Volume 13 — Georgia Appellate Reports

<p>1. The affixing of the name of an attesting witness to a mortgage on personalty after delivery and without the consent of thé mortgagor is not such a material alteration as will! invalidate the mortgage.</p> <p>2. The description of property in a mortgage as “all my shop tools and fixtures . . in my possession” is not void for indefiniteness, and may be aided by parol evidence.</p>

<p>Certiorari; from Hall superior court — -Judge J. B. Jones. August 1, 1913.</p>

<p>Complaint; from city court of Floyd county — -Judge Keece. August 1, 1912.</p>

<p>1. An indictment charging a violation of the “labor-contract act” of 1903 (Penal Code, § 715) is demurrable where it alleges that the wages contracted to be paid to the defendant were to be half of the crop made by him as a cropper, but fails to allege the kind or extent of the crop to be planted and fails to locate and identify the particular parcel of land which he was to cultivate. In an indictment charging this offense a distinct and definite contract of service must be alleged, and the allegations must be sufficiently full to enable the accused to defend against the charge. Glenn v. State, 123 Ga. 587 (51 S. E. 605) ; Wilson v. State, 124 Ga. 22 (52 S. E. 81); Sanders v. State, 7 Ga. App. 46 (65 S. E. 1071); McOoy v. State, 124 Ga. 221 (52 S. E. 434); Taylor v. State, 124 Ga. 798 (53 ¡3. E. 320).</p> <p>2. It is essential to a conviction of the offense of cheating and swindling under the “labor-contract act,” supra, that it be made to appear that the failure of the accused to carry out his contract was without good and sufficient cause; and the State, in the present case, failed to carry that burden. So far as appears, the accused may have had good and sufficient cause for not performing the contract; and the mere failure to perform does not raise the presumption that he failed to comply with his contract without good and sufficient cause.</p>

<p>Appeal; from Franklin superior court — Judge Meadow. December 21, 1912.</p>

<p>Certiorari; from McIntosh superior court — Judge Sheppard. January 25, 1913.</p>

<p>All the questions raised in this case are controlled adversely to the plaintiff in error by the decisions of this court in Arnold v. Empire Insurance . Co., 3 6a. App. 685 (60 S. E. 470), and Williams v. Empire Insurance Co., 8 Qa, App. -303 (68 S. E. 1082), which, upon review thereof, are adhered to.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. March 7, 1913.</p>

<p>Complaint; from Colquitt superior court — Judge Thomas. March 8, 1913.</p>

<p>Complaint; from city court of Sandersville — Judge Jordan. January 31, 1913.</p>

<p>Certiorari; from- Catoosa superior court — Judge Fite. February 8, 1913.</p>

<p>The decision of this court in this case at a previous term is controlling upon all the questions now involved, and the court did not err in rendering judgment against the defendant.</p>

<p>Action on insurance policy; from city court of Leesburg — Judge Long. March 7, 1913.</p>

<p>Complaint; from city court of Polk county — Judge Irwin. March 14, 1913.</p>

<p>Indictment for murder — conviction of manslaughter; from Jenkins superior court — Judge Rawlings. April 12, 1913.</p>

<p>Indictment for forgery; from Glynn superior court — Judge Conyers. March 15, 1913.</p>

<p>Indictment for sale of liquor; from Johnson superior court-judge Hawkins. March 18, 1913.</p>

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

<p>Indictment for hog-stealing; from Miller superior court — Judge Worrill. June 6, 1912.</p>

<p>Action on contract; from city court of Ocilla — Judge Oxford. May 14, 1912.</p>

<p>Complaint; from city court of Zebulon — Judge Dupree. December 20, 1912.</p>

<p>Complaint; from city court of Athens — Judge West. August 1, 1912.</p>

<p>1. Where a contract for the improvement of real estate is made with one " who has executed a conveyance of the land to another as security for a debt, and the holder of the security deed agrees to the contract, the latter is a proper party to the foreclosure of a lien of the contractor for the improvements, and the lien binds his interest in the property.</p> <p>2. While a city court in this State has no jurisdiction to decree affirmative' equitable relief, and no jurisdiction of suits involving title to land, it has jurisdiction t6 render a judgment foreclosing a materialman’s lien on real estate.</p>

<p>Complaint; from city court of Thomasville — Judge Hammond. December 18, 1912.</p>

<p>1. Where an appeal from a justice’s court has been duly entered therein, the costs paid, and the appeal bond approved, the appeal is not rendered invalid because the attorney for the appellant, on request of the justice,, transmits and delivers to the clerk of the superior court the papers in the appeal case. The case of Bower v. Patterson, 116 Ga. 814 (43 S. E. 25), distinguished.</p> <p>2. After an appeal case from a justice’s court has been tried and judgment rendered in the superior court, it is too late to move to set the judgment aside because of irregularity in the transmission of the appeal papers from the justice’s court to the clerk of the superior court. The proper practice is to move before trial that the appeal be dismissed for this reason.</p> <p>3. The employment of counsel in a litigation extends to the whole of it. from the time of employment to the end of the litigation, unless expressly limited by the client; and the attorney is expected to represent the client throughout its progress, unless otherwise instructed by him.</p>

<p>Action for damages; from city court of Houston county — Judge Eiley. February 17, 1913.</p>

<p>Ordinarily, after a note for purchase-money has been renewed by the purchaser, with knowledge of defects in the property purchased, he can not be heard to complain of the defects as a defense. Where, however, there is a guaranty or promise by the seller to remedy or repair the defects in consideration of the giving of the renewal note, this rule of law is not applicable; and failure to make good the guaranty or promise, resulting in injury to the maker of the renewal note, would constitute a good defense, either of total or partial failure of consideration, according to the facts.</p>

<p>1. Where a bill of exceptions contains a valid exception to a final judgment, all proper and timely exceptions to interlocutory rulings will be considered, without reference to whether the exception to the final judgment is meritorious.</p> <p>2. Where an answer makes no reference to certain paragraphs in the petition, containing material averments, an amendment expressly denying these paragraphs is a sufficient joinder of issue thereon, although there is in the amendment no withdrawal of the admissions implied from the failure to answer them.</p> <p>3. An answer averring merely that the defendant can neither admit nor deny a specified paragraph, without adding that he is without sufficient information upon which to base either an admission or denial, must be treated as an admission.</p> <p>4. An allegation in a petition in reference to a matter peculiarly within the knowledge of the defendant must be expressly denied, or else it will be taken as having been admitted.</p> <p>5. As the answer, properly construed, admitted that the plaintiff was a building and loan association and was authorized as such to do business in this State, and as it appeared from the answer that the notes sued on did not exceed the aggregate of the principal sum and 8 per cent, interest thereon for the full period of the loan, divided into monthly instalments as represented by the notes sued on, the transaction was not usurious; and the court did not err in striking the defendant’s answer and directing a verdict for the plaintiff, for the full amount sued for.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. March 11, 1913.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. March 26, 1913.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. March 15, 1913.</p>

<p>The evidence demanded a finding in favor of the plea of suretyship filed by the defendant, who was a feme covert, and the court erred in overruling her motion for a new trial.</p>

<p>Action for damages; from Colquitt superior court — Judge Thomas. April 10, 1913.</p>

<p>Indictment for sale of liquor; from Worth superior court — Judge Frank Park. April 1, 1913.</p>

<p>Indictment for simple larceny; from Miller superior court— Judge Worrill. November 30, 1913.</p>

<p>Indictment for sale of liquor; from Worth superior court— Judge Frank Park. April 3, 1913.</p>

<p>1. In a prosecution for drunkenness on a public street or highway of a municipality, the evidence must show that the street or highway legally became such, by legislative enactment, or by municipal ordinance authorized by the charter of the city or town, or by dedication or prescription. But the fact that the court permitted a witness, who had already stated facts showing the establishment of the highway in question by prescription, and another witness, who proved that another highway was a public street by dedication and subsequent use, to refer to these streets as “public streets” is not error requiring the grant of a new trial.</p> <p>•2. It appearing that in an indictment charging a violation of section 442 of the Penal Code it was alleged that the defendant manifested the alleged drunkenness in all the ways referred to in the statute, it was not error for the court to charge the jury (after having read to them the code section) that if they believed “that the defendant was drunk ' at the place alleged in this hill of indictment, and that his conduct was such as violates this statute I have just read to you,” it was their duty to convict. This instruction was not error because, as alleged, it tended to confuse the jury, or for any other reason.</p> <p>3. To vomit on one’s person and clothing, although the act be done in- ■ voluntarily and in a drunken stupor, and is not accompanied by any other act or by any language, places one in such an “indecent condition,” as related to a public highway, as will authorize a jury, upon proof of the drunkenness of the accused, to convict him of a violation of section 442 of the Penal Code.</p> <p>4. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Indictment for misdemeanor; from Whitfield superior court— Judge Éite. April 18, 1913.</p>

<p>Accusation of cheating and swindling; from city court of Jackson — Judge Fletcher. May 3, 1913.</p>

<p>Certiorari; from Carroll superior court — Judge R. W. Freeman. April 23, 1913.</p>

<p>Accusation of adultery; from city court of Hall county — Judge Johns presiding. May 23, 1913.</p>

<p>Certiorari; from Carroll superior court — Judge R. W. Freeman. April 23, 1913.</p>

<p>Accusation of abandonment of child; from city court of Elberton —Judge Grogan. May 26, 1913.</p>

<p>Indictment for misdemeanor; from Tattnall superior court-judge Sheppard. April 20, 1913.</p>

<p>Accusation of gaming; from city court of Sandersville — Judge Jordan. May 3, 1913.</p>

<p>Conviction of manslaughter; from Richmond superior court— Judge H. C. Hammond. May 17, 1913.</p>

<p>Action for damages; from- city court of Atlanta — Judge Beid. January 25, 1913.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. August 30,1912.</p>

<p>Certiorari; from Eulton superior court — Judge Bell. March 37, 1913.</p>

<p>Action for damages; from city court of Tifton — Judge E. Eve. September 11, 1912.</p>

<p>Distraint; from city court of Jefferson — Judge. Johns. February 1, 1913.</p>

<p>Actiou for damages; from city court of Fitzgerald — Judge Wall. December 30, 1912.</p>

<p>Action for damages; from city court of Thomasville — Judge W. H. Hammond. March 18, 1913.</p>

<p>Complaint; from city court of Elberton — Judge Grogan. March 31, 1913.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin. March 18, 1913.</p>

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

<p>Action on contract; from city court of Ocilla — Judge Oxford. August 26, 1912.</p>

<p>Certiorari; from Cherokee superior court — Judge Morris. September 20, 1912.</p>

<p>Motion to set aside judgment; from city court of Springfield— Judge Smith. August 6, 1918.</p>

<p>Complaint; from city court of Swainsboro — Judge H. E. Daniel. September 20, 1912.</p>

<p>1. There was no error in the charge of the court; and though there was sharp conflict in the evidence, the verdict was authorized.</p> <p>2. The fact that the court did not specially refer to circumstances corroborative of the contentions of one of the parties affords no ground for an assignment of error complaining that this omission withdrew the consideration of these circumstances from the jury. The judge fairly stated the controlling issue in the case and correctly instructed the jury with reference to it. If more explicit instructions were desired, they should have been requested.</p>

<p>Trover; from city court of Miller county — Judge Bush. December 18, 1912.</p>

<p>Action for damages; from city court of Abbeville — Judge Nicholson. September 16, 1912.</p>

<p>Indictment for misdemeanor; from Glynn, superior court — Judge Conyers. February 8, 1913.</p>

<p>Action for damages; from city court of Richmond county — Judge W. F. Eve. March 4, 1913.</p> <p>cited: Hopkins on Personal Injuries, §§ 137, 41, 85, 92, 100; L. & N. R. Co. v. Plunkett, 6 Ga. App. 684; Dobbs v. Rome Ry. Co., 8 Ga. App. 350; Electric Ry. Co. v. O’Connor, 99 Ga. 64; Coleman v. Wrightsville & Tennille R. Co., 114 Ga. 386; Central Ry. Co. v. North, 129 Ga. 110; People v. Squire, 107 N. Y. 593 (1 Am. St. R. 893); Birmingham Ry. Co. v. Hays, 44 So. 1032; Birmingham Ry. Co. v. Jones, 45 So. 177; Scott v. San Bernardino Traction Co., 93 Pac. 677; Pickett v. Wilmington & W. R. Co., 117 N. C. 616 (23 S. E. 264, 53 Am. St. R. 611); Smith v. Salisbury & S. Ry. Co., 77 S. E. 966; Am. Dig. 1908 A, § 117.</p> <p>cited: 2 Hopk. Pers. Inj. 521; Ga. Pac. Ry. Co. v. Richardson, 80 Ga. 727; Hill v. L. & N. R. Co., 124 Ga. 243 (2), 247; Jarrett V. A. & W. P. R. Co., 83 Ga. 348 (2); Freeman v. Savannah Electric Co., 130 Ga. 451; Roach v. Atlanta &c. Ry. Co., 119 Ga. 99; McIver v. G. S. & F. R. Co., 108 Ga. 306; Atlanta Ry. & Power Co. v. Owens, 119 Ga. 836; Harris v. Sou. Ry. Co., 129 Ga. 388, 391-2; Thomas v. Cen. Ry. Co., 121 Ga. 38; Cen. R. Co. v. Smith, 78 Ga. 694, 698-9; Lloyd v. City & Suburban Ry. Co., 110 Ga. 165, 167; W. & A. R. Co. v. Ferguson, 113 Ga. 708, 711-13; Bartlett v. Worcester Consol. St. R. Co., 189 Mass. 360 (75 N. E. 706); Macon Ry. Co. v. Barnes, 121 Ga. 445; Cain v. Macon R. Co., 97 Ga. 298.</p>

Indictment for gaming; from Enlton superior court — Judge Thomas. March 7, 1913. The plaintiff in error was indicted for gaming. On arraignment he filed a plea of not guilty. After the evidence for the State had been introduced, his attorney, asked permission from the court to withdraw the plea of not guilty and to enter a plea of guilty.

<p>Motion to set aside verdict; from city court of Dublin — Judge Hicks. March 14, 1913.</p>

<p>Certiorari; from Polk superior court — Judge Price Edwards-November 11, 1912.</p>

<p>The verdict is without evidence to support it, and therefore is unauthorized by law.</p>

<p>Indictment for sale of liquor; from Laurens superior court— Judge Frank Park presiding. May 21, 1913.</p>

<p>Conviction of assault with intent to rape; from Grady superior court — Judge Prank Park. May 19, 1913.</p> <p>The leading questions referred to in the decision were a series of questions asked of a girl in her thirteenth year by counsel for the prosecution, on direct examination as to the details of the assault in question, alleged to have been committed upon her. A former ruling as to leading questions to this witness in the same case appears in 11 Ga. App. 413 (7).</p>

<p>1. Where a new trial is sought in a criminal case on the ground that one of the jurors who rendered the verdict had, after hearing the evidence adduced on a former trial, expressed an opinion that the accused was guilty, the trial judge, as to this matter, occupies the position of a trior, and the reviewing court will not reverse a finding that the juror was impartial, if there is any evidence to support the conclusion thus reached.</p> <p>2. The evidence was circumstantial, but was sufficient to authorize the verdict.</p>

<p>Indictment for sale of liquor; from Laurens superior court— Judge Frank Park presiding. May 21, 1913.</p>

<p>1. A statement in a bill of exceptions that specified exceptions pendente lite were duly certified by the court, and duly filed and entered on the minutes of the court, must be accepted as true, and can not be impeached by the reviewing court, although the exceptions pendente lite are not in the record and although the clerk of the lower court, in answer to an order requiring him to certify and send up the exceptions pendente lite, certifies that no such exceptions pendente lite are of file or entered on the minutes, that if any such were filed they have not been recorded and are not now of file, and that he has no recollection that any were filed and no record of any having been filed.</p> <p>2. Rulings upon the sufficiency of the pleadings are not proper subject-matter for a motion for a new trial.</p> <p>3. While the judge of the city court of Eitzgerald is authorized, in his discretion, to hold special terms of that court, and has the same power that judges of the superior courts have in that respect, still the power of the judge of the city court of Eitzgerald to keep a term of his court open, by adjournment from one day until another, does not extend beyond the next regular term, since otherwise two terms of the same court could be held at the same time. Consequently the court erred in sustaining a demurrer to a plea to the jurisdiction, setting up that the court was being held at an unauthorized time, — that it had no authority to adjourn the term to a day in July, subsequent to the time for holding the regular June term, and that because of the lack of such authority the May term expired prior to the fourth Monday in June.</p> <p>4. Since the plea to the jurisdiction and the objection to the jurors should have been sustained, the subsequent verdict and judgment were void.</p>

<p>Appeal; from Greene superior court — Judge J. B. Park. October 8, 1912.</p>

<p>Complaint; from city court of MeBae — Judge Escbol Graham. September 26, 1912.</p>

<p>Complaint; from city court of Statesboro — Judge Strange. January 9, 1913.</p>

<p>Money-rule; from city court of Oglethorpe — Judge Greer. January 31, 1913.</p>

<p>Appeal; from Eulton superior court — Judge Ellis. January 29, 1913.</p>

Indictment for assault with intent to murder; from Muscogee superior court — Judge Gilbert. May 6, 1913.

<p>Certiorari; from Houston superior court — Judge Mathews. April 18, 1913.</p>

<p>Conviction of shooting at another; from Early superior court— Judge Worrill. May 13, 1913.</p>

<p>Conviction of shooting at another; from Eloyd superior court— Judge Price Edwards. May 30, 1913.</p>

<p>Indictment for robbery; from Eulton superior court — Judge Roan. May 24, 1913.</p>

<p>1. An express warranty excludes an implied warranty on the same or a closely related subject, but not an implied warranty on an entirely different subject. Consequently, in this case, the express warranty being confined to the age and soundness of a mule for which the note sued on was given, and there being a plea that the mule was purchased for a plow mule and was worthless as such, and the plea being supported by evidence to the effect that the mule would not plow, it was not error for the trial judge to charge the jury that the defendants had the right to rely upon either an express warranty or an implied warranty.</p> <p>2. The fact that the maker of the note offered to return the mule and to pay $30 for the hire thereof, this offer being declined by the seller, did not require a finding in favor of the plaintiff for $30 or any other sum. So far as appears from the record, the proposal was an offer of compromise, and could properly have been excluded from the testimony.</p> <p>3. The evidence authorized the verdict.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. November 16, 1912.</p>

<p>Action for damages; from city court of Carrollton — Judge Beall. November 35, 1913.</p>

<p>Indictment for misdemeanor; from Worth superior court — Judge Frank Park. April 2, 1913.</p>

<p>Complaint; from city court of Reidsville — Judge Collins. March 17, 1913.</p>

<p>Indictment for murder — conviction of manslaughter; from Johnson superior court — Judge Hawkins. June 2, 1913.</p>

<p>Accusation of sale of liquor; from city court of Griffin — Judge Flynt. June 14, 1913.</p>

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

<p>Complaint; from city court of Jackson — Judge Fletcher. August 19, 1912.</p>

<p>Appeal; from Wayne superior court — Judge Conyers. November 30, 1913.</p>

Indictment for assault with intent to rape; from Haralson superior court — Judge Price Edwards. April 5, 1913. Morrow was indicted for rape and was convicted of assault with intent to commit rape. He made a motion for a new trial, based upon the general grounds and upon numerous special grounds, the overruling of which is assigned as error. The evidence, substantially stated, is as follows: The accused was 63 years of age.

<p>“Courts should liberally construe the constitutional provision against compelling the accused to be a witness against himself, and refuse to permit . any first or doubtful steps which may invade his rights in this respect.”</p> <p>(a) Where a person was arrested without a warrant, on suspicion of keeping on hand intoxicating liquors in his place of business, and the police officers, while holding him in illegal custody, violently seized his person and, against his utmost resistance, took from his pocket the keys to his iron safe, and with the keys unlocked the safe, and found therein intoxicating liquors, testimony on his trial for the offense of keeping intoxicating liquors on hand at his place of business, as to the finding of the liquors in his safe, should have been excluded, because the evidence wag -wrongfully obtained by the officers, in criminal violation of the law, by an unlawful search and seizure, following .an unlawful arrest, and the accused was thus compelled to give evidence tending to criminate himself, in violation of the constitution.</p>

<p>The provisions of section 1794 of the Civil Code do not extend to the tagging of commercial fertilizers. Under the terms of this section a sale of commercial fertilizer which has not been analyzed' as evidenced by its registration is illegal, and any contract made in pursuance of such a sale is void, but a sale of fertilizer without the tags which are required to be purchased in order that the State may secure its revenue therefrom is not necessarily illegal; nor is a note given for fertilizer void for the sole reason that the tags were not attached to the sacks.</p>

<p>Action for damages; from city court of Baxley — Judge Sellers, August 24, 1912.</p>

Action for damages; from city court of Bichmond county — Judge Eve. November 8, 1912. Mrs. Newnham brought suit against J. L. O’Dowd for damages for the homicide of her husband, who was struck down and killed by the defendant’s automobile. The jury returned a verdict against the defendant for $10,000, and, his motion for a new trial having been overruled, he excepted.

Complaint; from city court of Reidsville — Judge Collins. August 6, 1912. The Savannah Trust Company sued Edwards on a promissory note payable to T. S. Heyward & Company and indorsed by the payees. The defendant pleaded payment of the note in full to T. S. Heyward & Company. On the trial the court, at the conclusion of the evidence, directed a verdict for the plaintiff. The defendant excepted.

<p>1. Since the trial judge erred in overruling the demurrer to the petition, the further proceedings on the trial were nugatory.</p> <p>2. The contract upon which the plaintiff based his right of action is plainly unilateral; for under it he did not assume an obligation to sell the stock which he contended the defendant had bound himself to buy.</p>

<p>1. That a book is kept in ledger form is not a valid objection to its admission as a “book of original entries,” under section 5769 of the Civil Code.</p> <p>2. Even if the book offered in evidence in this case was not a book of original entries, it was properly admitted in corroboration of an admission by tbe defendant that he was indebted to the plaintiffs in an amount approximately the same as that claimed by them. Whether the plaintiffs’ witnesses who testified to the correctness of the entries be considered'as clerks or as partners, their testimony as to the correctness of the books was admissible.</p> <p>3. As a general rule, the testimony of persons who have knowledge of the facts from which the books are made up is, as to those facts primary evidence, and the books themselves are admissible only by way of corroboration. The provisions of the code are designed to admit books of original entries as direct and primary evidence in cases such as those where perhaps the fact of the delivery of specific articles included in an account, or the performance of particular services, can not otherwise be definitely proved, and in similar eases.</p> <p>4. The trial judge did not err in overruling the exceptions of law and of fact to the report of the auditor, and in rendering judgment for the plaintiffs.</p>

<p>1. The jury would have been authorized to acquit the accused if it had believed his witnesses and his statement; but since the evidence in behalf of the prosecution authorized the jury to return a verdict of guilty, and there is no complaint that any error of law was committed on the trial, this court is without jurisdiction to set aside the finding of the jury.</p> <p>2. To authorize conviction in a prosecution for the offense of keeping a lewd house, it is not enough to prove the general reputation of the house, or of its inmates, or both; for the gist of the offense is that the house was kept “for the practice of fornication or adultery;” and the jury must be satisfied that acts of lewdness were practiced in the house, and that it was maintained for the purpose of prostitution. Reputation for lewdness, however, may be á circumstance tending to show the character of the house, and may be considered by the jury in corroboration of such facts and circumstances as may reasonably satisfy . them of the essential fact that fornication or adultery was actually committed therein.</p>

<p>1. The assignments of error raising the point that the court should- not have proceeded with the trial, for the reason that the attorney for the defendant had leave of absence, not being fully verified by the trial judge, will not be considered by this court.</p> <p>2. The absence of a defendant or of .his sole counsel does not authorize the striking of a plea setting up a valid defense to the action. In such a case, though the court may proceed with the trial if no sufficient reason for a continuance appears, the plaintiff is not relieved from establishing the affirmative of the issue formed by the filing of a proper plea. The timely filing of a proper and sufficient plea puts the plaintiff upon proof of his claim or demand, whether the defendant be present or absent.</p>

<p>. 1. The evidence was sufficient to show a waiver of the condition of the contract, printed upon the telegraph blank, which required the claim for <' damages to be presented in writing. The testimony that the telegraph company received an oral demand, and, within a week after, the message was sent, acted upon it and investigated the claim, is undisputed.</p> <p>" 2. “Where a rule of a foreign telegraph company doing business in Georgia required persons damaged by failure to properly transmit messages to present their claim for damage within sixty days thereafter to some agent of the company, authorized to exercise its corporate powers in relation to the subject-matter of the claim, a presentation of such a claim to the resident agents who made the contract and transmitted the message was sufficient.” Western Union Telegraph Oo. v. Blanchard, 68 €ta. 300 (45 Am. E. 480). And though the agent is not bound to recognize an oral demand, if he does so, making no objection upon the ground that it is not in writing, a waives of the written demand will result.</p> <p><3. Whether a known right was or was not waived is a question of fact to be determined by the jury, on consideration of all the evidence submitted upon that point.</p> <p>4. Where, within sixty days after a message was filed with a telegraph company for transmission, the sender presented to the company’s agent with whom the message was filed an oral claim for damages because of its non-transmission or delay, and, from the action of the company upon the oral demand, a waiver of the requirement that the claim be presented in writing within sixty days must be implied, the company was not restored to its original right to insist upon a written claim for damages merely because, after the expiration of the sixty days, the sender’s attorney transmitted to the telegraph company a claim in writing, in which the damages were specifically set forth and enumerated.</p> <p>5. The evidence authorized the finding of the jury, and there’ was no error in overruling the certiorari.</p>

<p>Appeal; from Richmond superior court — Judge H. C. Hammond. August 16, 1912.</p>

<p>Trover; from city court of Douglas — Judge McDonald presiding. September 28, 1912.</p>

<p>. Complaint; from city court of Albany — Judge Crosland. July 8, 1912.</p>

<p>The conflict between the parties as to the only two material issues in the ease was' acute. These two points were fairly submitted to the jury by the presiding judge. The verdict rendered is supported by evidence, and for this reason the discretion of the trial court, in refusing a new trial, can not be controlled.</p>

<p>Garnishment; from city court of Atlanta — Judge Beid. November 5, 1912.</p>

<p>Indictment for misdemeanor; from Fulton superior court — ■ Judge Thomas presiding. February 28, 1913.</p>

<p>Complaint; from city court of Newnan — Judge Post. February 21, 1913.</p>

<p>Action for damages — appeal; from Catoosa superior court-judge Fite. February 24, 1913.</p>

<p>Action for damages; from city court of Tbomasville — Judge W. H. Hammond. March 24, 1913.</p>

<p>Action for damages; from city court of Waycross — Judge McDonald. January 22, 1913.</p>

<p>1. The failure of a trial judge in a criminal case to charge the jury to the effect that the defendant enters upon his trial with a presumption of innocence in his favor, and that this presumption remains with him, in the nature of evidence, until rebutted by proof satisfying the jury of his guilt to the exclusion of reasonable doubt, is error requiring the grant of a new trial.</p> <p>2. The presumption of innocence is affirmative proof in behalf of one accused of crime, and places upon the prosecution the burden of rebutting it by proof which shall satisfy the jury of the defendant’s guilt beyond a reasonable doubt. The term “presumption of innocence” is not synonymous with “reasonable doubt of guilt.” The presumption refers to a substantive right, which is in the nature of evidence, and the phrase “reasonable doubt” applies to a mental condition when there is an absence of the degree of proof necessary to produce mental conviction.</p> <p>3. The court correctly charged the jury the principles of law relating to accomplices and the weight to be given the testimony of an accomplice; and the court did not err in the admission of the testimony to which exception is taken.</p>

<p>Accusation of cruelty to animal; from city court of Jefferson— Judge Johns. February 26, 1913.</p>

<p>Attachment; from city court of Blakely — Judge Sheffield. March 29, 1913.</p>

<p>Action for damages — appeal; from Colquitt superior court— .Judge Thomas. April 15, 1913.</p>

<p>Action for damages; from city court of Thomasville — Judge W. H. Hammond. March 24, 1913.</p>

<p>Complaint; from city court of Floyd county — Judge Eeece. March 25, 1913.</p>

<p>Action for damages; from city court of Americus — Judge Greer presiding. March 24, 1913.</p>

<p>Appeal; from Clinch superior court — Melvin Meeks, judge pro hac vice. March 25, 1913.</p>

<p>Action for damages; from city court of Nashville — Judge Buie. February 13, 1913.</p>

<p>Levy and claim; from city court of Bainbridge — Judge Spooner. April 17, 1913.</p>

<p>1. One who, after having purchased a railway ticket, takes the wrong train by mistake is to be regarded as a passenger while riding thereon and until he has safely alighted therefrom. »</p> <p>2. If the mistake was not caused by any negligence on the part of the carrier or its servants, the carrier is not bound to return the passenger to the point where the mistake was made, but is under a duty to afford him a safe place to alight from the train. For injuries resulting from requiring the passenger to disembark at an unsafe place the carrier would be liable, but not for mental and physical suffering occasioned solely by the mistake in taking the wrong train or in making an effort to return to a place of safety.</p> <p>3. The failure of a railway ticket agent to inform a passenger upon which of two near-by tracks his train will come can not be made the basis of a recovery for taking the wrong train, in the absence of a request from the passenger for information upon the subject, or of something to indicate to the agent that the passenger is likely to take the wrong train.</p> <p>4. There was no error in sustaining the demurrer to the plaintiff’s petition.</p>

<p>1. The question whether a statute is for any reason unconstitutional will not be certified to the Supreme Court when a determination of the issues involved can be reached without a decision of that question. Nor will a reviewing court pass upon the constitutionality of a statute unless it appears that the question was made in the court below and passed upon by the trial judge.</p> <p>2. “The act approved August 12, 1910 (Ga. Laws, 1910, p. 134), entitled ‘An act to prohibit any person from having or carrying about his person . . any pistol or revolver without first having obtained a license from the 'ordinary,’ etc., should receive a reasonable construction, in accord with the purpose of the legislature in enacting it.” Jaehson v. State, 12 Ga. App. 427 (77 S. E. 371); StrieUand v. State, 137 Ga. 1 (72 S. E. 260, 36 L. R. A. (N. S.) 115, Ann. Cas. 1913B, 323).</p> <p>3. A criminal intent is an essential ingredient of crime; and while it may be presumed, as a matter of law, that one anticipates the natural, ultimate consequences of his act, the question of intention rests finally with the jury, and is not for the court.</p> <p>4. On.e who finds a pistol on a public road, and carries it to his home solely for the purpose of safe-keeping until it is called for by its owner, is not guilty of a violation of the act prohibiting the carrying of a pistol without a license.</p>

<p>Appeal; from Catoosa superior court — Judge Fite. April 18, 1913.</p>

<p>Indictment for larceny from the house; from Fayette superior court — Judge R. T. Daniel. May 3,1913.</p>

<p>Accusation of stabbing — conviction of assault and battery; from city court of Blberton — Judge Grogan. May 26, 1913.</p>

<p>Accusation of gaming; from city court of Miller county — Judge Geer. March 12, 1913.</p>

<p>Complaint; from city court of Hall county — Judge Irwin presiding. May 19, 1913.</p>

<p>1. The evidence adduced in support of the defendant’s pleas, which were held sufficient by this court, would have authorized a verdict in her favor, but did not demand such a finding. The issue was one purely of fact; it was fairly presented by the trial judge, and the verdict is supported by evidence.</p> <p>2. Even though the plaintiff, at the beginning of the transaction, made a contract with the defendant and her husbar.d jointly, and took their joint note, and though her subsequent note, sued upon in the present case, may be a renewal of the former obligation, a recovery against her was authorized, because there was evidence that the husband acted as her agent and that she received the consideration of the note. To allow husband and wife to unite their joint credit in procuring the means of supplying the joint resources is not contrary to public policy; and the power of a wife to join her husband in contracting a debt exists, where the debt is not one assumed for the purpose of paying a debt of the husband or of becoming his surety.</p> <p>3. The complaints as to expressions or intimations of opinion by the court upon the evidence, in charging the jury, are not well founded; and the instructions upon which error is assigned were pertinent to the evidence.</p> <p>i. The trial court, in the absence of an appi’opriate'and timely request to that effect, is not required to specifically instruct the jury as to which party carries the burden of proof on a particular point or issue. It is enough in such a case that the court correctly informs the jury upon which party lies the burden of proof in the case as a whole.</p> <p>5. The court did not err in overruling the demurrer in which complaint is made that the allegations of the petition are insufficient to bind the defendant for the attorney’s fees provided for in the note sued on. A notice by letter of a claim for such fees is sufficient, if the letter conveys such notice as is required by law and is timely received by the defendant. It is not necessary to state in the petition how the notice was served.</p>

<p>1. An indictment based upon section 204 of the Penal Code, which alleges that a named trust company was “a corporation duly incorporated and' chartered under the laws of Georgia, and doing and carrying on a banking business, and was a bank,” sufficiently avers that the institution named was “a chartered bank,” within the meaning of that section of the code.</p> <p>2. A company incorporated mainly for the purpose of exercising, and vested with, the powers usually conferred upon companies authorized to act as guardian, receiver, or other trustee, is not a “chartered bank,” within the purview of a penal law, merely because it may be empowered to exercise, as a mere incident to the main object of incorporation, some of the functions of a bank.</p> <p>3. The words “chartered bank,” as used in section 204 of the Penal Code, refer to a corporation, having the powers and exercising as the main object of its creation all or some of the functions of a bank, prescribed in section 2266 of the Civil Code.</p> <p>4. There is nothing in the decision in Mulherm v. Kennedy, 120 Ga. 1080 (48 S. E. 437), which requires a ruling that a trust company incorporated merely as such under the provisions of section 2815 et seq. of the Civil Code is a “chartered bank,” within the meaning of the penal laws of this State relating only to such banks.</p> <p>5. A company incorporated merely as a trust company under the provisions of the act of 1898 (Civil Code, § 2815 et seq.) is not a chartered bank, though it exercises,’as an incident to the main object of its creation, the power to receive trust funds on deposit and the power to lend money.</p> <p>6. Under the act of 1898, trust companies incorporated under its provisions “may acquire and exercise all the rights and privileges and be subject to the same liabilities and restrictions as apply to banks, upon compliance with the laws of this State providing for the incorporation and regulating the business of banks.”</p> <p>7. The provisions quoted in the preceding headnote mean simply that a trust company may obtain a charter as a bank, and, after having done so, may exercise, in addition to its other powers, all the functions of a bank. If a trust company incorporated -under the act should avail itself of this provision and thus acquire the privileges of a bank, it would be a chartered bank within the meaning of the penal laws of this State, though exercising the dual functions of a trust company and a bank.</p> <p>8. Whether the courts know judicially without proof that a trust company incorporated under the act of 1898 has or has not obtained a charter conferring upon it banking privileges as authorized by that act is not involved in the present case, and for that reason is not decided.</p> <p>9. Upon the trial of the present indictment the State carries the burden of proving that the trust company named in the indictment is a chartered bank. This burden can not be successfully carried unless it appears that the company has obtained a charter authorizing it to exercise the privileges of a bank.</p>

Action for damages; from city court of Americus — W. P. Wallis, judge pro hac vice. September 24, 1912. Phillips sued the mayor and council of the City of Americus for $1,500 damages.

<p>Action on insurance policy; from city court of Camilla — Judge Bush. February 27, 1913.</p>

<p>Certiorari; from Haralson superior court — Judge Price Edwards. May 29, 1913.</p>

<p>Action on insurance policy; from city court of Athens — Judge West. June 24, 1912.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. June 4, 1913.'</p>

<p>Certiorari; from Rockdale superior court — Judge Roan. June 1, 1912.</p>

<p>Complaint; from city court of Madison — Judge Anderson. July 9, 1912.</p>

<p>1. Where, to relieve an accusation from the bar of the statute of limitations, a fact constituting an exception to the statute is alleged, the burden is on the State to prove the exception.</p> <p>(a) Where, from an accusation charging a misdemeanor, alleged to have been committed by defrauding a certain corporation, it appeared that the offense was committed more than two years before the date of the accusation, and it was alleged that the offense was unknown to the corporation until within the two years preceding the date of the accusation, the burden was upon the State to show that the offense was unknown until within that period to any of those officers or agents of the corporation whose knowledge would be imputable to it.</p> <p>2. Where, in an accusation charging the offense of cheating and swindling, it was averred that the offense was committed by representing that the accused owned a certain “bay horse mule,” “named Jim,” and that the said mule was unincumbered, when in fact the mule did not belong to him, but “was held by one S. S. Brewer under a certain bill of sale,” it was error to allow the State to introduce in evidence, over the objection of the accused, an instrument showing title in “S. S. Brewer & Settle” to a mule described therein as a “black horse mule . known as the ‘Hill mule.’ ”</p> <p>3. Evidence that a mortgage on personal property was filed for record and recorded in Elbert county was not sufficient to dispense with proof of execution of the mortgage, where it appeared without contradiction that the mortgagor resided in Wilkes county.</p> <p>4. The court did not err in giving in charge to the jury section 719 of the Penal Code.</p>

<p>Action for damages; from city court of Yaldosta — O. M. Smith, judge pro hae vice. August 3, 1913.</p>

<p>Attachment; from city court of Jeffersonville — Judge Shannon. August 33, 1913.</p>

<p>1. This case is controlled by the decision of this court in Benford v. Shiver, ante, 135 (78 S. E. 860).</p> <p>2. The ground of the so-called motion for a new trial, relating to the absence of the movant when the case was tried, was in effect a motion to set aside judgment, made at the term at which the judgment was rendered ; and since it was shown to the court that the defendant was providentially prevented from attending court, by an illness, which rendered it impossible for her to leave her home, and that she had previously filed a meritorious defense, which, if supported by evidence, would have relieved her from any liability upon the notes which were the basis of the suit, the judgment should have been set aside, in order that the defendant might be heard on the substantial issue raised by the pleadings.</p> <p>3. Proof that the defendant was a’ married woman who was not separated from her husband was, without more, not sufficient to disprove or im-. peach the statement in her affidavit that she had no one by whom she could send a physician’s certificate or otherwise notify her counsel that she was physically unable to attend the court. Even if there be a presumption that every husband does his duty, the duty of making a showing for a continuance for his wife in a suit upon a note, evidencing a debt which was originally the debt of the defendant’s first husband, is not imposed by law upon the second husband as the successor to the marital offices of his predecessor.</p>

<p>Certiorari; from Hart superior court — Judge Meadow. October 3, 1912.</p>

<p>1. A plea which properly alleged that the defendant had given notes for the purchase-price of trees bought by him from the plaintiff, and had been compelled to pay these notes because they were transferred for value, before maturity, to innocent purchasers, should have been allowed as an amendment to the answer. Such an amendment would have afforded the defendant the right to set off, as against the account sued on, an amount, out of the sum paid by him to the innocent holder of the notes, equal to the damages which the defendant would be entitled to recover for breach of implied warranty as to the trees purchased by him. In other words, if the defendant was forced to pay the notes after the discovery of the defects in the trees purchased by him, because his notes were in the hands of innocent purchasers, whose rights could not be affected by failure of consideration or a breach of warranty, he could have pleaded the failure of consideration.</p> <p>2. The defendant sought to set up that he was compelled to pay the notes he had originally given to the plaintiff, because they were in the hands of innocent purchasers. The plaintiff demurred specially, upon the ground that the plea did not state when the notes were given, or to whom they were transferred, nor otherwise state sufficient facts to enable the court to decide that the bank to which the defendant alleged he had paid them was a holder who purchased the notes before maturity, and therefore the statement that the bank was an innocent, purchaser was a mere conclusion of the pleader. The plaintiff was entitled to know the time when the notes were given, and to whom they were transferred; and, upon the refusal of the defendant to amend his plea, it was not error to strike it.</p> <p>3. Upon the evidence submitted, so far as the same was pertinent to the pleadings, the judgment directing a verdict was harmless to the defendant.</p>

<p>1. The agreed statement of facts discloses a very plain violation of the law of this State which forbids keeping a gaming-house. One who permits others to assemble in a house or room which is in his control and play a game of chance in which a thing of value is hazarded is guilty of keeping a gaming-house, regardless of his purpose in permitting the game.</p> <p>2. In the absence of express statutory authorization to the municipality, a municipal ordinance which attempts to punish for an act which has been penalized by a law of the State is void. When the State prescribes a punishment for an act as a crime, its jurisdiction to punish for that act is exclusive, unless the right to punish for it has been expressly delegated to a subordinate department of the government.</p>

<p>1. The plaintiff having elected to proceed upon the second count in his petition, the ruling as to the first count, even if erroneous, did not hurt the defendant.</p> <p>2. The plaintiff proved a covenant that ran with the land. - “To constitute a covenant running with the land, the covenant must have a relation to the interest or estate conveyed, and the act to be done must concern the interest created or conveyed;” but it is not necessary that privity of estate shall exist between the original grantor and a purchaser from the covenantee.</p> <p>3. Where a deed was made in consideration of the “benefit and advantages which will accrue to [the grantor] by reason of the construction of the railroad of [the grantee] on, over, and through his lands,” and upon the express “condition that said railroad company is to put a sidetrack on said land and also a warehouse at the place requested” by the grantor, the grantee, by accepting the deed, entered into a covenant- to comply with its terms; and this covenant ran with the land and became obligatory upon a second company, which took over the rights, privileges, franchises, and property of the former.</p> <p>4. A statement in a petition that a named railroad company, pursuant to an agreement of consolidation or merger, took over the property of another named railroad company and was proceeding to operate and manage it before the filing of the suit, would be sufficient to charge both the company in possession of the physical property and the company alleged to have been taken over. The fact that the deed or the transfer was formally executed after the commencement of the suit might (and in the present instance did) afford confirmation of the prior agreement to consolidate.</p> <p>5. The court did not err in overruling the demurrer in which complaint was made that the petition set out covenants, conditions, and agreements different from those contained in the deed attached to the petition. Covenants are to be so construed as to carry into effect the intention of the parties, and their intention should be collected from the whole instrument and the circumstances surrounding its execution.</p> <p>6. A contract by a railroad company to locate a station at a given point is not per se void. Such a contract is enforceable, unless it be established satisfactorily that there is such a conflict between the railroad company’s duties to the public on the one hand and its duties under the contract on the other that it is impossible for it to discharge the former without entirely abandoning the latter.</p> <p>7. Generally value is fixed by the opinion of those who are most familiar with the nature and intrinsic qualities of the object to be valued. The damages consequent upon a breach of the covenant of a railroad company to place a side-track and erect a warehouse to be used as a depot, in consideration of the grant of a right of, way, are not necessarily speculative. The advantages of accessible railroad facilities are a matter of common knowledge, and their value may be estimated and determined by a jury, upon a consideration of facts and circumstances from which it can be made to appear that enhancement could reasonably have been expected, and the probable amount of such enhancement.</p> <p>8-10. None of the rulings upon the admissibility of testimony were harmful to the defendant, none of the exceptions to the charge of the court are meritorious, and the evidence authorized the verdict for the plaintiff.</p>

<p>Action for damages; from city court of Madison — Judge Anderson. January 11, 1913.</p>

<p>Indictment for murder — conviction of manslaughter; from Meriwether superior court — Judgfe Freeman. May 6, 1913.</p>

<p>Indictment for assault with intent to murder — conviction of stabbing; from Douglas superior court — Judge Price Edwards. January 13, 1913.</p>

<p>Certiorari; from Effingham superior court — Judge Sheppard. April 24, 1913.</p>

<p>Accusation of sale of liqupr; from city court of Baxley — Judge Sellers. July 12, 1913.</p>

<p>An indictment framed under section 163 of the Penal Code of 1910 need not allege ownership of the paper taken and carried away.</p>

<p>The court erred in admitting in evidence the pleas of guilty of two defendants jointly indicted with the accused on trial for the offense of assault and battery. “The confession of one joint offender or conspirator, made after the enterprise is ended, is admissible only against himself.” Penal Code, § 1035.</p>

<p>The solicitor of the city court and the clerk of the superior court were not disqualified, under section 258 'of the Code of 1910, to serve as members of the city council of the City of Jefferson. The case is controlled by the decision of the Supreme Court in Long v„ Boss, 132 Ga. 288 (64 S. E. 84), in which it is held that officers of municipalities are not civil officers of this State.</p>

<p>Indictment for larceny; from Early superior court — Judge Worrill. December 30, 1913.</p>

<p>The judge of the superior court erred in dismissing the certiorari on the ground that “the certiorari petition does not set out any clear and specific assignment of error upon any specific and judicial act of the justice, judicial decision, or judgment.”</p>

<p>■ Action on guaranty; from city court of Cairo — Judge Singletary. February 24, 1913.</p>

<p>1. The evidence supports the verdict.</p> <p>2. The refusal to instruct the jury that they could consider, on the question of damages, the “worldly circumstances” of the defendant, even if the instruction should have been given, was not harmful error, since the verdict was for the defendant.</p> <p>3. 4. There was no material error in rulings on testimony.</p> <p>5. Where a suit is brought against a street-railway company to recover damages for failure to perform its duty of protecting a passenger from alleged wrongful conduct of its, motorman, the defendant, under the plea of the general issue, can introduce evidence showing that the conduct of the motorman was fully warranted and justifiable.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. March 17, 1913. .</p>

<p>No error of law appears, and the evidence fully supports the verdict.</p>

<p>Appeal; from Chattooga superior court — Judge Wright. March 11, 1913.</p>

<p>Certiorari; from Haralson superior court — Judge Edwards. April 18, 1913.</p>

<p>Distraint; from city court of Greenville — Judge Eevill. April 5, 1913.</p>

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

<p>Complaint; from city court of Americus — Judge Harper. April 26, 1913.</p>

<p>Trover; from city court of Macon — Judge Hodges. May 10, 1913.</p>

<p>A municipal corporation is not liable for material, furnished to a contractor to be used in the construction of a public building in the city, 'upon the ground that the municipal authorities have failed to take from the contractor a bond as required by the act approved August 12, 1910 (Acts 1910, p. 86), for the protection of persons furnishing material and labor, for the construction of public works.</p>

<p>Action for damages; from city court of Dublin — Judge Hicks. May 19, 1913.</p>

Accusation of sale of liquor; from city court of Bainbridge— Judge Spooner. May 5, 1913. The accusation charged unlawful sale of intoxicating liquors by John Weatherington on December 27, 1912. It was testified that he sold’ whisky in th§ City of Bainbridge shortly before Christmas of that year.

<p>Action for damages; from city court of Eastman — Judge Neese. April 18, 1913. •</p>

<p>Complaint; from city court of Reidsville — Judge Collins. February 14, 1913.</p>

<p>1. An indorsement of a promissory note in blank can not by parol evidence be shown to have been intended by the parties as an' indorsement without recourse.</p> <p>2. Mere indulgence or extension of time of payment of a promissory note, granted to the maker, without consideration, does not operate to discharge a surety or an indorser on the note.</p> <p>3. If a new note be accepted by the payee or indorsee, in renewal and satisfaction of a note previously given, without the consent of a surety thereon, this would amount to a novation of the original undertaking, and the surety would be discharged.</p> <p>4. Where, to a suit on a promissory note against an indorser,-he flies such a defense as that referred to in the last preceding headnote, it is not competent, without laying the proper foundation, for a witness to testify that a second note was given in renewal of the note sued on. Such testimony amounts to an inquiry into the contents of a writing, in violation of the rule requiring the best evidence to be produced.</p>

<p>The strictness of pleading necessary in suits in the superior and city courts is not required in justices’ courts. Nevertheless, where a suit is. brought in a justice’s court against a railroad company for the killing of live stock, it is essential that the plaintiff should, at least in general tei'ms, allege that the killing was the result of the negligence of the defendant company. A failure to make such allegation will subject the summons to dismissal, in the absence of an amendment, upon a demurrer pointing out this defect. The presumption of negligence which the law raises against a railroad company is a rule of evidence, and' not of pleading, and is applicable as such to all suits brought against railroad companies in the courts of this State for damage sustained by the running of their engines, cars, or other machinery.</p>

<p>Complaint; from city court of Vienna — Judge Hodges presiding. May 19, 1913.</p>

<p>Trover; from city court of Bainbridge — Judge Spooner. May 26, 1913.</p>

<p>1. The lieu of a mortgage on a crop, given to secure payment of a debt ' for money, supplies, or other articles of necessity furnished to aid in making and gathering the crop, is superior to the lien of a previously-recorded mortgage not given to secure the payment of a debt created to aid in making and gathering the particular crop.</p> <p>2. The purpose of the act of 1899 (Acts of 1899, p. 78) was to give such preference to the mortgage creditor who furnished money or supplies to aid in making a crop as would enable insolvents, who might not otherwise be able to obtain credit, to pursue their ordinary vocation of farming, instead of being forced to become vagrants and perhaps criminals. And since the legislative intention would be defeated if, merely because of priority of record, a contract lien were held to be superior to a lien of a judgment, which arises by operation of law, the word “judgment,” as used in section 3349 of the Civil Code, so far as applicable to proceedings .by rule brought to distribute funds in custodia legis, includes any final process under which the property (the proceeds of the sale of which are subject to distribution) was brought to sale or could have been legally sold.</p>

<p>1. When a verdict is supported by some evidence, though it be against the large preponderance of the evidence, this court can not grant a new trial on the ground that the verdict is contrary to the evidence.</p> <p>2. A cotton factor’s agent who is authorized to solicit shipments of cotton to his principal is presumptively authorized to make terms under which the cotton shall be shipped, received, stored, sold, and handled by his principal.</p> <p>3. Where a cotton factor has advanced to the owner large sums of money on. shipments of cotton, so that .the factor’s pecuniary interest in the cotton equals, if it does not exceed, the pecuniary interest of the owner in the cotton, the factor is not bound at his peril to hold the cotton under instructions from the owner, but has the right to exercise his own judgment as to when he shall sell the cotton, having due regard to his own pecuniary interest as well as to that of the owner; and the factor is-not bound to follow instructions from the owner detrimental to his own pecuniary interest. Under the facts of this case a charge embodying in substance the rule of law above stated should have been given.</p>

<p>The presiding judge may with propriety ask a witness such questions as may tend to elicit the truth as to a transaction which is under investigation, but he should be careful that no intimation of his opinion is conveyed to the jury by the questions propounded. Such an opinion might be expressed or intimated by the form of the questions propounded, and the rights of one of the parties to a fair trial might thus be prejudiced and impaired; and, on proper exception in such a case, reversal of a judgment refusing a motion for a new trial would necessarily result.</p>

Indictment for sale of liquor; from city court of Madison — Judge Anderson. January 31, 1913. The indictment charged Robert Morgan with the sale of intoxicating liquors on December 15, 1911..

<p>Certiorari; from Eulton superior court — Judge Bell. April 5, 1913.</p>

<p>Indictment for murder; from Glynn superior court — Judge Conyers. January 21, 1913.</p>

<p>Indictment for burglary; from Lumpkin superior court — Judge Jones. May 24, 1913.</p>

<p>Certiorari; from Tift superior court — Judge Thomas. March 8, 1913,</p>

<p>Foreclosure of lien; from city court of Polk county — Judge Irwin. March 14, 1913.</p>

<p>Trover; from city court of Newnan — Judge Post. March 3, 1913.</p>

<p>Complaint; from city court of Bainbridgé — Judge Spooner! April 5, 1913.</p>

<p>Action on bond; from city court of Dublin — Judge Hicks. March 13, 1913.</p>

<p>Accusation of receiving stolen goods; from city court of Tifton— .Judge B. Eve. June 2, 1913.</p> <p>From the evidence it appeared that certain hams stolen at night by Charlie Lane from the commissary of Bates Brothers at Solumco were found the next morning by the sheriff, back of Brown’s shanty, near the place from which they had been stolen, and that Charlie Lane was killed by a railroad-train that morning. The sheriff testified that he arrested John Stewart, the defendant, and that Stewart, while in jail, made the following statement to him voluntarily: “Susie Weems called me and told me to go and get some hams that Bichard Jerry had hid in the wood-pile, and I taken it and carried it to the house where Frank Brown and myself slept, and the negro that was in the house told me I could not leave it there, — to throw it out; and I threw it out in the weeds. I went from tjiere to Brookfield after the mail, and did not see the hams any more until the officers got it.” Melvin Burner testified that on the day after the commissary was broken into, the defendant brought to his (Burner’s) shanty a sack with something in it, and he told the defendant that it could not be left there. Minnie Burks testified that she saw the defendant go to Frank Brown’s shanty with something in a sack, and, a little later, saw him throw the sack in the weeds, and that her dog got hams from the sack. The defendant, in his statement at the trial, denied that he knew of the* theft, and said, that while in the discharge of his duties as watchman at the Solunico mill he passed the commissary of Bates Brothers about 5:30 o’clock in the morning, and found the door standing ajar, and he returned to the mill and reported to the superintendent what he had seen. “I went to the bookkeeper and he told me that when the officers came I had better tell them something, that when those kind of things happened that they got hold of somebody, and that’s why and how I came to make a statement to the officers. The only thing I had to do with the transaction, any shape, form, or fashion, was, Susie Weems called me to her house about 11 o’clock a. m., and told me that Bichard Jerry had bought some meat from a negro, and told me that he got suspicious of the negro he bought it from, and Susie Weems told me he put it in the wood-pile .in the yard, and that they had arrested Jerry, and she didn’t know what to do with the meat, and asked me to take it away from there and throw it away or carry it off and do something with it, and I told her that I didn’t want anything to do with it, but she insisted that I move it out of the yard, and I took ’it and carried it to Frank Brown’s shack (I slept there of a night), .which was not far away from Bichard Jerry’s.”</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. May 17, 1913.'</p>

<p>Trover; from city court of Miller county. — Judge Geer. March 31, 1913.</p>

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

<p>Certiorari; from Brooks superior court — Judge Thomas. May term, 1913.</p>

<p>Certiorari; from Fayette superior court — -Judge R. T. Daniel. May 23, 1913.</p>

<p>Certiorari; from Bryan -superior court — Judge Sheppard. May 17, 1913.</p>

<p>1. One can not be convicted of embezzlement when it appears that all moneys collected by him in his fiduciary capacity have been fully paid to the person, firm, or corporation, dr department of government, to which the funds should have been paid. The case is not altered if the payments are made on the wrong account.</p> <p>2. If A. is charged with the duty of collecting for B. accounts from C. and D., he can not be convicted of embezzlement if he pays the entire amount collected from D. to B., even though he directs that the amount collected be applied to the credit of C.’s account, if in fact he has not collected anything from C., and the account due by C. to B. is still outstanding.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. June 6, 1913.</p>

<p>Complaint; from city court of Cartersville — Judge Foute. Jan-, uary 11, 1913.</p>

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

Action for damages; from city court of Greenville — Judge Revill. January 31, 1913. Ella May Fleming, as the widow of Henry A. Fleming, sued -the' Central of Georgia Railway Company for the homicide of her husband.

<p>Appeal; from Baldwin superior court — Judge J. B. Park. January 13, 1913.</p>

<p>Motion to set aside judgment; from Floyd superior court — Judge Maddox. January 14, 1913.</p>

<p>Bail-trover; from city court of Madison — Judge Anderson. February 6, 1913.</p> <p>The only entry as to service of the bill of exceptions was an acknowledgment of service signed: “E. EL George, attorney for deft.” This name does not appear elsewhere in the record. A motion to dismiss the writ of error was made by the surety on the bail bond, W. P. Bearden, by his attorney F. C. Foster Sr., on the ground “that said bill of exceptions appears on its face never to have been served on said surety, and that no service was ever acknowledged by him or by his attorney.”</p>

<p>Attachment; from city court of Floyd county — Judge Eeece. December 9, 1913.</p>

<p>Complaint; from city court of Way cross — Judge McDonald. January 20, 1913.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. March 4,1913.</p>

<p>Complaint; from city court of Atlanta — Judge Beid. January 25, 1913..</p>

<p>Complaint; from Hart superior court — judge Meadow. January 31, 1913.</p>

<p>Trover; from city court of Bainbridge — Judge Spooner. March 7, 1913.</p>

<p>1. Where one goes into the open market of a particular trade or business and makes a contract to purchase, he is bound by a custom, universal in its character, which is applicable to that particular trade or business (the custom becoming by implication a part of the contract), unless the contract stipulates to the contrary, or, in making the purchase, the purchaser notifies the seller that the contract is made without regard to j;he particular custom.</p> <p>2. The evidence was issuable as to the character and universality of the custom which the plaintiff claimed to exist.in the market where the purchase was made, and as to the knowledge of the defendant of the existence of such a custom, and also as to whether the contract was made without regard to the custom.</p>

<p>Certiorari; from Morgan superior court — Judge Park. March 8, 1913.</p>

<p>Action for damages; from city court of Forsyth — Judge Cabaniss. March 29, 1913.</p>

<p>Certiorari; from Muscogee superior court — Judge Gilbert. March 19, 1913.</p>

Action for penalty; from city court of Miller county — Judge Geer. March 13, 1913.

<p>Action^for penalty; from city court of Miller county — Judge Geer. March 13, 1913.</p>

<p>Certiorari; from Grady superior court — Judge Frank Park. March 6, 1913.</p>

<p>Complaint; from city court of LaGrange — Judge Harwell. March 13, 1913.</p>

<p>Certiorari; from Hart superior court — Judge Meadow. March 7, 1913.</p>

<p>Action on insurance policy; from city court of Macon — -Judge Hodges. April 2, 1913.</p>

Action for damages; from city court of Sparta — Judge Moore. April 17, 1913. The petition, as amended, alleges, that the defendants are lessees of the Georgia Railroad, and that they damaged the plaintiff in the sum of $500 by reason of the following facts: On the second Sunday in September, 1912, plaintiff purchased “a ticket of the agent of defendants” at Sparta, Georgia, “from said station to Atlanta, Georgia,” and paid for it.

<p>Indictment for carrying concealed weapon; from city court of Dublin — Judge Hicks. November 25, 1912.</p>

<p>The motion for a new trial, not having been filed during the term at which the rule nisi was granted, should have been dismissed, on motion made at the hearing thereof.</p>

<p>1. To enable the holder of a promissory note payable to another t-o assert successfully the rights of a bona fide purchaser for value, it must appear that the payee formally indorsed or assigned it in writing to the holder.</p> <p>2. The consideration of a promissory note is always a proper subject of inquiry, and the answer of the defendant in this case was not demurrable upon the ground that his counter-claim antedated the note which was the basis of the action. The case is clearly distinguishable from that of Turner v. Pewrson, 93 Gg. 515 (21 S. E. 104), and similar cases.</p>

<p>Complaint; from city court of Baxley — Judge Krauss presiding. April 19, 1913.</p>

<p>Certiorari; from Mitchell superior court — Judge Frank Park. April 21, 1913.</p>

<p>Lieu foreclosure; from city court of Madison — Judge Anderson. May 12, 1913.</p>

<p>Complaint, from city court of Louisville — Judge Phillips. April 21, 1913.</p>

<p>Action for damages; froqi city court of Savannah — Judge Davis Freeman. May 14, 1913.</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. April 30, 1913.</p>

<p>Trover; from city court of Eeidsville — Judge Collins. May 1, 1913.</p> <p>McArthur brought trover for a bale of cotton which he alleged had been raised on his land by the defendant as a cropper. The defendant filed an answer denying the material allegations of the petition, and also filed an amendment, as follows: "Defendant amends his plea and says that after the bale of cotton in question was ginned, he did all in his power to get a settlement out of the plaintiff, in order to dispose of said cotton, and, though the plaintiff had agreed that he would settle with him, he refused to settle. Defendant further amends and says that the $36.27 due the defendant by the plaintiff on another bale of cotton is hereby filed as a set-off against this indebtedness, and this defendant prays a judgment for the excess of $36.27 over $23.68, . . namely $12.59.” The amendment was allowed, over the objections of the plaintiff that it set up no legal defense, and that the only issue in the ease was one of title. The verdict was for the defendant. The plaintiff excepted to the allowance of the amendment and to the overruling of his motion for a new trial.</p>

<p>Complaint; from city court of Macon — Judge Hodges. April 1, 1913.</p>

<p>Motion for new trial; from city court of Jefferson — Judge Jones. April 21, 1913.</p>

<p>1. Recovery may be had against a railway company upon an obligation signed merely by one describing himself as “president,” upon proof that both parties to the contract understood that it was the obligation of the railway company, and that the company received the consideration furnished by the other party, and either authorized the execution of the contract in its behalf or ratified it thereafter.</p> <p>2. The president of a corporation has not, by virtue' of his office alone, authority to contract in its behalf. But knowledge of the president is imputable to the corporation. If, therefore, the president, without authority, execute in behalf of the corporation a contract, and the corporation retains and uses the consideration furnished by the,other party, it ean not repudiate the contract. The principal can not ratify so much of an unauthorized contract as operates in its favor and repudiate the obligation assumed in its behalf by the person claiming to act as its agent.</p> <p>3. No material error was committed by the city court, and the judge of the superior court did not err in refusing to sanction the certiorari.</p>

<p>Action on life-insurance policy; from city court of Atlanta— Judge Reid. May 31, 1913.</p> <p>The policy was issued March 4, 1911. It states that in consideration of the attached application of the insured, and of the payment of the annual premium of $137.35 on the 4th day of March in every year during the continuance of the policy, the insurance company agrees to pay the amount of the policy on receipt of due proof of the death of the insured. It contains the following provision: “All premiums are payable in advance at the home office in Boston, but may be paid to an agent of the company in exchange for a receipt signed by the President or Secretary. No modification of this contract shall be made except over the signature of one of such officers.” In the application it is agreed that “the insurance hereby applied for shall not take effect until the issuance and delivery of the policy and the payment of the first premium thereon while I am in sound health.” A part of the premium for the first year was paid in cash, and for the remainder the insured executed two notes to the insurance company, payable six and nine months from date respectively. In each note it is stated that the note is given with knowledge and intent that if it is not paid when due, without grace, the policy shall become void without further notice. The first note became due on August 28, and was unpaid when the insured died on September 27, 1911. The insurance company’s district manager, «T. A. Bowen, had previously signed and sent to the insured a letter, dated September 26, 1911, calling attention to the fact that this note was due, and concluding as follows: “Will you kindly call and pay this; otherwise your insurance will lapse.” On October 3, 1911, payment of the note was tendered by the beneficiary named in the policy, and the tender was refused. Payment of the policy was refused, and the beneficiary brought suit on it. The foregoing facts appear from the petition, and it is alleged that the non-payment of the note at maturity did not as a matter of law cause a forfeiture of the policy, and that if non-payment would otherwise have caused a forfeiture, prompt payment of the note and the forfeiture of the policy were waived by reason of the fact that the insurance company, after the maturity of the note, retained it, and still retains it, as well as the other note, and continued to demand payment of the note, through its duly authorized agents, and expressly and impliedly treated the policy as being still of force, until the death of the insured.</p> <p>A general demurrer to the petition was overruled, and the defendant excepted.</p>

<p>Appeal; from Whitfield superior court — Judge Fite. February 24, 1913.</p> <p>Cox foreclosed in a justice’s court a lien for timber furnished to one Hughey for his sawmill, under the provisions of the Civil Code (1910), § 3358. Davis filed a claim, and from a judgment finding the property subject the claimant appealed to the superior court, where the ease was submitted to the presiding judge without the intervention of a jury, and the judge rendered a judgment finding the property subject. Error is assigned on this judgment. A statement of the evidence on the trial is as follows: Cox, the plaintiff, testified that he sold to Hughey, the defendant, the timber from which the lumber levied on was sawn. It was standing timber when he sold it to him, and the purchaser was to cut and saw the timber into lumber. The timber was sold standing for $200, and $100 was paid in cash, the foreclosure being for the other $100. “It was agreed between myself and Hughey that the title to the timber' should not pass until it was cut.” Davis, the claimant, testified that he had no notice as to the trade between the plaintiff and Hughey; that he bought the lumber from Hughey and paid him for it before Cox had filed or foreclosed his lien; that he bought it in good faith; that he knew that Cox had sold Hughey the timber from which this lumber was sawn, for he gave Hughey the money to pay Cox; that he advanced the money while Hughey was sawing the lumber; that when he advanced the money the lumber was sawn and stacked on Cox’s land.</p>

<p>1. The evidence was conflicting, but authorized the verdict.</p> <p>2. A defendant may in different paragraphs of his answer file contradictory' or inconsistent pleas.</p> <p>3. The instructions of the trial judge were not subject to the criticism that they permitted the jury to base a verdict upon fraud not pleaded.</p> <p>4. It was not error to charge that rescission is allowed if the party defrauded moves with “reasonable promptness” after discovering the fraud; nor that restitution of the goods bought need not have been made if they were worthless.</p> <p>5. Some of the grounds of the motion for a new trial, complaining of rulings on evidence, are incomplete and can not be considered. The others are without merit.</p> <p>6. Where one orders an article described only by a name importing no particular quality, and the article proves to be unsuited to the use intended and for which it was represented by the seller to be suitable, the purchaser is not bound for the purchase-price, unless at the time of the purchase he had knowledge of the real quality of the article.</p> <p>7. Looking to the substance and not the form of the defendant’s answer, the only defense relied on was that the goods sold were worthless. The defendant’s right to rescission depended upon the establishment of this defense. Proof of fraud was not an essential part of the defense, because in the present case, if the goods were in fact worthless, it was immaterial whether or not the purchase was made because of fraudulent misrepresentations. It was not error to refuse to instruct the jury that if they found for the defendant, they should specify in the verdict whether the finding was based upon the plea of rescission, or upon that of failure of consideration.</p>

<p>Action on bond; from city court of Statesboro — Judge Strange. January 34, 1913.</p>

<p>Bail-trover; from city court of Leesburg — Judge Long. April 24, 1913.</p> <p>A. E. Manning brought trover against Cox for a stock of merchandise, and sued out bail process; and, on failure of the defendant to give bond, the plaintiff gave the statutory bond and the property was delivered to him. The defendant filed an answer, in which he averred that the firm of A. E. Manning & Company, composed of A. E. Manning and himself, owned the stock of goods in question; that he held'possession of the goods as a member of the firm, 'and for the use and benefit of the firm; that he was the general manager, and was entitled to the custody and control of the goods.* The plaintiff filed a traverse, as follows: “Now comes plaintiff and traverses and denies the allegations of defendant’s dilatory plea, and says: First: Only a court of equity could administer or adjudicate any partnership rights, if any be shown; and the superior court . . would have jurisdiction, and not this court. . . Second: Subject to plea, to jurisdiction, plaintiff alleges the title and property in said stock of goods was and is in this plaintiff.” The defendant moved that the court strike this traverse, because it was not a traverse, but an exception to the jurisdiction of the court; because the issue made by it was already-made by the pleadings, and because his plea was not a dilatory plea. This motion was overruled. The defendant orally demanded a trial by jury of the issue made by the plaintiff’s traverse of his plea, and the demand was overruled. An oral demand for jury trial had been made by him and entered on the docket by the court at the appearance term, it being the practice of the court to dispense with written demand. The court heard evidence on the issue made by the traverse of the defendant’s plea, and at the conclusion of the evidence the plaintiff moved “for a nonsuit of the defendant on said plea.” Thereupon the court rendered the following judgment: “On issue joined on dilatory plea the court is of the opinion that the matters involved are beyond the jurisdiction of this court, and the ease is therefore stricken from the docket and dismissed without prejudice. . . Costs against plaintiff.” To this judgment and the previous rulings stated the defendant excepted.</p>

Action for damages; from city court of Americus — Judge Little-john presiding. January 31, 1912. Glawson brought an action against the telephone company to recover damages on account of the death of his wife. He resided in the country, a.distance of about seven miles from Americus, and had in his house a telephone connecting with a switch-board in Americus, through which communication could be had with other subscribers.

Action for damages; from city court of Richmond county — Judge W. F. Eve. July 11, 1912. The plaintiff, Lizzie Thompson, alleged and testified, that she was a passenger on a train of the defendant railway company 'October 16, 1910, traveling from McCormick, South Carolina, to Augusta, Georgia; that she paid full fare for her transportation; and that through the negligence of the company a collision occurred, in which she was injured internally.

<p>Action for damages; from city court of Richmond county-judge W. F. Eve. July 11, 1912.</p>

<p>Indictment for perjury; from Whitfield superior court — Judge Fite. July 29, 1913. '</p>

<p>Complaint; from city court of Jefferson — Judge Johns. October 8, 1912.</p>

<p>Where goods are sold for future delivery, and, prior to the time for delivery, the purchaser notifies,tne seder that he will not take and pay for the goods, the seder may treat tne contract as rescinded, and sue for whatever damages he has sustained up to the time of its repudiation by the vendee. If the goods bought áre to be manufactured by the seller, and, upon the repudiation of the contract by the purchaser, the seller fails or refuses to manufacture the goods so as to have them ready for delivery at the time fixed in the contract, the seller’s only remedy is to bring an action against the purchaser for damages for the breach of the . contract. He can not sue upon open account either for the purchase-price of the goods or for the contract price, less the cost of manufacture. Before an action of this kind will lie the seller must have put himself in a position where he could deliver, and must have either actually delivered the goods or stored and retained them for the vendee. If the - contract be an entire one for the manufacture of a quantity of articles, the remedy of the seller to store and retain the goods for the vendee and sue for the purchase-price is not available, unless the entire quantity of articles contracted for has been manufactured.</p>

<p>Petition for certiorari; from Fannin superior court — Judge Morris. December 31, 1912.</p>

<p>Complaint; from Toombs superior court — Judge Kawlings. November 29, 1912. _</p>

<p>Appeal; from Eulton superior court — Judge Ellis. January 29, 1913.</p>

<p>Accusation of larceny; from city court of Louisville — Judge Phillips. March 4, 1913.</p>

<p>Complaint; from city court of Blakely — Judge Sheffield. April 21, 1913.</p>

<p>Action for damages; from city court of Sandersville — Judge Jordan. March 10, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. April 1, 1913.</p>

<p>The allegations of the petition were substantially proved as laid, and it was error to grant a nonsuit.</p>

<p>Trover; from city court of Blakely — Judge Sheffield. April 21, 1913.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. April 2, 1913.</p>

<p>1. The court did not err in sustaining the demurrer and dismissing the action. Trover will not lie to recover possession of a deed executed to the defendant, or of non-negotiable notes and certificates of deposit ' payable to the defendant, upon the ground that these writings were improperly taken in the name of the defendant when they should have been executed to the plaintiff. The present action was brought to recover an apparent muniment of title of the defendant, two promissory notes payable to her, and a time certificate of deposit issued to her; and in none of these papers did the name of the plaintiff appear. Furthermore, under the allegations of the petition,' the case was one in which affirmative equitable relief would have been required, and the plaintiff’s remedy, if any, lay in a proceeding in equity, to which .all persons interested are necessary parties.</p> <p>2. -The decision upon the main bill of exceptions being controlling, the cross-bill of exceptions is dismissed.</p>

<p>1. An intent to defraud, coexistent with the making of the contract, is an essential element of the offense of cheating and swindling, as denounced in section 715 of the Penal Code. Under the provisions of section 716 of the Penal Code, failure to perform services contracted for and failure to return money advanced upon a contract of service, without good and sufficient cause, may afford presumptive evidence that the fraudulent intent existed at the time the contract was made, but either the performance of the services or the repayment of the advancement is a complete defense; and upon the trial of one charged with a violation of section 715 it is incumbent upon the prosecution to prove not only that the services as contracted for were not performed, but also that the advances, with interest thereon, had not been repaid at or before the time fixed for the commencement of the service.</p> <p>2. Where one is charged with cheating and swindling in violation of section 715 of the Penal Code, the burden of showing that the accused had no good cause or excuse for his failure to perform his contract or to repay the advancement is not upon the defendant, as matter of defense, but the burden rests upon the prosecution to prove those facts which are by the statute declared to be necessary to raise the presumption of the intent to defraud, which is so essential an ingredient of the offense that a conviction can not he supported where such an intent is not proved beyond a reasonable doubt. Proof that the accused failed to perform the services'contracted, for or to repay the advance which supplied the consideration of the contract would be rebutted by the general presumption of the defendant’s innocence; because the existence of a fraudulent intent at the time the advances were made and the contract was entered into must be proved; and, without further proof, the question as to what was the real intention of the defendant at the time of making the contract would, to say the least of it, be an open one. Indeed, the well-established rule that where an act is equally subject to two constructions, one indicative of the guilt of the actor and the other consistent with his innocence, the latter must be adopted, would prevail.</p> <p>3. It is uncontradicted that the failure of the accused to comply with his contract and to labor for the prosecutor was due to the fact that he was already under contract of service with another employer; and the testimony that the defendant immediately endeavored to get his employer to repay the money advanced by the prosecutor, and that payment was promised but postponed by this employer, is undisputed. The State failed to show that the accused had no good cause or excuse for failing to pay the advancement; and even if the testimony in behalf of the defendant upon this point should have been discredited, the conviction of the defendant was not -authorized. The fact that the defendant made an affidavit which it was alleged was attached to the contract, to the effect that he was not under any other contract of service at the time of the advancement made for him by the prosecutor, ‘ might subject him to prosecution for false swearing, or to a prosecution for cheating and swindling by artful means and deceitful practices, under the provisions of section 719 of the Penal Code, but proof of the making of this affidavit is not a sufficient substitute for proof that the subsequent failure to perform the contract or repay the advancement was without good cause as required by law.</p>

<p>A verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed.” Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209).</p>

<p>Trover; from city court of Blakely — Judge Sheffield. May 2i, 1913.</p>

<p>Action for money had and received; from city court of Columbus —Judge Tigner. June 11, 1913.</p>

<p>Motion for new trial; from city court of Blakely — Judge Sheffield. June 16, 1913.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. June 14, 1913.</p> <p>The action was for damages on account of personal injuries alleged to have been received by. the plaintiff while in the employment of the Louisville & Nashville Eailroad Company, repairing a car at its shop at Boyles, in the State of Alabama. In the first count of the petition section 3910 of the Code of Alabama of 1907, as .amended by act of April 18, 1911, is set out as the basis of the plaintiff’s right to recover. This section as amended provides that “When a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employee as if he were a stranger, and not engaged in such service or employment, provided such liability is enforced in a court of competent jurisdiction within the State of Alabama, and not elsewhere, in the cases following.” This language is followed by provisions which are set out in the report of the case referred to in the foregoing decision (11 Ga. App. 221-2, 75 S. E. 567). It is alleged, that on March 22, 1912, the plaintiff was at work at the above-stated place, repairing a gondola car, used for coal slag, and “was drifting a bolt out of the side plank over the drop doors, and was sitting on the tumbling shaft that comes through the car, . . petitioner being on the inside of the car, side drop doors opening underneath the said car. . . Bartlett was foreman of track number 6, on which . petitioner was at work; and Satterfield was subject to Bartlett’s orders. . . Petitioner was subject to Bartlett’s orders. Bartlett ordered . . petitioner to go inside the car and drift the said bolt out of said plank over the drop doors as aforesaid. While . . petitioner was knocking said bolt out as he had been ordered to do by the said Bartlett as aforesaid, the said Bartlett ordered Satterfield to knock up the latch that holds the doors. Petitioner got up to get off the tumbling shaft, and just as he wa« straightening up, still astride of the said tumbling shaft, which is of steel or iron, the said drop doors were released, and fell from under . . petitioner, throwing him violently on the said shaft and knocking him unconscious, inflicting upon him . . bodily injuries” described. “13. Said defendant was negligent in that 'the said foreman who was in charge of repairing the said car ordered the said Satterfield to knock up the latch and thus release the drop doors as aforesaid. 14. Said defendant company was negligent in that the said Bartlett, who had at the time herein mentioned the superintendence of the repairing of said cars entrusted to him, caused said doors to be released as aforesaid, without giving . . petitioner an opportunity to get off of said shaft, and without giving . . petitioner any warning of his intention to drop the said doors as aforesaid. 15. Said defendant company was negligent in that the said Satterfield, in obedience to the instructions given him by the said foreman Bartlett, lowered the said drop doors as aforesaid.” It is alleged that the injuries were inflicted without fault or negligence on the part of 'the plaintiff.</p> <p>The second count does not refer to the statute set out in the first count. Otherwise its allegations are the same as those of the first count, except that it omits the paragraph in which it is alleged that the defendant was negligent in that Satterfield, in obedience to the instructions of Bartlett, lowered the drop doors.</p> <p>The defendant demurred to the first count, on the grounds, (1) that it fails to set forth a cause of action; (2) that it does not show a cause of action under the laws of Alabama; (3) that under the provisions of the statute set forth in that count, no right of action exists except where the liability is enforced in a court of Alabama; (4, 5) that it is not alleged that the plaintiff did not know of the instructions given by Bartlett to Satterfield to knock up the latch and release the drop doors; (6) that the defendant is not liable for acts of Satterfield, unless they were negligent acts in conformity to orders negligently given by one who was entrusted with superintendence; and (7) that it does not appear that the duty of the plaintiff required him to stand on the' drop doors, or that to be upon the drop doors was proper for him in doing the work he was called upon to do, or that Bartlett knew he was standing on the drop doors.</p> <p>■ To the second count the defendant demurred, on .the grounds, (1) that no statute of Alabama is set forth on which liability can be or is based; (2) that if there is no statute of Alabama on the subject, the presumption is that the common law is of force in that State; and at common law the defendant would not be liable under the allegations in this count; (3) that under the allegations in this count, Bartlett, who is styled foreman, was a fellow servant of the plaintiff, and the plaintiff could not recover for injuries inflicted because of the negligence of Bartlett; (4) that it is not alleged that the plaintiff did not know of Bartlett’s order to Satterfield; and (5) it does not appear that it was the plaintiff’s duty, or proper for him, to stand on the drop doors, or that Bartlett knew he was standing on them.</p> <p>In a subsequent demurrer it is stated that an amendment to the petition was'allowed, subject to demurrer; and, with reference to the petition as amended, the 1st, 2d, and 3d grounds of the original demurrer to each count ’are repeated. The amendment is not in the record sent to the Court of Appeals, and is not specified in the bill of exceptions as a material part of the record to be sent to this court. The demurrer to the petition as amended was sustained, and the petition dismissed. The plaintiff excepted.</p> <p>cited: On the first count: Denicb v. Bailroad Co., 103 U. S. 11; Stewart v. B. & O. Bailroad, 168 U. S. 445; Atchison &c. By. v. Sowers, 213 TJ. S. 56; Tennessee Goal So. Co. v. George, 11 Ga. App. 321; Sou. By. Co. V. Decker, 5 Ga. App. 21, 34; Sou. By. Co. v. Bobertson, 7 Ga. App. 154-63; 2 Bose’s Code, Fed. Proced. §§ 1803-4; Martin v. P. & L. E. Bailroad, 203 IT. S. 284. As to the second count: Moore v. Dublin Cotton Mills, 127 Ga. 609; Williams v. Garbutt Lumber Co., 132 Ga. 221; McDuffie v. Ocean S. Co., 5 Ga. App. 125; s. e. 6 Ga. App. 671; Sparta Oil Mill v. Bussell, 6 Ga. App. 295; Whitfield v. L. & N. B. Co., 7 Ga. App. 271; Brown v. Mass. Mills, 7 Ga. App. 643; Hop. Pers. Inj. § 279.</p> <p>cited: On the first count: Slater v. Mexican Nat. B. Co., 194 H. S. 120; Dennis v. Atlantic Coast Line E. Co., 49 S. W. 869; Smith ¶. Condy, 1 How. 28; Coyne v. Sou. Pac. B. Co., 155 Fed. 683; Nonce v. B. & D. B. Co., 33 Fed. 435; Selma Sc. B. Co. v. Lacy, AO Ga. 106; Tenn. Coal Sc. Co. v. George, supra, distinguished. As to the second count: Brush Electric Light Co. v. Wells, 110 Ga. 192.</p>

<p>1. Where the written notice of the sanction of a certiorari, and of the time and place of hearing, which is required by the Civil Code, § 5190, is not given at least ten days before the time fixed by law for the beginning of the term of the court to which the writ is returnable, the certiorari ■should be' dismissed, unless it appears that the failure to give the ■ prescribed notice was due to providential cause.</p> <p>2. The phrase “the sitting of the court,” as employed in § 5190, supra, is not used to denote the time during a term of the court when the court may sit to hear the particular case, but refers alone to the day fixed by law when the court must begin to sit for the disposition of all cases legally cognizable at that term of the court, and is used as an equivalent of the expression “the first day of the term.”</p>

<p>Certiorari; from Fulton superior court — Judge Bell. January 1, 1913.</p>

Action on bond; from city court of Dawson — Judge M. C. Edwards. 'January 21, 1913. Tbe Brown Guano Company, for the use of A. J. Hill, foreclosed a crop mortgage against E. C. Coker and Mrs. E. C. Coker. Hpon the levy of the fi. fa. the defendant Mrs. Coker filed an .affidavit of illegality and gave to the levying officer a forthcoming bond. Suit for a breach of the bond was brought against the principal and the surety.

<p>Complaint; from Colquitt superior court — Judge Thomas. March 8, 1913.</p>

<p>1. “In an action by a servant against a master for alleged failure of duty on the part of the latter in not giving to the servant warning of danger incident to his employment, it must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and did not have equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it. If the danger be obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning of it.” Hendrix v. Vale Royal Mfg. Co., 134 Qa. 712 (68 S. E. 483); Civil Code (1910), § 3131.</p> <p>2. Ah adult servant of ordinary intelligence who has been at work on a machine a sufficient length of time to discover patent and manifest defects and dangers will be presumed to have knowledge of such defects or dangers. In other words, the duty 5s placed upon a servant charged with the operation of a machine to observe every visible and manifest defect in the machine which would render his work dangerous. If his opportunity to discover such defects is equal to that of the master, he can not recover damages for personal injuries caused by his operation of the machine; and in a suit by the servant to recover such damages, the burden is upon him to show that he did not have equal means with the master of discovering these defects and dangers, and by the exercise of ordinary care could not have known of them. Rowland v. Tift, 131 Ga. 683 (63 S. E. 133, 20 L. R. A. (N. S.) 354); Crown Cotton Mills v. McNally, 123 Ga. 35 (51 S. E. 13); Vincent v. Willmgham Cotton Mills, 2 Ga. App. 53 (58 S. E. 413); 1 Labatt, Master and Servant, § 394, and cases cited.</p> <p>S. Except in the case of railroad companies, a servant can not recover against a master for personal injuries caused solely by the negligence of a fellow servant.</p> <p>4. The evidence in behalf of the plaintiff showing that his injuries were due either to the negligence of a fellow servant, or to visible and patent defects in the machine that he was operating, and that he had equal means with the master of knowing of such defects or dangers, the judgment awarding a nonsuit was not erroneous.</p>

<p>Habeas corpus; from city court of Floyd county — Judge Reece. May 6, 1913.</p>

<p>Action for damages; from city court of Abbeville — Judge Nich olson. February 12, 1913.</p>

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

<p>Accusation of misdemeanor; from city court of Dublin — Judge Hicks. June 30, 1913.</p>

<p>Certiorari; from Bryan superior court — Judge Sheppard. June 23, 1913.</p>

<p>Indictment for assault with intent to murder; from Lowndes superior court — Judge Thomas. June 6, 1913.</p>

<p>Certiorari; from Effingham superior court — Judge Sheppard. June 16, 1913..</p>

<p>The court committed no error of law, and the evidence authorized the conviction of the accused. Russell, J., dissents. •</p>

<p>Certiorari; from Carroll superior court — Judge R. W. Freeman. July 1, 1913.</p>

<p>The plaintiff having made out a prima facie case by the introduction of evidence supporting the allegations in his petition, the court erred in granting a nonsuit.</p>

<p>Affidavit of illegality; from city court of Blakely — Judge Sheffield. April 21, 1913.</p>

<p>The allegations of the petition set out a cause of action arising ex contractu, relating to a right of property. This right, being a chose in action, was legally assignable, and a suit by the assignee was maintainable.</p>

<p>1. Partnership or no partnership is a fact which may be proved by statements or admissions of the alleged partners. Where suit on a promissory note is brought against a partnership as the alleged maker thereof, and the defendants rely upon the defense that the person who executed the note was not in fact a member of the partnership, while the admissions of that person, made in the absence of the others, would not be sufficient evidence against them of the existence of the partnership, yet where each of the alleged partners admitted that he himself was a member of the firm, their admissions would be sufficient to prove the existence of the firm as alleged.</p> <p>2. Under the Civil Code (1910), §§ 3172, 3180, one member of a commercial partnership can bind it by signing its name to a promissory note under seal in the course of the business of the partnership.</p> <p>3. The partnership was proved as alleged in the petition, no error of law appears, and the verdict for the plaintiff was properly affirmed by the trial judge in his refusal to grant a new trial.</p>

<p>Complaint; from city court of Blakely — Judge Sheffield. June 16, 1913.</p>

<p>Certiorari; from Fannin superior court — Judge Patterson. May 30, 1913.</p> <p>Thomas Douthit was tried before the mayor of the City of Blue Ridge on a “city warrant” charging him with “disorderly conduct,” and was fined $25. He sued out certiorari, alleging that the judgment was contrary to law and to the evidence; and the certiorari was overruled by the judge of the superior court, “upon the ground . that certiorari does not lie in the first instance, there being the right of appeal from the judgment of the mayor to the city council, in all cases where there are issues of fact.” Douthit excepted to the judgment overruling the certiorari. The evidence on the trial before the mayor was to the effect that Douthit was seen at night in the woods near a certain residence, with women of bad character and a man named Yestal, by the town marshal, who testified that he had “heard the women and men talking loud down there in the woods,” and that Yestal had something under his arm like a quilt or lap robe. Others testified that they heard the talking and laughing. ' Douthit stated on the trial that on that night he went on the street to meet a man who had agreed to bring liquor to him for medical purposes, and met Yestal, who proposed that they go down the road; he supposed that Yestal was there for liquor, and he went with Yestal, and in a few minutes three women came along and stopped and began to laugh, and in a few minutes the marshal came and arrested them; he had not been guilty of improper conduct with them, did not go there to meet them, did not know they were going to be' there, and did nothing while there that would disturb the peace and quiet of anybody. Municipal ordinances, introduced in evidence, prohibit any persons to disturb the peace, quiet, and good order of the city by loud and boisterous language; or to holler or scream in a loud voice, or otherwise act in a disorderly manner, tending to disturb the peace and quiet of the residents of the city; or to congregate after 9 o’clock p. m. on the streets or at any other place in the city limits, and, by loud laughing or talking, to make noise or disturbance which tends to create disorder and excitement.</p> <p>The charter of the City of Blue Ridge provides, that “any person convicted before the mayor . . may enter an appeal from the judgment of said court to the board of councilmen” within two days, and that “any person convicted by the councilmen on the appeal shall have the right to certiorari to the superior court;” and that “nothing in this section shall be construed to prevent any person convicted of a violation of any ordinance of said city before the mayor’s or police court from certioraring the proceeding directly to the superior court in all cases when certiorari will lie from the judgment of the justice of the peace in civil actions under the rules of law governing such cases.” Acts 1908, p. 438, sec. 30.</p> <p>cited: Acts 1908, p. 428; Cruse v. Sou. Express Co., 72 Ga¡ 184; Toole v. Edmondson, 104. Ga. 776; Grimsley V. Alexander, 106 Ga. 165.</p> <p>cited Acts of 1908, supra.</p>

<p>Certiorari; from Bryan superior court — Judge Sheppard. June 23, 1913.</p>

<p>Accusation of misdemeanor; from city court of Fitzgerald— Judge Griffin. February 28, 1913.</p>

<p>Indictment for larceny of cow; from Colquitt superior court— Judge Thomas. June 9, 1913.</p>

<p>Accusation of misdemeanor; from city court of Carrollton— Judge Beall. April 5, 1913.</p>

<p>Accusation of sale of liquor; from city court of Macon — Judge Hodges. June 21, 1913.</p>

<p>Conviction of manslaughter; from Sumter superior court — Judge Littlejohn. June 26, 1913.</p>

<p>Accusation of misdemeanor; from city court of Americus — Judge Harper. June 12, 1913.</p>

<p>The jury had had the case under consideration for about 18 or 20 hours, and, being unable to agree, called the sheriff and requested him to communicate with the court and ask the court either to recharge the jury, or to order a mistrial. The sheriff replied: “Gentlemen, if it is a new charge you want, I am ready to go right down and submit it; but if it is a mistrial I would feel embarrassed to do it, because I have heard the judge say that he was conscientiously opposed to mistrials in Wilcox county. But I will submit it if you insist on it.” This was all that passed between the sheriff and the jury; and shortly afterward the jury returned a verdict of guilty. Upon the hearing of the motion for a new trial the facts above stated were admitted, and there were no properly identified affidavits from the jurors to the effect that they were not influenced by the conduct of the sheriff to return a verdict of guilty. Held, that a new trial should have been granted on account of this irregularity.</p>

<p>Accusation of misdemeanor; from city court of Quitman — Judge Long. June 9, 1913.</p>

<p>“In a criminal case in which the guilt of the defendant is wholly dependent on circumstantial evidence the jury should be instructed that if the proved facts are consistent with innocence, the defendant is entitled to an'acquittal.” Riley v. State, 1 Ga. App. 651 (57 S. E. 1031).</p>

<p>Accusation of gaming; from city court of Houston county— Judge Riley. June 10, 1913.</p>

<p>Indictment for sale of liquor; from Gordon superior court-judge Fite. June 27, 1913.</p>

<p>Indictment for shooting at another; from Eandolph superior court — Judge Worrill. July 8, 1913.</p>

<p>■ Accusation of misdemeanor; from city court of LaGrange— Judge Harwell. June 34, 1913.</p>

<p>Indictment for larceny; from Ben Hill superior court — Judge George. June 30, 1913. '</p>

<p>Indictment for embezzlement; from Lowndes superior court— Judge Thomas. July 12, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. July 26, 1913.</p>

<p>1. No error appears in the rulings of the trial judge on the admissibility of evidence; and the objections made to excerpts from the charge of the court are without merit, when considered in connection with the instructions as a whole.</p> <p>2. The trial judge clearly and fully presented to the jury the contentions of the accused.</p> <p>3. No error of law appears, and the verdict was fully supported by evidence.</p>

<p>Indictment for arson; from Ben Hill superior court — Judge George. July 14, 1913.</p>

<p>Conviction of shooting at another; from Bryan superior court — * Judge Sheppard. July 5, 1913.</p>

<p>1. The evidence demanded a finding that the accused engaged in the busi- . ness of selling substitutes for intoxicants, without having first obtained a license and paid the tax required by law, in violation of section 448 of the Penal Code. The fact that the license was obtained and the tax . paid some months after the accused began to do business might be considered in mitigation of the punishment, but constitutes no defense to a prosecution under this section of the code.</p> <p>2. The fact that the jurors put upon the accused had previously tried a similar case against another person afforded no ground for challenge to the array.' If the accused desired to make the point that any of the jurors were not impartial, it should have been done by a challenge to the poll. Bryan v. State, 124 Ga. 79 (52 S. E. 298); Paulk v. State, 2 Ga. App. 662 (58 S. E. 1109). In view of the fact that the jurors were put upon their voir dire and qualified as impartial jurors, the ruling in Lewis v. State, 118 Ga. 803 ( 45 S. E. 602), is not applicable.</p> <p>3. Even if it was erroneous to admit in evidence a certified copy of the application to sell “near beer,” made by the accused to the mayor and council, it was harmless error. It being admitted that the accused had engaged in the sale of “near beer” without license and payment of the tax, it was wholly immaterial whether it was done with or without the consent- of the mayor and council.</p> <p>4. For the same reason it is not cause for a new trial that the court admitted in evidence copies of a letter from the Governor of Georgia to the attorney assisting in the prosecution, designating him as special agent to collect the unpaid taxes due by “near beer” dealers, and a letter from this attorney to the accused demanding payment of the tax.</p> <p>5. The refusal of the trial judge to. allow counsel additional time, under superior-court rule No. 5 (Oivil.Code, § 6264), to'argue a misdemeanor case, will not be cause for a new trial, when the evidence demands a ■ conviction. . .</p> <p>6. In view of the fact that the evidence demanded the conviction, the. assignments of error upon the charge of the court will not be considered.</p>

<p>Petition for certiorari; from Fulton superior court — Judge Pendleton. August 8/1913.</p>

<p>Indictment for assault with intent to murder; from Houston superior court — Judge Mathews. July 5, 1913.</p>

<p>1. There is no law that requires one moving for a new trial to make up a brief of the evidence from the official stenographer’s report; and when the movant’s counsel presents a brief of the evidence for the approval of the court, it is for the judge to approve or reject it, and it is immaterial whether counsel for the opposite party agrees to the brief, or can recollect the testimony, or approves the statement thereof. “The law does not require the approval of the brief of evidence by opposing counsel. He has nothing to do with it. The law requires the brief to be approved by the trial judge only.”</p> <p>2. On presentation of an incorrect brief of evidence the trial judge may require that it' be corrected, and upon the movant’s failure or refusal to correct it the judge may refuse to approve it, but before refusing on the ground that the brief is incorrect, he should call attention to the particulars in which it is incorrect and afford the movant an opportunity to correct it.</p> <p>3. The trial judge may for himself require the notes of the official stenographer to be written out at the public expense for comparison with the brief of evidence as presented by the movant for a new trial, and to aid in refreshing the court’s recollection of the testimony, but he has no power to require the movant to make up a brief of evidence from the report of the official stenographer, or to produce the report, or a copy of it, to be used in verifying the brief.</p>

<p>Indictment for misdemeanor; from Rabnn superior court — Judge J. B. Jones.' July 21, 1913.</p>

<p>Indictment for assault with intent to murder; from Chatham superior court — Judge Charlton. August 19, 1913.</p>

<p>Indictment for sale of liquor; from Mitchell superior court— Judge Frank Park. July 28, 1913.</p>

<p>The evidence was not sufficient to authorize the verdict.</p>

<p>Indictment for sale of liquor; from Laurens superior court-judge Hawkins. August 16, 1913.</p>

<p>Accusation of carrying concealed weapon; from city court of Elberton — Judge Grogan. August' 23, 1913.</p>

Indictment for murder — conviction of voluntary manslaughter; from Fannin superior court — Judge Patterson. August 15, 1913.

<p>1. The fact that the panel of jurors put upon the accused heard the evidence introduced upon a previous trial of one jointly indicted with the accused, and after the conclusion of the evidence were ordered from the court-room by the judge, is no ground for challenge to the array. A challenge might have been made to any juror whose competency the accused desired to test.</p> <p>2. On the trial of one charged with gaming it is not error to charge that if the accused played and bet for money as alleged in the indictment, it is immaterial whose money it was or who put up the money with which he played.</p> <p>3. The refusal of the trial judge to accede to a request, privately made to him before the jury had retired, but after the indictment had been handed them, to conceal from the jury, by pasting paper over it, a verdict which a previous jury had entered on the bill of indictment on the trial of one jointly indicted with the accused, is no cause for a new trial. This is a matter within the discretion of the trial judge.</p> <p>4. Where the guilt of the accused rests entirely upon circumstantial evidence, failure to charge the jury on the law relating to this character of evidence is error requiring the grant of a new trial.</p>

<p>Accusation of sale of liquor; from eity court of Hall county— Judge Irwin presiding. August 30, 1913.</p>

<p>Accusation of pointing gun at another; from city court of Jackson — Judge Fletcher. September 3, 1913.</p>

<p>Accusation of sale of liquor; from city court of Jackson — Judge Fletcher. September 3, 1913.</p>

<p>Indictment for perjury; from Bartow superior court — Judge Fite. March 24, 1913.</p>

<p>Conviction of manslaughter; from Bibb superior court — Judge Mathews. January 31, 1913.</p>

<p>1. The discretion of the trial judge in refusing to grant a new trial on the ground of newly discovered evidence will not be controlled, unless it plainly appears that the evidence alleged to have been newly discovered would probably change the result. This rule is peculiarly applicable where the alleged newly discovered testimony in a criminal case relates to facts which are not vitally material to the issue of the defendant’s guilt or innocence.</p> <p>2. In passing upon a ground of a motion for a new trial in a criminal case, based upon alleged'bias and prejudice of a juror against the movant, evidenced in part by expressions of opinion previous to the trial-as to the guilt of the accused, the judge of the trial court occupies the place of a trior, and his finding that the juror was competent will not be reversed, unless it is manifest that his discretion was abused.</p> <p>.3. The evidence authorized the conviction of the accused of the offense of voluntary manslaughter, and there was no error in refusing a new trial.</p>

<p>Accusation of misdemeanor; from city court of Houston county— Judge Eiley. June 17, 1913.</p>

<p>Accusation of misdemeanor; from city court of Elberton — Judge Grogan. August 13, 1913.</p> <p>The accusation charged Will Jenkins “with the offense of misdemeanor; for that the said Will Jenkins, in said county, on the 24th day of May, 1913, did, with force of arms and unlawfully, enter a certain storeroom of one M. Landau, located on McIntosh street, in Elberton, Georgia, and did then and there two pair of pants, of the value of four dollars per pair and of the personal goods of the said M. Landau, take therefrom and carry away therefrom, with intent to steal the same; contrary to the laws of said State, the good order, peace, and dignity thereof.”</p>

<p>Accusation of misdemeanor; from city court of Bainbridge— Judge Spooner. August 25, 1913.</p>

<p>Indictment for larceny; from Liberty superior court — Judge Sheppard. July 26, 1913.</p>

<p>1. A challenge propter affectum to a juror in a criminal case should be sustained when it is made to appear to the court as trior that the juror, in his official capacity as justice of the peace, received the affidavit and issued the warrant which was the basis of the accusation. The smallest degree of interest is a decisive objection to a juror in a crim- . inal case.</p> <p>2. In charging upon alibi it is error to instruct the jury that if they “believe from the evidence, and believe it beyond a reasonable doubt, that it was impossible for the defendant to' be present at the scene of the offense at the time of its commission, and that the evidence in this respect is sufficient to exclude the possibility of the defendant’s presence ' at the time and place it was committed, you will be authorized to acquit the defendant.” To establish an alibi the evidence must be sufficient to exclude the possibility of the defendant’s presence at the scene of the crime at the time of its commission, but he is not required to establish the impossibility'of his presence beyond a reasonable doubt; it is sufficient if this impossibility is shown to the reasonable satisfaction of the jury. Proof of alibi may entitle the accused to an acquittal even though it goes no further than to raise a reasonable doubt of the defendant’s guilt when considered on the general case with the rest of the testimony; and for this reason, if for no other, to require the defendant to establish the defense of alibi to the exclusion of a reasonable doubt places on him a burden not imposed by law.</p>

<p>Accusation of cheating and swindling; from city court of Port Gaines — Judge Turnipseed. August 8, 1913.</p>

<p>Accusation of cheating and swindling; from city court of Jackson — Judge Fletcher. September 3, 1913.</p>

<p>Indictment for sale of liquor; from Laurens superior court— Judge Hawkins. September S, 1913.</p>

<p>Indictment for sale of liquor; from Laurens superior court— Judge Hawkins. September 5, 1913.</p>

<p>1. One may be convicted as principal in the second degree oí the offense of voluntai'y manslaughter.</p> <p>2. There being no evidence of any conspiracy or concert of action between the a'ceused and the person who actually committed the homicide, and the evidence not demanding a finding that the deceased came to his death as a result of the wound inflicted by the accused, it was error to refuse to charge the jury the law applicable to the offense ,of assault with intent to murder, for unless the jury should find that the death of the deceased resulted from a wound inflicted by the accused, he could at most be convicted only of the offense of assault with intent to murder.</p> <p>3. Except as above indicated the trial was free from material error.</p>

<p>1. “Evidence of good character is not admitted as a mere makeweight, but as evidence of a positive fact, and may of itself, by the creation of a reasonable doubt, produce an acquittal.” Seymour v. State, 102 Qa. 805. It was therefore error, in instructing the .jury upon the weight to be given to evidence touching the good character of the accused, to charge them in effect that it is only in connection with other evidence that such evidence may, by the creation of a reasonable doubt, produce an acquittal.</p> <p>2. While, of course, mere proof of the good character of the accused will not avail as a defense when the jury are satisfied by the evidence, beyond all reasonable doubt, of the guilt of the accused, still such proof of good character may of itself annihilate an apparently plain case of guilt by discrediting and impeaching the testimony upon which the conclusion of guilt is necessarily based.</p> <p>3. The instructions of the trial judge, other than those relating to the consideration of the testimony as to the defendant’s good character, were free from error; but since the verdict rendered, of guilty of shooting at another, was not demanded, and there was testimony supporting the defendant’s statement at the trial, which might have justified him, the error in the instructions to which we have referred must be adjudged to have been prejudicial, and a new trial should have been granted.</p>

<p>1. It is a penal offense to give, furnisli, or sell any of the narcotic drugs mentioned in the statute.(Acts of 1907, p. 121, Civil Code, § 1651), except upon the conditions prescribed therein.</p> <p>2. The statute regulating the furnishing or sale of narcotic drugs was intended not only to prevent traffic in such drugs, but also to lessen the evil consequent upon the habitual use of such narcotics.</p> <p>3. Where a person, in violation of the statute, administers, by means of a hypodermic syringe, morphine to another in such quantity as to cause death, he commits an unlawful act, and a conviction of involuntary manslaughter in the commission of an unlawful act would be authorized. It would be no defense that in the administration of the drug the intent was not to cause death, but to alleviate pain.</p> <p>4. The charge of involuntary manslaughter in the commission of an unlawful act can be based upon an act malum prohibitum as well as upon an act malum in se.</p> <p>5. No material error of law appears, and the evidence supports the verdict.</p>

<p>1. In a prosecution for a violation of section 715 of the Penal Code, generally known as the “labor-contract act,” the burden is upon the State to show that the hirer alleged to have been damaged has in fact sustained a loss capable of definite computation.</p> <p>2. The “lahor-contraet act” was not designed to afford machinery for the collection of debts by criminal prosecution, but was intended to apply only to cases where punishment should be inflicted upon those who obtained money, or pther advance of value, by fraud and with the intent to cheat and damage the opposite party to the contract. It is axiomatic that where no loss is shown to have been sustained by a person alleged to have been defrauded, the act alleged to be fraudulent is not punishable as a crime.</p> <p>3. The conviction in this case was wholly unauthorized.</p>

<p>1. Where one is put on trial under an indictment charging him with a misdemeanor, he may be convicted if the proof shows the commission of the offense at any time within the two years preceding the finding of the indictment. It follows that where one acquitted of a misdemeanor is subsequently put on trial under an indictment charging the same character of misdemeanor, under which indictment proof can be made of the commission of the offense at a time within the period covered by the former indictment, and evidence which would support a conviction under the second indictment would have been sufficient to convict under the first indictment, a plea of former jeopardy, setting up these facts, should not be stricken on demurrer.^</p> <p>2. In such case it is not within the power of the court to deprive .the accused of the full and free exercise of the rights accruing to him under a plea of former jeopardy, by requiring him to be tried upon an agreement that the court will limit the range of the evidence against him.</p> <p>3. A plea that the accused had been tried and acquitted for furnishing liquor to a minor constituted no bar to a subsequent prosecution for selling liquor illegally.</p> <p>4. A ground in a motion for a new trial, objecting to the admission of testimony, must set out, in substance at least, the testimony admitted over objection; otherwise this court will not consider the ground. It will not look to other parts of the record to complete the imperfect assignment of error.</p> <p>5. Evidence that a large quantity of whisky contained in pint bottles had been claimed by the accused and delivered to him was admissible on his trial for the offense of selling intoxicating liquor. Especially is this so where the liquor alleged to have been sold was of the same quality as the liquor contained in the bottles. It is a circumstance of corroboration, of more or less weight, according to its nearness or remoteness to the matter under investigation.</p> <p>6. Error in admitting testimony, objected to on the ground that it was irrelevant, immaterial, and hearsay, will not require the grant of a new trial, where it is manifest that the testimony could not have prejudiced the jury against the accused, ,and where competent evidence clearly supports the verdict.</p>

<p>While certain paragraphs of the petition were subject to special demurrer, the petition as a whole set forth a cause of action, and it was error to dismiss the suit upon general demurrer.</p>

Complaint; from city court of Tifton — Judge B. Eve. January 8, 1913. The National Bank of Tifton sued Monk on a promissory note payable to Brooks and indorsed by the payee. Monk pleaded that the note sued on was given in renewal of a note which was usurious and without consideration, and that this was known to the bank when it acquired the note. On the trial the defendant admitted a prima facie case for the plaintiff and assumed the burden of proof.

Attachment; from city court of Leesburg — Judge Long. January 23, 1913. The defendant moved to dismiss the attachment, basing the motion on the ground that the attachment affidavit did not allege that the debt was due, and upon the further ground that it did not contain an accurate and specific description” of the property.

<p>Action for .damages; from city court of Carrollton — Judge Beall. March 19, 1913.</p>

<p>Action for damages; from city court of Richmond county— Judge W. F. Eve. April 21, 1913.</p>

Action for damages; from city court of Wayeross — Judge Lank-ford presiding. March 4, 1913. The Atlantic Coast Line Railroad Company brought suit in the city court of Wayeross against J. R. & T. Bunn for $1,049.95 principal, with interest.

<p>The evidence authorized the verdict; no material error of law was committed, and the court did not err in refusing to grant a new trial.</p>

<p>Certiorari; from Mitchell superior court — Judge Frank Park. April 17, 1913.</p>

<p>Appeal; from Fulton superior court — Judge Bell. May 22,1913.</p>

<p>Accusation of misdemeanor; from city court of Albany — Judge Jones. April 18, 1913.</p> <p>The accusation charged that the defendant “did . . be and appear in an intoxicated condition on Washington and South streets, public streets and highways in the City of Albany, Georgia, which said drunkenness and intoxication was caused by the excessive use of intoxicating wines, beers, liquors, and opiates, and was made manifest by indecent condition and acting by reckless driving upon said streets and highways by said defendant.” The defendant demurred, on the grounds, that the accusation sets forth no crime; that it fails to specify what “indecent condition” is referred to, or wherein it was indecent; and that the terms “reckless driving” are too vague and uncertain to notify the defendant of the acts referred to or intended to be proved. The demurrer was overruled, the accused was convicted, and the case came to this court on exceptions to overruling of the demurrer and to the refusal of a new trial.</p>

<p>Certiorari; from Chatham superior court — Judge Charlton. August 16, 1913.</p>

<p>Complaint; from city court of Nashville. — Judge Cranford presiding. June 21, 1913.</p>

Action for damages; from city court of Nashville — Judge Buie. June 10, 1913. Mrs. Allen sued the County of Berrien for $2,500, alleging, (1) that she had been damaged in that sum by reason of the following facts: (2) On or about April 30, 1912, she was traveling a public road leading from Ray’s Mill, Georgia, to Cat Creek, Georgia, in said county, in a buggy drawn by a gentle family horse.

<p>No error of law being complained of, and there being evidence to support tbe verdict, this court has no power to grant a new trial.</p>

<p>1. A grandmother who accepted from the mother, with the consent of the father, the gift of an infant grandchild, which the grandmother thereafter raised as her own child, performing for it all parental duties, stands in loco parentis and, in an action for the tortious homicide of the child, is entitled to recover the value of the child’s services until majority, where the homicide occurred after the grandmother, on account of her extreme age, had become dependent upon the child’s earnings for her support.</p> <p>2. The allegations of the petition as to the consent of the father to the adoption of his minor child are sufficient to withstand a general demurrer.</p> <p>3. The question of comparative negligence raised by the pleadings presents issues of fact which can properly be determined only by a jury, and there was no error in overruling the general demurrer to the petition.</p>

<p>Complaint; from city court of Baxley — Judge Sellers. December 81, 1912.</p>

<p>Complaint; from city court of Dublin — J. E. Burch, judge pro hac vice. May 19, 1913.</p>

<p>Property in the possession of a levying officer in pursuance of lawful process can not, upon the dismissal of the proceeding upon which the process was founded, be recovered from the officer in an action of trover brought by the person at whose instance the process was issued. After the dismissal of the proceeding it is the duty of the officer to return the property to the person from whom it was taken, and his refusal to deliver it to the person who caused the process to be issued is not a conversion.</p>

<p>Foreclosure of mortgage; from city court of Dublin — Judge Hicks. May 13, 1913.</p> <p>The mortgaged property was described in the mortgage as the crops of all kinds growing and to be grown and raised during the year 1911 on “the plantation of A. L. Clark known as Clark’s place, 1368 district, G. M., Laurens county, Georgia,” including cotton, cottonseed, corn, fodder, peas, cane and hay. The fi. fa. was issued and levied in November of that year, and the property described in it was the crop of all kinds growing and to be grown on “the plantation of the said A. L. Clark,” including cotton, cottonseed, corn, fodder; peas, cane, and hay, etc. The entry of levy stated that the levy was on “35 acres cotton, more or less, in the .field, being about 5 bales; 175 bushels corn, more or less, in the crib; levied on-as the property of A. L. Clark and in his possession.” One of the grounds of the defendant’s affidavit of illegality was that “the paper purporting to be a mortgage is not a mortgage, for the reason that there is no intention of the parties to take a mortgage, and the description is insufficient to create any lien.” On the trial it was testified that “A. L. Clark lives in 1368 district of Laurens county and has a farm in said district.” “The property [on which the levy was made] was found on the farm where A. L. Clark lived. . He had two places in the same district, and they were about two miles apart.” On the trial the court admitted in evidence the mortgage fi. fa. and the levy, over the objection of the defendant that there was no sufficient description of the property therein, and that the description in the fi. fa. did not follow the mortgage. The verdict was against the defendant. In his motion for a new trial, the overruling of which is assigned as error, he alleges that the court erred in admitting in evidence the mortgage fi. fa. and the levy, over the objection stated above.</p> <p>Citations by counsel: Broach v. O’Neal, 94 Ga. 475; Stephens v. Tucker, 55 Ga. 543; Krine v. Tifts, 65 Ga. 644.</p>

<p>Affidavit of illegality; from city court of Baxley — Judge Sellers. April 5, 1911.</p>

<p>Action on contract; from city court of Columbus — Judge Tigner. June 11, 1913.</p>

<p>Complaint; from city court of Bainbridge — Judge 'Spooner. July 2, 1913.</p>

<p>Complaint; from city court of Fitzgerald — Judge Newbern presiding. July 6, 1913.</p>

<p>1. The objections raised by special demurrer to the plaintiff’s petition were met and cured by proper- amendments; and the general demurrer was properly overruled, because the petition alleged a case of mutual dealings between the parties, which relieved from the bar of the statute of limitations those items of the plaintiff’s account which otherwise might have been subject to the operation of the statute.</p> <p>2. Whether or not an account is a mutual one is a question of fact.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. June 28, 1913.</p>

<p>Trover; from city court of Bainbridge — Judge Spooner. July 10, 1913.</p>

<p>Action for damages; from city court of Richmond county— Judge William F. Eve. May 30, 1907.</p>

<p>The trial judge, sitting as trior of both law and facts, was authorized to find, under the agreed statement of facts, that the defendant beneficial association had waived the forfeiture which would have resulted from the non-payment of arrearages of dues; or he was authorized to find that there were no arrearages of dues which would defeat the plaintiff’s right to funeral benefits. The judgment was authorized upon either ground, especially by reason of the fact that at the time the member of the organization in question died, his dues had been paid and receipted for in full to a date subsequent to his death, and the association which had accepted these dues retained them without any offer to return them.</p>

<p>1. A surety is one who becomes responsible for the debt, default, or miscarriage of another, the principal remaining bound therefor. A contract of suretyship differs from a guaranty in that the consideration of the latter is a benefit flowing to the guarantor. Civil Code (1910), § 3538. By a contract of fidelity-insurance, a fidelity-insurance company insures against loss caused by the default, neglect, or dishonesty of a trustee, officer, agent, or other employee, or such other person as may be required to give bond, or guarantees tbe performance of such bonds, as individuals do who sign the bonds of such persons as sureties. Civil Code (1910), § 2550.</p> <p>2. In an action based upon a contract, the rights of both parties are to be determined by the contract, and the contract is to be so construed as to give effect to the manifest intention of the parties. Even though the contract in the present case be held to be one of fidelity-insurance, still . the rule, that of two constructions the one favorable to the insured must be adopted, can not be availed of to refine away the terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties. While the general purpose of a contract of fidelity-insurance-is full indemnity, the contract here involved plainly is confined to the faithfulness of the principal in the bond in his discharge of a certain defined duty, without regard to the period of time necessary for its performance. The amount of liability is equally plainly limited. Furthermore, the receipts for premiums clearly evidence that the premium was accepted merely as payment for a continuance of the same limited liability, and not as compensation for a yearly cumulative liability of a like amount.</p> <p>3. When a bond guaranteeing the fidelity of an employee as to a specific duty, and not issued for a definite term, is renewed by the payment of a premium to “continue in force” the contract, there is still only one contract and one penalty; and receipts for premiums in renewal serve only to extend to a new period of time the indemnity provided by the original bond.</p> <p>4. Inasmuch as the plaintiff refused to amend as required by the judgment on the demurrer, the court did not err in dismissing the petition.</p>

Certiorari; from Cherokee superior court — Judge Morris. February 25, 1909. A fi. fa. in favor of J. H. Johnson and against W. C. Smith was levied .on certain personal property. Mrs. W. C. Smith interposed a claim. On the trial in the justice’s court the jury found the property subject to the fi. fa.

<p>1. In the absence of an express stipulation to the contrary, the statutory lien of a builder and materialman for labor and material furnished in improving real estate, arising under an entire contract, can not be foreclosed until the completion of the contract.</p> <p>2. A stipulation in- a building contract to the effect that the compensation of the builder shall be due and payable only on the certificate of a named engineer is a condition precedent, and an allegation of compliance with this condition is essential to the maintenance of an action brought to recover the unpaid balance of the compensation provided for in the contract, and to enforce its collection by the foreclosure of the materialman’s lien. And though this stipulation may be waived, still the mere failure or refusal of the umpire, chosen by the parties, to give a certificate does not entitle the builder to sue upon the contract. If the engineer named in the contract as .the arbiter has given a certificate stating that the contract has not been completed nor complied with, a recovery can not be had under the contract, and a suit upon a quantum meruit, to recover the value of the services and material furnished, would be the plaintiff’s appropriate remedy.</p> <p>3. In case of dispute between the parties as to the performance of any of the conditions or stipulations of a written contract, the mere submission of a proposal for arbitration of the matters in dispute, which was not acted upon by the opposite party, is not such a waiver as will operate as an estoppel. Unless the party to whom this proposal is made accepts it and acts thereon, the party making the proposition to arbitrate is not estopped from insisting upon the original contract; no right of the party to whom the proposal was made has been prejudiced or affected. The right to claim an estoppel by waiver is based on the loss or surrender of an equivalent right which would still exist but for some act of the opposite party which has altered the position of him who insists upon the waiver. To derive the benefit of an estoppel by waiver, he who asserts a waiver must show either that he has lost something or that the opposite party gained something by the act in question by reason of which it would be unjust to permit the beneficiary of the intervening act to assert his pre-existent rights.</p> <p>NOTE.</p> <p>In the.cases reported on pages 799 to 861 inclusive, the decisions antedate the other decisions in this volume, hut the opinions were withheld for revision and were not ready for publication in earlier volumes.</p>