majority">Beck, J.

(After stating the facts.)

1, 2. The charge of the court excepted to in the second ground of the amended motion was an application of the plain terms of the *416act of the legislature approved December 17, 1901 (Acts 1901, p.. G3), to the facts of this case. In the first section of that act it is provided that “when the relation of employer and employee, or of landlord and tenant of agricultural lands, or of landowner and. cropper, has been created by written contract duly executed before an officer authorized to administer oaths, it shall be unlawful for any person during the life of said contract, made and' entered into-in the manner above prescribed, to employ or to rent lands to, or-to .furnish lands to be cropped by said employee, tenant or cropper, or to disturb in any way said relation, without first obtaining the written consent of said employer, landlord, or landowner, as the case may be.” There was sufficient evidence to authorize the jury to find that at the time the defendant employed Riley Simmons, there existed between the latter and the plaintiff the relation of' employer and employee, which had been created by a written contract duly executed before an officer authorized to administer oaths, and that consequently the defendant was liable in damages to the plaintiff, according to- the provisions of said act; there being no evidence to establish either of the defenses specially provided therein, and the only other valid defense attempted to be set up having been duly submitted to the jury in that portion of the-charge set forth in the second ground of the amended motion. The-same statute prescribes that the damages recovered shall not be-less than double the amount of the wages or salary for the period, of said contract, and that was the measure rightly stated by the court, in his instructions to the jury.

3. The court below did not err in overruling that ground of the motion for a new trial based upon the alleged newly discovered evidence. It does not appear from the record that both of the attorneys for the defendant were ignorant of the facts stated in the affidavit which contains the alleged newly discovered evidence; and besides, the court might well have concluded that due diligence-' would have enabled the defendant to discover this evidence as well before as after the trial. And moreover, “this court will not control the discretion of the court below in refusing a new trial on the ground of newly discovered testimony, unless it be such testimony as would very probably, if not certainly, change the verdict.” Mallory v. State, 56 Ga. 545.

'4. The plaintiff in error, with another, was sued as a joint tort-*417feasor; their liability was joint and several, and the direction of a verdict in favor of his codefendant afforded no reason (the evidence authorizing it) why there should not have b'een a verdict against. him (plaintiff in error). Austin v. Appling, 88 Ga. 55(5).

The question as to whether the act upon which the plaintiff relies, to render the defendant liable for the damages claimed in this ease, is constitutional or not, was not raised in the court below, and the point can not be made in this court for the first time by any suggestion in the brief of counsel for plaintiff in error.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.

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