750. The note 'was given by Armstrong in part payment for fifty shares of the 'capital stock of the Southern Tobacco Company, he having paid for the stock $1,250 in cash in addition to the note.

Affidavit of illegality; from city court of Bainbridge — Judge Harrell. February 5, 1912. This was a proceeding to foreclose a lien on a sawmill and on lumber for logs furnished the mill, under section 3358 of the Civil Code (1910). The defendant, through his agent, filed a counter-affidavit, alleging: (1) He was not indebted to the plaintiff in the sum sued for.

<p>1. So far as the pleas of the defendant relate to the original liability of the guarantor, the decision of the trial judge, in striking the defendant’s answer, was authorized by the previous ruling of this court in this case (7 Ga. App. 760, 68 S. E. 451).</p> <p>2. Nor did the trial judge err in striking that portion of the defendant’s answer in which it was insisted that the guarantor was entitled to an abatement or diminution of his liability, in the amount which the creditor received as his distributive share from the assets of the bankrupt. There was no allegation that the guarantor had complied with his contract of guaranty; and his remedy was to pay the debt, and, by thus becoming a creditor of the bankrupt, become entitled to prove a claim as a creditor, and, as such, share in the distribution of the bankrupt’s estate.</p> <p>3. Construed as a whole, the answer of the defendant (except in so far as it denied liability for attorney’s fees) was a practical admission of indebtedness, because the denials contained in it were entirely inconsistent with the admissions made in the same connection, and, under a well-settled rule in such cases, the admissions, and not the denials, must prevail. It being undisputed that the proper notice in regard to the attorney’s fees was served, the court did not err in directing the verdict.</p>

<p>Complaint; from city court of Tifton — Judge R. Eve. June 10, 1911.</p>

<p>Action for damages; from city court of Tifton — Judge E. Eve. June 10, 1911.</p>

<p>1. There was no error in overruling the demurrers or in declining to dismiss the petition on oral motion, or in refusing to award a nonsuit. The defendant introduced no testimony. The evidence in behalf of the plaintiffs was sufficient to authorize the jury to find that the plaintiffs’ personal property was destroyed by fire set out by an engine of the Fitzgerald, Oeilla & Broxton Railroad Company, and that its eodefendant — the receiver of the railroad company from which it had leased the railroad — had elected to adopt the lease. The evidence, therefore, authorized a finding for the plaintiffs.</p> <p>2. “A corporation charged with a duty to the public can not, by sale or otherwise, dispose of its property or franchises so as to relieve itself from liability acts done or omitted, without legislative sanction expressly exempting it from liability.” Civil Code (1910), § 2228.</p> <p>3. While “the receiver of a corporation, without the permission of the court which appointed him, can not be sued for any acts of negligence of the corporation prior to his appointment as receiver” (Harrell v. Atkinson, 9 Ga. App. 150, 70 S. E. 954), still, as to torts committed after his appointment as receiver, if the receiver of a lessor railroad corporation has elected to adopt an outstanding lease, by the terms of which a portion of the railroad of which he has been appointed receiver is operated by another railroad corporation, and the election is evidenced by unequivocal acts, the receiver is liable for the tortious acts of the lessee corporation, committed after his appointment as receiver and after a reasonable time has been allowed him in which to make an election, in the same manner and to the same extent as the corporation for which he is receiver would have been liable if there had been no receivership.</p> <p>4. While a party who presents an appropriate request therefor is entitled to have the court give to the jury instructions applying the law of the case to the particular facts in evidence, and while a presentation of the law concretely applied to the facts directly at issue is greatly preferable to a mere statement of an abstract legal proposition, still, without charging in the terms of the request, the request may be sufficiently complied with (as in the present case) to render harmless the omission to give in charge the language of the request. In the present case the court, after stating all the material contentions of both parties, instructed the jury that the plaintiffs could not recover unless they proved every material allegation in the petition.</p> <p>5. The liability of .the receiver being statutory, and depending upon the proof of his relationship as lessor of the railroad company which was alleged to have set out the fire, the quantum of the liability of the receiver, if he was liable at all, would be fixed by the amount of damages (if any) found by the jury against the lessee railroad company; and the court- did not err in instructing the jury to this effect.</p>

<p>This ease is controlled by the ruling of the Supreme Court in the case of City of Conyers v. Kirk, 78 Ga. 480.</p>

<p>Complaint; from city court of Quitman — Judge McCall. August 19, 1911.</p>

<p>. There being no statute in this State permitting a trial judge to authorize the jury to leave the court-room and inspect personal property which is the subject-matter of the action, it is error to permit such an inspection to be made, over the objection of counsel for one of the parties. This ease is distinguished from that of Jones v. Royster Guano Company, 6 Ga. App. 506 (65 S. B. 361), by the fact that the right of trial by view in real and mixed actions existed at common law.</p> <p>Levy and claim; from city court of Baxley — Judge Sellers. July 17, 1911.</p>

<p>Action on bond; from city court of Douglas — Judge McCall presiding. August 33, 1911.</p>

<p>Action on- insurance policy; from city court of Columbus — Judge Tigner. November 2, 1911.</p>

<p>1. Under the decision of this court in Small Company v. Claxton, 1 Ga. App. 83 (57 S. E. 977), following the decision of the Supreme Court in Sims v. Clark, 91 Ga. 302 (18 S. E. 158), the allegations of the petition are sufficient to withstand the general demurrer, and the dis-' missal of the petition on demurrer was therefore error.</p> <p>2. Even if it could be inferred from the petition that the contract of purchase originally created an indebtedness on account, instead of by note as one of the original terms of the sale, still a guarantor is not, as a matter of law, released by reason of the mere fact that an account which he guaranteed has been reduced to a note, when it appears the account was for goods furnished “in pursuance of the contract of guaranty,” and when it appears that the note represents the same amount and stands in lieu of the account. It is plain, from the allegations of the petition, that the action is based upon the guaranty, and not upon the notes; and the statements in regard to the notes may be treated as a recital of the history of the case.</p> <p>3. The liability of the guarantors in the present case depends upon the failure of the original debtor to pay the debt at maturity. It is not necessary that the creditor should obtain a judgment against the original debtor before suit against a guarantor.</p> <p>4. It does not appear from the allegations of the petition that the guarantors’ risk was increased or their liability enlarged. The execution of the notes merely evidenced in writing an admission, on the part of the principal debtor, of an indebtedness to the plaintiff which (according to other allegations of the petition) was the subject of the guaranty; and although the note contained a stipulation for attorney’s fees and for interest at the rate of eight per cent, (instead of seven per cent., which the account would have drawn), still the petition did not ask for a recovery of attorney’s fees, or for interest at the higher rate.</p>

<p>1. It is not an abuse of discretion to overrule a motion to open a judgment rendered by default, wlien the movant does not attempt to assign a reason why a defense was not filed at the proper time.</p> <p>2. Under the provisions of section 1 of the act amending the act creating the city court of Douglas, approved August 14, 1908 (Acts of 1908, p. 135), the presiding judge of that court did not err in entering judgment in favor of the plaintiff, against the defendant and his sureties, upon a demand which, as-pleaded, was a liquidated demand.</p> <p>3. The court had jurisdiction of the subject-matter of the suit, and, by proper legal service, obtained jurisdiction over the persons of the defendants; and the judgment was not void for the reason stated in the case of Jordan v. Callaway, 138 Ga. 209 (75 S. E. 101). Under the amendatory act as to the city court of Douglas, above referred to, the judge of that court is authorized to enter judgment at the appearance term, even upon an account, if no- defense is interposed.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge Reid. June 24, 1911.</p>

<p>An action brought under section 2 of the act approved August 23, 1905 (Acts 1905, p. 120), to recover from a railroad company the sum fixed by rule of the railroad commission for failing to furnish cars ozz demand, is so far penal in its nature as to be barred, under the provisions of § 4370 of the Civil Code (1910), after ozze year fz-om the date upon which the cause of action arose.</p>

<p>1. A claim is a proceeding of an equitable nature, and in a proper case the aid of equity may be invoked by the plaintiff in fi. fa. as well as by the claimant.</p> <p>2. One who hauls logs to a sawmill with the knowledge and consent of the owner, who, in accepting the laborer’s services, assumes to direct him as to the manner in which the logs should be cut, and what logs are to be hauled, may foreclose his statutory lien for hauling the logs upon the lumber cut therefrom, although the lienor was not employed in the first instance by the owner to haul the logs. The lien of a laborer upon the products of his labor can not be defeated by one who has knowledge of the performance of the labor and who accepts the benefit thereof, otherwise than by proof that the lien was waived or has been discharged by payment</p>

<p>Action for damages; from city court of Albany — Judge Crosland. September 18, 1911.</p>

<p>Action for damages; from city court of Abbeville — Judge Nicholson. September 18, 1911.</p>

<p>Action on bond; from city court of Dublin — Judge Hawkins. September 15, 1911.</p>

Complaint; from city court of Atlanta — Judge Reid. March 27, 1912. The Atlanta Oil & Fertilizer Company sued J. W. Arnold Jr. .and E. C. Arnold, as principal makers, and W. C. Thompson as .surety, on a promissory note payable to the plaintiff. The suit was brought in the city court of Atlanta.

<p>Indictment for sale of liquor; from Hart superior court — Judge Meadow. December 11, 1911.</p>

<p>Motion to tax costs.</p>

<p>Action for damages; from city court of Valdosta — Judge Thomas presiding. September 1, 1911.</p>

Complaint; from city court of Atlanta — Judge Reid. September 22, 1911. The Corn Products Befining Company brought its action against-the D. B. Wilder Manufacturing Company upon an open account-for goods sold and delivered.

<p>1. A common carrier wlio undertakes and agrees to convey a passenger by a definite route and under certain conditions must comply with its contract or be liable for any damages consequent upon its breach. If, after full explanation of the peculiar circumstances and with full knowledge of the reasons why the proposed purchaser of the ticket desires the information, the ticket agent of a common carrier contracts with a passenger to convey him hy a particular route, or under specified conditions as to connections, the contract must be performed, notwithstanding the performance of the contract may require the carrier to change, for a time, a rule usually followed in the operation of its trains, provided the change is not in violation of law or of any rule of the railroad commission; or upon breach of the contract the passenger may recover any damages he may have sustained by reason of the breach.</p> <p>2. The evidence authorized a recovery for pain and suffering, and the instructions of the court upon that point are not subject to exception or criticism.</p> <p>3. The evidence authorized a finding in favor of the plaintiff, and, after the verdict was voluntarily reduced by her, there was no error in refusing a new trial.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. November 19, 1911.</p>

<p>1. Where an assault is committed by a negro man upon a white woman, difference in race', and social customs founded thereon, may authorize an inference that the assailant did not expect the woman assailed to yield to his lustful embraces without the use of such force as would make the offense that of rape; but such an inference is not conclusive; and it is error to refuse to charge the jury, where the facts and circumstances warrant such an instruction, that if the assailant, at the time the assault was committed, intended to desist as soon as he ascertained that the woman assailed would not consent, he would not be guilty of assault with intent to rape.</p> <p>2. An instruction in the following language is substantially correct: “There is some evidence as to good character, and on that subject I charge you this: Where the guilt of the accused is made to appear to the satisfaction of the jury, they are authorized to convict, regardless of the good character of the accused, but the jury have the right to consider his good character not merely when his guilt is doubtful under the testimony in the case, but when such testimony of good character may itself generate the doubt.”</p> <p>3. Ordinarily, sayings and conduct of the prisoner in his own favor several hours after he is alleged to have committed the crime are not admissible upon his trial. On account of difference in race, and social customs founded thereon, juries are permitted to infer that a negro man who assaulted a white woman did not expect her to yield to his embraces without the use of force sufficient to overpower her will. Based upon the same social conditions and the characteristics of the negro race, an inference may also arise that a negro man, consciously guilty of an attempt to commit a rape upon a white woman, would not quietly spend a night and a portion of the next day in a house on the farm of the husband of the woman, in close proximity to her neighbors and friends, without exhibiting some symptom of fear or excitement. Proof that he did these things, and that he openly acted in a manner to indicate no consciousness of guilt, is admissible upon his trial for assault with intent to rape, to be considered by the jury in connection with other facts and circumstances in the case upon the question of felonious intent.</p> <p>4. The motives which lie at the foundation of a criminal prosecution may always be inquired into for the purpose of illustrating the bona fides of the prosecution. Sayings of the prosecutor which, if true, indicate that the prosecution is instituted in bad faith, and which also affect the credibility of his testimony, are admissible in evidence.</p> <p>5. While, in the trial of a criminal case, it is the right of counsel for the accused to read, in the hearing of the court and jury, such decisions of the courts of this State as he may deem pertinent to the question involved in the case, it is not the right of counsel to read to the jury a discussion by the reviewing court of the facts of the case on trial, as contained in an opinion delivered by that court when the same ease was before it on a previous occasion.</p> <p>6. An assignment of error in a motion for a new trial, that a sentence, within the limits fixed by law, is excessive and too harsh under the facts and circumstances of the case, presents no reason for interference by the reviewing court.</p>

<p>Attachment for contempt; from city court of Douglas — Judge Buie presiding. December 19, 1911.</p>

<p>Action for damages; from city court of Cairo — Judge Singletary. June 15, 1911.</p>

<p>• Action on guaranty; from city court of Savannah — Judge Davis Freeman. July 7, 1911:</p>

<p>Complaint; from city court of Millen — Judge R. P. Jones. July 17, 1911.</p>

<p>1. Where, in consideration of the execution of a bond by a surety company, the condition of which was the faithful performance by the principal of a certain building’ contract, the principal executed a written instrument as a part of. the application for the bond, agreeing to indemnify the surety company “against all loss, costs, damages, charges and expenses whatever resulting from any act, default, or neglect” of the principal, which the surety might “sustain or incur,” the indemnity agreement of the principal was not merged in and extinguished by the bond, but suit for its breach could be brought thereon at any time within the statutory period.</p> <p>2. The liability of the principal to the surety in the bond, under the indemnity agreement set forth above, does not constitute a claim provable in bankruptcy against the estate of the principal until the surety has actually paid the obligee in the bond the damages sustained by reason of the principal’s default. No such damage has been sustained or incurred by the surety, within the meaning of the agreement, until after actual payment.</p>

<p>" Complaint; 'from city court of Thomasville — Judge W, H. Hammond. March 19, 1912.</p>

<p>Complaint; from city court of Tifton — Judge B. Eve, April 3, 1912.</p>

<p>Foreclosure of mortgage; from city court of Sandersville — Judge Jordan. February 22, 1912.</p>

<p>Action for damages; from city court of Moultrie — Judge Thomas presiding. April 30, 1912.</p>

<p>1. The industrial and agricultural schools organized, established, and maintained in each congressional district of this State in accordance' with the provisions of the act of 1906 (Georgia Laws 1906, p. 72 ;o Civil Code, § 1552 et seq.) are not such public institutions of the State as would be exempt from suit on contracts made by their trustees within the scope of the authority delegated to them by the terms of the act in question.</p> <p>2. These branch schools are made departments of the University of Georgia by the act creating them; and the University of Georgia is expressly incorporated as a body corporate and politic, with the right to sue and be sued; and in creating these'branch schools, it was the purpose of the legislature that they should stand in the same relation to the State and to the public in this respect as the university stood.</p> <p>3. A contract made by the trustees of the First District Agricultural and Mechanical School, for the purchase of furniture to equip the school, was within the scope of the authority delegated to them, and is enforceable against the school and the trustees thereof in their official capacity.</p>

<p>Levy and claim; from city court of Vienna — Judge Lasseter. April 17, 1912.</p>

Certiorari; from Walker superior court — Judge Maddox. April 17, 1912. Suit in a justice’s court was brought against C. C. Cromer on a note made by him and Will Cromer jointly, and payable to Evett, the plaintiff. The trial resulted in a verdict against the defendant. A certiorari sued out by him was overruled, and final judgment was entered against him, and he excepted.

<p>Complaint; from city court, of Miller county — Judge Rambo presiding. February 27, 1912.</p> <p>Tbe plea which the court struck made the following averments: T. E. Hightower, who is a member of the firm of T. E. Hightower & Company as well as a member of the firm of Hightower & Son, and plaintiff in this case, accused the defendant’s husband of stealing a suit of clothes, and threatened to prosecute him unless she gave the note sued on; and after said plaintiff had harassed her for more than two months by threatening to prosecute her husband for larceny, and telling her that if she gave the note sued on and others referred to in the answer, they would not prosecute him, in order to keep them from prosecuting him she signed the note sued on, but did so against her will and to prevent the plaintiff from prosecuting her husband for the larceny above stated, which they agreed not to do if she would give the note. The attorney for the plaintiffs, B. B. Bush, who witnessed the note sued on, knew that she was being forced to sign it against her will, and told her that if she did not sign it, “it would be bad trouble,” and that “they would send her old man off to the chain-gang or break them up.” If it had not been for the said threats and charges brought by the plaintiffs against her husband, she never would have signed said note, and she was coerced by them into signing it against her will. As soon as the plaintiffs got this note,'along with the others referred to, they failed and refused -to prosecute her husband, but accepted this note in settlement of the criminal prosecution, which was a misdemeanor. She did not owe them anything at the time she executed the note, and it was given by her, as previously stated, .under duress, and to suppress a criminal prosecution against her husband.</p> <p>cited: Civil Code (1910), §§ 4116, 4255; 124 Ga. 671 (2, 3); 112 Ga. 426; 101 Ga. 84; 8 Ga. App. 812; 71 Ga. 35; 56 Ga. 566; 50 Ga. 155; 48 Ga. 358; 39 Ga. 85.</p> <p>cited: 135 Ga. 702; 122 Ga. 812; 1 Ga. App. 798; 55-Ga. 413 (4).</p>

<p>Action on bond'; from city court of Albany — Judge Crosland. March 22, 1912.</p>

<p>1. A motion to set aside a judgment must be filed within three years after the rendition of the judgment.</p> <p>2. The evidence demanded a verdict in favor of the defendant, and it was error to overrule his motion for a new trial.</p>

<p>Action, for damages; from city court of Fitzgerald — Judge Wall. May 3, 1912.</p>

<p>Indictment for assault and battery; from Colquitt superior court — Judge Thomas. June 5, 1912.</p> <p>The plaintiff in error was convicted of assault and battery; his motion for a new trial, based upon the general grounds and others, -was overruled, and he excepted. The evidence for the State was in substance as follows: The accused, a carpenter, was working on a fence in front of a dwelling-house, between two and -three o’clock in the afternoon, when the mother of three small children living there left the house to find her husband. In a few minutes she and her husband returned together, and found the accused in.one of the rooms of the house. The husband asked him what he was doing in there, and he replied that he had come for a drink of water and was tired and was sitting down ft) rest. There was no water in the^ room, .but the water was on the back veranda. Immediately after the mother had come into the house one of the children — a girl five years old — ran to her from the room in which the accused was found. The mother testified: “My little girl came running to me. Her eyes were all bleared, and she was trembling and white. The child said, ‘Mama, are you going to whip me? I couldn’t help it, it was him.’ I said,‘Who?’ I said, ‘What?’ And she up and told the circumstances.” The child said that the accused took her hands and made her place them upon his private parts, which he had exposed, and that, on hearing the parents coming, he shoved her out of the door.</p>

<p>Action on insurance policy; from city court of Carrollton — Judge Beall. May 27, 1912.</p>

Attachment for contempt. On October 7, 1912, the Court of Appeals passed an order as follows: “It being made to appear to this court that Augustus W. Fite, one of the judges of the superior courts of this State, whose decisions are subject to review by this court, did write and cause to be published on October 5, 1912, in the Atlanta Daily Constitution, a newspaper of general circulation, published in Atlanta, Georgia, an article, a copy of which is hereto attached; and it…

<p>This case is controlled by the decisions of the Supreme Court in Southwestern Railroad v. Hankerson, 61 Ga. 115, and Moore v. Southern Railway Co., 136 Ga. 872 (72 S. E. 403), and is distinguishable from the case of Central Railway Co. v. Pelfry, ante, 119 (74 S. E. 854). The court did not err in directing a verdict in favor of the defendant.</p>

<p>Indictment for being accessory, etc.; from Haralson superior court — Judge Edwards. December 15, 1911.</p> <p>The indictment charged that W. J. McKissick was “accessory after the fact of burglary,” in that he did “buy and receive from Carl Davis and Eowe Lindsey the following goods, chattels and effects, to wit; [describing them and stating their value], all of which said goods, chattels, and effects had been then and there, in said county, feloniously taken from the store-house of one G. W. & J. C. Tumlin Co. by the said Carl Davis and Eowe Lindsey by breaking and entering the store-house of sáid G. W. & J. C. Tumlin Co. feloniously'with intent to commit a larceny then and there, and, after so breaking and entering said store-house of said G. W. & J. C. Tumlin Co., did take and carry away said goods with intent to steal the same, contrary to the laws of said State, the good order, peace and dignity thereof; the said store-house then and there belonging and in possession of said G. W. & J. C. Tumlin Co.', and the said W. J. McKissick then and there knowing the said goods, chattels, and effects above set out to have been so stolen and feloniously taken as aforesaid by the said Carl Davis and Eowe Lindsey. The said Carl Davis and Eowe Lindsey have heretofore at this term of the court been duly indicted by the grand jury of said county selected, chosen, and sworn at this term of said court, for the crime of burglary, for the breaking and entering of said store-house aforesaid, and for having stolen and feloniously taken the said goods, chattels, and effects from the said store-house of said G. W. & J. C. Tumlin Co. as aforesaid, and have filed and entered their pleas of guilty to said charge of burglary as aforesaid, as charged in indictment' aforesaid, at this term of said court.” The accused demurred to the indictment generally, and also upon the special ground that the ownership of' the goods was not alleged. Other grounds of-the special demurrer were abandoned in the brief of his counsel in this court. The verdict was as follows: “We, the jury, find the defendant guilty and recommend that he be punished as a misdemeanor.”</p>

<p>Accusation of carrying pistol; from city court of Ocilla — Judge Oxford. January 16, 1912.</p> <p>The plaintiff in error was convicted of a violation of the act of 1910 as to carrying a pistol without a license. His motion for a new trial, the refusal of which is assigned as error, alleged that .the verdict was contrary to law and the evidence, and that the court erred in refusing written requests to charge the jury as follows: “If you believe, from the evidence and the defendant’s statement, that the defendant, as he claims, went to see his son in another county, and found the son in possession of the pistol in question, and took it away from the son because he, the father, did not want the boy to have the pistol, and had started to bring the pistol from the point where he took it from the son, to his own home, and was apprehended by the officer and the pistol taken from him as testified to by the State’s witness, while he was so engaged in carrying the pistol home, then I charge you that he would not be guilty, and it would be your duty to acquit him.” Also: “If you believe, from the evidence and the statement of the defendant, that the defendant, on the occasion in question, was carrying the pistol solely for the purpose of transporting, then he would not be guilty.”</p>

<p>Indictment for breaking and entering, etc.; from Crawford superior court — Judge Felton. January 17, 1912.</p> <p>Williams was convicted under an indictment charging him and Isaiah Clayton with having broken and entered a railroad car and stolen certain meat from it. He moved for a new trial, alleging that the verdict was contrary to law and the evidence; the motion was overruled, and he excepted. According to the evidence, the car was broken and entered and the meat stolen at the time and place alleged, and, about three days later, most of the meat was found near that place, at the house of Isaiah Clayton. The persons who made this discovery went also to the house of Williams, and one of them (who described himself as a special officer of the railway company) exhibited to Williams a warrant to search his premises, 'and they went to his store, with his wife, who unlocked the door. While she was kneeling behind the counter this “special officer” saw her stick a piece of ham in her bosom and start out, and he told the sheriff to catch her, that she had a piece of meat in her bosom; she denied that she had it, and made some resistance before she gave it up. This meat and the meat found at Clayton’s house bore the stencil marks of the same 'packing house. Williams was then asked where he got this piece of meat, 'and replied that a tramp gave it to him for his wife to cook some breakfast. About .an hour later, when Clayton had been arrested, Williams said that he got it from Clayton. Williams’s boy, who was at .his house when the officers came, ran off while they were there. Clayton was a son-in-law and neighbor of Williams. Clayton testified that he found the meat at the side of the railroad, and gave a piece of it to Williams’s wife, but did not tell her where he got it, and that Williams did not know about the meat he had found. Tracks of two persons led from the railroad' to a point between 50 and 100-yards from the houses of Clayton and Williams; there were no peculiarities about the tracks; they were of the same size. Two other negro men lived near these men. Several witnesses testified to the good character of Williams.</p> <p>cited: 5 Ga. App. 228; 6 Ga. App. 778; 2 Ga. App. 492, 620; 4 Ga. App. 273; 123 Ga. 534.</p>

<p>Conviction of manslaughter; from Brooks superior court — Judge Thomas. February 10, 1912.</p>

<p>Complaint; from city court of Carrollton — Judge Beall. March 12, 1912.</p> <p>The Peoples Bank sued B. F. Camp and A. S. Camp on a promissory note signed by the defendants and payable to the plaintiff. The note was for $2,694.49 principal, and interest from date at the rate of eight per cent, per annum, and was dated July 7, 1910, and contained a waiver of homestead. The defendants filed a plea as follows: Defendants say they are not indebted- to the plaintiff in the sum alleged, for that the note sued on is a renewal of original notes for $2,500; that said original notes bore interest at the rate of 12 per centum, and contained a provision for interest at said rate, and were in violation of revised statutes of Georgia of 1910, section 3436, and, by reason of such usurious interest, plaintiff forfeited all interest on such original notes; that on the original notes interest was calculated, charged, and collected at the usurious rate of 12 per cent, per annum up to July 7, 1910, when the note sued on was given; that when the note sued on was given there had been paid interest approximately $500, and interest was included in the note sued on of $194.49, making a total of interest collected and charged of approximately $694.49, which these defendants plead as a set-off against the demand of plaintiff herein, in addition to the credits of $495 and $143 indorsed on said note. The amount of interest at 12 per centum is stated to the best information of these defendants and is approximately correct. Defendants are unable to give the exact amount, because the original notes for $2,500, with the credits thereon indorsed, are in the possession of the plaintiff, who kept and still keeps, said notes. That the interest was at the usurious rate of twelve per cent, defendants are certain. To this plea the plaintiff demurred: (1) because defendants allege that the note sued on is a renewal of an original note, yet do not set out what the original note was, which should be set out in full; (2) because defendants claim as a set-off-the entire amount of interest on the note sued on and the note they claim as an original of this note, when there is no law in this State under which they could claim such set-off; (3) because the plea is not sufficient in law, for the reason that it does not set out the details of the alleged usury, as required in section 5674 of the Code of 1910. The court passed an order sustaining the demurrer, unless the plea should within twelve days be amended to meet the grounds of the demurrer.</p> <p>The defendants amended the plea as follows: For special plea of usury defendants say, that the claim sued on in this case represent's a balance of an indebtedness contracted by the Gamp Drug Company, upon which these defendants were merely sureties, the usury in said indebtedness arising on the following facts, to wit: On January 4, 1910, Camp Drug Company borrowed from the plaintiff the sum of $3,000, and these defendants signed notes therefor as sureties of said Camp Drug .Company; that said notes were payable in instalments falling due monthly; that each of said instalments was for $100,- with interest thereon; that in giving the notes for the monthly instalments the interest was counted therein; that said notes have been taken up, lost, or destroyed, so far as these defendants know, except the note due April 1, 1910, which note was dated January 4, 1910, was for the sum of $102.50, and was due on April 1, 1910, 'and was upon a form of note which is the same as that attached to the plaintiffs petition; that said note bore interest after maturity at 8 per cent., but interest prior to maturity was included therein; that interest on $100 from January 4 to April 1 at 8 per cent, was less than $2, the time being less than three months; that plaintiff inserted in said note, and charged these defendants, and attempted to collect from them, interest on said $100 to the amount of $2.50, which was usurious, in excess of 8 per cent., and in violation of the laws of the State of Georgia; that each of the notes given for said $3,000 bore such excessive rate of interest, and usurious interest was collected on each of said notes, and each of said notes matured in monthly instalments, the first one maturing February 1, 1910, and the remaining notes maturing, as these defendants are informed and believe, one in each month thereafter for 23 additional months; that on July 7, 1910, all of the original notes for the $3,000 and the usurious interest were taken up, and there was counted in the indebtedness for which the new note,was given said usurious interest, amounting to $60, which sum was an illegal exáetion and usurious, and for which sum these defendants are entitled to' a set-off against the plaintiff; and they pray that they recover their set-off.</p> <p>Wlién the case was called for trial at a subsequent term of the court, counsel for the plaintiff moved to strike the plea as amended. Counsel for the defendants then offered an amendment' of the nature indicated in the foregoing decision (paragraph 3). The court, on objection, refused to allow this amendment, sustained the motion to strike the plea as amended, and, after the note sued on had been introduced in evidence, directed a verdict against the defendants for the amount sued for. They excepted to the-rulings stated.</p> <p>cited: 3 Ga. App. 188; Id. 69; 89 Ga. 115; Id. 385; 91 Ga. 319, 321; 101 Ga. 283, 257; 59 Ga. 546, 549; 83 Ga. 156, 160; 124 Ga. 660, 662.</p> <p>cited: Civil Code (1910), § 5674; 26 Ga. 167.</p>

Assumpsit; from city court of Blakely — Judge Bambo. February 19, 1912. Askew brought suit against A. J. Singletary and B. C. Singletary, as executors de son tort of the estate of L. W. Singletary, to recover $500.

<p>The evidence demanded the judgment rendered by the justice in favor of the plaintiff, and the judge of the superior court erred in sustaining the certiorari and entering up final judgment against the plaintiff.</p>

<p>1. Where an officer of a corporation makes a contract for it within the scope of his appropriate duties, the corporation can not relieve itself of liability on the contract by reason of any by-law or other limitation on the power of the officer, not known to the other party to the contract-</p> <p>2. Where a corporation, through its executive officers constituting the-board of directors, for years and by a long course of dealing entrusts-the management of its business to a particular officer, and permits him to make contracts for it in connection with its business, and especially contracts similar in character to the one under consideration in this-ease, such a contract would be binding on the corporation, irrespective' of whether or not it was expressly authorized by the by-laws or by formal action of the executive officers or board of directors.</p> <p>3. Where certain portions of interrogatories, with exhibits attached, which the trial judge had excluded from the evidence, were, by inadvertence,, left in the possession of the jury and were taken out by them when they retired to consider the case, and, on their return to the courtroom with the verdict, the attention of the judge was called to the matter, and he interrogated the foreman of the jury for the purpose of finding-out if these interrogatories or exhibits had been read or considered by the jury in their deliberations, and in reply the foreman stated that-neither the interrogatories nor the exhibits had been read or considered by any member of the jury, and that the papers (meaning the interrogatories and exhibits) had “not even been opened by any member of' the jury,” there was no error in refusing to grant a new trial on this-ground.</p> <p>i. The numerous objections made to excerpts from the charge of the court and to rulings on evidence are -wholly without merit. The law applicable to all the issues in the case was fully, clearly, and fairly presented in the instructions. No error of law whatever appears in the trial, and the verdict is fully supported by the evidence.</p>

<p>1. There was no error in the refusal to admit in evidence testimony given at a former trial of the cause, whieh was offered on the ground that the witness was “inaccessible” for the reason that he was a non-resident of the county where the trial was had, being a resident of an adjoining county. The word “inaccessible,” in section 5773 of the Civil Code, means that the witness is a non-resident of the State, and therefore beyond the jurisdiction of the court and not subject to its processes. • It does not apply to a witness who, though absent from the county of the trial, is nevertheless, at the time of the trial, a resident of a different county in the same State; for, wherever he may be in the same State, the process of the court can reach him and compel him to testify by interrogatories or depositions.</p> <p>2. There being no error of law complained of except as indicated in the foregoing headnote, and the evidence being in direct conflict, the judgment refusing’ a new trial must be ' Affirmed.</p>

<p>Complaint; from city court of Americus — Judge Hixon. May 4, 1912.</p>

<p>Complaint; from city court of Elberton — Judge Grogan. June 10, 1912.</p>

<p>The allegations of the petition set out a cause of action to recover damages for breach of eontract, and there was no error in overruling the demurrer.</p>

Action on bond; from city court of Albany — Judge Crosland. May 22, 1912. The City of Albany, by an ordinance, required all persons who intended to engage in the “near beer” business in the city, as a condition precedent to engaging in such business, to give a bond in the sum of $300, conditioned, among other things, to keep an orderly place, and not to violate the State prohibition law, or any city ordinance regulating the “near beer” business.

<p>Accusation of public indecency; from city court of Blackshear— Judge. Milton. June 10, 1912.</p>

<p>Accusation of keeping liquor at place of business; from city court of Carrollton — Judge Beall. July 18, 1912.</p>

<p>Certiorari; from Fulton superior-court — Judge Pendleton. May 21, 1912.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. June t, 1912.</p>

<p>Indictment for cattle-stealing; from Early superior court — - Judge Worrill. June 22, 1912.</p>

<p>Accusation of misdemeanor; from city court" of Floyd county— Judge Eeece. July 1, 1912.</p>

<p>Accusation of sale of- liquor; from city court of Carrollton— Judge Beall. July 3, 1912.</p>

<p>Where a demand for trial was made in the superior court at the term at which the indictment was found, and subsequently, during the term, the indictment was transferred to a city court for trial, the demand being made and the indictment transferred during a concurrent term of the city court, the next term of the "ity court, and not the concurrent term, was “the next succeeding term” after the demand, within the meaning of section 983 of the Penal Code.</p>

<p>Accusation of sale of liquor; from city court of Keidsville — Judge Collins. May 21, 1912.</p> <p>Wallace Perkins testified that Oscar Deason (the accused) sold a quart of “two-X rye liquor” to him at Deason’s house in Clarton on Sunday evening, December 10, 1911, about three or four o’clock, and that Joe Norman was with him at that time. The alleged newly discovered testimony was in two affidavits, in one of which the affiant stated that he was the Joe Norman referred to, and that he was not with Parsons, did not see Deason, and was not in Claxton on that Sunday, and never knew of a sale of liquor by Deason. The other new witness testified that Oscar Deason was with him every minute from two o’clock in the afternoon until after church services at night on the Sunday in question, and at Sunday-school from three to four o’clock, and not at Deason’s home during any part of that time. There were affidavits as to the good character of these new witnesses, and as to the diligence of the accused and his counsel in procuring testimony. The accused, in his affidavit, stated that he went to trial prepared to meet the charge of selling liquor on a different date from that given by the State’s witness, Perkins, the date alleged in the accusation being December 12, and it being attempted to connect him with a liquor transaction on December 12 in Collins, as to which some of the witnesses testified.</p>

<p>Accusation of bastardy; from city court of Saint Marys — Judge Atkinson. June 22, 1912.</p>

<p>Conviction of manslaughter; from Bibb superior court — Judge R. T. Daniel. June 22, 1912.</p>

<p>No error of law was committed, and the conviction was supported by evidence.</p>

<p>Certiorari; from Pulaski superior court — Judge Martin. August 3, 1912.</p>

<p>1. An accusation under section 715 of the Penal Code of 1910, which alleges that the accused contracted “to do the work of a one-horse farm” for the prosecutors, who were to furnish the live stock, the farming implements, and a half of the guano, and the accused was “to receive half he made” on the farm, except the cottonseed, sufliciently sets forth a contract to perform services, within the meaning of the section of the code under which the accusation was drawn.</p> <p>2. The evidence demanded a verdict of not guilty, and the court erred in overruling the motion for a new trial.</p>

<p>There being no proof of the value of the article alleged to have been stolen, the conviction must be set aside.</p>

<p>Indictment for sale of liquor; from Brooks superior court— Judge Thomas. July 18, 1912.</p>

<p>Accusation of riot; from city court of Hall county — Judge Foute presiding. August 30, 1912.</p>

<p>Accusation of sale of liquor; from city court of Blacksbear— Judge Milton. August 1, 1912.</p>

<p>An indictment alleged that the accused operated an automobile along oné of the public highways of the State “at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the said highway, and then and there, upon approaching a certain pair of mules hitched to and driven to a certain wagon by W. C. Dobbs on said highway, did, while operating said machine on said highway, then and there fail and refuse to give reasonable warning of the approach of said machine by the use of a bell, horn, gong, or other signal, and fail to use every reasonable precaution to insure the safety of persons in said wagon and to prevent-frightening said mules.” Held:</p> <p>1. While the allegation that the machine was being driven “at a rate of speed greater than is reasonable and proper, having regard to the traffic and use oi&the said highway,” was too general, and set forth no offense, it may be treated as surplusage.</p> <p>2. So much of the indictment as charged a failure to warn of the approach of the machine set forth an offense under section 6 of the act approved August 13, 19.10, regulating the use of automobiles.</p> <p>3. It jvas not necessary to allege how the animals became frightened, nor the manner in which the driver thereof was injured.</p>

<p>Petition for certiorari; from Pulton superior court — Judge Ellis. July 19, 1912.</p>

<p>A written agreement to accept a bill of exchange to be drawn in the future is valid and binding, if the bill is drawn in strict accordance with the provisions of tile agreement and within a reasonable time, in favor of any person who on the faith thereof receives the bill for a valuable consideration.</p>

<p>1. An action ex delicto may be brought against a domestic corporation in the county where the cause of action originated, provided service can be perfected upon the corporation in the manner prescribed by Civil Code (1910), § 2259.</p> <p>2. A plant for the manufacture and distribution of electrical power at which is maintained a large force of laborers, under the control of a superintendent or foreman, is a place of business, within the meaning' of the section of the code above cited, and an action ex delicto upon a cause of action originating in a county where such a place of business is maintained may be brought in that county, notwithstanding the principal office of the corporation owning the business is by its charter located in another county, where its directors meet and its financial operations are conducted.</p> <p>3. If a domestic corporation has a place of business where such a cause of action originates, service upon the agent of the corporation having the | management of such a place of business in that county is sufficient, , without reference to the official title or the particular duties of the agent.</p>

<p>Certiorari; from Berrien superior court — Judge Thomas. June .5, 1913.</p>

<p>Action on contract; from city court of Ocilla — Judge Oxford. May 14, 1913.</p>

<p>1. Unless there is a bona fide attempt by an insurer to adjust a loss under a policy of fire insurance, by an offer to pay a sum approximating the loss sustained, there is an “absolute refusal to pay” within the meaning of section 2490 of the Civil Code (1910).</p> <p>2. The reception and retention by the insurer, without objection, of proofs of loss is a waiver of the right to set up, in defense to a suit for the loss, that the proofs furnished were not in strict compliance with the requirements of the policy.</p> <p>3. A requirement that proofs of loss must he furnished “as soon as possible” after loss means that they must be presented within a reasonable time, having due regard to all the circumstances. What is a reasonable time is generally a question for the jury</p> <p>4. Failure of an insurer to demand an appraisement is a waiver of the requirement in a policy of fire insurance that suit can be brought only within a specified time after an award by appraisers.</p> <p>5: Where the value of articles destroyed'or damaged by ñre is in issue, the jury are not bound by the opinions of witnesses, but may reach an independent conclusion as to value, from data in evidence before them, such as the cost of the articles, their quality, and the like.</p> <p>6. The evidence authorized the verdict, and there was no error requiring, a new trial.</p>

<p>Indictment for larceny after trust; from Fulton superior court — . Judge Eoan. June 8, 1912.</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. May 18, 1912.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. June 18, 1912.</p>

<p>Complaint; from city court of Vienna — Judge Lasseter. June 10, 1912.</p>

<p>Action for damages; from city court of Valdosta — Judge Cranford. June 15, 1912.</p>

<p>Complaint; from city court of Madison — Judge Anderson. July 10, 1912.</p> <p>A common-law fi. fa. which was issued September 11, 1911, for :$1,000, principal, and $152.46 interest, and $115.24 attorney’s fees, in favor of Abernathy and against the Buckhead Lumber Company, was levied on certain real estate and- personalty as the property of the defendant in fi. fa. The property was regularly brought to sale on January 2, 1912, and was bid in by Adams for $1,265. He refused to comply with the bid, and the sheriff resold the property at his risk. On resale it brought only $350, and the sheriff brought an action against Adams for the deficiency. The action was instituted in the name of the sheriff as the real party at interest, and he sought to recover not only the 'difference between the two bids, but also the expense incurred by him in. employing counsel to prosecute the action. On demurrer the court struck the claim for attorney’s fees. The plaintiff amended so as to add the name of the defendant in fi. fa. as usee, and the court overruled a demurrer based upon the ground that the plaintiff in fi. fa., being the real party at interest, should have been named as the usee. Adams defended on the ground that in making the bid he was acting as agent for Abernathy, the plaintiff in fi. fa., under instruction to buy the property for him, but the defendant does not claim that the sheriff had any notice of this agency. The fi. fa. was admitted in evidence, over the objection that there was no entry of sale thereon. Evidence that the defendant was Abernathy’s agent in making the bid was rejected, and the court directed a verdict against him for the difference between the amount of his bid and the amount realized on resale. He excepted to the various' rulings against him; and 'in a cross-bill oí exceptions the plaintiff complained of the refusal to allow a recovery of attorney’s fees.</p>

Conviction of living in a state of fornication; from-.city court of Valdosta — Judge Cranford. August 27, 1912. From the evidence it appeared, that in the house in which the accused — a white man — was residing, Malinda Solomon, an unmarried mulatto girl, between seventeen and eighteen years of age, employed as his cook and house servant, lived, with her two children, and there was no Other occupant of the house.

<p>Indictment for burglary; from Chatham superior court — Judge Charlton. August 28, 1912.</p>

<p>Conviction of sale of liquor; from city court of LaG-range— Judge Eevill presiding. August 14, 1912.</p>

<p>Certiorari; from Wilkes superior court — Judge Walker. August 10, 1912.</p>

<p>The Supreme Court having held, in answer to a question certified to it, that under the provisions of section 4424 of the Civil Code (construed in connection with section 4425), surviving children have a cause of action for the negligent homicide of their father, notwithstanding the fact that their mother survived the father and died without instituting an action for damages based upon the homicide, the trial judge properly overruled the general demurrer.</p>

<p>Indictment for sale of liquor; from Randolph superior court— Judge Worrill. September 7, 1912.</p>

<p>Indictment for arson; from Hart superior court — Judge Meadow. December 11, 1911.</p>

<p>Conviction of shooting at another; from Worth superior court-judge Frank Park. April 24, 1912.</p>

<p>Indictment for assault with, intent to murder; from Cobb superior court — Judge Morris. March 12, 1912.</p>

Action on contract; from city court of Oeilia — Judge Oxford. May 14, 1912. Tbe contract was for the sale and delivery of cotton, and was a sealed instrument identical in form with the contract set out in the case of Luke v. Livingston, 9 Ga. App. 116 (70 S. E. 596). On the part of the purchaser it was signed: “J. K. Livingston, per I. J. russell.” Livingston sought to recover damages on account of failure to deliver the cotton.

Action for damages; from city court of Atlanta — Judge Reid. May 18, 1912. A general demurrer to the petition was sustained.

<p>Levy and claim; from city court of Atlanta — Judge Reid. May. 22, 1912.</p>

<p>Accusation of misdemeanor; from city court of Madison — Judge Anderson. August 12, 1912.</p>

<p>Mere preparation to commit a crime against the laws of the State can not be punished by a municipal court as disorderly conduct, in the absence of proof of some conduct which tends to a breach of the peace, or to disturb that portion of the public which may see or hear the conduct claimed to have been disorderly.</p>

<p>Accusation of misdemeanor; from city court of Madison — Judge Anderson. September 13, 1912.</p>

<p>Accusation of sale of liquor; from city court of Ashburn — Judge Tipton. September 16, 1912.</p>

<p>Accusation of sale of liquor; from city court of Jackson — Judge Fletcher. September 28, 1912.</p>

<p>Indictment for assault with intent to rape; from Baldwin superior court — Judge J. B. Park. August 16, 1912.</p> <p>The child referred to in the decision testified, in reply to questions on preliminary examination, that she had been to school and tc Sunday school, and could read in her “A B C book,” that to hold up her hand 'and swear meant to tell the truth, that swearing in the court-house meant to tell the truth, and that persons who tell lies “gc to the bad place;” that God made her, and God is a “Christian spirit;” that an oath is “a piece of paper;” that she did not know anything about an oath; that she came there to tell the truth, and knew that if she should swear falsely and they hung a man on hej evidence, they could hang her top.</p>

<p>Indictment for misdemeanor; from Laurens superior' court— Judge Hawkins. September 14, 1912.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. July 1, 1912.</p>

<p>Action for damages; from city court of Covington — Judge Thurman presiding. December 12, 1911.</p>

<p>1. The demurrer was without merit.</p> <p>2. Where an auditor was regularly appointed, but no time was specified within which his report was to be filed, and the case was continued for several terms, and the time for making the report extended; and where an order was finally passed, during term, by consent of all parties at interest, requiring the auditor to file his report by a specified date, “or, in default thereof,’ that said cause be withdrawn from the consideration of said auditor,” and the report was not filed until after the time thus specified, there was no error, on the call of the case for trial, in sustaining a motion to disregard the report of the auditor and ruling the case to trial before a jury.</p> <p>3. The plaintiff proved his case as laid, and the evidence authorized a recovery in his favor, upon the theory that the defendant had contracted to pay for the services rendered by the plaintiff an amount based upon the value of the timber, title to which had been acquired by the defendant as a result of the plaintiff’s services.</p> <p>4. Where one agreed to pay an attorney, for professional services to be rendered, five per cent, of the value of certain timber, title to which was to be acquired as a result of the attorney’s efforts, the claim of the attorney for compensation became, upon the performance of the services, a liquidated demand, and, as such, bore interest from the date it became due, notwithstanding the contract provided that in the event of disagreement as to value, the owner of the timber should submit to the attorney a “give-or-take proposition,” and he thereafter refused to do so.</p>

<p>Complaint; from city' court of Macon — Judge Hodges. June 25, 1912.</p>

<p>Action for damages; from city court of Richmond county— Judge W. F. Eve. June 5, 1913.</p>

<p>' Complaint; from city court of Moultrie — Judge McKenzie. July 13, 1913.</p>

<p>Action for damages; from city court of Saint Marys — Judge Atkinson. June 22, 1912.</p>

<p>Complaint; from Crisp superior court — Judge George. May 31, 1912. (Transferred from city court of Cordele by act abolishing that court.)</p>

<p>Certiorari; from Bryan superior court — Judge Sheppard. July 23, 1912.</p>

<p>Complaint; from city court of Moultrie — Judge McKenzie. July 23, 1912.</p> <p>The petition was dismissed on demurrer. It alleged, in substance, that the defendant, as an attorney at law, collected from the plaintiff, on a certain promissory note of the plaintiff, $38.73 as attorney’s fees, in addition to the principal and interest, by deceiving and defrauding him into believing that he was liable for the payment of such fees, and refusing to accept the principal and interest and surrender the note unless he would pay the attorney’s fees, the defendant stating that by reason of the statutory notice of intention to file suit, which had been given, he (the defendant) became entitled to attorney’s fees; although the return day of the court had not arrived, and no suit on the note had been filed. The petition concluded 'as follows: “By reason of the foregoing facts, defendant has injured and damaged petitioner in the sum of $51.00, for which petitioner prays judgment, and also prays that process do issue,” etc. One of the grounds of the demurrer was that the city court of Moultrie was without jurisdiction of the case, the principal amount sued for being less than $50. The act of 1903, referred to in the decision, provides that “the said court shall not have jurisdiction to try and dispose of any cause or matter wherein the principal amount involved does not amount to the sum of fifty ($50.00) dollars or more, except in eases where a justice court has no jurisdiction.”</p>

<p>Accusation of larceny; from city court of Fitzgerald — Judge Wall. October 2, 1912.</p>

<p>Foreclosure of lieu; from city court of Atlanta — Judge Calhoun. May 30, 1912.</p>

<p>Accusation of larceny; from city court of Jackson — Judge Fletcher. October 4, 1912.</p>

<p>Certiorari; from Ware superior court — Judge Parker. October 24, 1912.</p>

<p>Accusation of sale of liquor; from city court of Swainsboro— Judge EL E. Daniel. October 5, 1912.</p>

Indictment for misdemeanor; from Worth superior court — Judge Frank Park. March 16, 1912. The plaintiff in error was convicted under an indictment charging a violation of the game law of 19.11 (Acts 1911, p. 137), and he assigns error on the judgment overruling his motion for a new trial.

Indictment for assault witli intent to rape — conviction of assault and battery; from Milton superior court — Judge Morris. September 23, 1911. The requests to charge, the refusal of wbicb was assigned as error, related to the presumption of innocence, the degree of proof required, and reasonable doubt.

<p>Action for damages; from city court of Tifton — Judge B. Eve. October 9, 1911.</p>

<p>Action for money had and received; from city court of Jefferson — Judge Stark. July 14, 1911.</p>