Volume 12 — Georgia Appellate Reports

<p>Indictment for murder; from Colquitt superior court—Judge Thomas. April 8, 1912.</p>

<p>Appeal; from Fulton superior court—Judge Ellis. August 12, • 1912.</p>

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

<p>Trover; from city court of Atlanta—Judge Calhoun. June 15, 1912.</p>

<p>Conviction of manslaughter; from Coffee superior court—Judge Parker. October 10, 1912.</p>

Accusation of misdemeanor; from city court of Madison—Judge Anderson. October 15, 1912. Sap Bowles and Grant Bowles were jointly indicted for a violation of the Penal Code (1910), § 719.

<p>Indictment for murder—conviction of manslaughter; from Johnson superior court—Judge Rawlings. December 18, 1911.</p>

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

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. January 25, 1912.</p>

<p>.Action on contract; from city court of Sandersville—Judge Jordan. June 15, 1912.</p>

<p>Trover; from city court of Savannah—Judge Davis Freeman. July 29, 1912.</p>

<p>Action for damages; from city court of Thomasville—Judge W. H. Hammond. June 22, 1912.</p> <p>Davis brought suit against the Southern Bell Telephone & Telegraph Company, the City of Thomasville, and McCarty and Wood as employees of the telephone company, to recover damages for personal injuries, alleging, in substance, as follows: The Southern Bell Telephone & Telegraph Company is a corporation, owning and operating in the City of Thomasville a general telephone business, with an agency and office in said city. The City of Thomasville is a municipal corporation, situated in the County of Thomas, State of Georgia, and is operating a system of electric wires in and for the City of Thomasville, through the streets of the city. The defendant McCarty, as an employee of the telephone company, was charged with the duty, among other things, of removing telephones and wires from buildings in the City of Thomasville, and of performing any and all acts necessary to the proper removal of such wires from such buildings. The defendant Wood was employed by the telephone company as foreman, it being his duty to superintend and direct, in behalf of the master, the removal of telephones and wires from buildings, and the construction of all wires, poles, and other properties operated by the telephone company, in said city. The telephone company, at the date of the injury, had constructed and was using and operating a system of poles and telephone wires in the City of Thomasville, ■ and had constructed and was maintaining upon-the streets of the city a large number of poles, used by it for the purpose of furnishing lights and electricity to the citizens of said city for profit, both by' day and by night; and the electric wires of the city, both by day and by night, were heavily charged with electricity. The' wires ' of the telephone company and of the municipal corporation were in close proximity, passing through the city. Just prior to the injury, McCarty, acting within the scope of his authority as an employee of the telephone company, and at the direction of the company, had removed the telephone from a house near the place of the injury, and, in so doing, had severed the wire running from the top of the telephone pole to the telephone in the house, at a point between the telephone and the pole, and had negligently left the severed wire unfastened and omitted to remove it from the premises, and negligently permitted it to remain stretched . from the top of the pole, across the sidewalk, into said premises. The wire, having thus been left unfastened, became slackened, and, as a result thereof, it sagged and came in contact with one of the electric wires of the City of Thomasville,' at a point • specifically described in the petition, and then and there, because of such contact, became heavily charged with electricity. On the day preceding the injury the said telephone wire fell across the sidewalk on Parnell street while thus charged with electricity, and remained across said sidewalk until some time during the following day. The City of Thomasville, the Southern Bell Telephone & Telegraph Company, Wood, and McCarty knew on the day preceding petitioner’s injury that said wire was down across the sidewalk and in contact with the electric wires of the City of Thomasville, and was heavily charged with electricity, and, with knowledge thereof, all of the defendants permitted said wire to remain in this condition across the sidewalk. Early in the morning of July 24, 1911, while petitioner was passing along said sidewalk, going to his place of business, and while in the exercise of all ordinary and reasonable diligence and care for his own safety, without any fault upon his part, and without any knowledge that said wire had fallen down across the sidewalk, and without any knowledge that said wire had ever been severed from the telephone, he suddenly and without warning came in contact with said wire, which was then and there heavily charged with electricity, and by reason of such contact he was permanently injured. Upon, coming in contact with the wire, petitioner immediately received a powerful current of electricity into his body, the effect of which was to hurl him against the ground, and, in a spasmodic effort to extricate himself, his left hand came in contact with said wire and he was unable to release himself therefrom. His left hand was totally and permanently disabled, and the use of his fingers and hand totally destroyed. At the time of the injury petitioner was twenty-nine years of age, in good health, and physically sound, was employed by the Atlantic Coast Line Eailroad Company in the capacity of car-rejDairer, and was earning twenty-five cents per hour. He was left-handed, and, ás a result of his injury, Instability to labor was totally destroyed. The injury to his hand caused extreme pain and suffering,- and a distortion of the fingers, which greatly humiliates him and causes him extreme pain and suffering. He alleges that the defendant McCarty was negligent in not removing said telephone wires from said building, and in allowing them to remain over and •across the sidewalk after they had been detached from the telephone, he knowing at the time that the telephone wire, when tightly stretched, was in very close proximity to the live wires of the City of Thomasville, and’ liable to come in contact therewith bjr reason of the fact that the cutting of the wire from the telephone caused said wire to slacken. The defendant McCarty was further negligent in that, having received knowledge that the said telephone wire was down and across the sidewalk and charged with •electricity, prior to the injury complained of, he failed to procure the City of Thomasville to shut off the electric current from the •electric wire in contact with said telephone wire, and failed to remove said wire from said sidewalk. The defendant Wood was negligent, in that, having actual notice that said wire was charged with electricity and across said sidewalk, he failed to remove the same as it was his duty to do, and in that he failed to procure the •City of Thomasville to shut off the electricity from the electric wire with 'which said telephone wire was in contact. In all and each of the particulars named the telephone company was negligent, and was negligent through its employees, and their joint and combined negligence caused the injury and contributed thereto. The City of Thomasville was negligent in allowing the .telephone company’s wires to remain in close proximity to the electric-light wires without the same being properly insulated, and was also negligent in allowing the telephone company to erect wires over and above its electric wires, without proper insulation thereon. The City of Thomasville was negligent in that it failed, after actual notice prior to the injury that the electric wire and the telephone wire were in actual contact, to shut off the electric current, and to cause the telephone company to remove the telephone .wire which had come in contact with its electric-light wire. Both the City of Thomasville and the telephone company were negligent, in that they both knew that the insulation was worn off said telephone wire and failed to remedy the same. Both the defendant corporations knew, prior to the injury, that the telephone wire was in contact with said electric-light wire and was heavily charged with electricity, and was down and across the sidewalk, and permitted it to remain. These joint and combined acts of negligence on the part of the two defendant corporations contributed to, and were the direct and proximate cause of the plaintiff’s injury.</p> <p>By an amendment the petitioner alleged, that McCarty was employed by the telephone company as lineman and repairman of its wires and apparatus, and that, as such, it was his duty to repair all damage to wires, and to have discovered the contact between the wires referred to in the petition, and to have repaired the same, and to have removed all wires of the telephone company that might have fallen on the streets or sidewalks of the city; that it was the duty of Wood to superintend and direct and keep in suitable repair all of the telephone wires of the telephone company, and to remove and cause to be removed all wires of the telephone company that might be on the streets or sidewalks of the city; that the wires of the telephone company were not insulated at any point, and particularly were not insulated at the point referred to in the petition, where they crossed the electric-light wires of the City of Thomasville; also- that the telephone company had negligently omitted to provide a guard-wire for the purpose of preventing broken or slackened wires from coming in contact with said electric-light wires, and that if a suitable guard-wire had been constructed at said point, said contact could not and would not have taken place. The allowance of this amendment was objected to by the telephone company and McCarty, on the ground that it was an effort to set up a new and distinct cause of action. The objection was overruled, and exceptions pendente lite were preserved.</p> <p>The original petition and the petition as amended were demurred to by the telephone company, on the grounds, that the allegations set forth no cause of action, and that, construing the allegations of the petition most strongly against the plaintiff, it appeared that his own negligence caused his injury, in that he could, by the exercise of ordinary care and diligence, easily have avoided coming in contact with the live wire on the sidewalk. The demurrer was overruled, and exceptions pendente lite were preserved.</p> <p>On the trial a verdict was rendered against the telephone company alone, for $8,500, and the company filed a motion for a new trial, which contained, besides the usual grounds, the following special assignments of error: (1) That the verdict, being'against the movant, and not against the defendant McCarty, is ineon-.</p> <p>sistent and self-contradictory and contrary to law, in' that the allegations in the original petition are that it was the business of McCarty, as an employee of the telephone company, to remove telephones when discontinued, and to remove wires connected therewith, so as to avoid the possibility of injury; that in the first amendment to the petition it is alleged that it was McCarty’s business to repair broken and damaged wires, and to remove any wires that might have fallen; that these allegations were admitted by McCarty and by the telephone company in their answers, and that the telephone company could have been negligent only through the negligence of McCarty, and the verdict releasing him must necessarity release the telephone company. (2) That the evidence failed to sustain the allegations of the petition that the sagging of the wire, by which it came in contact with the city’s wire and became charged with a powerful current, was caused - by the wires being allowed to hang loose from the house; that, on the- contrary, the evidence showed conclusively that the sagging loose of the wires from the house could not have caused any slackening or sagging back where the point of contact was, and, therefore, the plaintiff failed completely to prove the negligence and the'cause of his injury, on which his entire case was based, and there was a fatal variance between what was alleged and what was proved. (3) That the verdict is excessive, in that it provides fully for the plaintiff’s life 'and‘for permanent disability, while the evidence shows that he was only partially disabled, and the evidence also shows that he was largely at fault in contributing to his injury, and also that his injury was due largely to his own negligence in not having his hand treated properly. (4) That the verdict was contrary to law, in that the evidence shows that the plaintiff, by the exercise of ordinary care, could have avoided injuring himself, the evidence being conclusive that there was no necessity for his touching the wire on the sidewalk, and, therefore, that his injury was due to his own voluntary act, and, therefore, he was guilty of negligence, as a matter of law. (5) That the evidence failed to show any negligence on the part of the telephone company; that there was no presumption of negligence against the company on the facts proved; that the company had no notice that the wire was down; nor could it with reasonable promptness have discovered that the wire was down before the injury. (6) That the verdict was so excessive as to indicate prejudice and bias.</p>

<p>Indictment for subornation of perjury; from Terrell superior court—Judge Worrill'. July 31, 1912.</p>

<p>1. On tlie back of a lease contract, signed by tbe person named therein as lessee, was the following endorsement, signed by another person: “ In consideration of this lease and of $1.00, I bind myself, my heirs, to faithfully carry out this lease in all its terms.” Seld: This writing, prima facie, imports a contract of guaranty; but parol evidence was admissible to show the true relationship of the party making it to the original contract of lease, and that, notwithstanding the recital therein, he did not in fact receive an independent consideration, and that his contract was that of a surety.</p> <p>2. Where the plaintiff dismissed his suit and subsequently commenced another suit for the same cause of action, and it appeared that, before . commencing the second suit, he paid in good faith all the costs that had accrued in the previous suit, as demanded of him, as shown by the judgment entered .for the .costs, and according to the itemized statement of the costs, made out and presented to him by the justice in whose court the first suit was filed and dismissed, and that if he had failed to pay any item of costs accruing in the first suit, it was due to an omission of the justice, in not including it in the judgment for the costs or in the statement of the items of the costs, as made out by the justice, and not to any fault of the plaintiff, a judgment dismissing the second suit, On a plea in abatement based on a failure to pay all the costs of the first suit, was not authorized.</p>

<p>Complaint; from city conrt of Springfield—Judge Smith. August 9,1912.</p>

<p>Complaint; from city court of Oglethorpe—Judge Greer. July 25, 1912.</p>

<p>A dentist may recover of a minor the value of dental services shown to have been necessary for the preservation of the minor’s health.</p>

<p>Appeal; from Fulton superior court—Judge Bell. July 30, 1912.</p>

<p>Action for damages; from city court of Thomasville—Judge W. H. Hammond. July 22, 1912.</p>

<p>Contempt; from Johnson superior court—Judge Hawkins. June 20, 1912.</p>

<p>Certiorari; from Laurens superior court—Judge Hawkins. August 9, 1912.</p>

<p>Complaint; from city court of Bainbridge—W. H. Krause, judge pro bac vice. September 2, 1912.</p>

<p>Certiorari; from Murray superior court—Judge Fite. August 12, 1912.</p>

<p>1. Where suit is brought upon an open account which is verified as pre. scribed by law, an unverified plea denying indebtedness may be amended at the trial term by annexing a verification.</p> <p>2. Where suit is brought upon an open account for goods sold and delivered under a written contract, a plea should not be allowed which avers that the goods could not be sold because they were old and out of style, but does not allege that they were not of the kind or quality described in the contract, or that the plaintiff has failed to comply with any of the terms thereof.</p>

<p>Trover; from city court of Columbus—Judge Tigner. July 8, 1912.</p>

<p>1. A decision rendered by a majority of the Justices of the Supreme Court is as binding upon the Court of Appeals as a precedent as if it had been rendered by a full bench.</p> <p>2. The bill of exceptions in this case appears on its face to have been signed by counsel for plaintiff in error, but there is nothing therein to indicate the date upon which the signature was affixed. The clerk of the trial court attached a certificate that the bill of exceptions was the true original bill of exceptions filed in his office. A motion to dismiss the writ of error was made, upon the ground that at the time the bill of exceptions was certified by the trial judge, it had not been signed by the plaintiff in error or his counsel. This motion was supported by affidavits of counsel for tbe defendant in error and the judge who certified the bill of exceptions. The motion to dismiss was duly served upon counsel for the plaintiff in error, and the facts set forth in these affidavits were not denied. Held, upon the authority of Sumner v. Sumner, 116 Ga. 798 (43 S. E. 57), and O’Gonnell v. Friedman, 117 Ga. 948 (43 S. E. 1001), that the writ of error must be dismissed.</p>

<p>Complaint; from city court of Bainbridge—Judge H. B. Daniel. September 13, 1912.</p>

<p>The evidence authorized the verdict in the justice’s court, and thecertiorari record discloses no reason for reversing the judgment of the superior court refusing to disturb, the verdict.</p>

<p>Complaint; from city court of Statesboro—Judge Strange. September 11, 1912.</p>

<p>Certiorari; from Eulton superior court—Judge Bell. 'October 21, 1912.</p>

<p>Conrplaint; from city court of Camilla—Judge Dasher. September 21, 1912.</p>

<p>Trover; from city court of Hall county—Judge Irwin presiding. September 25, 1912. •</p>

<p>Accusation, of cheating and swindling; from city court of Valdosta—-Judge Cranford. September 27, 1912.</p>

Indictment for carrying pistol without license; from Early superior court—Judge Worrill. October 26, 1912. The plaintiff in error was tried under an indictment containing two counts.

<p>Complaint; from city court of Swainsboro—Judge H. R. Daniel. October 5, 1912.</p>

<p>1. Proof tliat a person liad in liis possession a pistol may be shown circumstantially, as well as by direct evidence. Testimony that a person shot another, that the noise of the explosion was that ordinarily made by a pistol, and that immediately thereafter a hole was discovered in the body of the person shot, which was such as would ordinarily be made by a pistol bullet, was sufficient to authorize a finding that at the time the shot was fired the person shooting had a pistol in his possession.</p> <p>2. On the trial of an indictment under the provisions of the act approved August 12, 1910 (Acts 1910, p. 134), prohibiting the carrying of a pistol without a license, the State makes out a prima facie case by proof of possession of the pistol not at the home or place of business of the accused. If the accused has obtained a license under the provisions of that act, the burden is on him to produce it.</p> <p>3. The venue of the offense was sufficiently proved.</p>

<p>Accusation of sale of liquor; from city court of Ocilla—Judge Oxford. November 6, 1912.</p>

<p>1. Allegations in an indictment which are too general and indefinite to set forth a crime may be treated as surplusage, if there are other averments in the indictment which sufficiently allege the commission of an offense.</p> <p>2. The purpose of the act approved August 13, 1910, regulating the use of automobiles, is to protect pedestrians and others lawfully on the highways of this State against the consequences of the negligent and improper operation of automobiles. Construing the word “descent,” as used in section 5 of this act, in the light of its context and the declared ’ purpose of the act, it will be held to mean a declivity' in the highway over which, from ordinary human experience and observation, it would be deemed more dangerous to operate an automobile at an excessive rate of speed than upon level ground. Such a construction of the word “descent” does not make it so indefinite and uncertain in meaning as to render this provision of the act incapable of enforcement as a penal law.</p>

<p>Conviction of gaming; from city court of Americus—Judge Harper. October 18, 1912.</p>

Indictment for assault with, intent to murder; from Berrien superior court—Judge Thomas. October 12, 1912. The accused was convicted of assault with intent to murder W. D. ’ Buie. The trial judge disregarded the jury’s recommendation that he be punished as for a misdemeanor, and sentenced him to'a term of six years in. the penitentiary. His motion for a new trial was overruled, and he excepted.

<p>Indictment for embezzlement; from Jenkins superior court— Judge Rawlings. November 7, 1912.</p>

<p>This case is controlled by the decision of this court in West v. State, 6 Ga. App. 105 (64 S. E. 130).</p>

<p>There was no error in the rulings of the court upon, the demurrer and upon the pleas in abatement, nor in reopening the case for the admission of further evidence as to the venue; but, in view of the fact that the evidence on the trial failed to show any definite date, either for the commencement or the termination of the contract of labor entered into by the accused, and further failed to establish that the defendant was actuated by a fraudulent intent at the time he obtained the advances, the conviction was unauthorized.' Furthermore, though the allegation as to the contract, in the indictment, was sufficient, because the term “contract,” for purposes of pleading, prima facie imports that the agreement was reduced to writing, still the evidence failed to show any valid contract, because it was uncontradicted that the contract was not in writing and not to be performed within one year.</p>

Action for damages; from city court of Bainbridge—Judge Harrell. April 1, 1912. Judge Pottle being disqualified, Judge Bell, of the Atlanta circuit, was designated to preside.

Action for damages; from city court of Bainbridge—Judge Harrell. March 30, 1912. Judge Pottle being disqualified, Judge Bell, of the Atlanta circuit, was designated to preside.

<p>Certiorari; from Fulton superior court—Judge Bell. March 19, 1912.</p>

<p>Indictment for murder; from Washington superior court—Judge Rawlings. April 3, 1912.</p>

<p>1. Service of process from the city court of Bainbridge is not legal service when made by a deputy sheriff who has not been legally appointed deputy sheriff of that court as required by the act establishing the court.</p> <p>2. Although recovery of the penalty provided by law for failure of a carrier to adjust and pay a claim within the time limit is absolutely dependent upon the establishment of a right to recover .the full amount of the claim itself, both the damages and the penalty are' recoverable in the same action. .</p>

<p>Certiorari; from 'Whitfield superior court—Judge Fite. April 27, 1912.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. May-29, 1912.</p>

<p>Action for damages; from city court of Tliomasville—Judge W. H.' Hammond. July 8, 1912.</p> <p>The petition alleged, that on December 22, 1911, while the plaintiff was at his proper place of work, attending to his duties in the operation of a gang-machine, as an employee of the defendant sawmill company, being about 8 or 10 feet in front of the saws and feeding the saws, one of the gang-saws at which he was at work caught up and threw with terrific force through the air a piece of pine wood, striking him on his left hip and inflicting injuries described; that the defendant was negligent, in that it did not exercise ordinary care in furnishing such machinery as is generally used and reasonably adapted to the use to which it was put, in that the mandrel to which was fastened the saw that picked up and hurled the piece of wood against the plaintiff was bent and warped, and, on account of this bent and warped condition of the mandrel, .the saw would not run plumb, and would run in a wobbling or ■ zigzag manner, and, because thereof, it picked up and hurled the piece of wood as aforesaid; that if the said mandrel had been in proper condition and had been- of such machinery as is in general use, and reasonably adapted to the use for which it was used, it would not have picked up and hurled the piece of wood, and the injury would not have occurred; that the plaintiff had more than once complained to the defendant and its superintendent, who was in charge of the mill and of said work at the time, about the condition and dangerousness of the said mandrel; and the defendant, speaking through its said superintendent, each time promised the plaintiff that the defendant would furnish another and suitable mandrel, or have the one then in use repaired and made good; that the plaintiff made this complaint to the superintendent only a few days—not more than -five days—prior to the injury, and the promise at that time was again made by the superintendent to repair the said mandrel or furnish another; and the plaintiff relied on this promise and continued his work as aforesaid; and that it was impossible for him by any kind of diligence to have prevented the injury.</p>

<p>Complaint; from city court of Bainbridge—Judge Harrell. June 24, 1912.</p>

<p>Appeal; from Whitfield superior court—Judge Eite. July 22, 1912.</p>

<p>Action for damages; from city court of Hall county—Judge Irwin presiding. February 22, 1912.</p>

<p>Action on insurance policy; from city court of Elberton—Judge Grogan. August 16, 1912.</p>

<p>Indietment.for assault with intent to murder; from Chatham superior court—Judge Charlton. August 24, 1912.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. September 19, 1912.</p>

<p>To make out a prima facie ease, in an action for damages for conversion of personal property, the plaintiff must show title to the property, possession by the defendant, demand for possession, and refusal to surrender the property, or an actual conversion prior to the filing of the suit. In the present ease the demurrer, based upon the insufficiency of the allegations to show these essential facts, should have been sustained.</p>

<p>Action for damages; from city court of Thomasville—Judgé W. H. Hammond. September 24, 1912.</p>

Certiorari; from Hall superior court—Judge J. B. Joues. September 21, 1912. , Gittens sued Mary Hayes in a justice’s court upon an account for board, and obtained a judgment. With, tbe filing of the suit he had summons of garnislnnent served upon W. H. Whelchel. The garnishee answered that he was not indebted, and, on the trial of a traverse to this answer, the justice rendered judgment in favor of the garnishee.

<p>Complaint; from city court of McRae—Judge Eschol Graham. April 12, 1912.</p>

<p>Where a ■ certiorari, sued out to review a judgment of a municipal court, is dismissed by the superior court because of insufficiency of the bond given as a supersedeas bond, and this judgment is acquiesced in by the party suing out the certiorari, the municipality, which has received the benefit of the dismissal, can not subsequently sue the obligors in the bond because of a breach thereof. Having obtained a judgment dismissing the certiorari, on the ground that the bond was void, the municipality will not be allowed to assume the contrary position that the bond is valid, either as a statutory bond or as a common-law obligation.</p>

<p>The city court of Monroe has no jurisdiction to try any character of civil suit where the amount claimed or involved, inclusive of interest, is less than $50; and it appearing from the face of the petition that the amount claimed or involved in the present suit was only $33.50, a motion-'to dismiss the suit, for lack of jurisdiction, should have been sustained.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. October 10, 1912.</p> <p>cited: Civil Code (1910), §§ 2220, 2823; Georgia Reports: 32/273; 57/240; 73/437; 75/14; 83/471; 95/208, 573; 112/291; 115/968; 137/174; 138/120; 107/565; 135/616.</p> <p>cited: Civil Code (1910), § 2226; Georgia Reports: 69/159; 71/106; 95/573 (2); 109/666 (3); •113/462; 115/978; Ga. App. Rep.:'5/580 (6); 3/73; 1 Mor. Priv. Corp. §§ 31, 1015.</p>

<p>Complaint; from city court of R'eidsville—Judge Collins. August 6, 1912.</p>

<p>1. The evidence in favor of the plaintiff was not sufficient to authorize a recovery, and a nonsuit was properly awarded.</p> <p>2. A judgment overruling a demurrer to a petition concludes the defendant only upon such questions as are necessarily involved in the demurrer.</p>

<p>Complaint; from city court of Macon—Judge Hodges. October 15, 1912.</p>

<p>Action for damages; from city court of Savannah—Judge Freeman. September 24, 1912.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. September 25, 1912.</p>

<p>Complaint; from city court of Atlanta—Judge Beid. October 16, 1912.</p> <p>The Southern Trust Company sued-J. B. Wood, as maker,'and Sam B. Adams, as indorser, on seven promissory notes. Bach of the notes (except as to the date of maturity) was as follows: “$65.00. Little Bock, Ark., May 19, 1910.</p> <p>March 1st, 1911, after date, we or either of us promise to pay to the order of Southern Trust Company sixty-five & no/100 dollars, for value received; negotiable and payable, without defalcation or discount, at the Southern Trust Co., of Little Bock, Arkansas, with interest from date at the rate of eight per cent, per annum until paid. The makers and indorsers of this note hereby severally waive presentment of [for?] payment, notice of non-payment and protest. J. M. Halliburton,</p> <p>J. B. Wood.”</p> <p>It was alleged in the petition that the whereabouts of Halliburton and Adams were unknown, that they were not residents of the State of Georgia, and that demand for payment had been made upon J. B. Wood (who was of Fulton county, Georgia), and payment had been refused; and judgment was asked against Wood for the amount of the notes. Wood filed a plea, in substance as follows : He admits the execution of the notes, and that demand was made upon him for payment, but says, that he is not indebted to the plaintiff; (paragraph 4) that, although he signed the notes apparently as maker, he was in reality only surety for J. M. Halliburton; that the agreement between said Halliburton and himself was that Halliburton, before said notes were used or given to the plaintiff, would secure two additional indorsers, to wit, William B. Tucker and Sam B. Adams; and this agreement, defendant is advised and believes, was known to plaintiff; that the said Halliburton, after securing the signature of the defendant, failed to secure the indorsement of Tucker, and delivered the notes to the plaintiff without having secured said indorsement. (Paragraphs 5, 6, 7.) Defendant is further advised and-believes tnat the plaintiff had a claim against Halliburton at the time the notes were given, and that the jDlaintiff agreed with Halliburton, who was in its employ, that it would retain Halliburton in its employ until all the notes were paid, and would deduct from his salary a certain amount each month .until payment of all the notes. After securing the notes, however, plaintiff, as this defendant is advised'and believes, discharged Halliburton from its employ, thereby increasing the risk of this defendant as surety. Defendant further alleges, that the first of these notes fell .due more than one year prior to the. bringing of the suit; that plaintiff, knowing the whereabouts of Halliburton and knowing that this defendant was merely a surety and a mere accommodation indorser, and knowing that this 'defendant never received anything for the notes and never obtained any advantage therefrom, failed and refused to collect from Halliburton or to bring suit against him; that after the notes were given, Halliburton moved without the jurisdiction of the courts of the State of Arkansas; and the failure of the plaintiff to press the collection of the notes 'against the principal increased the risk of this defendant as surety thereon, and defendant is discharged thereby. The defendant further shows that although the said notes were in the hands of the plaintiff, this defendant was not notified of the non-payment of the notes until several months after the first of them fell due and remained unpaid; and defendant’s risk as .surety was thus increased.</p> <p>The plaintiff demurred to this plea, on the ground that no good defense was set out, and the demurrer was sustained, the court rendering the following judgment: “Paragraphs 5, 6, and 7 of the plea are stricken. Unless paragraph 4 is amended within ten days from this date, by alleging directly that, the plaintiff knew of the .alleged agreement, the entire plea will be stricken.”</p>

<p>Complaint; from city court of Carrollton—Judge Beall. September 28, 1912.</p>

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

<p>Appeal; from Fayette superior .court—Judge Daniel. September 27, 1912.</p>

<p>Certiorari; from Franklin superior court—Judge Meadow. September 28, 1912.</p>

<p>Indictment for misdemeanor; from city court of Americus— Judge Harper. October 18, 1912.</p>

<p>Action for damages; from city court of Bichmond county—Judge W. E. Eve, November 1, 1912.</p>

Attachment for contempt; from city court of LaGrange—Judge Eevill presiding. November 1, 1912.

<p>1. The issuance of a criminal warrant, in pursuance of an affidavit charging one with crime, does not arrest or suspend the operation of the statute of limitations, which requires all indictments for misdemeanors to be found and filed within two years after the commission of the offense, unless the accused himself, after the issuance of the warrant, brings the ease within one of the exceptions which arrest the operation of the statute.</p> <p>2. The limitation applicable to indictments for misdemeanors, under section 30, paragraph 4, of the Penal Code, applies also to accusations in the several city courts. Hence the conviction of one accused of a misdemeanor, although it is alleged in the accusation that the offense was unknown until the date when the warrant for the defendant’s arrest was sworn out before a magistrate, is contrary to law and without evidence to support it, when it appears, without contradiction, that the accusation was not preferred or filed within two years after the issuance of the warrant.</p>

<p>1. Corporations are responsible for violations of penal laws, but, being intangible, artificial persons, without physical existence, the legislature has provided a certain mode of service by which the courts acquire jurisdiction of them in criminal proseeutipns, and until there has been service in the meth.od prescribed by law (unless it be waived), a trial of a corporation can not legally proceed.</p> <p>2. Where not otherwise provided by statute, a corporation (in the absence of waiver of indictment) can be tried for crime only upon an indictment or presentment of a grand jury.</p> <p>3. There being no indictment in this case, the clerk of the city court of Brunswick was not authorized to issue, or the sheriff to serve, a notice as prescribed in section 963 of the Penal Code. The city court was without jurisdiction to try the offense alleged in the accusation, based upon the affidavit of the prosecutor; and the exceptions of the defendant corporation to the notice served upon it, and the plea to the jurisdiction, should have been sustained.</p>

Action for damages; from city court of Bainbridge—Judge Harrell. April 4, 1912. •Judge Pottle being disqualified, Judge Bell, of the Atlanta circuit was designated to preside. This was a suit to recover damages for the wrongful discharge of an employee.

<p>Certiorari; from Haralson superior court—Judge Price Edwards. April 16, 1912.</p>

<p>1. While forfeitures stipulated in contracts of insurance are not favored, and, in order to avoid a forfeiture, the courts will seize any circumstance indicating an intention to waive it, still, before it can be held that there was such a waiver, it must appear that the insurer, or some one authorized to represent the insurer, had actual knowledge of the fact or circumstance upon which the waiver depended. When neither the insurer nor an agent of the insurer has actual knowledge-of a fact from which a waiver might be implied, the doctrine of constructive notice does not so apply between the insurer and the person to whom the policy is issued as that a waiver can be implied.</p> <p>2. Constructive notice does not possess in its own essential nature the. ' character assigned to it by law. Erom the exigent presumptive inferences which the law permits to be deduced from circumstantial evidence, and for reasons of public policy, the law sometimes imputes, constructive knowledge of a fact or condition. But this is, after all,, a knowledge or notice established in the mind of the law, in consequence, of the way in which the law interprets the evidentiary facts upon which the presumption of knowledge depends, and is a creation of the law in its act of construing facts, conduct, circumstances, or instruments. Constructive notice of a fact, for that reason,' is not the equivalent of actual knowledge, so as to evidence a waiver of a forfeiture in a contract of insurance, dependent upon material misrepresentations of fact, merely because the insurer, by the exercise of reasonable care and diligence, could have ascertained the truth as to a fact upon which the waiver is alleged to depend.</p>

Action for damages; from city court of Savannah.—Judge Davis-Freeman. April 17, 1913. The action was against the Ocean Steamship- Company and the Seaboard Air-Line Eailway. From the evidence it appears, that the plaintiff delivered to an agent of the White Star Transfer Company, on her arrival in New York, a baggage-check of the-Erie Eailroad Company, for her trunk, and directed that the trunk be delivered at the Ocean Steamship Company’s pier in that-city.

<p>Certiorari; from Fulton superior court—Judge Bell. March 19, 1912.</p>

<p>Misdemeanor; from city court of Eastman—-Judge Neese. April 11, 1912.</p>

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

<p>Distraint; from city court of Savannah—Judge Davis Freeman. August 8, 1912.</p>

<p>1. In an action for negligence of a raih’oad company in the operation of its trains, resulting in the killing of the plaintiff’s cattle, the price or value of the cattle is sufficiently proved when his testimony is to the effect that they were worth the price alleged in the petition, and establishes the measure of the damage sustained by him.</p> <p>(ft) In construing evidence, juries may consider the connection in which a particular word or phrase is used, and properly attach to it a meaning different from its generally accepted definition.</p> <p>2. Judicial cognizance may be taken of the location of incorporated towns within this State, and of the boundaries of the several counties of the State; and in this case the jurisdiction of the trial court is affirmatively proved by evidence that the cattle were killed between Kingsland and the Saint Mary’s river.</p> <p>3. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Certiorari; from Brooks superior court—Judge Thomas. May 17, 1912.</p>

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

<p>Garnishment; from Brooks superior court—Judge Thomas. November 10, 1911.</p>

Action for damages ;■ from city court of Savannah—Judge Davis Freeman. January 15, 1912.

<p>Complaint; from city court of Richmond county—Judge"W. F. Eve. March 12, 1912</p>

<p>Complaint—appeal; from Elbert superior court—Judge Meador. March Í4, 1912.</p>

<p>Affidavit of illegality; from city court of Atlanta—Judge Eeid. March 14, 1912.</p>

<p>1. In. the use of a sound discretion the presiding judge may ask questions of a witness on the stand, but he should not do so in such a way as may tend to discredit the witness, or to intimate an opinion upon the evidence, to the prejudice of the accused.</p> <p>2. When the only testimony which can be construed as tending to -sustain a witness, whose credibility is attacked by proof of contradictory statements as to matters material to. the issue, is to the effect that the witnesses “have not heard anything against him,” and it appears, ' from the testimony, that they have only known him for one month, the evidence does not authorize an instruction that such witness may be sustained by proof of general good character. The period of time is so limited as to preclude the possibility of the sustaining witnesses having that knowledge which the law requires as to the general reputation of the witness whom it is attempted to impeach.</p> <p>3. Assignments of error in a petition for certiorari, which are unsupported by the answer, can not he considered by a reviewing court.</p>

<p>Complaint; from city court of Dublin—Judge Hicks. April 12, 1912.</p>

<p>Indictment for' assault witb intent to murder; from Berrien superior court—Judge Thomas. May 18, 1912.</p>

<p>Certiorari; from Tattnall superior court—Judge Sheppard. May 22, 1912.</p>

<p>Indictment for larceny; from Worth superior court—Judge Frank Park. May 11, 1912.</p>

<p>1. Under the Civil Code (1910), § 3354, a mechanic has a special lien for work done and material furnished in manufacturing or repairing personal property, “which may be asserted by retention of such property, or the mechanic may surrender such personal property and give credit.” When possession of the property is surrendered to the debtor, the mechanic shall declare his claim of lien within ten days, as provided by the statute. In either event—whether he asserts his lien by retention of the property or by surrendering possession and recording his lien—he may enforce payment by foreclosure proceedings according to the provisions of the Civil Code (1910), § 3366.</p> <p>„2. Where a mechanic has asserted his lien on personal property for repairs thereon, in either one of the methods above stated, and has enforced payment thereof by foreclosure proceedings, under § 3366, supra, and the property has been seized and sold by the sheriff under. the foreclosure proceedings, and the owner has failed to contest the right to the lien by making a counter-affidavit as provided by paragraph 6 of section 3366, süpra, he can not bring' trover against the mechanic for the recovery of the property on the ground that the sale under the foreclosure proceedings, the mechanic still retaining possession of the property, amounted to a conversion thereof.</p>

<p>Money rule; from city court of Swainsboro—Judge H. R. Daniel. August 30, 1912.</p>

<p>Indictment for cheating and swindling; from Baldwin superior court—Judge J. B. Park. September 17, 1912.</p>

<p>1. The Supreme Court has repeatedly held, since the passage of the act of 1856, embodied in' the Penal Code (1910), § 1001, that no question can be asked jurors on the voir dire, by either counsel for the State or the accused, other than those prescribed by the statute. The additional questions which were permitted by the court in the present case were not only unusual, unnecessary, and unauthorized, but were calculated to prejudice the accused by unduly impressing the jury with the gravity and magnitude of the offense charged against him.</p> <p>2. Although a juror was subject to challenge for cause, on the ground that he was over sixty years of age, yet where it does not appear that the juror served on the panel that tried the accused, or that the accused was compelled, by the overruling of his challenge for cause, to exhaust his peremptory challenges for the purpose of getting rid of the juror, error in holding him competent immaterial.</p> <p>3. It is in the discretion of the trial judges of this State to have tales jurors summoned for the purpose of completing the regular panel; such talesmen to have such qualifications as are prescribed for regularly drawn jurors.</p>

<p>Complaint; from city court of Floyd county—Judge Eeece. September 23, 1912.</p>

<p>This ease fails within the well-settled rule announced by the Supreme Court in the case of Gainesville, Jefferson & Southern Railroad Go. v. Edmondson, 101 Ga. 747 (29 S. E. 213), that there can be no recovery against a railway company for damages arising from fire caused by the emission of sparks from one of its engines, where the evidence introduced m Dehalf of the defendant completely rebuts the presumption of negligence arising from proof of the setting out of the fire.</p>

<p>Complaint; from city court of Tbomasville—Judge W. H. Hammond. October 28, 1912. .</p>

<p>Accusation of sale of liquor; from city court of Louisville— Judge Phillips. November 6, 1912. .</p>

<p>1. Persons expressly or impliedly invited by a railroad company to its stations, waiting-rooms, or platforms have the rignt to use any of the doors or steps provided by the company for the use of the public as means of ingress and egress, and the duty is upon the company to exercise ordinary care and diligence to keep such places of ingress and egress in a reasonably safe condition at all times when the public may be expected to make use of them.</p> <p>2. The charge, considered as a whole, fully, fairly, and correctly presented the law applicable to the material issues made by the pleadings and the evidence; and the assignments' of error as to excerpts, and as to the refusal to give instructions requested, are' without merit.</p> <p>• 3..The evidence substantially supports the material allegations of the petition, and the verdict for plaintiff was authorized.</p>

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

<p>The evidence being insufficient to authorize a conviction of either of the accused, it was error to refuse to sanction their petitions for certiorari.</p>

<p>1. Wliere it appeared from the petition in a suit against an administratrix, that the suit was brought within twelve months from her qualification, and the petition failed to state that she waived the twelve months’ exemption from suit, which the law allows to administrators, the allegations were not sufficient as basis for a recovery. An acknowledgment of service, without an express waiver therein of the twelve months’ exemption from suit, and the fact that she did not appear or file a defense, did not authorize the judge to enter judgment against Her as administratrix.</p> <p>2. The decisions in Baiter v. Shephard, 30 Ga. 706, and Bill v. Julian, 119 Ga. 607 (46 S. E. 834), are not controlling on this question. In those cases it was held that the twelve months’ exemption was a personal privilege, for the security of the representative of the decedent, and if he allowed a judgment to be rendered against him during that period, a third person could not attack the judgment by setting up the exemption. In the present case the administratrix herself attacked the validity of the judgment, on the ground that the suit was premature.</p>

<p>Action for damages; from city court of Cartersville—Judge Foute. December 2, 1911.</p>

<p>Money rule; from city court of Elberton—Judge Grogan. February 21, 1912.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. January 12, 1912.</p>

<p>. Certiorari; from Fulton superior court—Judge Ellis. February 2, 1912.</p>

<p>Indictment for misdemeanor; from Bartow superior court— Judge Fite. March 9, 1912.</p>

<p>Attachment; from city court of Oglethorpe—Judge Greer. March 15, 1912.</p>

<p>1. A contract which embraces more than one stipulation may be in partj unconditional, and partly conditional and contingent.</p> <p>2. The plea of a defendant denying liability under those stipulations of the contract which are unconditional must be verified, or it should be stricken; but a defendant’s denial of an alleged liability for attorney’s fees, entirely dependent upon the plaintiff’s averment that the plaintiff had given the defendant the requisite statutory notice, need not be verified, unless the petition is verified.</p>

<p>Indictment for larceny; from Worth superior court—Judge Frank Park. March 16, 1912.</p>

<p>Complaint; from city court of Douglas—Judge Lankford. March 29, 1912.°</p>

<p>Levy and claim; from city court of Yaldosta—Judge Cranford. March 29, 1912.</p>

<p>Attachment; from city court of Houston county—Judge Brunson. April 15, 1912.</p>

<p>Complaint; from city court of Cartersville—Judge Irwin presiding. May 10, 1912.</p>

<p>Accusation of maintaining nuisance; from city court of Jackson —Judge Fletcher. April 22, 1912.</p>

<p>1. The trial judge properly construed the contract as one of agency, and held that the reservation of title, in the memorandum of agreement upon which the plaintiff mainly relied for proof of an agency, did not evidence a contract of conditional sale. “If the owner of goods deliver them to another with the understanding that there is to be no sale until the happening of a certain condition, this is a bailment.” Furst v. Commercial Barilo, 117 Qa. 474. Under the terms of the contract between the defendant and the opposite party to the agreement, the latter never became the purchaser of any of the defendant’s goods, except such as he might sell and pay for within thirty days; and as every other stipulation of the contract plainly bespeaks agency, the permission granted to the bailee to purchase at the invoice price, less a fixed discount on such goods as he might sell, is colored, in construing the coiitraet as a whole, by other features of the instrument, greater in number and controlling in their effect.</p> <p>2. The evidence supports the conclusion that the seller of the automobile tires, as agent of the defendant, was authorized to make the warranty, for the breach of which the plaintiff recovered.</p>

<p>Action • for damages; from Brooks superior court—Judge Thomas. April 27, 1912.</p>

<p>Certiorari; from Worth superior court—Judge Frank Park. May 11, 1912.</p>

<p>The fact that wages are payable weekly raises the presumption that the contract of hiring was by the week; and, there being no evidence that the hiring in the present case was for a longer term, the judge of the superior court did not err in rendering a final decision upon the certiorari, and entering a judgment against the defendant for the sum admitted to be ,the weekly wages of the plaintiff.</p>

<p>Appeal; from Fulton superior court—Judge Pendleton. May 17, 1912.</p>

<p>Action on insurance policy; from city court of Savannah—Judge Davis Freeman. April 15, 1912.</p>

<p>Certiorari; from Decatur superior court—Judge Frank Park. May 13, 1912.</p>

<p>1. The evidence as to the controlling issue of fact was in sharp conflict, and the issue is settled by the verdict.</p> <p>2. Excerpts from the charge of the court which, when considered disconnected from the general charge, are inaccurate and inapt are not sufficient to warrant the grant of a new trial, where, considered in connection with the entire charge, it clearly appears that the errors were rendered harmless.</p> <p>3, An exception to the rule which excludes hearsay is made in all cases of self-disserving declarations by deceased persons, strangers to the controversy, who were in a position to know matters concerning which they spoke. Therefore a declaration made by a son, who was run over and killed by an automobile, to his father, to the effect that the injury was not caused by any fault of the defendant, and was an unavoidable accident, was admissible in evidence in a suit brought by the father to recover damages for the homicide of the son, where this self-disserving declaration was proved by the testimony of the father.</p>

<p>Motion to set aside judgment; from city court of Blakely—Judge Bambo. May 17, 1912.</p>

Complaint; from city court of Forsyth—Judge Cabaniss. July 15, 1912. Maynard & Company, private bankers, on January 11, 1906, issued to Mrs. Martha Maynard a certificate of deposit for $3,000, bearing interest at the rate of 8 per cent, per annum if left with the bankers for one year or longer. The certificate was to be paid, both principal and interest, upon its return to the bankers, properly indorsed.

<p>It appearing, from the allegations of the petition, that the acts of negligence charged against the defendant were not the proximate and effective cause of the injury complained of, the demurrer thereto should have been sustained.</p>

<p>Motion to set aside judgment; from city court of Swainsboro— Judge H. R. Daniel. September 26, 1912.</p>

<p>Indictment for murder—conviction of voluntary manslaughter; from Pulaski superior court—Judge Martin. October 30, 1912.</p>

<p>Accusation of larceny; from city court of Madison—Judge Anderson. October 21, 1912.</p>

<p>Action for damages; from city court of Richmond county—Judge W. F. Eve. October 16, 1912.</p>

<p>. Habeas corpus; from city court of Wayeross—Judge McDonald. October 26, 1912.</p>

<p>Action on contract; from city court of Monroe—Judge Stone. October 16, 1912.</p> <p>The action was for damages in the sum of $100, on account of the breach of a contract for the rent of land. The trial resulted in a verdict against the defendant for $39. He excepted to the refusal of a new trial.</p> <p>The petition as amended alleged, that McIntosh, the defendant, contracted orally with the plaintiff in September, 1910, to rent to him certain land to be farmed by him for standing rent for the year 1911, but when he went to McIntosh, about the end of the year 1910, and demanded possession of the land for this purpose, McIntosh refused to give- possession; that it was then too late to obtain as good land as he had contracted for, and he had to move from the place at which he was living to another place, until he could find a home elsewhere, and had to pay $10 for moving twice; that it was the last of January, 1911, before he could find a home and move in and begin farm operations for the year, and, on account of this delay in getting ready to put in his crop, he suffered a loss of $75, by reason of the fact that a large part of the land that he rented for the year 1911 had to “lay out” and he could not cultivate it, and he had to pay standing rent for it without remuneration. The defendant in his answer denied that a contract had been completed between the plaintiff and himself. At the trial the iffaintiff testified to the contract and its breach as alleged, and that when the defendant refused to allow him to take possession of the land, he had no place to move to, and was forced to rent a house from one Broach for some time; that Broach did not charge him rent; that he then rented other land and had to move to it, and the cost of moving both times was $7; that the land he rented for 1911 was not as good and productive as the land he had rented from McIntosh; that he was unable to get as good land for that year as the McIntosh land; he could have made, he thought, two more bales of cotton on the McIntosh land than on the place to which he went; the difference in value of the cotton that he would have made was $100, and he considered that he was damaged in that amount; on account of lateness in getting moved, he had to let five or. six acres of land “lay out.” The plaintiff and another witness testified that the reason assigned by McIntosh for refusing to allow him to take possession of the land in question was that McIntosh’s father did not want him to move. The defendant testified that the reason for his refusal to let the plaintiff have possession of the land was that the plaintiff refused to sign a contract, which he had agreed to sign, reserving to the defendant the right to gather and sell the cabbage plants then growing on the place. The plaintiff denied that he ’had agreed to sign such a contract, or had refused to do so. It was testified, in behalf of the defendant, that the place to which the plaintiff moved was worth as much as the McIntosh place, and that land as good as the McIntosh land was offered to the plaintiff. The plaintiff’s counsel, on cross-examination, asked the defendant if he did not send his brother-in-law to the plaintiff and offer to him $35 to “call off the trade and háve nothing more to do with it.” In answer to this question the defendant testified that he sent his brother-in-law to make the offer, after the plaintiff had said he was going to move in there next morning; thinking that it would be better than for the plaintiff to move in there, and have trouble perhaps with him when he moved, the defendant’s family being sick at the time. Another witness testified that he “heard the conversation of Patton and McIntosh’s brother-in-law about settling the case for $35.” The introduction of testimony as to the offer of $35 to the plaintiff was objected to by the defendant, on the ground that it was irrelevant and “in the nature of a compromise or settlement.” The court overruled the objection, counsel for the plaintiff having stated that this testimony was offered merely as a circumstance to show that a contract had been made as contended by the plaintiff. And on this subject the court charged the jury as follows: “If you believe, from the evidence in this case, that the offer of McIntosh was made in an effort to compromise, you can not consider such evidence at all; but, on the other hand, if you do not think it was made for the purpose or in an effort to compromise, then you may consider the same as -a circumstance, in connection with all the other evidence in the case, in determining whether or not a contract was made between the parties to this case.”</p> <p>In the motion for a new trial it is alleged that the verdict was contrary to law and the evidence, and that the court erred in allowing the introduction of the testimony as to the defendant’s offer of $25 to the plaintiff, and erred in the charge to the jury on that subject. The motion contained also the following grounds: (2) “The court should grant a new trial in the case for the reason that the suit is brought in said case to the quarterly term of the city court of Monroe, and is for the sum of $100 damages, and the quarterly term of said city court does not have jurisdiction of any sum except it be over $200; and, therefore the court is without jurisdiction in said case, and the verdict and judgment is contrary to law and without law to support it.” (4) “The court erred in admitting the evidence of E. C. Patton [the plaintiff] that he thought he could have made two bales worth $100 more,on the McIntosh place than where he afterwards rented, because it was so late before he got another place; the objection being that it was too remote and speculative to be the basis of damages in the case.” It does not appear that any question was raised as to jurisdiction, except in the motion for a new trial. .</p> <p>cited: Kelly v. Strouse, 116 Ga. 875 (11-14), 899; Teasley v. Bradley, 110 Ga. 498 (6), 506; Austin v. Long, 5 Ga. App. 551; Scales v. Shacleelford, 64 Ga. 172 (2); Acts 1906, p. 270.</p> <p>cited: Hatcher v. Bowen, 74 Ga. 841; Cooper v. Jones, 79 Ga. 379; Central Railroad v. Papot, 59 Ga. 343 (5); Acts 1905, p. 303; Acts 1906, p. 270; Civil Code (1910), § 5664; M. & B. R. Co. v. Gibson, 85 Ga. 1 (8); King v. Phillips, 70 Ga. 409 (2), 411; Smith v. Rawson, 61 Ga. 208 (1); Civil Code (1910), §§ 4398, 3589.</p>

<p>Complaint; from city court of Floyd county—Judge Eeece. May . 10, 1913.</p> <p>The action was by Mrs. Annie E. Wright against Allie W. Watters. The petition was dismissed on demurrer, and the plaintiff excepted. It alleges that the defendant is indebted to the plaintiff in the sum of $1,000 and interest thereon to January 39, 1913, and $17.75 costs, besides interest from that date, by reason of the following facts: The plaintiff’s husband, Seaborn Wright, signed a subscription for $1,000, to procure the building of a railroad between designated places. Afterwards, on May 3, 1909, he gave to the defendant an option to purchase certain property of which the plaintiff was owner. The option was in these terms: “For the space of twelve hours beginning at 13 noon, May 3, and in consideration of $10.00 to me in hand paid, I hereby give to A. W. Watters an option on my mill property [described] for the sum of ten thousand dollars to be paid cash. In addition for the payment said Watters is to contribute one thousand dollars to the building of a railroad through the property, and is to give the right of way through said property, the same being the thousand dollars subscribed by Seaborn Wright to said railroad. [Signed] Seaborn Wright.” The subscription made by Seaborn Wright was in truth a subscription made by the plaintiff, it being made with the expectation that the construction of the railroad would benefit her property. The option mentioned was given in the name of Seaborn Wright for her, and was ratified and approved by her by the execution of a deed to Watters in accordance with the terms of the option. She executed this deed to Watters on May 4, 1909, for $10,000 cash and his assumption of the said subscription of $1,000, the recital therein of the cash consideration being followed by these words: “In addition to the above consideration, second party assumes payment of a one 'thousand dollar subscription made by Seaborn Wright to a railroad to run by the property, and 'agrees to pay same according to the terms of the subscription.” This subscription for $1,000 became due on June 16, 1910, and Watters refused to pay it. Demand was made upon Watters to pay the said $1,000, in accordance with the agreement he had entered into with the plaintiff, and he refused to pay it. The .contractual relations of the holders of -the subscription for $1,000 were with Seaborn Wright only, and. suit was brought against him to recover the same, though liability for the said sum had been assumed by Watters. Seaborn Wright had no defense to that suit, and submitted to suit only for the purpose of requiring Watters to set up any defense that he might have, and, for this reason, vouched Watters into court, serving upon him notice of pendency of the suit, together with a copy of the petition and process served. (Copies of these papers are attached, and in the notice it is said: “You are further notified that in the event of recovery in said suit against me, I have a remedy over against you by reason of your assumption of my subscription as aforesaid.”) Watters failed to defend that suit and failed to notify Seaborn Wright of any defense, and judgment was rendered against Seaborn Wright for $1,000 principal and interest to January 29, 1912, and $17.75 costs; which sums have been paid by this plaintiff. The plaintiff pleads that judgment as a conclusive bar to any defense which Watters could have set up against the collection of the subscription. In a second count it is Alleged that by novation of contract between the plaintiff, her husband, and Watters, liability for the subscription for $1,000 was assumed by Watters; and that she has fully paid the said subscription of $1,000, with interest thereon.</p> <p>cited: Civil Code (1910), § 4180; Georgia Southern B. Co. v. Beeves, 64 Ga. 492; A., K. & N. By. Go. v. McKinney, 124 Ga. 929 (110 Am. St. R. 215, 6 L. R. A. (N. S.) 436); Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Sexauer v. Wilson, 136 Iowa, 364 (14 L. R. A. (N. S.) 193, 113 N. W. 941); 11 Cyc. 1045.</p> <p>cited: Civil Code, § 5516; City of Lyons v. Kelley, 6 Ga. App. 367; Kawhins v. Central By. Co., 119 Ga. 159;' State v. Bank of Quitman, 11.7 Ga. 849; Wright v. - Continental Ins. Co., 117 Ga. 499; Terrell v. Stevenson, 97 Ga. 570; Bichmond c& Danville B. Co. v. Bedell, 88 Ga. 591; Civil Code, § 5821; Central By. Co. v. Macon By. Co., 9 Ga. App. 6£8; Baleigh & Gaston B. Co. v. W. & A. B. Co., 6 Ga. App. 616; Armour Car Lines v. Summerour, 5 Ga. App. 619; McArthor v. Ogletree, 4 Ga. App. 429.</p>

<p>The court did not err in sustaining the demurrer to the defendant’s answer, nor in thereafter entering judgment in favor of the plaintiff.</p> <p>(a) Generally, the execution of a promissory note is prima facie evidence of the full settlement of all accounts up to the date of the note. A compromise, or mutual accord and satisfaction, is binding on both parties.</p> <p>(1) The facts as alleged in the defendant’s answer are wholly insufficient to show that the note was executed under duress; and, in fact, the statement of the answer is too general for the court to be able to decide that anything whatever was done to coerce the will of the maker of the note.</p> <p>(c) It is plain, from the answer, that the defendant’s right to recoup is against the partnership of which the plaintiff is alleged to have been a member, and not against the plaintiff individually, but even if this did not appear, the allegations of the defendant are too vague and indefinite to be the basis of a finding.</p>

<p>1. There was no material error of law, and the evidence authorized the verdict.</p> <p>2. The alleged newly discovered testimony was merely cumulative and impeaching, and there was no error in overruling this ground of the motion for a new trial.</p> <p>3. Both law and sound policy forbid the separation of juries after they are charged with the trial of a felony; but where it appears that the temporary absence of one juror, for the purpose of telephoning his sick wife, could not have been injurious to the accused, a new trial will not necessarily result.</p>

Complaint; from city court of Ashburn—Judge Tipton. October 18, 1911. The petition alleged: (1) Thfe Southern Express Company is a corporation having an office and an agent in said county.

Action for damages; from city court of Forsyth—Judge Cabaniss. January 23, 1912. The suit was for damages on account of personal injuries. The original petition made the following case: The plaintiff, at the time of his injury, was a passenger on the defendant’s railroad. He had purchased a ticket at Macon for a station known as “Pope’s Ferry,” which was a regular stopping place. The conductor had taken up his ticket, and knew that he was to stop at Pope’s Ferry.

<p>Section 6269 of the Civil Code, relating to service of a bill of particulars upon the defendant or his attorney, is a rule applicable only to the superior court and to such other courts as by statute have adopted the practice and procedure applicable to superior courts. The general rule is that amendments to pleadings need not be served upon the opposite party or his counsel; and, there being no statutory requirement to the contrary, this general rule is applicable to justice’s courts. The filing in that court of an amendment attaching a bill of particulars is sufficient, although no service of the amendment is made upon the defendant or his counsel.</p>

<p>Garnishment; from city court of Moultrie—Judge McKenzie. February 19, 1912.</p>

<p>Complaint; from city court of Atlanta—-Judge Reid. April 3, 1912.</p>

<p>Certiorari; from Johnson superior court—Judge Hawkins. May 3, 1912.</p>

<p>1. One charged with murder, but convicted of voluntary manslaughter, is not presumed to have been hurt by an erroneous instruction upon the subject of malice; for the reason that it is apparent that the jury found there was no malice.</p> <p>2. In the trial of one charged with homicide, it is error to instruct the jury that they may acquit the defendant if they are satisfied, by the preponderance of testimony, that the defendant was acting in self-defense, or was otherwise justified. One accused of crime is in no ease required to establish his innocence by a preponderance of evidence.</p> <p>(a) The error in an instruction such as that referred to above is not cured by adding: “or if you have a reasonable doubt on that question, under the law it will be your duty to give the defendant the benefit of the doubt and acquit him.” The erroneous instruction should have been expressly withdrawn.</p> <p>3. One convicted of larceny was infamous at common law, and not qualified to serve as a juror. The provisions of article 6, section 18, paragraph 2, of the constitution (Civil Code, § 6546), in preserving inviolate the right of trial by jury, guarantee that every person charged with crime shall be tried by upright jurors. Hence, one who has been convicted or has pleaded guilty of an offense involving moral turpitude is disqualified from serving as a juror; and unless the disqualification is expressly or impliedly waived by both parties to the ease, a verdict rendered by such a juror is void.</p> <p>4. The determination of the question whether section 2 of the act of August 21, 1911, as to practice in courts of review (Acts 1911, p. 149), is unconstitutional, not being necessary to a decision in this ease, the instruction of the Süpremé Court will not be asked, to ascertain whether the section mentioned is unconstitutional because in conflict with article 6, section 16, paragraph 6, or. article 3, section 7, paragraph 8, of the constitution.</p>

<p>1. The indictment was not defective for any of the reasons pointed out in the demurrer.</p> <p>(а) The charge that the filling in of the blanks and the signing of the name of “W. R. Amason, W. H. B.,” was fraudulently done cured the defect due to the omission of-the word “fraudulently’-’ before the word “forge,” in the beginning of the charge in the indictment.</p> <p>(б) The accusation fully sets out the contents and location of the interlineations in the alleged forged instrument as completed.</p> <p>(e) The alleged forged instrument was in effect an order for money, and the amount thereof was stated, but in an indictment under section 245 of the Penal Code it is not necfessary to allege that articles described in the forged instrument are of value.</p> <p>(d) It was not necessary for the indictment to allege what was the connection, if any, between the person whose name was alleged to have been forged and the person defrauded. "These extrinsic facts, though requisite to render the writing efficient as the means of consummating a fraud, could be shown by the evidence. McLean v. State, 3 Ga. App. 660 (60 S: E. 332).</p> <p>(e) In a prosecution for forgery it is not necessary to allege or prove that actual loss resulted from the forgery.</p> <p>(f) The indictment alleging that the name of a person other than either of the defendants was signed to the instrument alleged- to have been forged, it was not subject to demurrer upon the ground that it failed to charge that the defendants had signed the name of another, for, although it appears from the indictment that the alleged forged paper was signed by an agent, the indictment does not disclose that the agent referred to was one of the defendants.</p> <p>{g) An indictment founded on section 236 of the Penal Code must allege that the forged paper was uttered and published as true, but in an indictment founded on section 245 this allegation is not required, for, under the latter section, the crime of uttering consists in publishing or tendering a paper, knowing the writing to be forged.</p> <p>2. An assignment-of error, to the effect that a certain instruction to the jury, in itself correct,, is erroneous because of the court’s ■ failure to charge some additional proposition of law, is without merit. However, the charge of the court in the present case is not subject to the objection made; for an instruction to the effect that the jury must be satisfied that the instrument in. question was fraudulently forged is equivalent to an instruction that tney must be satisfied that the writing was made with Ahe intent to defraud.</p> <p>3. The court did not err in giving in charge to the jury the provisions of section 245 of the Penal Code, the accusation being founded upon that section.</p> <p>4. In the absence of a request for further instructions, the charge of the. court upon the subject of reasonable doubt was sufficiently explicit; and it was not for any reason erroneous.</p> <p>5. The guilt of the accused not being wholly dependent on circumstantial evidence, it was not error, in the absence of a timely written request, to omit to give in charge to the jury section 1010 of the Penal Code.</p> <p>6. While it is true that it is not within the power of a trial judge to direct a verdict in a criminal ease, there was nothing in the language used by the judge which intimated an opinion as to the guilt of the plaintiff in error, and as he fails to show injury to himself, it does not lie in his mouth to complain of the act of the court as to another - defendant. Montgomery v. State, 10 Ga. App. 801 (74 S. E. 285).</p> <p>7. To constitute forgery, the writing must purport to be the writing o'f another than the person making it. “The mere false statement or implication of a fact not having reference to the person by whom the instrument is executed will not constitute -the crime.” Where one executes an instrument purporting on its face to be executed by him as the agent of the principal, he is not guilty of forgery, although he has in fact no authority from such principal to execute the same. This is nor the false making of the instrument, but merely a false and fraudulent assumption of authority. The essence of forgery is the making of a false writing, with the intent that it shall be received as the act of another than the party signing it; and where it appears that it could not have been intended that the false writing should be received as other than what it purports to be, the maker may be guilty of cheating and swindling, but can not be guilty of forgery.</p>

<p>Where bastardy proceedings are taken against the putative father of a bastard child, it is the uniform practice in this State' for the mother to make, before a justice of the peace, the affidavit for 'the warrant against the putative father. When the - putative father is arrested on such a warrant and brought before the magistrate, and the magistrate demands of him the statutory bond, and he refuses to give it, it is the duty of the magistrate to commit him for trial. It is not necessary for the justice who issued the warrant, and who made the demand of the putative father for the bond, to make an entry on the warrant that he has demanded the bond of the defendant and that the defendant has refused to give it. Although the better practice would be to enter a formal judgment of committal, reciting these facts, they may be shown by parol evidence of the magistrate, on the trial of the putative father in the superior court for'refusing to give the statutory bond.</p>

<p>Action for' damages; from city court of Moultrie—Judge McKenzie. August 17, 1912.</p>

<p>This ■ case is fully controlled by the decision of the Supreme Court in Williams v. Mize, 72 Ga. 129. See, also, Russell v. Tatum, 104 Ga. 332 (30 S. E. 812).</p>

<p>1. Where two or more persons are jointly indicted and put on trial fox' an offense for which one may be convicted and the others acquitted, each is entitled to the same number of peremptory challenges as would be allowed him if the case against him had been tried separately. This rule is applicable in misdemeanors as well as in felony cases.</p> <p>2. Where the sayings and conduct of one assaulted do not, as a matter of law, justify the assault, it is not error so to instruct the jury. Lawful questions, in good faith propounded to a witness by a member of a grand jury, afford no justification for a battery afterwards committed upon the grand juror by a relative of the person whose conduct was under investigation in the grand-jury room.</p> <p>3. The law relating to the defense by one brother of another in peril was not applicable to any theory of the evidence, and the trial judge properly refused to give such law in charge to the jury.</p>

<p>Accusation of misdemeanor; from city court of Albany—Judge Crosland. June 12, 1912.</p>

<p>Accusation of sale of liquor; from city court of Bainbridge— Judge Harrell. November 26, 1912.</p>

<p>. Indictment for sale of liquor; from Henry superior court-judge E. T. Daniel. November 30, 1912.</p>

<p>Accusation of misdemeanor; from city court of Moultrie—Judge McKenzie. December 19, 1913.</p>

<p>Indictment for shooting at another; from Early superior court— Judge Worrill. December 17, 1912.</p> <p>The instruction referred to in the decision was as follows: “If you believe that on the particular occasion on which this shooting occurred, the defendant, Jesse Jenks, and Miles Dennis had engaged in a quarrel, that they were about to fight, and if you believe that they both went and armed themselves with guns, and came back and met each other, and. there was a mutual intention upon the part of each to fight, both armed with guns, both prepared and intending to shoot each other, such conduct upon their part would be unlawful; and if the defendant, Jesse Jenks, under such conditions shot Miles Dennis, it would make no difference which one shot first, such shooting would have been unlawful, and you would be warranted in convicting Mm.”</p>

<p>Nidictment for larceny; from Johnson superior court—Judge Hawkins. December 13, 1912.</p>

<p>Accusation of carrying pistol without license; from city court of Jackson—Judge Fletcher. November 30, 1912.</p>

<p>Accusation of cruelty to animals; from city court of Sparta— Judge Moore. December 21, 1912.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Ereenian. July 9, 1912.</p>

Complaint; from city court of Fitzgerald—Judge Wall. May 6, 1912. Watt & Holmes Hardware Company sued Mrs. C. E. Crawley for $222.89, alleged to be a balance due on an open account.

<p>Action' -for damages'; from city court of Athens—Judge West. December 11, 1911. - •</p>

<p>Certiorari; from Chatham superior court—Judge Charlton. February 1, 1912.</p>

<p>Action on insurance policy; from city court of Camilla—R. L. Shipp, judge pro hac vice. May 4, 1912.</p>

<p>Certiorari; from Pierce superior court—Judge Parker. March 9, 1912.</p>

<p>Certiorari; from Crisp superior court—Judge George. July 8, 1912.</p>

<p>1. The court properly construed the action as one to recover damages for the carrier’s breach of public duty in failing to deliver in good condition a shipment which it had received as in good condition from a connecting carrier. Thus construed, the jurisdiction of the court is manifest, because the petition alleged that the defendant is a foreign railway corporation having an office, agent, and place of business in the county.</p> <p>(а) The appropriate court of the county where delivery is or should be made by the last connecting carrier has jurisdiction of an action brought under section 2752 of the Civil Code (1910).</p> <p>(б) The fact that one who claims damages from the last of several connecting carriers, under section 2752 of the Civil Code, alleges a failure on the part of the defendant carrier to comply with his requirement to trace a shipment' under the terms of section 2771 of the Civil Code, does not necessarily render the petition duplicitous. The allegations as to the failure of the carrier to comply with the “tracing act,” if no claim for damages is based upon this failure, may be treated as harmless surplusage.</p> <p>2. The notice to produce having been perfected by proof which fulfilled the requirements of section 5842 of the Civil Code, the court did not err in refusing to strike the notice.</p> <p>3. The trial court has the power to require, and should require, the production of any pertinent documentary evidence which may illustrate the issue, and which is within the power or custody of any person then personally in court, except where the disclosure is prevented by privilege; and inasmuch as the defendant’s counsel did not expressly claim or otherwise insist upon his privilege, the ruling requiring him to produce certain papers mentioned in the notice to produce was not erroneous. Even if some of the papers sought by the notice to produce were inadmissible, the error is harmless, because, after the papers were produced, the court did not permit the introduction of any writing except original papers.</p> <p>4. The fact that the last of several connecting carriers is requested to trace a shipment which was received from it in a damaged condition, so as to locate the damage, and fails or refuses to do so, although ample opportunity has been allowed for that purpose, may be a pertinent circumstance to indicate that the injury was occasioned by or upon the line of the defendant.</p> <p>5. The statements of a bill of lading as to the articles received by the carrier are not conclusive upon the shipper. A bill of lading partakes of the nature of receipt, and is prima facie evidence only that the articles alleged to have been received by the carrier were in fact received; and the holder of the bill of lading may show, if he can, that ;the bill of lading does not evidence the acceptance of all the articles that were delivered to the carrier.</p> <p>6. A witness may, for the purpose of refreshing his recollection, use any memoranda useful for that purpose; and his testimony will not be objectionable if it is not dependent upon the memoranda, but is based upon the memory of the witness, even though the memoranda may be necessary in order to refresh his recollection.</p> <p>7. Where a defendant fails to produce a writing which he has been notified to produce, secondary evidence of its contents is admissible, upon proof of service of the notice to produce and failure to respond thereto.</p> <p>8. The court did not err in admitting the original notice to trace, served upon the defendant, although the action is one against the last of several connecting carriers; for, while the plaintiff was not required to prove that fact, the admission of evidence to that effect, in an action against the last of one or more connecting carriers, can not be held to be erroneous, when it is shown that the connecting carrier received a shipment in good order and delivered it in bad order.</p> <p>9. The court properly construed the petition, and the evidence was sufficient to sustain the allegations of the petition, construed as a suit against the last connecting carrier.</p> <p>10. The exceptions to the refusal of the trial judge to instruct the jury as requested were properly overruled, since the request was for instructions, on four different subjects, presented together, and one of them at least contained an incorrect statement of law. The judge is not required to perfect instructions which are requested, and where a request is presented which embodies or contains instructions upon more than one distinct subject, and the proposed instructions are presented en masse, it is not error to decline to give any of the instructions, if any of them are incorrect.</p> <p>11. The evidence authorized the verdict, and it was not error to refuse to grant a new trial.</p>

<p>Complaint; from city court of Savannah—Judge Davis Freeman. March 20, 1912.</p> <p>McIntyre Brothers & Company (the plaintiffs), as ship-owners, entered into a charter-party with the South Atlantic Steamship Line (the defendant) as a charterer, by the terms of which the plaintiffs’ steamship “Kelianee” was to be loaded by the defendant with a cargo to be provided by the defendant at Savannah, Georgia, and carried by the said steamship to Havre and Hamburg. The contract provided that the captain “shall sign bills of lading as and when presented,” without prejudice to the contract. In pursuance of that contract the defendant presented to the captain of the said steamship, for his signature, certain bills of lading calling for thirty-six bales of cotton of specified marks set forth in the bills of lading, consigned to parties named in the petition as amended; also bills of lading for six pieces of wood and for three barrels of rosin, described in the petition as amended. These bills of lading were signed by the master as required by the contract or charter-party, and it is alleged that they were signed upon a representation of the defendant, upon which representation the captain of the said steamship relied, that the cargo specified in them had been loaded on the said steamship by the defendant as required by the contract. On arrival of the ship at Havre it was found that the cotton so marked and consigned had not been loaded on it by the defendant at Savannah) and the owners of the ship- paid the-consignees for the missing cotton. On arrival of the ship at Hamburg it was found that four pieces of the oak described and consigned had not been loaded at Savannah by the defendant, and the ship-owners paid the consignees their value. It was also found, on arrival at Hamburg, that three barrels of rosin consigned had not been loaded by the defendant at Savannah, and the consignees, of this rosin required the ship-owners to pay the value thereof. Certain other cargo- was found on board the ship, put there at Savannah by the defendant, bearing no mark appearing on the manifest, and for which there were no consignees. The plaintiffs endeavored to get the consignees of the missing cotton to accept the no-mark and wrong-marked bales of cotton in l’ieu of the cotton marked as consigned to them, but this the consignees refused to do. The plaintiffs thereupon sold the no-mark and wrong-marked cotton» and obtained the best price obtainable therefor, and gave credit to the defendant for the amount received, less the necessary costs and expenses incident to the transaction. This suit was brought to recover the difference in money claimed to be due in consequence. The court below, on demurrer, held that neither the original petition nor the petition as amended presented a cause of action, and dismissed the suit.</p>

<p>Certiorari; from Miller superior court—Judge Worrill. April 22, 1912. „</p> <p>The bill of exceptions described the plaintiffs in error as “Joe Toole et al.” The judgment complained of was the dismissal of a certiorari sued out in the name of “Colquitt German Coach Horse Co., a firm composed of Joe Toole and fourteen others,” in “a cause wherein W. I. Geer was the plaintiff and petitioners were defendant.” The following acknowledgment of service, signed by W. I. Geer, appears on the bill of exceptions: “I hereby acknowledge service of the above and foregoing bill -of exceptions, together with all the exhibits therein referred to, after same was certified; copy and all other and further service is hereby waived. This acknowledgment of service does not include the service of the suit as brought by W. I. Geer v. Colquitt German Coach Horse Co., and is not to be considered as waiving service for W. I. Geer in case of W. I. Geer v. Colquitt German Coach Horse Co., a partnership.” In this court counsel for the plaintiffs in error filed an amendment to the bill of exceptions, “adding to the same as parties the ‘Colquitt German Coach Horse Company, a firm composed of Joe Toole et al./ in order that the same .may proceed in” that name.</p>

<p>1. The charge of the trial judge was, in the main, a full and correct presentation of the law applicable to the evidence, but upon a crucial point in the case the instructions were so likely to have confused the jury that they must be presumed to have been injurious to the losing party, and a new trial should have been granted.</p> <p>2. “To tell the jury that if the plaintiff could have avoided the injury he could not recover, and in the same breath to say that if both parties are at fault the plaintiff’s damage may be diminished, is calculated to mislead and confuse them on a point about which they should be most carefully and accurately instructed.” Savannah, Florida & Western R. Oo. v. Hatcher, 118 Ga. 273 (45 S. E. 239). The same may be said as to an instruction, in a ease in which the plaintiff is an employee, that “If you find that both the plaintiff and the defendant’s employees were equally at fault, there can be no recovery in this case,” although the judge immediately followed this incorrect statement with an instruction that “If you find that the defendant was negligent in any of the particulars alleged in the petition, and further find that the plaintiff was wholly free from fault with reference to the ease in question, you would be authorized to find in favor of the plaintiff.” The erroneous instruction was not specifically corrected by being expressly withdrawn. “The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, without being instructed so to do by the judge.” Savannah, Florida <& Western R. Oo. v. Hatcher, supra.</p> <p>3. Though the trial judge, in effect, presents the principle embodied m § 4426 of the Civil Code, by proper instructions plainly applicable to the evidence in the particular case, still, under the ruling of the Supreme Court in Atlanta, Knoxville & Northern R. Oo. v. Gardner, 122 Ga. 92 (49 S. E. 818), the abstract rule of this section of the code, to the effect that if the plaintiff, by the exercise of ordinary care, could have avoided the injury, he can not recover, should nevertheless be given m charge to the jury m the language of the code, where the evidence in behalf oi the defendant raises this defense.</p> <p>4. It is negligence tor the engineer in charge of a locomotive of a railroad company to start his train upon the signal of one other than a servant of the company engaged in, the operation of the train; and in all cases, when the engineer moves his train, except upon the signal of . those servants of the company who by its rules are authorized to give • him signals, he does so at his peril, and if any person or property is injured by such movement of the engine or train, the negligence is actionable.</p>

<p>1. Where, in the trial of a criminal case, the existence and contents of a writing, shown to be in the possession of the accused, are material, parol evidence of its contents is admissible.</p> <p>2. In an indictment for arson, ownership was properly laid in one to whom a deed conveying the property destroyed by fire was executed for the purpose of indemnifying him against loss by reason of his having become surety on the grantor’s appearance bond in another case, it appearing that at the time the building was set on fire the bond was still in force.</p> <p>3. The instructions of the trial judge that “if the place [described in the indictment] was a small assemblage of houses, situated so near to each other that the burning of one would endanger the others, then that assembly would be a village, in the meaning of the law,” while not altogether accurate, was not prejudicial. Nor was it reversible error that the trial judge instructed the jury that they might convict the accused even though the house which was burned was not located in a city,, town, or village. There was a general verdict of guilty, and the effect of this verdict was to find that the burned house was in the village described in the indictment, and, as the evidence demanded this finding, the instruction complained of was not harmful.</p> <p>4. The evidence was wholly circumstantial and not sufficient to exclude every other reasonable hypothesis than that of the guilt of the accused. For this reason the trial judge erred in overruling the motion for a new trial.</p> <p>5. “Plaintiffs in error who bring their cases to this court upon paupers’ affidavits are not altogether relieved from liability for the costs, but are simply entitled to have their eases heard without the payment of costs as a condition precedent.” Sigman v. Austin, 112 Ga. 570 (37 S. E. 874). Costs inadvertently paid by counsel for the plaintiff in error will not be refunded on motion, but the payment will be treated as voluntary.</p>

<p>The home and place of business of a farmer are the house wherein he resides and the plantation upon which his farming operations are conducted. It is therefore not a violation of the act approved August 12, 1910, prohibiting one not licensed to carry a pistol from carrying around or having in his manual possession a pistol “outside of his own home or place óf business” (Acts 1910, p. 134), for one who lives on a farm, of which he is in charge as an overseer, to have about his person on that farm a pistol fully exposed to view, notwithstanding he has no license-from the ordinary of the county to carry the pistol.</p>

<p>Indictment for carrying pistol; from Eandolph superior court-judge Worrill. October 7, 1912.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. September 23, 1912.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. October 16, 1912.</p>

<p>1. So much of the act of 1910 regulating the use of automobiles as undertakes to make penal’the operation of an automobile on the highways of this State “at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property,” is too uncertain and indefinite in its terms to be capable of enforcement.</p> <p>2. The count of the accusation charging the accused with having operated an automobile “so as to endanger the life and limb of persons and the safety of property” was subject to special demurrer on the ground that it failed to show what person or what property was endangered by the running of the automobile.</p> <p>3. Section 12 of the act of 1910 regulating the use of automobiles, which provides that “nothing contained in this act shall be construed as changing or interfering with any regulation or ordinance which has heretofore or may hereafter be adopted by - any municipality of this State, regulating the running and operation of the machines described in this act, provided such regulation or ordinance is not in conflict with the provisions of this act,” does not render the act inoperative in a city or town which has adopted an ordinance attempting to make punishable the running of automobiles “at a rate of speed greater than ten miles per hour at corners and crossings, or fifteen miles per hour beyond crossings and corners when outside of the fire limits, or at a greater speed than five miles per hour when inside the fire limits at crossings or corners, or ten miles per hour beyond corners and crossings,” within the limits of the municipality; the ordinance being void because in conflict with section 5 of the same act, which makes it a misdemeanor to operate an automobile at a rate of speed greater than six miles per hour on approaching a crossing of intersecting highways.</p> <p>4. In an accusation specifically charging the illegal operation of an automobile in violation of the act of 1910 regulating the running of automobiles and conveyances of like character, it is not necessary to allege the particular power by which the automobile in question was propelled. The term “automobile” has a definite popular significance, and is understood to refer to a wheeled vehicle, propelled by gasoline, steam, or electricity, and used for the transportation of persons or merchandise.</p> <p>5. As some of the rulings upon the demurrer require a reversal of the judgment of the lower court, and the subsequent proceedings in the trial were nugatory, the questions raised by the assignments of error in the motion for new trial will not be considered.</p>

<p>1. It being issuable whether the injury of which the plaintiff complained • was due to improper train orders given by the defendant, or to one of the risks assumed by the plaintiff under the provisions of the contract, the court erred in directing a verdict. If the contract were con- ' strued do exempt the railway company from the consequences of the negligence of its employees, it would, so far as it would have that effect, be void, as contrary to the declared public policy' of this State. But as the railway company in express terms assumed liability for any loss due to improper train orders given the plaintiff, and there is evidence from which it is to be inferred that the damage in question was due to the negligence of the railway company in this respect, the, verdict directed was not demanded.</p> <p>2. Where a railway company, in a contract with a lumber company, permitting the lumber company to use the railway tracks, reserved the right to issue all orders for the movement of trains upon its tracks, and the contract provided that the lumber company should move train of cars in obedience to orders issued by the railway company, an order issued by the railway company in pursuance of its right, which may have been a proper order at the time it was issued, became an improper order if, by the exercise of its right to use its own tracks and a failure to notify the lumber company of a change of schedule or of the operation of an extra train, the train of the lumber company, even though the employees of the latter used due diligence, was likely to be endangered. The right to fix schedules, under the contract involved in this case, implied the duty of issuing orders appropriate to the uses to which the tracks were to be subjected.</p>

Action for damages; city court of Bichmond county—Judge W. F. Eve. January 5, 1912. The action was for damages on account of fire alleged to have been caused by sparks from the locomotive of a passenger-train passing the plaintiffs’ land.

Trover; from city court of Savannah—Judge Freeman. Octoher 19, 1911. In August, 1910, the Fant Fish Company of Savannah, Ga., wrote the following letter to the agent of the Southern Express-Company in that placej “We desire to put you on notice that we do not want any more of the fish coming to us from Florida points re-iced while in transit. If any are delayed it is not our fault, and your company will have to use their judgment in disposing of them.

<p>Complaint; from-city court of Dawson—Judge M. C. Edwards. January 29, 1912.</p>

<p>Action for damages; from city court of Macon—Judge Hodges. October 29, 1912.</p>

<p>Complaint; from city court of Blakely—Judge Bambo. October 30, 1913.</p>

<p>Action on insurance policy; from city court of Madison—Judge Anderson. October 10, 1912.</p>

<p>Accusation of carrying pistol without license; from city court of Elberton—Judge Grogan. July 15, 1912.</p>

<p>Accusation of larceny; from city court of Thomasville—Judge W. H. Hammond. July 8, 1912.</p> <p>Munn was convicted of simple larceny. The only question presented by his motion for a new trial and the bill of exceptions was whether there was sufficient evidence to support the verdict. According to the evidence, he borrowed a watch, saying that he was going to call on some girls and wanted to wear it. He promised to return it that afternoon, but did not return it. He borrowed $1.5'0 from a third person, and deposited the watch with that person as security. When the lender of the watch asked for its return, Munn made false statements, as to its being at his house, etc., and finally, and on the next day after the day on which he borrowed the watch, he admitted that he had deposited it as security for the money borrowed.' He said that he was expecting to get $10 from Mr. Titus, who owed him that amount, and to return the money borrowed and get the watch. Just after this disclosure the owner of the watch caused his arrest. In his statement at the trial the accused admitted the main facts stated above, and added: “Some time before this I had traded hats with Mr. Daniels [the lender of the watch], and he owed me $1.50 to boot. I finally told Daniels where the watch was, and told him about Mr. Titus owing me the money. I called his attention to the $1.50 he owed me, and he said it was all right. Before I saw Mr. Titus I was arrested. I did not intend to steal the watch.”</p>

<p>Accusation of sale of liquor; from city court of Madison—Judge Anderson. October 19, 1912.</p>

<p>Indictment for misdemeanor; from Chatham superior court— Judge Charlton. August 23, 1912.</p>

<p>Certiorari; from Butts superior court—Judge B. T. Daniel. August 22, 1912.</p>

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

<p>Indictment for sale of liquor; from Floyd superior court—Judge Maddox. October 4, 1912.</p>

<p>Accusation of carrying pistol without license; from city court .of Washington—Judge Wynne. November 2, 1912.</p>

<p>An amendment to the petition, specifically setting out the damages claimed for the alleged Breach of contract, and giving the correct measure for estimating the damages that the plaintiff was entitled to recover if the allegations were proved, should have been allowed. The court having erred in disallowing the amendment, the verdict and judgment thereafter rendered were not a legal termination of the case, and a new trial must be granted.</p>

<p>Actiou on bond; from city court of Tifton—Judge R. Eve. November 21, 1912.</p>

<p>Complaint; from city court of Monticello—Judge Thurman. October 26, 1912.</p>

<p>Complaint; from city court of Greenville—Judge Revill. -October 31, 1912.</p>

<p>Trover; from city court of Floyd county—Judge Eeece. November 1, 1912.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. September 23, 1912. y</p>

<p>Conviction of manslaughter; from Houston superior court— Judge Mathews. October 18, 1912.</p>

<p>Appeal; from Jefferson superior court—Judge Rawlings. August 7, 1912.</p>

<p>Complaint; from city court of Jefferson—Judge Johns. November 22, 1912:</p>

<p>Action for damages; from city court of Macon—Judge Hodges. October 26, 1912.</p>

<p>Complaint; from city court of Cairo—Judge Singletary. Octo ber 19, 1912.</p>

<p>1. Where one makes a contract to work on and' about dangerous machinery, the law implies an engagement on, his part to assume the ordinary risks incident to the, employment,-^-that is to say, the risks of injury resulting from the ordinary use of the machinery, unmixed with negligence on the part of the master.</p> <p>2. The master may, as a part of the contract, himself assume the risk of injury to the servant, even 'from the use, in the ordinary and usual way, of a defective or dangerous -instrumentality. ' ’He may lawfully contract to compensate the servant for injuries resulting from ■ an obvious defect or danger known to the servant. A promise to a servant to remove a danger or repair a defect will be construed as an assumption only of those risks which result from the use of an instrumentality not so obviously dangerous- that no ordinarily prudent man would continue to use it, notwithstanding the promise. Such an assumption by the master of the risk of injury to -the servant continues until the expiration of the time within which the master agreed to remove the danger, or for a reasonable time if no time be fixed.</p> <p>3. No promise oji the part of the master to remove a danger in an instrumentality-will relieve a servant from,the exercise of ordinary care for his own safety; and if he is injured while failing to exercise such care, this, and not the breach of, the master’s promise, will be held to have been the proximate cause.of the injury.</p> <p>4. On Saturday the owner of a ginnery assured one of the ginners that a rapidly revolving and exposed shaft and -set-screw in the basement of the gin would be covered, but no time was fixed within which this was to be done. The ginner was sometimes compelled to go by the exposed shafting .and set-screw in order to reach other machinery in the basement, which it was his duty ,to repair. On numerous occasions -he had pass.ed by the .shafting with pafety by going under the belt. On Monday, in the darkness, the ginner attempted to pass by the shafting in some other way than by going under the belt. He did not examine .the shafting, but relied upon the master’s promise that he would have the shafting and set-jscrew covered. The servant’s clothing was caught in the set-screw and he was whirled around with the shafting and killed. Held, that the proximate cause o'f the servant’s death' was his own failure to exercise ordinary care, and that no recovery, could be had against the master for his homicide.</p>

<p>An answer to a certiorari must be filed on the first day of the term to which it is made returnable, unless further time be ‘given. After the adjournment of the term it is,too late to pass an order allowing further time within which to file the answer. It is the duty of the plaintiff in certiorari, during the first term, to discover, that no answer has been filed, and to take an order requiring it to be. filed within some specified time.</p>

<p>1. A defendant in fi. fa. can not, by the sale of property subject to the lien of his-judgment creditor,.defeat or discharge'the lien of the, fi. fa..-</p> <p>2. A bill of lading is the symbol of the property which the carrier thereby acknowledges to have been received for transportation, and the assignment and transfer of a bill of lading evidences a sale and delivery,' by symbol, of file prpperty described therein.</p>

<p>Indictment for arson; from Whitfield superior court—Judge Pite. December 20, 1912.</p>

<p>A. invited B. to become his guest in an automobile,' for a trip to a designated point. B. consented to do so if A. would permit him to pay the expenses of the party while at the point of destination. The automobile was driven by the chauffeur of A. B. had no interest in the automobile and exercised no control or management over the chauffeur in the actual driving or operation of the machine. Held, that B. was not liable for the negligent conduct of the chauffeur in the operation of the machine.</p>

<p>Complaint; from city court of Atlanta—Judge'Reid'. November 9, 1912. ' ■</p>

<p>The holder of a negotiable instrument is presumed to be so bona fide and for value; and unless his title is denied by a valid plea of non est factum, under oath, filed by either the maker or the indorser, where both the maker and the indorser are sued thereon, the note is admissible in evidence without proof of its execution or of the genuineness of the indorsement thereon. .</p>

<p>An outhouse in a field between two and three hundred yards from a mansion or dwelling-house, and used by the owner of the mansion or dwelling-house as a smoke-house or “meat house” for the storage of his meats for domestic purposes, and not within a common enclosure with the dwelling-house, is not an .outhouse “contiguous to or within the curtilage or protection of the mansion or dwelling-house;” and the breaking and entering such an outhouse with intent to steal does not ’ constitute the crime of burglary, but may constitute the offense of larceny from the house.</p>

<p>One can not be convicted of being a common cheat and swindler, undei section 719 of the Penal Code, upon proof that in the sale of a mule he represented to the purchaser that the mule’s eyes were sound, “so far as he knew,” when in fact the mule’s eyes appeared to be sound and did not become weak until some three or four months after the sale, and where the only evidence in conflict with the seller’s representation is that while he had possession of the mule one person stated to him that, in his opinion, the mule’s eyes were unsound. The seller had the right to rely upon his own judgment as to the soundness of the mule’s eyes, rather than upon the mere statement of a contrary opinion, made to him by a third'person. The fact that a single person had told the owner that the mule’s eyes were bad would not be ’ sufficient to show beyond a reasonable doubt that the owner knew or believed, at the time he sold the mule, that its eyes were unsound, unless there was other evidence from which it could be inferred that the seller knew the information he had received to be correct, or believed it to be true.</p>

<p>1. Under the provisions of the Civil Code, § 3404, where the statutory exemption provided for under § 3416 has been allowed the debtor, he can not thereafter apply for and have set apart a homestead under the provisions of § 3377 et seq., even though at the time of the last application the property previously set apart as an exemption had. been consumed or disposed of. Nor would the second homestead be valid as a supplemental exemption, under the provisions of § 3415.</p> <p>2. Averments of fact in a garnishee’s answer must be taken as true, unless traversed. Conclusions of law are not to be so accepted. A statement •in an answer of a garnishee, that he had been given notice by the defendant that the property described in the answer had been set apart to the defendant as a homestead, does not, even though untraversed, authorize or require a judgment either that the homestead had been granted to the defendant, or that, if so granted, it was valid and binding. Notwithstanding such an answer, a claim of exemption, filed by the defendant, puts in issue the validity of the homestead claimed to have been granted.</p>

<p>1. On the trial of one charged 'with murder, where the defens.e relied upon was justifiable homicide in self-defense, it was erroneous to instruct the jury to the effect that the burden was upon the accused to establish this defense, to the satisfaction of the jury and beyond a reasonable doubt. This placed the burden on the accused, while the law placed it on the State.</p> <p>2. The other assignments of error are without merit.</p>

<p>Indictment for adultery and fornication; from Burke superior court—Judge H. C. Hammond. June 17, 1912. ,</p> <p>From the evidence it appeared, that, about eleven o’clock at night, policemen went to the house of Lottie Tilson, a negro woman, in Waynesboro, and knocked at the front door, and, after they had knocked several times and called for Bailey (a white man), he came to the door “with his underclothes on,” and opened it, and asked what they wanted. They told him that they had come to arrest him for disorderly conduct with Lottie Tilson. He said, “All right,” and asked them to wait until he could furnish bond for his appearance before the mayor. The policemen then went into the house and found Lottie Tilson in the rear bedroom, partly undressed. A bed and a couch were in the room. The house contained five rooms, of which two or three were bedrooms. Lottie Tilson conducted a restaurant in the same building. She was married, but was not living with her husband. Bailey lived about nine miles from Waynesboro. He was unmarried. Before this time he had been going into the restaurant late in the afternoon, and coming out early in the morning, and had left his horse and buggy all night at the back of the restaurant: A physician testified, that at the time the policemen went to Lottie Tilson’s house to make the arrest, and for three or four months, Bailey was under treatment by him for syphilis, and, in his' opinion, the disease had made such inroads upon the functional organs, and had so wasted the vital organs and “wrecked his general condition,” that Bailey was entirely too weak to perform sexual intercourse during that period; that Bailey was very poor, and in a condition of health so serious as to make it necessary to come to Waynesboro for treatment, not being able to have visits from a physician every day in the country, and that, because of inability to get a room in a hotel or “first-class boarding house,” the witness advised him to get a room at Lottie- Tilson’s place, which was near the office of the witness; that the witness treated him there, making daily and nightly visits, and Lottie Tilson waited on him and acted as his nurse, and he took his meals at the restaurant and slept in the house. Bailey, in his statement at the trial, denied that he had sexual intercourse with Lottie Tilson, and said that he had been unable to have sexual intercourse in months. No witness testified to improper conduct between them.</p>

<p>This case is controlled by the decision of this court in Simmons v. Council, 5 Ga. App. 386 (63 S. E. 238). See, also, Hudson v. Best, 104 Ga. 131, 134 (30 S. E. 688) ; Citizens Bank v. Greene, ante, 49.</p>

<p>1. The merits of the ruling of the court below upon the demurrer can not be considered, because no exception pendente lite was filed at the time of the ruling, and the bill of exceptions was certified several months thereafter.</p> <p>(a) Error in a ruling upon a demurrer can not properly be made a ground of a motion for a new trial, but should be taken advantage of by direct exception.</p> <p>2. An assignment of error to the effect that the verdict is contrary to certain instructions of the court amounts to nothing more than the general exception that the verdict is contrary to law.</p> <p>3. The evidence as to whether the notes were forged or genuine was in conflict, but the evidence in behalf of the State was sufficient to authorize a finding that those whose names purported to be signed to the notes had neither signed them nor authorized their execution; and though the defendant did not in person deliver to the bank the forged notes alleged to have been uttered and published by him as true, the circumstances in proof were sufficient to authorize the conclusion that he either transmitted them or caused them to be transmitted to the bank. The jury had a right to prefer the testimony in behalf of the State; and, giving the State’s evidence this, preference, the circumstances adduced are inconsistent with the theory of innocence.</p> <p>4. The remaining assignments . of error, not being argued in the briefs, must be treated as abandoned.</p>

<p>The decision in this case is controlled by the ruling in Mulkeg V. State, 1 Ga. App. 521 (57 S. E. 1022).</p>

Indictment for murder—conviction of voluntary manslaughter; from Thomas superior court—Judge Thomas. September 28, 1912. The .accused killed George Hurst, the husband of his sister. She was the only witness. She testified, that, while she was sitting on her husband’s lap, he became angry and said he was going to kill himself by cutting his head off. He was drunk ox had been drinking.

<p>That part of section 4131 of the Civil Code of 1910 which provides, as one of the remedies of the vendor, where a purchaser refuses to take and pay for goods bought,' that “he may store or retain the property for the vendee and sue him for the entire price,” is not applicable where the contract allows the purchaser to select from different kinds of goods specified therein, and no selection has been made by him. Where the purchaser refuses to make a selection, the seller can not make the selection for him, and, on his refusal to pay, sue him for the price.</p>

<p>Complaint) from city court of Macon—Judge Hodges. October 25, 1912.</p>

<p>Indictment for assault with intent to murder; from Houston superior court—Judge Mathews. November 23, 1912.</p>

<p>The undisputed evidence being that the property described in the accusa- ■ tion was 'stolen by a person other than the accused, and it not being shown that the accused had any connection with the larceny, his conviction of that offense was unauthorized, even though a verdict finding him guilty of receiving stolen goods might have been warranted.</p>

<p>Action for damages; from city court1 of Reidsville—Judge Collins. August 6, 1912.</p>

Indictment for arson; from Madison superior court—Judge Meadow. December 7, 1912. The accused—a negro boy—was charged with having burned a barn. The fire was discovered between ten and eleven o’clock at night. The roof and the upper part of the barn were then burning. It contained hay and fodder. The accused was arrested several days later, and confessed that he set fire to the barn.

<p>Accusation of gaming; from city court of Lexington—Judge Cloud. December 20, 1912.</p>

<p>Indictment for robbery; from Fulton superior court—Judge Roan. December 28, 1912.</p>

<p>Conviction of manslaughter; from Montgomery superior court— Judge Hawkins. December 16, 1912.</p>

<p>1. Where, in an accusation under the Penal Code, § 217, the premises upon which a trespass was alleged to have been committed are described as “a certain field and cultivated land” in “lot of land number 91 in the 3rd land district” of a given county, “and being known as five-acre tract No. 1196,” a demurrer, upon the ground that the premises were insufficiently described, was properly overruled.</p> <p>2. Where premises are rented to another, the landlord has no right, during the tenancy, to forbid a third person to go upon the rented premises for a lawful 'purpose with the permission of the tenant. A tenant is entitled to the undisturbed enjoyment of his possession, and the landlord has no right to exercise any control over the personnel of the tenant’s guests, or in reference to the time of their visits, so long as they are upon a lawful mission and do not infringe upon any right of the landlord.</p> <p>3. Though a woman be living separate and'apart from her husband, one who has rented to her a house in which she resides has no right to forbid the husband to go upon the rented premises for the purpose of visiting his wife.</p> <p>4. There was no evidence to authorize the conviction, and the court erred in overruling the motion for new trial.</p>

<p>Indictment for carrying pistol without license; from Hart superior court—Judge Meadow. December 21, 1912.</p>

<p>Indictment for sale of liquor; from Houston superior court— Judge Mathews. January 3, 1913.</p>

<p>Indictment for adultery and fornication; from Fayette superior court—Judge E. T. Daniel. January 9, 1913.</p>

<p>Accusation of larceny after trust; from city court of Dublin—’ Judge Hicks. January 14, 1913.</p> <p>The accusation was based on an affidavit of Csesar Plummer, and charged Tom Guyton with “the offense of a misdemeanor, for that the said Tom Guyton, .' . unlawfully, after having been entrusted by affiant with one certain bale of lint cotton weighing about 615 pounds, and of the value of $36.90, fpr the purpose of applying the same for the use and; benefit of affiant by bringing said cotton to Dublin and to be turned over to Sam Weiehselbaum Company on a debt that affiant owed said company, but instead of so applying, the said Tom Guyton . . fraudulently sold said cotton, and converted a part of the proceeds of the same, to wit, the sum of $6.90, to his own use, and thereby injuring and damaging affiant in said amount of $6.90, contrary to the laws of said State,” etc.</p>

<p>Accusation of sale of liquor; from city court of Jefferson— Judge Johns. January 7, 1913.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. January 14, 1913.</p>

<p>Indictment for misdemeanor; from Douglas superior court— Judge Edwards. January 10, 1913. • e</p>

<p>Accusation of sale of liquor; from city court of LaGrange— Judge Harwell. Janu'ary 18, 1913.</p>

<p>Conviction of manslaughter; from Banks superior court—Judge Brand. November 20, 1912.</p>

<p>Accusation of gaming; from city court of Statesboro—Judge Strange. January 29, 1913.</p>

<p>The evidence did not authorize the verdict.</p>

<p>Indictment for cheating and swindling; from Toombs superior court—Judge Rawlings. December 21, 1912.</p>

<p>Conviction of shooting at another; from Thomas superior court —Judge Thomas. January 11, 1913.</p>

<p>Action on contract; from city court of Atlanta—Judge Beid. June 15, 1912.</p>

<p>Certiorari; from Campbell superior court—Judge Boañ. August 5, 1912.</p>

<p>Action for damages; from city court of Washington—Judge Wynne. .December 14, 1912.</p>

<p>Indictment for felony; from Crisp superior court—Judge Little-john. June 18, 1912.</p>

<p>Action for damages; from city court of Macon—Judge Hodges. July 8, 1912.</p>

<p>There being no assignment of error upon the striking of the defendant’s . plea, nor any exception to the final judgment therafter rendered in the case, the bill of exceptions is fatally defective and must be dismissed.</p>

<p>Action on bond; from city court of Lumpkin—Judge Nicholson presiding. September 23, 1912.</p>

<p>Motion to set aside judgment; from city court of Blakely—Judge Bambo. November 27, 1912.</p>

Action on insurance policy; from city court of Atlanta—Judge Eeid. December 7, 1912. The action was upon a policy of accident insurance. The case was submitted to the judge of the city court without the intervention of a jury, on a stipulation as to the facts, substantially as follows: The policy was issued on a monthly plan, the premium of $2.50 being required to.be paid monthly in advance, in order to beep the policy in force.

<p>1. In a suit upon an insurance policy the petition should contain, or have attached thereto, a copy of everything appearing “upon the face or in the body of the policy,” including all stipulations embraced in that part of the policy which precedes the signatures of the company’s officers by whom it was executed. Southern Mutual Insurance Go. v. Turnley, 100 Ga. 296 (27 S. E. 975).</p> <p>2. An answer is evasive which refuses either to admit or to deny a matter as to which the plaintiff is necessarily presumed to have knowledge. Where a defendant is alleged to be a corporation, an answer declining, for want of sufficient information, either to admit or to deny such an averment, would be evasive and should be treated as an admission of the averment. Raleigh & Gaston Ry. Go. v. Pullman Go., 122 Ga. 700 (50 S. E. 1008) ; Shamos v. So. Bell Telephone & Tel. Go., ante, 463 (77 S. E. 312). But an answer- distinctly denying an allegation that the defendant is a corporation, although it may be false, is not evasive.</p> <p>3. Where, at the conclusion of the plaintiff’s evidence, a motion for nonsuit is overruled, and, after evidence for the defendant has been introduced, a verdict is directed in favor of the defendant, to which exception is duly taken, a determination of this exception settles the ease, and an assignment of error in a cross-bill of exceptions, complaining of the refusal to grant a nonsuit, will not be considered.</p> <p>4. Where one person injures another and the injury is not the result of misconduct or participation of the injured party, but is unforeseen by him, it is, as to him, accidental, although it may be intentionally inflicted by the other party.</p> <p>5. In an action upon' a policy of accident insurance, the burden is upon the insurer to prove that the injury is within an exception provided for in a stipulation that no recovery shall be had for an injury intentionally inflicted upon the insured by any other person.</p> <p>6. Where a person receives an injury, the presumption is that it was accidental rather than the result of design.</p> <p>7. An injury intentionally inflicted upon another by a person intoxicated at the time is within an exception in a policy of accident insurance which provides that no recovery shall be had for an injury, “intentionally inflicted upon the insured by any other person, sane or insane.”</p> <p>8. The inference that one intends the natural consequence of his act is a rule of circumstantial evidence, applicable to all human transactions, an» is to be applied in criminal as well as in civil cases in passing upon the sufficiency and weight of the evidence.</p> <p>9. Where one approaches another from the rear and, at a distance of eight or ten feet, deliberately aims and fires a deadly weapon at the person thus approached, and the latter dies from the wound thus inflicted, and nothing more appears, there is a conclusive inference that the person shooting intended to take the life of the person at whom he shot.</p> <p>10. The mere fact that at the time the homicide took place other persons were in close proximity to the persdh killed and might have been in-</p> <p>jured by the shot was not sufficient to rebut the inference that the slayer intended to kill the. person shot.</p>

<p>Action on contract; from city court of Ashburn—Judge Tipton. November 18, 1912.</p>

<p>Indictment for assault with intent to murder; from Bibb superior jcourt—Judge Mathews. January 3, 1913.</p>

<p>Complaint; from city court of Reiclsville—Judge Collins. September 23,..1912.</p>

<p>Indictment for arson; from Madison superior court—-Judge Meadow. December 7, 1912.</p>

<p>Indictments for felony; from Clarke superior court—Judge Brand. December 23,.1912.</p>

<p>Conviction of larceny from house; from Chatham superior court —Judge Charlton. November 14, 1912.</p>

<p>Indictment for sale of liquor; from Fayette superior court— Judge E. T. Daniel. January 9, 1913.</p>

<p>1. To constitute the offense of larceny after trust, there must be a specific intent to fraudulently convert to the use of the bailee the property entrusted to him, or otherwise fraudulently dispose of the' property. Culpable negligence can not be an ingredient of this crime.</p> <p>2. There being no allegation in the indictment that the accused otherwise disposed of the property entrusted to him than by converting it to his own use, it was error to instruct the jury that they should convict the defendant if they found, from the evidence, that he had otherwise disposed of the property.</p>

<p>Conviction of involuntary manslaughter; from Hart superior court—Judge Meadow. January 3, 1913.</p>

<p>Indictment for sale of liquor; from Hart superior court—Judge Meadow. January 4, 1913.</p>

<p>Indictment for sale of liquor; from Tattnall superior court— Judge Sheppard. September 14, 1912.</p>

<p>1. To sustain a conviction of crime upon evidence which is wholly circumstantial, the proved facts must be so conclusive and convincing as to exclude every other reasonable supposition than that of the guilt of the accused.</p> <p>(a) A conviction of burglary is not'supported by proof that the accused sold a pair of shoes similar to shoes kept in the store alleged to have been burglarized, but which were not identified by any stock-mark or other peculiarity, and were of a kind sold by 'other dealers in the same vicinity, there being no other evidence tending to connect the accused with the burglary, except the fact that he afterwards left that locality, and at the time, of his arrest, two years later, was in the State of Alabama.</p> <p>2. The verdict finding the defendant guilty of-burglary, being without evidence to support it, was contrary to law, and a new trial should have been granted.</p>

<p>Motion for new trial; from Toombs superior court—Judge Bawlings. December 21, 1912.</p>

<p>Indictment for burglary; from Pierce superior court—Judge' Parker. January 3, 1913.</p>

<p>Indictment for assault with intent to murder; from Laurens superior court—Judge Hawkins. January 13, 1913.</p>

<p>Indictment for assault with intent to murder; from'Dodge superior court—Judge Martin. December 31, 1913.</p>

<p>Certiorari; from Baldwin superior court—Judge J. B. Park. January 23, 1913.</p>

<p>Accusation of carrying concealed weapon; from city court of "Bainbridge—Judge Spooner. February 8, 1913.</p>

According to the evidence for the State, the accused was guilty of robbery by force; according to his statement, he was innocent of any offense. Held: that since, in any view of the evidence, there is no fact or circumstance which would authorize the conclusion that the prosecutor was deprived of his property by intimidation or putting him in fear of injury to his person, property, or reputation, the verdict was contrary to the evidence and without evidence to support it.

<p>The gist of the offense defined in section 715 of the Penal Code is the failure to perform the services required by the contract, and failure to return t.o the hirer the consideration advanced on the faith of the contract. Hence, where one contracts to perform certain services for a partnership composed of two persons, and, before the time arrives for-performance to begin, the partnership is dissolved, the person contracting to perform the services can not he convicted upon proof that he failed or refused to perform the services for one of the partners.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. January 15, 1913.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. January 15, 1913.</p>

<p>Habeas corpus; from city court of Bainbridge—Judge Spooner., February 15, 1913.</p>

<p>Certiorari; from Baldwin superior court—Judge J. B. Park. February 1, 1913.</p>

<p>Accusation of misdemeanor; from city court of Sparta—Judge Moore. February 25, 1913.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. July 25, 1912. . .</p>

Action for damages; from city court of Atlanta—Judge Reid. November 2, 1913. Mrs. Laura Cheshire sued the Atlanta Telephone and Telegraph Company for damages on account of personal injuries alleged to have been sustained by reason of the defendant’s negligence.

<p>Certiorari; from Bibb superior court—Judge-Harris. July 24, 1912.</p>

<p>Appeal; from Greene superior court—Judge Walker.' November 25, 1912. /</p>

<p>Distraint; from city court of Houston county—Judge Riley. December 16, 1912.</p>

<p>1. The act approved August 17, 1903 (Civil Code, § 3226 et seq.), known as the “sales in bulk act,” is applicable to a stock of meat and other merchandise such as is usually sold in a market.</p> <p>2. Where the owner of a stock of goods sells a half interest therein to another, and a short time thereafter sells to his partner the other half interest in the business, the sale is void as to the creditors of the vendor, unless the provisions of the “sales in bulk act” have been complied with.</p>

<p>Appeal; from Cobb superior court—Judge Morris. December 14, 1912.</p>

Applying the principle of the decision of the Supreme Court in Wright V. Southern Railway Go., 139 Ga. 448 (77' S. E. 384), to the facts in the present record, it was error to grant a nonsuit. Action for damages; from city court of Savannah—Judge Davis Freeman. December 18, 1912.

<p>Complaint; from city court of Macon—Judge Hodges. January 14, 1913.</p>

<p>Certiorari; from Johnson superior court—Judge Hawkins. January 16, 1913.</p>

<p>Accusation of sale of liquor; from city court of Polk county— Judge Irwin. January 27, 1913.</p>

<p>.1. A verdict finding one guilty of “the unlawful shooting of another” is not a nullity, but is to be construed as a conviction of the statutory offense described in section 115 of the Penal Code.</p> <p>2. The admission of testimony in reference to the absence of the accused at a previous term of the court, and of the indictment which had been returned at that court and subsequently nol. prossed, and the argument of counsel for the State in replying to the objections of the accused to the evidence, and the statements of the trial judge in ruling upon the objections, were not of such prejudicial nature as to require a new trial.</p> <p>3. A special ground of a motion for a new trial, which is disapproved by the trial judge, can not be considered.</p> <p>4. The evidence authorized the verdict.</p>

<p>Trover; from city court of Quitman—Judge Cranford. January 13, 1913.</p>

<p>1. The question whether a municipal ordinance is reasonable and valid is one of law, for the court. In the present case it was error, requiring the grant of a new trial, to charge the jury that they should examine the facts and circumstances in the 'evidence and determine whether or not the municipal ordinance prescribing the maximum rate of speed at which automobiles could be propelled along a specified part of the highway was reasonable and valid. The ordinance was reasonable, and the only question for the jury was as to its applicability to the facts of the case on trial.</p> <p>2. Except as above indicated, there is no error in the record.</p>

<p>1. Where a series of promissory notes, maturing at different dates, is given for the purchase-price of personal property, in each of which it is stipulated that title to the property is reserved in the vendor until payment of the note, the vendor, on default in payment of any of the ■ notes, may elect to rescind the sale and sue in trover for the property or its value. This is true even though there he no stipulation therein giving the vendor the option, on default in payment of any of the notes, to declare the whole debt due.</p> <p>2. Any use of the property of another without his consent and inconsistent with his right of possession is a conversion. And such an appropriation of the property is none the less a conversion because the user, after taking possession of the property and converting it to his own use, informs the owner that he will deliver it to him on demand. Delivery of the property on demand would not cure the unlawful conversion, but would go simply in mitigation of damages.</p> <p>3. There was no error in the admission of evidence or in the charge of the court. The judgment overruling the motion for a new trial is reversed solely because, under the pleadings and the evidence, the defendant was entitled to recover of the plaintiff damages for the unlawful conversion.</p>

<p>The evidence was such as to authorize the submission to the jury of 'the question whether the defendant was negligent, and, if so, whether his negligence or that of the plaintiff, if the plaintiff was negligent, was the proximate cause of the damage. It was, therefore, error to grant a nonsuit.</p>

<p>Accusation of misdemeanor; from city court of Thomasville— Judge W. H. Hammond. January 27, 1913.</p>

<p>Accusation of riot; from city court of Milieu—Judge Hill. February 17, 1913.</p>

<p>Indictment for assault with intent to murder; from Madison superior court—Judge Walker presiding. February 3, 1913.</p>

<p>Indictment for misdemeanor; from Douglas superior court-judge Price Edwards. February 7, 1913.</p>

<p>Indictment for forgery; from Appling superior court—Judge ■Conyers. February 8, 1913.</p>

<p>Indictment for murder—conviction of involuntary manslaughter from Colquitt superior court—Judge Thomas. February 13, 1913.</p>

<p>Accusation of sale of liquor; from Tattnall superior court— Judge Sheppard. November 30, 1912.</p>

<p>• Indictment for obstructing officer; from Laurens superior court— Judge Hawkins. February 22, 1913.</p>

<p>Accusation of cheating and swindling; from city court of Sparta —Judge Moore. March 8, 1913.</p>

<p>Accusation of keeping lewd house; from city court of Columbus—Judge Tigner. February 22, 1913.</p>

<p>Petition for certiorari; from Tift superior court—Judge Thomas; February 22, 1913.</p>

<p>Indictment for larceny; from Fulton superior court—Judge Price Edwards presiding. January 25, 1913.</p>

<p>Complaint; from city court of Monroe—Judge Johns presiding. January 15, 1913.</p>

<p>Certiorari; from Baldwin superior court—Judge J. B. Park. January 23, 1913.</p>

<p>1. The writing purported to be a receipt given by one who was not a party to the issue pending, and who was a competent witness. It was therefore mere hearsay and not admissible in evidence.</p> <p>2. Since the evidence was strongly conflicting, and error in the admission of illegal evidence is presumptively injurious to the losing party, the ■ discretion of the judge of the superior court in sustaining the certiorari and ordering a third trial will not be controlled.,</p>

<p>Under the rulings of the Supreme Court in Daniel v. Persons, 137 Ga. 826 (74 S. E. 260), and Peal v. Slate, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175),. so much of the judgment in this case 'as purported to suspend the sentence during the good behavior of the defendant was void and of no force and effect; and consequently the trial judge did riot err in refusing to release him upon the petition for habeas corpus, or in directing that the former sentence of the court be executed.</p>

<p>The testimony was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, and a new trial should have been granted.</p>

<p>Action for damages; from city court of Monroe—Judge Stone. September 14, 1912.</p> <p>The question certified to the Supreme Court by the Court of Appeals, for instruction, was whether sections 3712 and 3713 of the Code of 1910, as to when it is unlawful to employ or rent land to an employee or'tenant of another, etc., are repugnant to the provision of the constitution of Georgia, that “no person shall be deprived of life, liberty, or property, except by due process of law.” The Supreme Court answered the question in the affirmative, holding that these sections , are void.</p>

<p>1. Where a widowed mother had a cause of action against a railway company to recover damages for the homicide of her son, and she entered into a contract with her children, by the terms of which she agreed, in consideration of advances, made by them to her for the purpose of defraying the expenses of prosecuting her cause of action, to share equally with them in any recovery she might obtain in her suit, this was not an assignment of the right of action for the personal tort.</p> <p>2. The contract made by the children with the mother as indicated in the foregoing headnote is not one of maintenance or champerty. Maintaining the suit of another is lawful if the person so maintaining has any interest in the subject-matter of the suit, however remote, vested, or contingent, or is connected with the suitor by some social relation, or by the ties of affinity or consanguinity, or is under any obligation to assist and aid the suitor.</p>

<p>Accusation of carrying pistol without license; from city court of Jeffersonville—Judge Shannon. December 16, 1912.</p>

<p>1. A recital in a bill of exceptions, to the effect that the trial judge refused to consider or to approve certain grounds of an amendment to the motion for a new trial, presents nothing for the consideration of the Court of Appeals.</p> <p>2. The incriminatory circumstances introduced in evidence by the State were sufficient to exclude every reasonable hypothesis except that of the defendant’s guilt, and authorized the jury to convict him of the offense of gaming. And as there is no complaint of any error of law upon the trial, the trial judge did not err in overruling the motion for new trial.</p>

<p>Action oil insurance policy; from city court of Savannah—Judge Davis Freeman. January 27, 1913.</p>

Motion to set aside judgment; from city Court of Eloyd county— Judge Reece. January 27, 1913. Knowles brought suit in the city court against Smith on two promissory notes. No defense was filed. On the call of the appearance docket the case was entered in default, and judgment was thereafter taken, September 25, 1912, as in cases of default on unconditional contracts in writing, and was signed by the judge of the city court. This judgment included attorney’s fees.

<p>Under the decision in Printup v. Rome Land Go., 90 Ga. 180 (15 S. E. 764), the court erred in sustaining the demurrer to the defendant’s answer, and in entering up judgment in favor of the plaintiff.</p>

<p>Action on contract; from Jeff Davis superior court—Judge Conyers. February 18, 1913.</p>

<p>Indictment for murder—conviction of manslaughter; from Bibb superior court—Judge Matliews. January 1, 1913.</p>

<p>Accusation of larceny from house; from city court of Vienna— Judge Lasseter. February 22, 1913.</p>

<p>There was no theory of the evidence or of the prisoner’s statement at the trial which authorized his conviction of the offense of voluntary manslaughter, and the verdict finding him guilty of that offense should have been set aside on a motion for a new trial.</p>

<p>Accusation of sale of liquor; from city court of Cairo—Judge Singletary. February 25, 1913.'</p>

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

<p>Indictment for sale of liquor; from Glynn superior court— Judge Conyers. March 22, 1913.</p>

<p>Action for damages; from city court of Sandersville—Judge Jordan. January 29, 1912.</p>

<p>Money rule; from city court of Tifton—Judge R. Eve. December 7, 1912.</p>

<p>1. The demurrer to the petition was without merit.</p> <p>2. Where a note contains a condition that a failure to pay any installment of interest when due gives to the holder thereof the right, at his election, to declare the note due and payable, the acceptance of a payment on the principal of the note before the note is due does not, without an agreement to that effect, prevent the holder from subsequently exercising the option above stated.</p> <p>S. Where a note provides for the payment of ten per cent, on principal and interest as attorney’s fees, in the event the note is placed in the hands of an attorney for collection, on giving the statutory notice the plaintiff would have the right to recover this amount as attorney’s fees, although the note had not matured by lapse, of time, but had been declared due by the plaintiff, according to its terms, on failure to pay an installment of interest when due.</p> <p>4. When a plea in abatement is demurred to on both general and special grounds, and the trial court renders a judgment thereon in the following language: “This demurrer is sustained and the plea in abatement is stricken,” this judgment will be construed as applicable only to the questions raised by the general demurrer, and the questions raised by the special demurrer will be regarded as not adjudicated. The allegations of the plea in abatement, setting up that the plaintiff had made an agreement with defendants, in consideration of the payment by them of $500 on the note before the same was due, to waive the condition of the note giving the right at the election of the holder to declare the note matured upon a failure to pay any installment of interest when due, were sufficient to withstand a general demurrer.</p> <p>•5. A condition in .a promissory note that in the event that any of the “interest coupons, or any part thereof, remain unpaid for the space of thirty days after the same shall .have become due and payable, then the entire principal, with all arrearages of interest, shall immediately become due and collectible, at the option of the holder of this note,” and a condition in a deed given to secure the payment of the note, that “if any of said interest coupons should not be promptly paid .at its maturity, or should any tax or assessment accruing against said property become delinquent or liable to have execution issued therefor, then and in either of said events said principal note, together with all arrearages ni interest thereon, shall at once become due and collectible at the option of the holder thereof,” are not in conflict. But even if so, the condition ■of the note would prevail; and in the present case the principal note ’ was declared due and collectible under the condition above referred to • ¡as set out in the note.</p> <p>6. The allegations made by the answer were wholly irrelevant and immaterial, setting forth no defense whatever to the suit on the note; and therefore the answer was properly stricken on demurrer.</p> <p>7. The evidence demanded the verdict as directed; and the judgment entered thereon, both in form and substance, was in accordance with the pleading and the proof..</p>

<p>X. The allegations in tlie first count of the petition were insufficient to show a cause of action against the owner of the automobile for the negligent operation of the machine by her eodefendant, the driver. As to the owner the general demurrer to this count was properly sustained.</p> <p>2. Where a petition containing two counts is brought against two defendants, and a general demurrer to the first count is sustained as to one of the defendants and overruled as to. the other defendant; and the second count is held to be good as to both defendants, there results a misjoinder of causes of action and of parties, and, on refusal of the plaintiff to amend so as to meet this objection, it is proper to dismiss the petition. In view of the fact, however, that the second count of the petition in this case sets forth a cause of action against both defendants as joint tort-feasors, the judgment dismissing the petition is reversed in part, and direction given that the second count be reinstated and the plaintiff be allowed to submit evidence applicable to that count.</p>

<p>Appeal; from Floyd superior court—Judge Maddox. January 17, 1913.</p>

<p>Action for damages; from city court of Atlanta—Judge Reid. November 21, 1912.</p> <p>Crosby sued the Georgia Railway & Electric Company to recover damages for personal injuries alleged to have been received by him while he was driving a wagon along Dover street in the city of Atlanta. Ilis cause of action was based upon the presence in the street of a rotten pole, which fell down on him while he was legitimately using the street. The pole was the property of the Georgia Railway & Electric Company and was in a public street of the City of Atlanta.- It had been permitted to stand in the street a sufficient length of time to have'rotted and become dangerous to those who were using the street. The injury occurred on June 19, 1911, and the suit was filed on June 21, 1911, The City of Atlanta was not joined as a codefendant. It seems that at the time of the injury the plaintiff was an employee of the City of'Atlanta, tod, subsequently to the filing of the suit against the Georgia Railway & Electric Company, he settled with the City of Atlanta any claim for damages which he might have had against the city for this injury, giving to the city the following release: “In consideration of the sum of nineteen dollars and eighty cents, the receipt of which I hereby acknowledge, I, H. M. Crosby, do hereby release the City of Atlanta from all claims for damages past, present, and future, on account of the falling of an electric-light pole on me while driving one of the wagons of - the Chief of Construction Department. This accident occurred on Dover street in the City of Atlanta on June J.9, 1911. '[Signed] H. M. Crosby.” It is not shown that the Georgia Railway & Electric Company, or any one acting in its behalf, had anything to do with the procurement of the settlement with the City of Atlanta. When the case against the Georgia Railway & Electric Company was called for trial and the foregoing facts were disclosed, the point was made by the railway and electric company that the settlement with the City of Atlanta operated in law to defeat the right of the plaintiff to recover against it; and the trial judge so ruled, and directed a verdict against the plaintiff in so far as a right of action in himself was concerned. The plaintiff’s attorney, however, insisted that he had a right to prosecute the suit in order to recover a contingent fee of one half of whatever amount might have been recovered in the case against the railway 'and electric company. The trial judge allowed the case to proceed to verdict and judgment in behalf of the plaintiff for use of the plaintiff’s attorney. This direction was given the case over the objection of the defendant; and it is contended that the trial judge erred in allowing the case to proceed and the plaintiff’s attorney to recover for his fees. The question whether the judge ruled correctly in holding that the settlement made with the Git}' of Atlanta operated in law to defeat the right of the plaintiff to recover against the railway and electric company is not involved, since no exception was taken as to that ruling.</p>

<p>Action for damages; from city court of Swainsboro—Judge Daniel. November 25,1912.</p>

<p>Distraint; from city court of Houston county—Judge Biley. January 4, 1913.</p>

<p>Complaint; from city court of Ashburn—Judge Tipton. January 20, 1913.</p>

<p>Action for damages; from city court of Macon—Judge Hodges. January 16, 1913.</p>

<p>Levy and claim; from city court of Columbus—Judge Tigner. February 8, 1913.</p>

<p>Action for damages; from city court of Floyd county—Judge Reece. January 31, 1913.</p>

<p>Rule; from city court of Millen—-Judge Hill. January 25, 1913.</p>

<p>Action for damages; from city court of Savannah— Judge Davis Freeman. January 35, 1913.</p>

<p>1. A vendee of personal property executed an instrument-promising to pay the purchase-price, and reciting- that, in order to secure the same, “I hereby bargain, sell, and convey unto the payees of this note; their heirs and assigns, the following -property, which is expressly to be my individual property, free from any lien whatever; ” describing the property and further reciting that, in case of a failure to pay the indebtedness at maturity, the payees would have the right to take possession of the property and sell it at public outcry and apply the proceeds to the indebtedness. Held, that the instrument was a bill of sale, conveying title, and not a mortgage.</p> <p>2. Where personal property is sold, with the condition affixed to the sale that title is to remain in the vendor until the purchase-money is paid, the reservation of title must be in writing and recorded within thirty days from the date of its execution, in order to be valid against a third-person who, without actual notice of- the reservation of title, parts with money or other thing of value upon the faith of the vendee’s apparent unconditional ownership of the property, and in consideration therefor receives from the vendee a bill of sale to the property to secure the debt, and records it in the manner prescribed by law. One who, in consideration of the execution of such á bill of sale, surrenders to the vendee a valid mortgage on other property, and cancels the debt evidenced thereby, is a third person, within the meaning of section 3318 of the Civil Code.</p>

<p>Complaint; from city court of Monroe—Judge Stone. January 12, 1913.</p>

<p>Under the testimony of the plaintiff, he was not guilty of any criminal offense, and his arrest without a warrant justified an award of damages against the officer who made the arrest and the persons who procured him to do so. There was no error in the extract from the judge’s charge of which complaint is made; and the instruction requested which the court refused to give was fully covered by the charge given.</p>

<p>The indebtedness set up in the plea constituted a valid set-off against the claim of the plaintiff, and the evidence of the defendants established prima facie the truth of the plea; and the direction of a verdict for the plaintiff was erroneous.</p>

<p>In the trial of a case on appeal in a justice’s court it was error for the magistrate to inform the jury that he desired to take the train in thirty minutes; that he wanted a verdict made, one way or the other, within that time, in order to permit him to take the train; and that he wanted to get rid of the case some way in that time. While the amount involved was small, the evidence was sharply conflicting and somewhat voluminous, and the conduct of the justice tended unduly to hasten the consideration of the case.</p>

<p>1. The amendment to the defendant’s .answer set forth a good defense to the action and was not subject to .any of the demurrers filed thereto.</p> <p>•2. An affidavit attached to an amendment to an answer, in which the affiant avers that he did not discover the new facts set forth in the amendment until after the original answer was filed, and that if he had known of such facts at that time he would have pleaded them, is a substantial compliance with the provisions of section 5640 of the Civil Code.</p> <p>3. In a suit upon a promissory note, purporting to have been signed by the defendant, who was a married woman, the burden is upon her to establish the truth of special pleas that the note was given in settlement of a debt of her husband, and that the consideration of the note had wholly failed. Where the evidence is conflicting upon the issues thus raised, it is prejudicial error to charge that, if the. evidence in the case is equally balanced, the jury should find for the defendant..</p>

<p>Appeal; from Jasper superior court—Judge J. B. Park. February 18, 1913.</p>

<p>The evidence demanded the verdict in favor of the plaintiffs, and the court did not err in overruling the motion for a new trial. .</p>

<p>Complaint; from city court of Savannah—Judge Davis Freeman. January 27, 1913.</p>

<p>Complaiut; from city court of Swainsboro—Judge H. E. Daniel. February 15, 1913.-</p>

<p>The keeper of a livery-stable is not liable for the loss of goods deposited with him for hire which have been destroyed by an accidental fire, where it appears that he has exercised extraordinary diligence for their preservation.</p>

<p>No material error of law was committed, and tlie judgment is affirmed on condition.</p>

<p>There was no error in overruling the certiorari.</p>

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

<p>Indictment for larceny; from Crisp superior court—Judge George. April 4, 1913.</p>

<p>1. “On the trial of an accusation of selling intoxicating liquors, where the defense relied upon is that the accused had no interest whatever in the sale, but acted therein simply as agent for the purchaser, the burden is on the accused to prove how, when, and from whom he obtained the liquor; and until this is done to the satisfaction of the jury the burden is not carried.”</p> <p>2. Where such a defense is relied on, the jury are authorized to convict-if the evidence warrants the inference that the defense is a mere subterfuge, and that the accused was himself the seller, or interested in the sale otherwise than as agent for the purchaser.</p>

<p>Indictment for assault with intent to murder; from Columbia superior court—Judge H. C. Hammond. March 29, 1913.</p> <p>cited: McDaniel y. State, 53 Ga. 253; Shannon v. State, 57 Ga. 482; Ballew y. State, 99 Ga. 195; Cummings Y. State, 110 Ga. 293; Laws v. State, 114 Ga. 10; Patton v. State, 117 Ga. 235; Lindsey Y. State, 9 Ga. App. 299 (3); King v. State, 86 Ga. 355; Penal Code (1910), § 1010.</p> <p>cited Gregory Y. State, 80 Ga. 269.</p>

<p>Indictment for assault with intent to murder; from Columbia superior court—Judge H. C. Hammond. March 29, 1913.</p> <p>From the evidence it appears that Lewis Young, a negro, upon whom it was alleged that the assault was committed, was on a road at night, with other negroes, returning from a wedding, when a man ahead of them, who had been lying down at a railroad which crossed this road, and who, on account of the darkness, was not recognized, shot him with' a load of bird-shot, and fled. A shoe was found the next morning at the place of the shooting, and from that place a pair of tracks—one of them a shoe track and the other a barefoot track—were traced for some distance to a point where the mate of the first-mentioned shoe was found. The footprints continued from that point-until the traces were lost. It was testified, that these shoes were the shoes of Tom Hawthorne, the ’accused, and had been often seen on his feet, and that they could be identified by the strings. One of the witnesses stated that he had never seen another negro with strings like these in his shoes. A brother of Tom Hawthorne was at that time in jail on the charge of shooting Lewis Young, and Tom Hawthorne had called to see Lewis Young a short time before the second shooting and tried to induce him to agree to a compromise of the case, but his efforts did .not succeed. It was testified that he then “seemed angry and made threats;” “he was threatening very much about his brother being in jail,” but “did not say anything about doing anybody any harm.” After the second shooting he said that the man who did the shooting was outside of the jail, that his brother was in jail and could not have done it. Lewis Young testified that he had never had any trouble with Tom Hawthorne. .</p>

<p>Garnishment; from Cobb superior court—Judge Morris. December 14, 1912.</p> <p>The question certified to the Supreme Court was as follows:</p> <p>“If one desiring to purchase a stock of merchandise in-bulk demands and receives from the vendor a written statement under oath, purporting to contain the names and addresses of all the creditors of the vendor, together with the amount of the vendor’s indebtedness to each of them, and within the time required by the statute due notice of the .proposed sale, 'the price to be paid, and the terms and conditions thereof, is given by the purchaser to each of the creditors whose names appear on the list so furnished, and thereafter the purchaser in good faith pays over to the vendor the purchase-price agreed on, without notice or reason to suspect that the vendor has omitted from the sworn list the name of any of his creditors, is.the sale void, either in whole or in part, by reason of the fact that the seller omitted the name of one of his creditors, and the purchaser failed to give that creditor «notice of the Sale, when it appears that such creditor did not in fact have any notice of the sale, and it also appears that the seller is insolvent?”</p> <p>The Supreme Court answered the question in the negative.</p>

<p>1. The breaking and entering a cottonseed warehouse where valuable goods are stored, with intent to commit a felony'or larceny, is not burglary, unless it is shown that at the time it was entered the warehouse was being used as a place of business.</p> <p>2. The court properly withdrew from the consideration of the jury that count in the indictment which charged burglary. The evidence de- • manded a conviction of larceny from the house; and if there were any errors in the charge of the court, they were immaterial.</p>

<p>Indictment for larceny; from Tattnall superior court—Judge Sheppard. March 10, 1913.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 28, 1913.</p>

<p>Complaint; from city court of Savannah—Judge Davis Freeman. January 37, 1913.</p>

<p>1. A tort may consist in the violation of a public duty imposed by the general law upon all persons occupying the particular relation involved in the given transaction or res gestae. ' If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded upon a contract. In such a case the liability arises out of the breach of duty incident to and created by the contract, but is only dependent upon the contract to the extent necessary to raise the duty. The tort consists in the breach of duty.</p> <p>2. The petition sets forth an action ex delicto, and therefore the plaintiffs were not restricted to the recovery of such damages only as were reasonably within the contemplation of the parties, but were entitled to recover for such damage as might be directly traceable to the defendant’s neglect or failure to use due care in delivering the shipment which it had accepted for transportation.</p> <p>3. Where, in a suit for damages on account of the failure of a common carrier to deliver a shipment within a reasonable time, it appeared from the petition that the plaintiffs were contractors constructing a building under a time limit, and that the material constituting the delayed shipment was of an unusual kind, especially designed for the building then under construction, items of damages set forth in the petition, consisting of wages paid to a workman who was idle while waiting for the shipment, the expense, of tracing the shipment, the forfeit which the contractors were compelled to pay by reason of the delay, and interest upon money which they were for the same reason compelled-to borrow, were not subject to demurrer as being too remote for recovery.</p> <p>4. The court properly sustained the demurrer to those items of damages set forth as “lost time” of the two partners composing the plaintiff firm, upon the ground that such damages were too remote, it not appearing how or why it was necessary for the plaintiffs to lose the time, or (except as a conclusion of the pleader) that they did not or could not at that .time have obtained any other contracts of employment of the value alleged; especially since the petition alleges that the plaintiffs were contractors, and, in the absence of distinct allegations showing a certainty of profits, it would be entirely speculative as to whether the contractors would have made or lost money upon the contract, even if they had had the opportunity of making another contract within the time alleged to have been lost.</p>

<p>1. The court did not err in overruling the demurrers to the defendant’s answer after the answer had been amended.</p> <p>2. Either party to a cause may, by proper amendment, conform his pleadings to the evidence which has been introduced, and after such amendment the court may properly refuse to rule out testimony, though it would originally have been irrelevant or incompetent. Under the amendment allowed by the court in this case, without objection, the oral evidence touching the written contract originally alleged in the petition was relevant and competent,. and the court did not err in overruling the motion to exclude this testimony.</p> <p>3. One who assumes the burden of proof is only required to carry the burden of evidence until his contention has been prima facie established. The position of the “burden of proof” is determined by the pleadings, and as to this the burden of proof is unchanging; once imposed it remains. But the burden of testimony may be shifted and alternate between the parties according to the contingencies and crises of the trial.</p> <p>4. A trial judge, in declaring that'the party having the burden of evidence with regard to a particular fact has so discharged it that the burden of evidence has been shifted to his opponent, may properly consider the question as to which party has within his possession or control the more precise and conclusive knowledge as to the particular fact or facts in issue. Generally, facts that are peculiarly within the knowledge of a party must be proved by him, and a judge may more promptly discharge a litigant from his burden of evidence either when knowledge as to the proposition is peculiarly within the power of his opponent, or where the proposition is a negative one. Where the means of proving a negative are not within the power of one of the parties, but all the proof on the subject is within the control of the other, who, if the negative is not true, can disprove it at once, the truth of the negative averment can be presumed from the fact that the party who has within his power proof (if sneh exists) that the negative is not true still withholds or does not produce such proof. In other words, in such a case, the burden of proof is thrown upon the party having the power to produce such proof, to prove the affirmative against the negative averment.</p> <p>5. It is not error to allow an amendment to the pleadings, after the close of the evidence and the argument of counsel, if the amendment is supported by evidence and is not otherwise objectionable for such reason as the introduction of new parties or a new cause of action, or the like.</p> <p>6. A motion for continuance based upon the ground of surprise is defective unless the court is advised in the showing for continuance wherein and in what respect the movant is not prepared to proceed with the trial, and how or why he will be better prepared to meet the issue in the event the court should continue the case Upon his motion.</p>

Action for damages; from city court of Bichmond county—Judge Eve. January 14, 1913. The Augusta Bailway & Electric Company, plaintiff in error, is a Georgia corporation, engaged in the manufacture of electricity, which it supplies for hire to the inhabitants and manufacturing plants of Augusta in the State of Georgia, and North Augusta in South Carolina.

<p>Action on insurance policy; from city court of Eastman—Judge Neese. January 28, 1913.</p>

<p>Levy and claim: from city court of Savannah—Judge Davis Freeman.</p>