Volume 14 — Georgia Appellate Reports

<p>Garnishment;' from city court of Thomasville — Judge W. M, Hammond. June 19, 1913.</p>

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

<p>Appeal; from Floyd superior court — Judge Wright. July 18, 1913.</p>

<p>Complaint; from city court of Macon — Judge Hodges. June 30, 1913.</p>

<p>Complaint; from city court of Tifton — Judge E. Eve. July 26, 1913.</p>

<p>Garnishment; from city court of Eeidsville — A. S. Way, judge pro hac vice. June 5, 1913.</p>

<p>Complaint; from city court of Atlanta — Judge Réid. June 4, 1913.</p>

<p>Complaint; from city court of Eastman — Judge Neese. July 4, 1913.</p>

<p>Certiorari; from Terrell superior court — Judge Worrill. July 10, 1913.</p>

<p>Indictment for larceny from person; from Bibb superior court— Judge Mathews. August 9, 1913.</p>

<p>Indictment for cheating and swindling; from Brooks superior court — Judge Thomas. August 30, 1913.</p>

<p>Accusation of cheating and swindling; from city court of Waynesboro — Judge Davis. September 6, 1913.</p>

<p>Accusation of larceny; from city court of Louisville — Judge Phillips. September 10, 1913.</p>

<p>On the trial of one indicted for using opprobrious words, it is for tbe jury to determine whether under all the 'facts and circumstances the words used were words tending to cause a breach of tbe peace, and whether there was provocation sufficient to excuse their use. It was therefore error to instruct the jury that if they should find that the defendant used the alleged opprobrious words, they would be authorized to find him guilty.</p>

<p>Accusation of pointing weapon; from city court of Bainbridge— Judge Spooner. September 8, 1913.</p>

<p>1. That a brother of the sheriff who had summoned the jurors thereafter instituted the prosecution affords no ground to challenge the array of the jury thus summoned.</p> <p>2. Though the number of jurors to be summoned is less in the city court of Bainbridge than in the superior court, the power of the judge of the city court to fill the panel is the same; and consequently the fact that it became necessary to fill the panel, and in so doing jurors who were qualified were summoned to complete the panel, affords no ground of challenge to the array.</p> <p>3. A charge in an accusation that the defendant disturbed a congregation of persons lawfully assembled for divine service at a named church is sustained by proof that he disturbed the congregation upon the church grounds while they were dispersing after the conclusion of the religious service.</p> <p>4. It is not a violation of section 412 of the Penal Code for a person to defend himself against a felonious assault, even though in so doing he disturbs a congregation 'assembled for divine worship, but the case is different when upon trivial provocation one engages in a fisticuff, or even “cusses and fusses.” In such a case the quarreling and fighting may of itself be indecent and out of place.</p> <p>5. Section 412 of the Penal Code, which is intended to prevent any disturbance of or interference with religious worship, continues the protection of the members of the congregation until they are .dispersed from the place of worship; and since there was evidence that the defendant was guilty of such language and conduct as to disturb the congregation while dispersing, the discretion of the trial judge in refusing to grant a new trial will not be controlled.</p>

<p>Certiorari; from Fayette superior court — Judge Eobert T. Daniel. September 26, 1913.</p>

<p>A married woman whose husband is not shown to be unable to support her can not be convicted of vagrancy upon proof alone that she is able to work and does not work; and this is true though she and her husband may be living in a state of separation.</p>

<p>Order to enforce sentence; from Tattnall superior court — Judge Sheppard. July 15, 1913.</p>

<p>1. In order to authorize a conviction of arson, the corpus delicti must be established independently of the confession of the accused.</p> <p>2. The evidence was insufficient to establish the corpus delicti.</p>

<p>Motion to vacate judgment; from city court of Atlanta — Judge Reid. December 14, 1912.</p>

<p>Certiorari; from Bleckley superior court — Judge Mathews presiding. June 23, 1913.</p>

<p>Foreclosure of mortgage; from city court of Waynesboro — -Judge Davis. January 39, 1913.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. February 13, 1913.</p>

Appeal; from Greene superior court — Judge Park. July 1, 1913. B. D. Watson brought suit in the county court of Greene county against the Western Union Telegraph Company, and on. appeal the case was tried in the superior court.

<p>Complaint; from city court of Bainbridge — Judge Spooner. June 25, 1913.</p> <p>Ware, for the use of Bailey, sued J. D. Chason on an open account for $175. The account was dated October 11, 1911, and was for 100 bushels of cottonseed, “22 sacks shipped to Arlington, Ga., and 22 sacks to Bainbridge.” The defendant answered, denying indebtedness, and setting up that there was no -written order or contract for the goods, that they had not been accepted and that they were not shipped in accordance with any agreement. On the trial the plaintiif testified: “I sold the 100 bushels of cottonseed in question, which Dr. Chason bought and agreed to pay $1.75 per bushel. . - I am the grower of Ware’s Special cottonseed, and sold the Doctor 100 bushels at $1.75 per bushel, to be shipped half to Arlington, Georgia, and half of said shipment to Bainbridge, Georgia. In pursuance of this trade I immediately shipped to Dr. J. D. Chason, ‘order notify,’ with sight draft attached, to Arlington, 50 bushels of said seed, and 50 bushels of said seed, order notify, with sight draft attached, to Bainbridge, Georgia, and on the same day drew a draft on said J. D. Chason for $175 to coyer said seed, and attached the bills of lading to said sight draft, and mailed it to a bank in Bainbridge for collection. Dr. Chason refused to accept the seed, claiming that he did not buy anything sight draft attached, as he had a commercial rating. Dr. Chason did not tell me how to ship said seed, except half to Arlington and half to Bainbridge. He said nothing about whether I should draw a draft on him or not; so I pursued my usual custom and drew a draft with bill of lading attached. Immediately upon his turning the draft down I mailed him the bill of lading, which he returned to me, still refusing to accept the seed and writing me the letter of date of October 26, 1911. The seed were sold some time this year by the G., F. & A. Bailway Company.- Those seed were in first-class condition. I did all that I agreed to do and all that I could do. Dr. Chason never did tell me to ship the seed open; and as soon as I found out that he had refused to pay the draft, I mailed the bills of lading to him at Bainbridge, Georgia, his home. The "0. N.’ on the bills of lading means "order notify/ The bills of lading were attached to the sight draft, and Dr. Chason could not have obtained the seed until he paid the draft. The title to the seed remained in me until Dr. Chason paid the draft. Dr. Chason failed to pay the draft. He made and signed the entry on the back of the draft, stating that he would not accept the seed. T read the entry made on the draft by Dr. Chason when it was returned to me. After reading the entry I detached the draft from the bills of lading and mailed the bills of lading to Dr. Chason. At the time I mailed them to Dr. Chason I knew that Chason had written that he would not accept the seed.” The plaintiff intro-' duced in evidence the bills of lading and the draft referred to, dated October 11, 1911, and a letter to him from J. D. Chason, dated October 26, 1911, saying: “I herewith return your bill of lading, and say to you again that you have sent me no bill and that your seed is subject to jmur order. You must remember that the seed is now probably ruined, lying in damp depot, salt and everything else, and I will not accept them or pay for them, as you did not ship as I instructed you to do and send bill to me, and to this precious hour you have sent no bill. I won’t accept them at all now, as I feel they are ruined.” With this evidence the plaintiff closed, and the court awarded a nonsuit; to which the plaintiff excepted.</p>

<p>Indictment for assault with intent to murder; from Chatham superior court — Judge Charlton. June 17, 1913.</p>

<p>Trover; from city court of Nashville — Judge Crahford presiding. July 16, 1913.</p>

<p>It is a violation of section 110 of the Penal Code for a married man to entice a female under the age of 18 years to leave her parent’s home without the parent’s consent, under a false and fraudulent promise of marriage, for the purpose of having sexual intercourse with her. The offense is made out though she he not taken beyond the limits of the county in which her parent resides, and though she leave willingly, under the belief that she is to be married to the person taking her away.</p>

Indictment for assault with intent to murder; from Muscogeesuperior court — -Judge Gilbert. May 5, 1913. The allegations of the indictment and the grounds of the demurrer appear in the report of the case of Snell v. State, 13 Ga. App. 158 (79 S. E. 71).

<p>1. A person accepting and entering upon the discharge of the duties of a municipal office must be deemed to have notice of all of the provisions of the municipal charter, and can recover compensation for his services only in the manner and to the extent therein provided.</p> <p>2. Where the municipal charter provides by ordinance for the compensation of municipal officers, and thereafter services are rendered which come within the scope of the duties of the municipal office, there is no implied assumpsit in favor of the plaintiff for the rendition of the services, when they are such as are included within the scope of his general duties.</p> <p>3. If the court erred at all in the direction of the verdict, the error was against the defendant, and affords the plaintiff no ground for complaint.</p>

<p>A partnership will not he held liable for a tort committed by one of the partners, in which the other partners did not join.</p>

<p>Action for damages; from city court of Dublin — Judge Hawkins presiding. June 17, 1913.</p>

<p>1. It being inferable, from the allegations of. the petition, that the beneficiary designated in the policy of life insurance sued on is still in life, the court did not err in sustaining a general demurrer to a suit brought by alleged heirs at law of the deceased, who are not designated in the policy as beneficiaries. On this point the decision is controlled by the ruling of this court in Gain v. Knights of Pythias, 11 Ga. App. 364, 367 (75 S. E. 444).</p> <p>2. The invalidity of a beneficiary’s claim of the right to collect the amount stipulated as payable under the terms of an insurance policy may be waived by the insurer, or asserted as a defense, at the insurer’s option. In the present case, it being inferable, from the allegations of the petition, that the insurer, with full knowledge of all the facts, waived the beneficiary’s disability, if any existed, the disability or disqualification of the beneficiary affords the plaintiffs no ground, to recover upon an allegation that they are the sole heirs at law of the deceased.</p>

<p>Affidavit of illegality; from city court of Bainbridge — Judge Spooner. June 30, 1913.</p>

<p>Action for damages; from city court of'Baxley — Judge Sellers. June 17, 1913.</p>

<p>Complaint; from city court of Polk county — Judge Irwin. July 15, 1913.</p>

<p>Removal of cause to United States Court; from city court of Americus — Judge Harper. June 16, 1913.</p>

<p>Affidavit of illegality; from city court of Reidsville — Judge Collins. June 3, 1913.</p>

<p>Complaint; from city court of Monroe — Judge Stone. March 8, 1913.</p>

<p>1. The filing of a mortgage in the office of the clerk of the superior court of the county in which the land lies is, from the time of its filing, notice to the world of its existence; and 'therefore the lien of a mortgage so filed, though not properly recorded, is superior to that of common-law executions entered on the docket after the filing of the mortgage. '</p> <p>2. The book kept by the clerk as a general execution docket was a substantial compliance with the law; and if in a given instance an execution was improperly indexed, and third persons were thereby misled to their injury, their remedy, if any, would be against the clerk; but the fact that the execution was so improperly entered would not prevent the entry from operating as legal notice.</p>

<p>Action for damages; from city court of Baxley — Judge Sellers. July 17, 1913.</p>

<p>Complaint; from city court of Oglethorpe — Judge Greer. June 28, 1913.</p>

<p>Appeal; from Chatham superior court — Judge Charlton. April 11, 1913.</p>

<p>1. ' The amendment offered by the plaintiff cured the original defects in the petition. The authority of an agent in a particular instance need not necessarily be proved by express contract, but it may be established by the habits, conduct, and course of business of the principal. If one thus holds out to another that his agent possesses certain authority, and this induces or influences others in their dealings with the agent, the principal is estopped to deny that the agent has the authority which, as reasonably deducible from the conduct of his principal, the agent apparently possesses.-</p> <p>2. Under the petition as amended, the issue is clearly presented as to whether the defendants, by their course of dealing, so held out their agent as 'one having authority that the plaintiff (acting as a person of average prudence and good faith would act) was justified in believing that prior limitations upon the authority of the agent had been withdrawn. The court did not err in overruling the demurrer.</p>

<p>1. A stipulation in a special contract of affreightment for the transportation of live stock, that the shipper has examined the car and found it in good condition, and accepts the same and agrees that it is suitable for the purpose of transporting the live stock, is, where based upon sufficient consideration, such as a reduced rate of freight, valid and binding:</p> <p>2. A shipper of live stock who accepts a contract of affreightment made in his behalf by another, and brings suit thereon for its breach, can not challenge the authority of the person who made- the contract in his behalf.</p> <p>3. An agreement on the part of a shipper such as that referred to in the preceding headnote amounts to a waiver of defects in the ear which could h'ave been discovered by the exercise of ordinary care, and, in a suit for damages for injuries to live stock, caused by defects in the car, the plaintiff carries the burden of showing that the defects were latent and not discoverable by the exercise of ordinary care.</p>

<p>Where a oommon carrier waives prepayment and the consignee refuses to take the goods and pay the transportation charges, and the carrier, in strict conformity with law, sells the goods to enforce its lien for charges, and there is still a balance due, the consignor is liable for it to the carrier.</p>

<p>Complaint; from city court of Floyd county — Judge Reece. June 21, 1913.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. June 12, 1913.</p>

<p>Levy and claim; from city court of Floyd county — Judge Reece. July 7, 1913.</p>

<p>Action for damages; from city court of Floyd county — Judge Eeece. August 11, 1913.</p>

<p>1. An exception based upon tbe ground tliat the finding of the jury, is contrary to the charge of the court upon a particular point presents nothing more for the consideration of a court of review in this State than the usual general assignment that the verdict is contrary to law.</p> <p>2. A verdict in favor of either party in this case would have, been supported by evidence; and since this court is without jurisdiction to set aside a verdict supported by evidence, it can not be held that the lower court erred in refusing to grant a new trial on motion of one of the parties, upon the ground that he introduced sufficient evidence to have authorized a finding in his favor.</p>

<p>Appeal; from Whitfield superior court — Judge Fite. August 1, 1913.</p>

<p>1. As against an appropriate demurrer, a suit brought in a name which imports neither a natural person nor a corporation, nor a partnership, is a mere nullity. In this State a suit can be maintained only by or' in behalf of a natural or an artificial person, or a quasi-artificial person— such as a partnership; though a judgment obtained without any objection to the failure of the petition to disclose the legal entity of the plaintiff would be good if the name imported a corporation or a partnership. The name “Armour Fertilizer Works” can not be fairly said to import a corporation or a partnership, without further description of its legal entity; and the defendant having challenged by demurrer the validity of the suit against him, the action should have been dismissed.</p> <p>2. The error in the ruling upon the demurrer being controlling, the further proceedings in the trial were nugatory, 'and the remaining assignments of error will not be considered.</p>

<p>Indictment for misdemeanor; from Cobb superior court — Judge Patterson. September 11, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. September 17, 1913.</p>

<p>Indictment for keeping lewd house; from Eloyd superior court— Judge Wright. October 11, 1913.</p>

<p>Accusation of sale of liquor; from city court of Macon — Judge Hodges. October 3, 1913.</p>

<p>Accusation of carrying concealed weapon; from city court of Carrollton — Judge Beall. October 4, 1913.</p>

<p>Accusation of cheating and swindling; from city court of Camilla — Judge R. D. Bush. September 10, 1913.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. October 3, 1913.</p>

Accusation of misdemeanor; from city court of Milieu — Judge Hill. • August 22, 1913. The contract alleged in the accusation was that the accused was “to perform for [A. S. Newton] on the farm of A. S. Newton in said county [of Jenkins] services as a farm laborer in doing ordinary farm work from the first day of January, 1911, until the fifteenth day of July, 1911, the monthly wages for said period to be at the rate of twenty dollars per month.”

<p>Indictment for assault with, intent to murder; from Milton superior court — Judge Patterson. September 29, 1913.</p>

<p>Indictment for assault and battery; from Elbert superior court-judge Meadow. October 15, 1913.</p>

<p>1. “All who procure, counsel, command, aid or abet the commission of a misdemeanor are regarded by the law as principal offenders and may be indicted as such.” The manager of a social club who orders intoxicating liquors for the use of its members, and who either directly or indirectly procures, counsels, commands, aids, or abets in the making of a sale of such liquors, is guilty as a principal. This is true even though he may not have been present when the particular sale was made, and had no knowledge of it until after it was consummated.</p> <p>2. Where a number of persons each contribute money to an agent, who purchases a stock of intoxicating liquor and thereafter dispenses, upon the order of one of them, a quantity of the liquor in exchange for a book of coupons purchased either by person or by the person to whom the liquor is delivered, the transaction is a sale in violation of the prohibition law, notwithstanding the persons for whose benefit the liquor was purchased compose a bona fide club, organized for social and intellectual welfare, and the use of the liquor is only an incident to the main purpose of the club, and although no profit is made on the sale. And this is true whether they have become incorporated as a social club or whether they constitute a voluntary association of persons for mutual pleasure and benefit.</p> <p>3. The provisions of the general tax acts of 1907 and 1909, imposing a license upon social clubs, do not authorize such oragnizations to engage in the sale of intoxicating liquors.</p> <p>4. The evidence demanded the verdict, and no material error was committed.</p>

<p>1. Livery-stable keepers who let animals for hire are bound only to exercise ordinary care and diligence in providing an animal suitable for the purpose for which it is hired.</p> <p>2. In this State a bailor for hire impliedly warrants that the thing bailed is free from any secret fault rendering it unfit for the purpose for which it is intended.</p> <p>3. Where a person other than the one to whom an animal is hired is injured by reason of the vicious or dangerous propensities of the animal, the person injured can not recover from the owner, unless he shows that the owner knew of the dangerous or vicious propensities of the animal, or had reasonable grounds for so knowing, and was wanting in ordinary care for the protection of the public against injury from the exercise of such propensities. Beed v. Southern Express Go., 95 Ga. 108 (22 S. E. 133, 51 Am. St. R. 62) ; Browder-Mcmget Go. v. Calhoun Brioh Co., 138 Ga. 277 (75 S. E. 243) ; Logan v.Hope, 139 Ga. 589 (77 S. E. 809).</p> <p>4. Where, however, a dangerous or vipious animal is hired to another, and he sues the owner for injuries received on account of the exercise by the animal of dangerous or vicious propensities, proof of scienter is not essential to the plaintiff’s recovery. It is only necessary that it should appear that the plaintiff’s injury resulted from the dangerous or vicious character of the animal, and that the owner was lacking in ordinary care and diligence in furnishing an animal unsuited for the purposes for which it was hired. In such a ease there is no presumption of negligence, and the plaintiff must affirmatively prove that the defendant was lacking in ordinary care.</p>

<p>Complaint; from city court of Floyd county — Judge Reece. August 11, 1913.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. July 23, 1913.</p>

<p>Complaint; from city court of Floyd county — Judge Reece. May 19, 1913.</p> <p>A. D. Juilliard & Company brought suit in the city court of Floyd County against the Armuehee Pants Manufacturing' Company and Watters and Beam. A joint answer was filed and was amended, and on demurrer the court struck the answer. At a subsequent term of the court the defendants moved to dismiss the petition, on the grounds that there was a misjoinder of defendants and of causes of action, and that the alleged contract of Watters and Beam was without consideration. The motion was overruled, and the court, on the admissions of the answer, which the plaintiff introduced in evidence, rendered judgment against the defendants for the amount sued for. To this judgment and the antecedent rulings the defendants excepted.</p> <p>The suit was for a bálance alleged to be due on an open account for goods sold to the Armuehee Pants Manufacturing Company unon the faith of a contract of the defendants Watters and Beam with the plaintiffs, a copy of which is attached to the petition. In their answer the defendants pleaded as a set-off damages on account of failure of the plaintiffs to comply with their contract to furnish certain goods ordered. The plaintiffs contended that, from the allegations of the petition and the admissions of the answer, it appeared that the plaintiffs were not bound to furnish.the goods, the defendants having defaulted in payments under the contract, for goods previously sold under it. In the contract referred to in the petition it is stated that A. D. Juilliard & Company agree to extend credit from time to time to the Armuchee Pants Manufacturing Company, provided Watters and Beam agree to guarantee payment of all credits extended by A. D. Juilliard & Company to the pants manufacturing company, and that in consideration of the relation which Watters and Beam bear to the pants manufacturing company and of their financial interest in it, they agree to pay all obligations now or hereafter owing by the pants manufacturing company to A. D. Juilliard & Company, if not paid by the pants manufacturing company as they mature, and that any goods shipped to the pants manufacturing company “shall be on the regular datings” of Juilliard & Company, and when said accounts mature Juilliard & Company shall, if requested by the pants manufacturing company, grant a ninety-days extension beyond the other datings, the extensions to draw interest at the rate of six- per cent. The contract is dated April 28, 1911. The account attached to the petition contains a series of items of goods, of dates beginning in December, 1911, and ending in May, 1912, the aggregate amount of which is $4,444.99. The account shows credits as follows: “1912, by cash, $1,500; October 9, 1912, by cash, $500; October 17, 1912, by cash, $1,000.” Paragraph 2 of the petition alleges, that the Armuchee Pants Manufacturing Company, as principal debtor, and Watters and Beam, as securities, are indebted to Juilliard & Company “in the sum of $2,944.99 principal, besides interest at the rate of six per cent, per annum after sixty days from the date of each item sold, less credits of $500 on October, 1912, and $1,000 on October 17, 1912,” and that a copy of the account is attached, marked “Exhibit A.” The balance of the principal accords with that shown by the attached account, — $1,444.99. The original answer admits the allegations of this paragraph, and says that the defendants “would be liable to pay to plaintiffs the amounts claimed except for the items of set-off and recoupment hereinafter set forth.” Paragraph 3, as to the contract of Watters and Beam, is admitted. Paragraph 4, which alleges "that upon the faith of this contract the goods were sold to the pants manufacturing company, and were delivered” on the dates shown by the attached account, is admitted, except that the defendants "deny that the items were delivered on the dates shown” on the account. In paragraph 5 it is alleged that "said goods were sold on regular dating of petitioners, and said bills were extended for ninety days, at six per-cent, per annum, in accordance with the special agreement of said . . Watters and Beam, and that all of said items are now past due, under petitioner’s regular datings, and also under the special ninety-days extension allowed under the contract,” and that the defendants refuse to pay the same. This is answered as follows: "Defendants say that said goods .were sold to them under a special arrangement as to dating,^ the same being sixty days from the delivery of the goods from said Armuchee, Pants Manufacturing Company, with the right to an additional ninety days if desired. It is admitted that all of the items are now past due, and that said defendants refuse to pay the same for the reasons hereinafter set forth. All other allegations of the 5th paragraph of the petition are denied.” Further answering the defendants say that at the time the goods shown by the account were sold, the plaintiffs also sold to them as a part of the same transaction 9,000 yards of "New York Mills Fustian jobs” at 15 cents per yard; that subsequently, on or about October 17, 1912, the pants manufacturing company instructed the plaintiffs to ship said goods and the goods were actually shipped, but were stopped in transit by the plaintiff and were never delivered; that on said date the price of said goods had advanced to 25 cents per yard, and by reason of the failure of the plaintiffs to deliver these goods in accordance with their contract, the pants manufacturing company lost 10 cents per yard on the goods, and the defendants have been damaged thereby in the sum of $900, which amount they plead as a set-off against the account sued on. By the amendment to the answer it is alleged that on or about December 1, 1911, the plaintiffs entered into a contract with the pants manufacturing company •whereby the plaintiffs sold to the company a large quantity of goods, including the items set out in the account attached to the plaintiffs’ petition, and also, 9,000 yards of “New York Mills Fustian,” the plaintiffs stating that the goods would be stored, charged, and shipped out as ordered by the pants manufacturing company; that “sometime in August, 1912, the defendants ordered out the 9,000 yards of New York Mills Fustian, which said goods were finally shipped on or about October 1, but were stopped in transit and never delivered to defendants, and they now decline to comply with their contract and deliver said goods,” to the damage of the pants manufacturing company in the sum of $900, as set out in the original answer. It is also alleged that the $1,500 credited on the account was paid on September 12, 1912, “which with the other credits in the account, of October 9th and October 17th, more than pay what was due at that time.” It is alleged that the goods specified in certain items of the account were not shipped on the dates specified in the account, but were shipped on subsequent dates named, and that certain of the goods specified were received as late as September 25 and October 2, 1912. '</p>

<p>1. The judge of the city court of Nashville has authority to render judgment at the appearance term in all cases where no plea or answer is filed up to the time the case is called on the docket. Where such judgment has been rendered, the statute relating to the opening of defaults has no application, although a motion to vacate the judgment may he made on proper grounds.</p> <p>2. No defense having been filed until after judgment had been rendered at the appearance term, it was not error for the court to refuse to consider the defense.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. August 16, 1913. o</p>

<p>1. The petition in.the present ease can not be construed as setting forth a cause of action for false imprisonment, for it is alleged that the process under which the plaintiff was arrested was legal and valid. The petition does not set forth a cause of action either for malicious arrest or for malicious prosecution, for it fails to allege either that the prosecution terminated in the plaintiff’s favor or that the process, under which the arrest was made has been vacated.</p> <p>2. An action will not lie for the malicious abuse or the malicious use of criminal process, such forms of action being applicable only to civil process. Where a criminal process, valid on its face, has been maliciously sued out without probable cause, an action for malicious arrest or malicious prosecution is the only remedy.</p>

<p>Distraint; from city court of Millen — Judge Thomas L. Hill. July 31, 1913.</p>

<p>1. A deed conveying land to B “and the heirs of her body after her death,” to have and to hold the land to the said B, “her heirs and assigns in fee simple,” conveys a life-estate to B, with remainder over to the heirs of her body.</p> <p>2. One who executes a written instrument purporting to convey to another the right to use timber for turpentine purposes on lands of a third person may he sued as a joint trespasser with one who enters upon the land under authority of the instrument and boxes and works for turpentine purposes the pine trees growing thereon.</p>

<p>Certiorari; from Hall superior court — Judge J. B. Jones. August 2, 1913.</p>

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

<p>Action for damages; from city court of Houston county — Judge Biley. July 22, 1913.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. August 22, 1913.</p>

Action for damages; from city court of Savannah — Judge Davis Freeman. August 25, 1913. James Chisholm, by his next friend, Zack Chisholm, sued the Atlantic Coast Line Eailroad Company for damages on account of personal injuries. In the first count of the petition it is alleged: The defendant is a corporation having offices and agents, and a place of doing business, in Chatham county, Georgia,, and operates a line of railroad between Hardeeville, South Carolina, and.

<p>Appeal; from Fulton superior court — Judge Bell. July 11, 1913.</p>

<p>Affidavit of illegality; .from city court of Douglas — Judge Lank-ford. July 21, 1913.</p>

<p>Affidavit of illegality; from city court of Abbeville — Judge Nicholson. August 15, 1913.</p>

<p>1. The code does not define “nominal damages,” or say what shall be recoverable as such, otherwise than that they shall be sufficient to carry the costs; and where, by reason of a violation of one’s right without actual damage, he is entitled to damages which ex vi termini are nominal, though the amount must be small, it is for the jury to determine whether the amount awarded is small, taking into consideration all of the facts and circumstances in the ease; and when the amount found by them (which in their judgment is small, relatively to the issue) is approved by the trial judge, his discretion in the granting or refusal of a new trial will not be interfered with, unless it is manifestly abused.</p> <p>2. Under tho facts of this case a finding in favor of the plaintiff of $150 as “nominal damages” is not unlawful; and in the absence of any suggestion of bias or prejudice, the judge did not err in refusing a new trial.</p>

<p>Certiorari; from Morgan superior court — Judge James B. Park. August 29, 1913.</p>

<p>Foreclosure of lien; from city court of Statesboro — Judge Strange. August 29, 1913.</p>

<p>1. Where an affidavit of illegality is interposed to the levy of a mortgage fi. fa., the bond given by the defendant in execution must be payable to the plaintiff, and be conditioned for the return of the property when called for by the levying officer.</p> <p>2. A bond payable to the levying officer and conditioned for the delivery of the property at the time and place of the sale is not a good statutory bond. Gelders v. Mathews, 6 Ga. App. 144 (64 S. E. 576).</p> <p>3. The bond is, however, a good common-law obligation, and may be enforced as such by suit brought in the name of the obligee for the use of the plaintiff in execution. A suit brought on such a bond directly, by the plaintiff is subject to general demurrer raising the point that the petition shows on its face that the plaintiff has no right of action. See Anderson v. Blair, 118 Ga. 212 (45 S. E. 28) ; Anderson v. Brumby, 115 Ga. 644 (42 S. E. 77) ; O’Neill v. Harris, 120 Ga. 467 (47 S. E. 934) ; Hatlon V. Brown, 1 Ga. App. 747 (57 S. E. 1044).</p> <p>4. The execution of such a bond estops both the principal and the sureties thereon from attacking the validity of the execution upon which the levy was founded. See Smith v. Davis, 3 Ga. App. 419 (60 S. B. 199).</p> <p>5. Mortgage-foreclosure proceedings are not void merely because they fail to show jurisdiction of the court over the person of the defendant: Even if the filing of affidavit of illegality and the giving of a replevy bond are not such appearance and pleading as amount to a waiver of jurisdiction, the defect in the proceeding is amendable. Civil Code, § 5691; Penn v. McGhee, 6 Ga. App. 63 (65 S. E. 686).</p> <p>6. If property described in a forthcoming bond be taken from the custody of the principal obligor under superior legal process, this" may be shown as a defense to an action on the bond. See Rochmore v. Garner, 9 Ga. App. 369 (71 S. E. 506) ; Floyd y. Cook, 118 Ga. 526 (45 S. E. 441, 63 L. R. A. 450); Allen v. Allen, 119 Ga. 278 (45 S. E. 959). But if the principal obligor surrenders the property under a process which is invalid or which for any reason is inferior to the lien of the mortgage, this would be no defense to a suit upon the bond.</p> <p>7. Where personal property has been levied upon under a mortgage fl. fa. issued more than four 'months before the defendant in execution has been adjudicated a bankrupt and a forthcoming bond has been given, the seizure by the bankruptcy court of the property levied upon and described in the forthcoming bond can not affect the rights of the plaintiff in execution, and will not release the surety on the forthcoming bond from his obligation to produce the property according to the terms of the bond. V. 8. F. & G. Co. v. Murphy, 4 Ga. App. 13 (60 S. E. 831).</p> <p>8. The dismissal of an affidavit of illegality for want of prosecution does not amount to an adjudication of the merits of the issues raised by the affidavit, and hence does not operate to estop either the principal obligor or his securities on the forthcoming bond, when sued on the bond, from showing that either before or after the affidavit was filed, the mortgagor made payments on the mortgage, which the mortgagee failed to credit on the mortgage execution. Civil Code, § 5679; Collins V. Hudson, 69 Ga. 684; Macon By. Co. v. Walton, 127 Ga. 294 (56 S. E. 419); American Investment Co. v. Calle Co., 4 Ga. App. 106 (5) (60 S. E. 1037); Missouri Ins. Co. v. Lovelace, 1 Ga. App. 466 (58 S. E. 93).</p> <p>9. Nor would the dismissal of the affidavit of illegality estop the defendant in execution from showing that an accord and satisfaction of the debt represented by the mortgage was made before or after the dismissal.</p> <p>10. The mortgage having been given to secure purchase-money notes in which title to the property was retained by the seller, and this property having been seized and delivered into the custody of the bankruptcy court in proceedings against the mortgagor, the mere' fact that the mortgagee recovered the property from that court under Ms retention of title would not amount to a rescission of the contract of sale, but the mortgagee would be required to credit upon the mortgage fi.- fa. whatever the property was worth at the time it was recovered from the bankruptcy court. The cases relied upon by the plaintiff in error, to wit, Moultrie Repair Co. v. Hill, 120 Ga. 730 (48 S. E. 143), Glisson v. Heggie, 105 Ga. 30 (31 S. E. 118), Tidwell v. Burkett, 81 Ga. 84 (6 S. E. 816), and Rhodes v. Jenkins, 2 Ga. App. 475 (58 S. E. 897), do not conflict with the ruling announced above.</p> <p>11. It being apparent from the defendants’ answer as amended that they did not contest the existence of the foreclosure proceedings, but merely attacked their validity, for reasons set out in certain special defenses, it was not erroneous to admit in evidence a certified copy of the foreclosure proceedings, though the official seal of the clerk was not attached.</p>

<p>The action being a suit for breach of promise to pay the debt of another, and it not being alleged that the promise was in writing, or that the other party to the contract had either partly or wholly performed it by furnishing in whole or in part the consideration which induced the promise, it was error to overrule a demurrer based upon the ground that the contract sued on was within the statute of frauds.</p>

<p>Indictment for sale of liquor; from Bibb superior court — Judge Mathews. September 19, 1913.</p>

<p>Appeal; from Coffee superior court — Judge Parker. September 27, 1913.</p>

Complaint; from city court of Bainbridge — Judge Spooner. August 16, 1913. Norman sued Donalson for $100 and interest, alleging that Donalson employed him for one year as superintendent of a farm, agreeing to pay him $600 for his services, and that the services were rendered as agreed, but that Donalson paid him only $500 and refused to pay the remainder of the $600. The defendant in his answer denied that he 'agreed to pay $600.

<p>Action on insurance policy; from city court of Elberton — Judge Grogan. August 30, 1913.</p>

<p>Complaint; from city court of Baxley — Judge Sellers. May 7, 1913.</p>

<p>1. Where a demurrer to a petition is overruled, and thereafter, during the ' trial, the plaintiff voluntarily strikes from, the petition objectionable matter, thus curing the defect pointed out. in the demurrer, the judgment overruling the demurrer will be affirmed, if the petition as thus amended is not subject to demurrer.</p> <p>2. Where a new trial is awarded on the ground that the evidence demanded a verdict in favor of the defendant, the case stands for trial de novo, and the fact that the plaintiff relies for recovery upon the same allegations does' not make appropriate a plea of res judicata.</p> <p>3. There was some evidence which authorized a finding that the sparkarrester of the engine which set out the lire was defective.</p> <p>4. Primarily, the construction of a rule of a railway company is for the court; but where the rule is ambiguous, and conflicting par.ol evidence is introduced to explain it, the court may take the advice of the jury' on the proper construction to be given the rule- In the present case there was evidence which authorized a finding that, under the railway company’s rule introduced in evidence, trains could not be operated at a speed exceeding six miles an hour either on the bridge over the Savannah river or on the approaches thereto.</p> <p>5. The evidence did not authorize a finding that the engine was improperly handled, nor, under the evidence, could the fact that the train was operated on the trestle at a speed from, eight to ten miles an hour be regarded as the proximate cause of the damage.</p> <p>6. It Was erroneous to admit in evidence a package containing sparks and cinders, it not appearing that they emanated either from the engine' which set out the fire or from any other engine of the company which it was alleged caused the damage.</p> <p>7. It was not prejudicially erroneous to fail expressly to instruct the jury not to consider an allegation of negligence in the petition, which had been eliminated by amendment.</p> <p>8. There being no evidence of any improper handling of the train, nor that the violation of the company’s rule contributed to the damage, it was error to submit these issues to the jury.</p> <p>9. One railway company may lawfully acquire the right to operate its trains over the tracks of another railway company, and, where both are sued jointly in a negligence action, it is error to charge the jury that it was a violation of a public duty for one of the railway companies to operate trains over the tracks of the other, it not appearing that the right so to do was not lawfully acquired.</p> <p>10. If the plaintiffs are entitled to recover, the verdict should be in a lump sum, for the market value of the property destroyed, with interest from the time the cause of action arose, and such actual expenses as the plaintiffs were required to incur in attempting to put out the fire.</p>

<p>Certiorari; from Chatham superior court — Judge Charlton. August 9, 1913.</p>

<p>Complaint; from city court of Statesboro — Judge Strange. September 5, 1913.</p>

<p>Foreclosure of mortgage; from city court of Statesboro — Judge Strange. September 5, 1913.</p>

<p>Complaint; from city court of Cartersville — Judge Foute. September 12, 1913.</p>

<p>Trover; from city court of Nashville — Judge Cranford presiding. August 30, 1913.</p>

<p>Attachment; from city court of Bainbridge — Judge Spooner. September 24, 1913.</p>

<p>Action for breach of contract; from city court of Atlanta — Judge Beid. September 13, 1913.</p>

<p>Where a locomotive fireman in the employment of a railway company was riding upon a train as a passenger, and voluntarily left the coach in which he was riding and got upon the engine, either by the express permission or without the disapproval of the engineer, it not appearing that there was any rule or custom of the railway company permitting the employee to ride upon the engine, but it being on the contrary a violation of the rules of the company for him to do so, he was a trespasser, and his widow had no cause of action against the railway company for his homicide, resulting from the derailment of the train, caused by a switch which was defective or which had been negligently left open.</p>

<p>Certiorari; from Dade superior court — Judge Fite. September 18, 1913.</p>

<p>1. The defendant was properly allowed to open and conclude. The suit was upon a promissory note and upon an open account, the two together making up the purchase-price of a horse. In his answer, as amended, the defendant admitted the execution of the note, and that the plaintiff was the lawful holder thereof, and admitted that he owed the full amount sued for, as the purchase-price of the horse, unless he could establish his affirmative defense of breach of -warranty and failure of consideration. The right to open and conclude having been asserted by the defendant at the time the plaintiff offered to introduce testimony, the court properly held that the defendant had not waived his right to assume the burden and to open and conclude the argument.</p> <p>2. The stipulation in the note sued on, that the seller of the horse would not warrant his soundness, did not, under the facts of this case, preclude the defendant from showing that the seller had warranted the soundness of the horse given in exchange for the one for which the note was given.</p> <p>3. The evidence authorized the verdict.</p>

<p>1. If, in a suit upon a promissory note, brought by one alleging himself to be a transferee, the petition is demurrable because the allegations as to the transfer are insufficient to show the plaintiff’s right to maintain the action, this defect may be cured by an amendment which specifically sets forth the written transfer upon which the transferee relies.</p> <p>2. Where there is attached to the petition in an action upon a promissory note what purports to be a copy of that contract, any words appearing in the original note, or any indorsements entered thereon, which may have been omitted from the copy, may be supplied by timely amendment.</p> <p>3. A receipt is only prima facie evidence of payment, and its contents are subject to parol explanation. In the present case the issue turned upon the determination of the question whether the note sued upon was included in a settlement between the parties; and the finding of the trial judge, without intervention of a jury, is conclusive where the issue is wholly one of fact, and where his finding is supported by evidence.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin. September 13, 1913.</p>

<p>Certiorari; from Stephens superior court — Jiiclge J. B. Jones. September 12, 1913.</p>

<p>1. It was error to grant a new trial on the ground that two of the jurors were disqualified by reason of relationship to the defendant, there being no evidence before the trial judge to authorize a finding that any juror was disqualified.</p> <p>2. The evidence demanded the verdict in favor of the defendant, and the first grant of a new trial can not he sustained under the rule that, where there is a conflict in the evidence, a judgment granting a first new trial will not he disturbed, even though based upon a special ground which was not meritorious.</p> <p>3. Payments not made under duress, and made with knowledge of all the facts, without fraud or deception on the part of the person to whom payment is made, though in ignorance of the legal rights of the party . paying, are voluntary, and can not be recovered.</p> <p>4. Where a widow, without administration, undertakes to wind up the estate of her husband, pay the debts, and distribute the residue, and pays to a creditor of her husband, out of her separate estate, a sum of ' money due by him, she can not recover it upon the theory that at the time the payment was made she was ignorant of her legal rights and did not know that she could not be compelled to pay her husband’s debts. Even if the facts did not render the widow liable- as executor de son tort, the payment is deemed voluntary, as-a matter of law, and can not be recovered back.</p>

<p>Complaint; from city court of Zebulon — Judge Dupree* October 1, 1913.</p>

<p>Action for money had and received; from city court of Macon. October 18, 1913.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. August 22, 1913.</p>

<p>1. The-apparent preponderance of the evidence was in favor of the verdict, hut there was evidence which would have authorized a verdict in -the plaintiffs favor. According to the testimony of one of the witnesses, the defendant’s servant, in charge of its team, drove rapidly down one of the public thoroughfares of the city, without looking ahead, and was engaged in conversation with a person in the rear of the wagon; and after the plaintiffs son fell in the street, in a position from which he could not extricate himself, the vehicle was driven a distance of 123 feet, and ran over and injured the boy. This testimony would have authorized a verdict in the plaintiffs favor.</p> <p>2. A parent can not be said to be guilty of negligence merely because he permits an eight-year-old boy to ride a tricycle in a city, upon a public street of sufficient width to make it apparently safe, under ordinary circumstances, for the thoroughfare to be thus used. There was no evidence in the present case which authorized an instruction upon the theory that the parent of the boy was guilty of negligence, and such an instruction was sufficiently prejudicial to demand the granting of a new trial.</p> <p>3. The word “servant,” as used in section 4413 of the Civil Code, includes an employee in charge of a vehicle, the negligent operation of which ' causes injury to another.</p>

<p>Garnishment; from Polk superior court — Judge Graham presiding.</p>

<p>Action for damages; from city court of Yaldosta — Judge Cranford. September 1,1913.</p>

<p>Indictment for misdemeanor; from Walker superior court — Judge Wright. September 6, 1913.</p>

<p>Indictment for embezzlement; from Gilmer superior court— Judge Patterson. December 8, 1913.</p>

<p>1. Separation of two of the-jurors from the remainder of the jury during a part of a recess of the court was not a sufficient ground for setting aside the verdict against the accused, it appearing that no motion on account of the • separation was made before verdict, though counsel for the accused informed the presiding judge of the fact on the reconvening of the court after the recess.</p> <p>2. There was sufficient evidence to authorize the verdict.</p>

<p>Certiorari; from Carroll superior court — Judge B. W. Freeman. October 21, 1913.</p>

<p>Indictment for murder; from Brooks superior court — Judge Thomas. October 17, 1913.</p>

<p>Indictment for murder; from Jasper superior court — Judge James B. Park. October 30, 1913.</p>

<p>Indictment for felony; from Morgan superior court — Judge James B. Park. August 31, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. August 17, 1913.</p>

<p>Motion to set aside judgment; from city court of Atlanta — Judge Keid. September 20, 1913.</p>

<p>1. "This court has no authority to decide whether a trial court erred in directing a verdict, when there is no specific assignment of error, either pendente lite, in the motion for new trial, or in the bill of exceptions, made upon such direction.”</p> <p>2. Where a passenger on a train of a railway company, without fault on its part, negligently fails to purchase a ticket at a station, where under the rules of the railroad commission a ticket must be purchased, he is liable to pay the carrier whatever sum in addition to the ticket rate may be charged under the rules of the railroad commission. If he fails to pay this excess rate on demand, the carrier may lawfully eject him from the train. This is true although it appears that on previous occasions the carrier accepted from the passenger the cash fare, at the ticket rate, between the same points; it not appearing that at the time the passenger was ejected he did not have the excess fare, or that he was misled by the previous practice of the carrier into boarding the train with no more money than was necessary to pay fare at the ticket rate.</p>

<p>1. The instruction to the jury that they should look to the facts and circumstances at “the very time of the actual killing,” to see whether it was justifiable, was error, as the offense could be reduced to manslaughter through passion aroused some time before the killing.</p> <p>2. It is error to charge, in effect, that the defendant must make out his defense beyond a reasonable doubt.</p> <p>3. It was error to allow counsel for the State, in his argument to the jury, to give his personal opinion as to the guilt of the defendant, though in a preceding argument counsel for the defendant may have been guilty of a similar breach of the rule.</p>

<p>Indictment for murder; from Eloyd superior court — Judge Wright. October 8, 1913.</p>

<p>Indictment for sale of liquor; from Johnson superior court— Judge Hawkins. October 25, 1913.</p>

<p>Indictment for sale of liquor; from Johnson superior court— Judge Hawkins. October 25, 1913.</p>

<p>A executed to a bank a promissory note to obtain a fund to be used for a particular purpose. The fund was left on deposit with the bank in the name of a third person, under a certificate of deposit which recited that the fund was to be held in trust by this third person pending a settlement of a certain suit. Held, that the bank was bound to honor a demand for the money, made by the person to whose credit the fund stood, and was not bound either to inquire how the fund was to be used or to follow it in order to see that it was properly applied. In such a ease the makei of the note would be liable to the bank even though the money was withdrawn and misappropriated by the trustee.</p>

<p>Action for damages; from city court of Sandersville — Judge Jordan. October 14, 1913.</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Hicks. November 12, 1913.</p>

<p>. Accusation of abandonment of child; from city court of Beidsville — Judge Collins. September 22, 1913.</p>

<p>1. Section 175 of the Penal Code creates a crime but provides no punishment for its commission.</p> <p>2. In this State, “a crime or misdemeanor shall consist in the violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.” The punishment is not a part of the crime, but is simply a consequence of its commission.</p> <p>3. The crime denounced by section 175 of the Penal Code, being one involving moral turpitude, conviction thereof deprives the offender of the right to register, vote, or hold an office of honor or trust in this State.</p> <p>4. The authorities are in conflict as to whether at common law the plea of autrefois convict must set out a valid judgment of conviction, or whether it is sufficient if a verdict of. guilty on a Valid indictment he shown. Under the practice prevailing in this State, it would seem that if the plea showed a valid verdict upon a good indictment, it would not be demurrable merely because it was not alleged that a valid judgment of conviction had been entered up on the verdict.</p> <p>5. The principle of the common-law maxim, “Nemo debet vis vexari eadem causa,” as applied to criminal prosecutions, has been expressed in our constitution in the following language: “No person shall be put in jeopardy of life or liberty more than once for the same offense, save on' his own motion for new trial, after conviction, or in case of mistrial.” Liberty, as here used, is not confined to detention of the person, but embraces every inalienable right of the citizen. It includes freedom of locomotion, freedom of contract, and freedom to do and perform all those things which are regarded as inalienable rights, and, as applied to male citizens who are otherwise qualified, it includes the right to vote and hold any office of honor or trust in this State.</p> <p>6. It follows that where one has been convicted of a crime involving moral turpitude, with the consequent loss of the right to vote and hold office in this State, he is deprived of a liberty, within the meaning of the constitutional guaranty, and can not be again put on trial, under another indictment, charging an offense of the same nature, growing out of the same transaction, even though the first Conviction did not subject him either to fine or imprisonment.</p> <p>7. The foregoing is true notwithstanding, upon a direct bill of exceptions assigning error- on the imposition of sentence upon the first indictment, the convict procured a decision in the reviewing court that the sentence imposed was illegal. Filing an objection to the imposition of sentence and securing a reversal of the judgment refusing to sustain the objection is neither within the letter nor within the spirit of the exception to the constitutional guaranty which denies the right to plead - former jeopardy in case a new trial is procured by the convict on his own motion. A new trial is a re-examination of the facts in issue, and can not be had so long as the verdict remains unreversed.</p>

<p>Indictment for burglary; from Tattnall superior court — Judge Sheppard. September 30, 1913.</p>

<p>Indictment for misdemeanor; from Spalding superior courts Judge B. T. Daniel. October 18, 1913.</p>

<p>Complaint; fróm city court of Macon — Judge Hodges. October 18, 1913.</p>

<p>There was no merit in the motion to set aside the verdict and sentence on the ground that the verdict, which found the defendant guilty of “the unlawful shooting of another,” was a nullity; this court, in a former decision in this case, having decided that this verdict was “to be construed as a conviction of the statutory offense described in section 115 of the Penal Code.”</p>

<p>Complaint; from city court, of Ashburn — Judge Tipton. April 22, 1913.</p>

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

<p>Conviction of stabbing; from Whitfield superior court — Judge Fite. June 7, 1913.</p>

<p>Trover; from city court of Savannah — Judge Davis .Freeman. March 25, 1913.</p>

<p>Complaint; from city court of Nashville — Judge Christian. July 14,1913.</p>

<p>Affidavit of illegality; from city court of Monroe — Judge Stone. August 6, 1913. .</p>

<p>1. Even if the paper filed by the plaintiffs in error could be considered as a traverse of the sheriff’s answer to the rule, the sheriff’s answer must be accepted as true until there is evidence to dispute it..</p> <p>2. When it appears that no oath was in fact administered to one whose name is subscribed to a paper which purports to be his affidavit, or that he signed it without consciously assuming the obligation of an oath, the paper can not be regarded as an affidavit.</p> <p>3. Because of the absence of lawful affidavits, the proceedings to foreclose certain mortgages and laborers’ liens, and to sue out certain distress warrants, in the present case, were defective, and the final process therein was voidable. But neither the distress warrants nor the fi. fas. issued upon the laborers’ liens, nor the mortgage fi. fas., were void. The process in each was amendable, and (under the provisions of section 5706 of the Civil Code) the affidavits which were the foundation of each proceeding were likewise amendable.</p> <p>1. Since, by permission of the court, amendment may be effected by substitution of one writing for another, as well as by striking from or adding to the contents of a writing, the trial judge did not err in permitting certain parties to the rule to withdraw the liens in their favor, which had been defectively foreclosed, and in allowing these parties to amend the defective processes by substituting therefor the same liens after they had been foreclosed in accordance with the law.</p> <p>5. Under the answer of the sheriff all the parties were properly before the court, and the character and amount of all the claims were admitted to be as stated by the sheriff in his answer to the rule. The amendments in the proceedings of the several parties as allowed by the court related back to the inception of each of the several proceedings, and perfected the distress warrant, which was levied as of the date upon which it was issued. The court did not err in awarding the funds in the hands of the sheriff to the several creditors of the defendant in accordance with the priority of their demands as fixed by law.</p>

<p>Complaint'; from city court of Elberton — Judge Grogan. August 30, 1913.</p>

<p>Trover; from city court of Tiftou — Judge B. Eve. September 3, 1913.</p>

<p>Complaint; from city court of Monroe — Judge Stone. August 8, 1913.</p>

<p>Complaint; from city court of Elberton — Joseph N: Worley, judge pro hac vice. August 15, 1913.</p>

<p>A notice given for the purpose of collecting attorney’s fees, stating that the notes to be sued on are “in favor of Mrs. C. H. Backus,” sufficiently indicates the legal holder of the note, so as to authorize a recovery of such fees in a suit filed by her, wherein it appears that she was the original payee.</p>

<p>Certiorari; from Putnam superior court — Judge James B. Park. September 18, 1913.</p>

<p>Complaint; from city court of Americus — Judge Harper. August 11, 1913.</p>

<p>Complaint; from city court of Nashville — Judge'Cranford presiding. August 13, 1913.</p>

<p>Appeal; from Chattooga superior court — Judge Wright. September 10, 1913.</p>

<p>Certiorari; from Cherokee superior court — Judge Patterson. September 4, 1913.</p>

<p>Complaint; from city court of Abbeville — Judge Nicholson. August 13, 1913.</p>

<p>Complaint; from city court of Hall county — Judge Irwin presiding. October 15, 1913.</p>

<p>Complaint; from city court of Floyd county — Judge Eeece.' October 22, 1913.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin. October 7, 1913.</p>

<p>Trover; from city court of Baiubridge — Judge Spooner. October 14, 1913.</p>

<p>There was no abuse of discretion in overruling the motion for a new trial, the verdict being supported by evidence, and the only question presented by the motion being as to the sufficiency of the evidence.</p>

<p>Conviction of assault with intent to murder; from Tattnall superior court — Judge Sheppard. September 27, 1913.</p>

<p>Complaint; from city court of Macon — Judge Hodges. September 23, 1913.</p>

<p>Complaint; from city court of Brunswick — Judge Krauss. December 3, 1913.</p>

<p>Complaint; from city court of Forsyth — Judge Cabaniss. September 26, 1913. ’</p>

<p>Certiorari; from Berrien superior court — Judge Thomas. Oeto ber 18, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 23, 1913.</p>

<p>1. The fact that the evidence may subsequently disclose that a contract tendered as evidence, and otherwise admissible, was rescinded will not authorize its exclusion by the court upon the sole ground that there was a rescission.</p> <p>2. The evidence authorized the verdict, and there was no error in refusing a new trial. Judgment affirmed.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. August 20, 1913. .</p>

<p>Complaint; from city court of Statesboro — Judge Strange. October 3, 1913.</p>

<p>1. Mere consent of counsel in vacation to the reinstatement of a cause which has been dismissed in term time will not serve to confer jurisdiction upon the court, nor vitalize a judgment rendered after such void reinstatement, and which for that very i-eason is void. Patterson v. Hendrix, 72 Ca. 204; East Tennessee, Virginia & Georgia B. Co. v. Greene, 95 Ga. 736 (22 S. E. 658); Commissioners etc. v. Hoplcins, 119 Ga. 909 (47 S. E. 319). Whether the judgment rendered would be enforceable as a contract need not now be decided.</p> <p>2. In the absence of permission from his client, it was not within the power of counsel for the defendant (who later objected to the reinstatement) to consent that a judgment dismissing the plaintiff’s action be vacated and the cause reinstated. See Davis v. First national Banlc, 139 Ga. 702 (78 S. E. 190).</p>

<p>Complaint; from city court of'Valdosta — Judge Cranford. August 6, 1913.</p>

<p>1. Assignment of error in a ground cf a motion for a new trial is not the appropriate method of reviewing rulings on pleadings.</p> <p>2. An exception presented in a ground of a motion for new trial, assigning error upon the admission of testimony, is fatally defective and can not he considered, unless the testimony alleged to have been objected to is either incorporated in the ground of the motion itself, or attached thereto as an exhibit, verified by the presiding judge. For this reason this court is unable to consider the assignment of error complaining that the defendant was permitted to testify as to transactions and communications had with the plaintiff’s testator.</p> <p>3. It being admitted, in the defendant’s answer, that a prior trade between the defendant and the plaintiff’s deceased husband (of whose estate she was the legal representative) was rescinded, it was error to allow the defendant, over objection of-the plaintiff, to testify as to the, value of the horse first purchased by him from the decedent, and as to the subsequent rescission.</p> <p>4. It was also erroneous and prejudicial to the plaintiff to allow the defendant to testify that the plaintiff had not offered to return the money paid for the horse. The defendant had not offered to return the horse, which was in his possession, nor had the plaintiff asked a rescission, nor was there any evidence that she had offered to rescind, and nothing had come into her hands except the defendant’s check, which he himself had ordered the bank to pay.</p> <p>5. The court did not err in refusing to exclude the testimony of a witness for the defendant upon the sole ground that the testimony of this witness, upon his cross-examination, was vague, uncertain, and indefinite. It was for the jury to determine whether the testimony of the witness was so vague, indefinite, and uncertain as to be worthless, or whether the testimony — though contradictory in some respects — possessed some degree of probative value.</p> <p>B. While express and implied warranties on the same subject can not coexist in a contract of sale, since the express warranty in such a case would ipso facto exclude any implied warranty as to the specific quality involved, still this exclusion does not necessarily extend to every feature of the contract; and usually express warranties, descriptive of the particular articles sold, are not so general as to exclude an' implied warranty that the article is merchantable and so free from inherent defects as not to he worthless or unsuited to the uses for which such an article is ordinarily employed.</p> <p>7. It is never reversible error to refuse to direct a verdict.</p>

<p>1. No defense having been filed within the time required by law, and no valid excuse being offered therefor, the court did not err in sustaining the motion to strike an answer filed after that time.</p> <p>2. The court erred in rendering judgment for attorney’s fees. •</p>

<p>1. Where a matter at issue between two parties is submitted to third persons for their determination, and these persons render an award which does not exceed the authority given to them in the submission, and is in strict accordance therewith, they will not be heard to impeach the regularity or fairness of their findings.</p> <p>2. The policy of fire insurance on which the plaintiff sued bound the defendant to pay to him the amount of his loss. The purpose of the submission to appraisers into which the parties entered was to fix the amount of the loss. The plaintiff’s loss represented the difference between the value of the property before the fire and its value immediately thereafter. The effect of the award made by the appraisers was to fix the amount of the plaintiff’s loss; it was unambiguous, was in strict accordance with the agreement of submission, and was binding upon the parties.</p> <p>3. There being no proper evidence offered attacking the award for fraud or for any other reason for which it could be impeached under the law, it was not error to direct a verdict in favor of the plaintiff in accordance with the construction which the trial judge placed upon the award.</p>

Complaint; from city court of J efferson — Judge Stone. December 28, 1912. Turner sued L. C. Russell, as maker, and W\ H. Toole, as security, on a promissory note payable to the plaintiff. The defendants pleaded that the note was void because given in settlement of a contract between Lyle & Company and Russell for the sale of cotton futures.

Complaint; from city court of Bichmond county — Judge William E. Eve. October 8, 1913. The action was by- James P. Armstrong and others, to whom had been assigned a policy of insurance on the life of James Daly, which the defendant, the Equitable Life Assurance Society, had issued. The petition was dismissed on general demurrer.

<p>Trover; from city court of Thomasville — Judge W. H. Hammond. March 20, 1913.</p> <p>The action was by the Oklahoma Asphalt, Paint & Roofing Company against P. D. Phillips, for the recovery of certain bonds of the Parker Asphalt Roofing Company, alleged to be of the value of $9,000. The judge tried the. case without a jury, and. rendered judgment in favor of the defendant. The judgment, under agreement of counsel, “is to be construed not as adjudicating the absolute ownership of the bonds, but as adjudicating that Phillips holds the same as pledgee thereof under a valid lien for money advanced the company through Parker, as claimed by the defendant.” The plaintiff excepted, alleging that the judgment was contrary to law and without evidence to support it.</p> <p>On the trial the plaintiff introduced the depositions of the defendant, who testified, that he was in possession of bonds issued by the Parker Asphalt Roofing Company, of the par value of $9,000, and got them in the spring of 1910 from Parker as president of the Oklahoma Asphalt, Paint & Roofing Company. “The .circumstances connected with the trade when Parker, as president, turned the bonds over to me was that I advanced the company money. I did not take a note for it. I advanced the company at that time $2,450. The company at that time owed me between $3,000 and $4,000 I had advanced it through Parker as president. My papers were all lost. . . The notes were issued some time during the year. To my recollection, the bonds were received before the notes were issued, and when I got the bonds I advanced more money. I did not receive a note for that money. I could not tell you what names were signed to the notes I held. I can swear that the company I advanced the money to was the Oklahoma Asphalt, Paint & Pooling Company. I advanced about, all told, $6,000 or $6,500. Notes were not taken for the whole amount. About $3,000 was covered by notes. The bonds were not received as collateral for the notes. They were not attached to the notes. The name of the company was signed to the notes by Parker as president, and by no one else. My claim to the bonds is about $7,000. I was to hold the bonds as mine, but they were to secure the debt. They belong to Parker’s company, and are subject to this claim. I will gladly turn them over to you. I have no acknowledgment of the receipts of that company except the notes that were lost, and except letters from Parker. ... I have no books of account which show any record of advancing this money to the company. . . It was practically all paid by check. Some of the checks were payable to Parker and some to the company, my recollection is about one half to each. At the time these bonds were delivered to me I knew they belonged to Parker or his company. I understood they were owned by the Oklahoma Asphalt, Paint & Pooling Company, or by Parker as president • of one of his companies. . . I collected about $200 of the interest [on the bonds] some time last summer. This was the interest of about $4,000 at 5 per cent. I drew on the First National Bank of Ardmore through the Bank of Thomasville, and they paid it. '. . I do not remember any written contract with reference to these bonds by which I was to hold the bonds as security. I think some of the papers that were lost were the title or a written contract about the bonds. . . They were to refund my money at 8 per cent, interest, and I would turn the bonds over to the company. If there was any such contract it was signed by Parker as president, and no one else. . . These bonds belong to me until the money is paid. I was to hold and keep these bonds until the money was paid. When I say that I was to keep them until the money was paid, I am referring to the agreement with Parker as president, to which I have testified.”</p> <p>The plaintiff introduced in evidence a bank-check drawn by the defendant, payable to the order of Oklahoma Asphalt, Paint & Roofing Company, for $2,250, dated July 11, 1910, indorsed in the name of that company “by J. B. Parker, Pres’t,” and marked paid, July 14, 1910. J. T. Paschal testified, that he was secretary and treasurer of the Oklahoma Asphalt, Paint & Roofing Company, and was á director and stockholder of the company since its organization in April, 1910, and that Mr. Parker was president of the company from its organization, and was “in charge of all the operations of the company. The officers and stockholders of the company knew he was in charge of all operations all that time. These bonds we are suing for were made payable to bearer, and they were in possession of the Chickamauga Asphalt Company before Mr. Parker got them. He got them from that company to use as security in procuring a loan from Mr. P. D. Phillips. I do not know whether Mr. Parker got that money from Mr. Phillips or not. All I know about it is what Mr. Parker said and what the books show. If he did get it, I don’t know what the agreement was, of my own knowledge. Mr. Parker reported to the Oklahoma Asphalt, Paint and Roofing Company that these bond; were to be used by him as its president, for the purpose of getting money from Mr. P. D. Phillips.” The witness testified that the indorsement on the defendant’s check for $2,500, referred to above, was in the handwriting of J. B. Parker, president of the plaintiff company, and further testified: “The books show the Oklahoma Asphalt, Paint & Roofing Company also got $200, I think it was, from Mr. Phillips. I do not know whether Mr. Phillip.-: parted with his money as he saj^s he did, or not . . I do know the money from Mr. Phillips never went to the company. The bonds were the property of the Oklahoma Asphalt & Roofing Company after they passed out of the Chickamauga Asphalt Company. I understand these bonds were delivered to Mr. Parker for the purpose of getting a loan from Mr. Phillips, and Mr. Parker told us that was the purpose for which they were taken from the Chickamauga Asphalt Company. Mr. Parker said all he got from Mr. Phillips was a personal loan. It would not have been all right for Mr. Parker to have gotten the money from Mr. Phillips; he might have spent it before the company ever got it. It would have been all right had the company got the money after Mr. Parker got it from Mr. Phillips. . . Neither I nor my company are paying interest on these bonds, and have not paid any lately. I do not know anything about who has paid the interest. I have refused to pay the interest. I do not know that Mr. Parker paid the ■interest.” “I was present at the directors’ meeting of the company when Mr. Parker reported to the directors that he had sold these bonds to Mr. Phillips. In that report Mr. Parker presented his resignation and told us that Mr. Phillips held the bonds to secure a loan. He said he had borrowed some money from Mr. Phillips and had let him have these bonds to secure that loan. He did not say he had ever delivered to the company the money he had borrowed. He never delivered it and the company has never received it. We demanded of Mr. Parker that he get the bonds back from Mr. Phillips. We have never ratified Mr. Párker’s acts in disposing of these bonds. Mr. Parker’s report was made in March, 1911. I first heard in March, 1911, that it was the purpose, in acquiring these bonds, for them to be transferred to Mr. Phillips.That was a part of Mr. Parker’s report to the directors. That was the first I knew about his having transferred the bonds to Mr. Phillips. . . They were in Mr. Phillips’s possession at that time. There was no directors’ meeting ratifying the buying of these bonds that I can find. Mr. Parker told us that he had let Mr. Phillips have the bonds, for money he owed personally to Mr. Phillips. Mr. Parker was not authorized to bring these bonds here and sell them to Mr. Phillips, provided he got the money and turned it in to the company. . . There is no record of whether the company got the money or not. . . There is no record in the books there. I do not know of my own knowledge whether the company got Mr. Phillips’s money for the bonds or not. . . I know no more than the books show. . . I can not say of my own knowledge that the company never received the benefit of Mr. Phillips’s money:”</p> <p>• By-laws of the Oklahoma Asphalt, Paint & Roofing Company, introduced in evidence, provide that “the directors shall have control of the property and business of the corporation,” and shall elect a president and a secretary and treasurer, and that “the president shall preside at all meetings of the stockholders and directors, shall sign all certificates of stock, deeds, and contracts executed by the company, and shall have such other duties as may be determined by the board of directors.” The by-laws contain no other provision conferring power on the president. The minutes of the company were introduced in evidence. They show no action authorizing the borrowing of money from Phillips or the pledging of the bonds with him, and no action ratifjdng such acts. The minutes of a stockholders meeting held on March 25, 1911, contain a resolution requesting information 'as to the company’s business and financial condition, and state that one of the objects of the meeting is “to advise some plans of procedure as to how we would get the bonds back from Phillips.”</p>

Garnishment; from city court of Nashville — Judge Cranford presiding. May 15, 1913. Summons of garnishment directed to W. D. Joiner, administrator of the estate of Needham Joiner, based on an execution against J. G. Joiner, was issued on an affidavit in the ordinary form, and was served on the garnishee.

<p>Conviction of manslaughter; from Colquitt superior court— Judge Thomas. October 8, 1913.</p>

<p>Garnishment; from city court of Nashville — Judge Cranford pre'iding. May 15, 1913.</p>

<p>Where a conditional bill of sale confers upon the vendor the power to sell the propex-ty on default of payment of the purchase-price, after notice to the vendee, and, on such default and after due notice, he sells the property as agent of the vendee, and himself becomes the pux-chaser, the sale to himself, if free from fraud, is not void, but only voidable, at the option of the vendee. Before such a sale can be avoided, the vendee must tender payment of the debt secured by the property in question.</p>

<p>Appeal; from Hall superior court — Judge J. B. Jones. August 2, 1913.</p>

Complaint; from city court of Milieu — Judge T. L. Hill. August 18, 1913. The Savannah Chemical Company sued D. Bragg & Son on four promissory notes aggregating $1,958, given by the defendants for the purchase-price of fertilizer to be used on their cotton crop.

<p>Appeal; from Fulton superior court — Judge Ellis. . August 16, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. September 18, 1913.'</p>

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

<p>Complaint; from city court of Macon — Judge Hodges. October 18, 1913.</p>

<p>Complaint; from city court of Quitman — Judge Long. August 12, 1913..</p> <p>Rountree brought suit against the Quitman Furniture and Hardware Company for $266.66, alleging a breach of warranty in a deed made by the defendant to one Monroe, under whom Rountree claimed to hold title to an undivided third interest in a certain lot of land in Quitman, Georgia. From the allegations of the petition it appears, that in December, 1910, Stanley S. Bennett, F. L. Gibson, and W. H. Long, who were owners of the land in question, as tenants in common, each owning an undivided third interest, conveyed the land to the Quitman Furniture and Vehicle Company, of which the Quitman Furniture and Hardware Company was the successor. On April 18, 1911, the Quitman Furniture and Hardware Company, as successor to the Quitman Furniture and Vehicle Company, conveyed the land to S. G. Monroe for $800, warranting title to him, his heirs and assigns. Two days later Monroe, to secure his indebtedness to Rountree, of $950, due January 1, 1912, executed' a deed (recorded April 21, 1911) conveying this land to Rountree, with power of sale, to be exercised on failure to pay the debt when due. The petition alleges that Monroe failed to pay this indebtedness, and that, in compliance with the power of sale contained M the deed, Rountree advertised the land for sale, and on March 22, 1913, sold it, at public outcry, and bid off the property for $500, and on the same date executed and, delivered to himself a deed pursuant to the sale. It is alleged that in the meantime the board of county commissioners of Brooks county, through its clerk W. B. Knight, issued an execution against F. L. Gibson, who was tax-collector of Brooks county, for $7,922.86; and on July 5, 1911, this execution was levied upon an undivided third interest in 'the lot in question as the property of F. L. Gibson; that the land was advertised for sale, and on the first Tuesday in November, 1911, was bid off by J. E. Cook, and the sheriff executed a deed to Cook for Gibson’s former undivided third interest; that subsequently 'Cook filed a petition against Monroe and the plaintiff, Rountree, for partition of the land, and on the trial a verdict and judgment were rendered against Monroe and Rountree, and title to the said undivided third interest was decreed to be in Cook, and a partition, of the land was ordered.</p> <p>To the present petition the. defendant demurred generally and upon the following grounds: (1) Because the plaintiff was not a purchaser of the land, but had only an instrument conveying title as security for a debt. (2) Because the plaintiff, not being a purchaser, had no right under a warranty of former holders,- until ousted from possession of the land. (3) Because if the plaintiff was entitled to recover at all, he was only entitled to recover $166.66; for the reason that when he purchased the lot at the sale advertised by himself, he paid only $500. (4) Because the petition fails to set out that the plaintiff has been evicted; it is alleged that there was a decree that the land be partitioned, and there is no allegation that it has been partitioned. (5) Because the execution against Gibson had been issued before Monroe or the plaintiff acquired title to the land, and it is alleged that a purchase of the covenant of warranty was made before the land was conveyed to the plaintiff. (6) Because the deed from Monroe to the plaintiff contained no warranty. (7) Because the defendant was not vouched to appear and defend the petition of Cook to partition the land. (8) Because it appears from the petition that the execution against Gibson was older than the deed from the defendant to Monroe. The demurrer was overruled.</p> <p>The defendant filed an answer, denying any indebtedness to the plaintiff, and setting up that the paper given by Monroe to the plaintiff was not a deed, and that, shortly after the execution of the deed from the Quitman Furniture and Hardware Company to Monroe, the latter became uneasy in regard to the execution against Gibson, and in view of that fact the company made a special agreement with Monroe, by the terms of which the company agreed that it would protect him against any lawsuit that might be brought against the property on 'account of any execution issued against Gibson and levied upon Gibson’s third interest in the land, or that if the company failed to protect Monroe, it would pay him $266.66; and it is averred that in pursuance of this agreement the company did, on November 17, 1911, pay Monroe that amount, by giving him credit therefor on his indebtedness to the company.</p> <p>The material averments of the defendant’s answer were stricken, on the plaintiff’s demurrer thereto, and the court entered judgment in favor of the plaintiff for $266.66, with interest and costs of suit. To this judgment and to the antecedent rulings the defendant excepted.</p>

Action for damages; from city court of Greenville — Judge Bevill. September 15,1913. Henry Sewell was killed by a locomotive on the Atlanta, Birmingham & Atlantic Bailroad on December 25, 1910, and his mother, Mrs. Ophelia Sewell, on January 31, 1911, brought an action against the receivers of the railroad company, for damages on account of the homicide.

<p>Action for damages; from city court of Atlanta — Judge Beid. September 27, 1913.</p>

<p>1. The mere fact that the female alleged to have been seduced subsequently contracted marriage with another than the alleged seducer does not afford a good defense to an indictment which charges the offense of seduction. Under the provisions of section 379 of the Penal Code a prosecution for seduction may be stopped before arraignment, by a bona fide and continuing offer,to marry on the part of the seducer, upon his compliance with the statutory requirement as to obtaining a marriage license and giving bond in such sum as may be required by the ordinary. But where it appears that the essential prerequisites have not been complied with and that the tender of marriage was made more than two years after the alleged seduction, it is not error to sustain a demurrer to a plea which merely sets up, as ground for abating the prosecution, the fact that the female alleged to have been seduced married another man, and that the defendant was thereby deprived of the right to stop the prosecution by marriage.</p> <p>2. The court did not err in not defining' the offense of fornication. The instruction to the effect that if the jury believed that the defendant and the prosecuting witness had sexual intercourse not induced by such persuasion and promises of marriage as would constitute the offense of seduction, the jury might inquire if the defendant was guilty of fornication, was sufficient; especially in view of the fact that the defendant insisted that he had never had sexual intercourse with the female alleged to have been seduced.</p> <p>3. The evidence authorized the conviction of the accused, and, in the absence of any error of law on the trial, the verdict, approved by the trial judge, will not be set aside.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. September 17, 1913.</p>

<p>Indictment for sale oí liquor; from Emanuel superior court— Judge Bawlings. October 18, 1913.</p>

<p>Conviction of manslaughter; from Elbert superior court — Judge Meadow. November 8, 1913.</p>

<p>1. The general demurrer being properly sustained, it is unnecessary to consider in detail the several grounds of the special demurrer.</p> <p>2. Where an action is based upon alleged negligence or misconduct of an agent or employee, in order to bind the principal it must be proved that the agent or employee was acting at the time within the scope of his employment, and therefore it should be specifically alleged in the petition that he acted within the scope of his employment, or his duty as such agent or employee should be so specifically set forth as to indicate what was the actual scope of his employment; and whether the act complained of was within that scope. Century Building Co. v. LewlooUñts, 1 Ca. App. 636 (57 S. E. 1036).</p> <p>3. Where damages are sought because of the negligence or misconduct of another, it must appear that loss necessarily resulted; and where it is alleged that the loss arose from the delivery of a forged telegram agreeing to accept a draft, it must appear that the pretended acceptor was solvent at the time and able to respond to any legal demand arising from such acceptance if the telegram had been genuine.</p> <p>4. A general charge in a petition that loss accrued to the plaintiff because the servant or agent of the defendant was “unreliable,” and because the defendant had in its employ “the unreliable messenger boy referred to in this petition, knowing him to be unreliable,” without more specifically alleging how or in what particular the servant or agent was “unreliable,” or how or in what manner the defendant was negligent, is insufficient; nor is it sufficient to plead facts as affording a reason for the ultimate fact, unless the ultimate fact is a necessary deduction from such evidentiary or alleged facts. Davis v. Arthur, 139 Ga. 75 (76 S. E. 676).</p> <p>5. Where a petition contains two counts, neither of which adopts or refers to any of the allegations in the other, each count must stand or fall by itself, and the averments in one count can not be considered in aid of . the other.</p>

<p>Certiorari; from Carroll superior court — Judge Freeman. November 6, 1913.</p>

Indictment for embezzlement; from Gilmer superior court— Judge Patterson. December 11, 1913. ' J. H. Carter was indicted by the grand jury of Gilmer county at tbe October term, 1912, for tbe crime of embezzlement.

<p>Complaint; from city court of Quitman — Judge Long. December 19, 1913.</p>

<p>1. In computing the thirty days in which a petition for certiorari must be presented for sanction, when the last day falls on Sunday, it will be sufficient if the petition be presented for sanction on the following Monday. Penal Code, § 1, par. 8. See, also, Wood v. State, 12 Ga. App. 651 (78 S. E. 140).</p> <p>2. Even in the absence of a request, it is the duty of the trial judge in a criminal case to charge the doctrine of “reasonable doubt,” and' the failure to do so is reversible error, unless the evidence demanded the verdict rendered.</p> <p>3. If “remarks of counsel tending to prejudice the jury against the defendant” may require the granting of a new trial (Augusta <£c. Railroad Co. v. Randall, 85 Ga. 298 (11 S. E. 706)), a fortiori improper remarks or impatient utterances from the presiding judge may necessitate a new trial.</p>

<p>1. One who lies prone and helpless on his back across a public highway, with his head near the middle of the highway and thereby partly blocks the road, while in a state of utter helplessness from intoxication, makes a spectacle shocking to the sensibilities of all right-minded persons passing by, and is therefore punishable under section 442 of the Penal Code of 1910.</p> <p>2. Where one of the issues in a case is whether the defendant was intoxicated, evidence tending to show his use of intoxicants and the usual effect of intoxicating liquors on him is admissible and proper.</p>

<p>1. In a prosecution for practicing medicine illegally, the State is required, to prove that the accused, with intent to receive compensation therefor, performed services such as are defined in section 1683 of the Civil Code, without registering in the county of his residence as required by section 1684. The burden is upon the State to prove, as a material fact in the ease, the residence of the accused as alleged in the indictment; but the prosecution may rely upon the failure of the accused to attack prima facie or presumptive proof as to residence, which is sufficiently strong to compel the production of affirmative proof in order to rebut it.</p> <p>2. A reviewing court can not undertake to pass upon the admissibility of documentary evidence the contents and materiality of which can not be ascertained from the record.</p> <p>3. The court in charging the jury did not err, especially in the absence of a request, in not defining the term “reasonable doubt.” The jury were correctly instructed as to the burden on the State to make out its case beyond a reasonable doubt, and that if they had a reasonable doubt as to any of the material allegations of the indictment, they should give the defendant the benefit of that doubt and acquit him.</p> <p>4. The evidence authorized the verdict, and the judge of the superior court did not err in overruling the certiorari.</p>

<p>Indictment for assault with intent to rape; from Fulton superior court — Judge B. JI. Hill. January 3, 1914.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. October 23, 1913.</p>

<p>Accusation of misdemeanor; from city court of Albany — Judge Clayton Jones. January 5, 1914.</p>

<p>'Accusation of gaming; from city' court of Griffin — Judge Flynt. December 20, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. January 3, 1914.</p>

<p>Accusation of misdemeanor; from city court of Tifton — Judge R. Eve. October 15, 1914.</p>

<p>1. On a trial for trespass, where the indictment charged that the accused hunted on land of J. P. Dyar Sr., “known as the Andy Kinman farm, in the fifteenth district and third section of Gordon county,” and “registered in the register for posting lands . . as provided in sections 1958, 1959, and 1961 of the Code of Georgia,” it was error to admit in evidence an entry in the register for posting lands in Gordon county, offered for the purpose of showing registration of the land in question, and showing the registration of “lands belonging to J. P. Dyar, known as the Dyar farm,” in the fifteenth and sixth districts and third section, it not appearing that the land registered included the “Andy Kinman farm.”</p> <p>2. In the absence of legal evidence that the land described in the indictment had been registered as alleged, the conviction was not authorized.</p>

<p>Certiorari; from Berrien superior court — Judge Thomas, October 31, 1913.</p>

<p>1. In giving requested instructions to the jury, it seems to be the better practice for the court to omit any statement as to their being given at the request of counsel; but a new trial will not be granted on the ground that the judge prefaced the reading of a requested instruction with the words, “By request of counsel for the defendant, I charge you the following section of the code,” etc.; and also, “By request of defendant’s counsel, I-charge you the following.”</p> <p>2. Where the court charged the jury in the language of a written request;-' with the following introductory remark, “By the request of the counsel... for the defendant, and no objection being offered by the State, I charge you the following section of the code,” etc., it was not a necessary conclusion, taking the charge as a whole, that the use of the words, “no objection being offered by the State,” minimized to a material degree the effect of the language of the requested instruction.</p> <p>3. Parents have the authority to use necessary force to protect their daughters from seduction or debauchery, but may not assault an apparent suitor merely on the assumption that he may prove to he a seducer, unless the known facts and circumstances at the time are sufficient to legitimately induce this conclusion.</p> <p>4. There was.no material error of law committed by the trial judge, and the evidence warranted the verdict.</p>

<p>All claims against counties must be presented to the proper county authorities by written demand within twelve months after they accrue or become payable, or they will be barred, under the provisions of section 411 of the Civil Code of 1910, “unless held by minors or other persons laboring under disabilities.”</p>

<p>Certiorari; from Coffee superior court — Judge Parker. November 14, 1913.</p>

<p>Accusation of adultery; from city court of Sandersville — Judge Jordan. November 24, 1914.</p>

<p>1. The ruling in this case is controlled by the decisions of the Supreme Court in Ledford v. State, 75 Ga. 856, Harrison v. State, 83 Ga. 130 (9 S. E. 542), and Raysor v. State, 132 Ga. 237 (63 S. E. 786). The accused sought to establish an alibi, and the court correctly instructed the jury that it was incumbent on him to prove the impossibility of his presence at the scene of the crime at the time of its commission, and that he was only required to establish this to the reasonable satisfaction of the jury; but the court omitted altogether to inform the jury that if they had a reasonable doubt as to whether the accused had in fact established the alibi, he should be given the benefit of that doubt and should be acquitted. The instructions on the subject of reasonable doubt were not accompanied by any language relating to the testimony as to alibi (as in Shaw v. State, 102 Ga. 665, 29 S. E. 477), and equivalent to a specific direction to the jury to acquit, if, upon a consideration of the proof of alibi along with the evidence as a whole, the jury had a • reasonable doubt of the defendant’s guilt.</p> <p>2. There being nothing in the evidence or in the defendant’s statement to dispute the fact that the alleged crime was committed and his defense resting solely upon the contention that he did not participate in the offense, the court, in charging the jury, did not violate the provisions of the code (Penal Code, § 1058; Civil Code, § 4863) in assuming that a crime had been committed.</p> <p>3. Even if the instruction of the trial judge as to a presumption of malice was erroneous, the error was harmless, because the verdict finding the defendant guilty only of the offense of shooting at another evidences that they found that the assault was made without malice.</p>

Accusation of misdemeanor; from city court of Bichmond county —Judge W. F. Eve. December 10, 1913. Etta Butler was convicted of selling cocaine in violation of section 459 of thé Penal Code.

<p>Accusation of sale of liquor; from city court of Lexington— ’Judge Cloud. December 12, 1913.</p>

<p>Where an indictment was objected to by demurrer and motion to quash, on arraignment and before pleading, because it failed to show the names of the grand jurors who found it, the objection should have been sustained and the indictment quashed. '</p>

<p>Action for damages; from city court of Eastman — Judge Neese. October 15, 1913.</p>

<p>Indictment for assault with intent to murder; from Wilkinson superior court — Judge Park. December 15, 1913.</p>

<p>Petition for certiorari; from Baldwin superior court — Judge Park. December 9, 1913.</p>

<p>Accusation of sale of liquor; from city court of Macon — Judge Hodges. December 20, 1913.</p>

<p>Accusation of misdemeanor; from city court of Savannah — Judge Davis Freeman. December 8, 1913.</p>

<p>1. On a trial for an assault, made when the assaulted man was in conversation with a woman with whom the accused was intimate, evidence that about a month or two months before the assault the accused threatened to kill this man if he ever caught the man at his “girl’s” house again was admissible as tending to show the motive for the assault.</p> <p>2. In view of the charge of the court as a whole, there is no merit in the objection that the jury were restricted to a consideration of the evidence, to the exclusion of the prisoner’s statement at the trial, by the instructions that if “the evidence” satisfied them to a reasonable and moral certainty of his guilt, he should be convicted, and that they could not go “outside of the evidence” in trying the case, and that if upon a consideration of the evidence ox on account of the want of evidence they should have a reasonable doubt as to his guilt, he should be acquitted; the court further instructing them that the prisoner’s statement should have such weight and force as they might think fit to give it in their effort to arrive at the truth, and that they might believe it in preference to the sworn evidence in the case, and that if they had any doubt as to the guilt of the accused, they should acquit. It was not necessary to add that a reasonable doubt might arise from the prisoner’s statement.</p> <p>3. The jury being fully and correctly instructed in the charge of the court on the law as to reasonable fears as a defense, and instructed that the accused should be acquitted if he cut the prosecutor in self-defense . where it appeared to him as a reasonable man that his life was in danger and that it was necessary for him to cut the prosecutor for the purpose of saving his own life, an instruction that he would not be entitled to a verdict of not guilty if he cut the prosecutor when it was not necessary to cut to save his own life or to protect himself against a felonious attack is not subject to exception on the ground that it had the effect of limiting the right of self-defense to an actual necessity for such defense, and of preventing the jury from considering whether the accused, acting under the fears of a reasonable man, believed it was necessary for him to cut in order to save his own life.</p> <p>4. The contentions of the accused were set forth with sufficient fullness in the charge of the court.</p> <p>5. The exception that certain instructions of the court on the law of homicide were error, for the reason that they did not correctly state the law as to when express malice is shown, is too indefinite for consideration.</p>

<p>Accusation of misdemeanor; from city court of Blaekshear— Judge Mitchell. January 8, 1914.</p>

<p>Accusation of sale of liquor; from city court of Newnan — Judge Post. January 9, 1914.</p>

<p>Indictment for assault with intent to rape; from Bartow superior court — Judge Fite. December 1, 1913.</p> <p>Under an indictment charging Moore and Womack with assault with intent to rape, they were tried jointly, and Womack was found guilty of that offense, and Moore was convicted of assault and battery. Moore excepted to the refusal of a new trial. The grounds of the motion for a new trial were, that the verdict was contrary to law and to the evidence, and that “a new trial should be granted for the following reason: Movant and his eodefenclant were jointly indicted for assault with intent to rape, movant being convicted of assault and battery, while his codefendant, 'Womack, was convicted of assault with intent to rape. Movant insists that under no view of the case could movant be convicted legally of a different grade of offense from his codefendant; that under the evidence and charge of the court, if defendants were-acting in concert, they would be guilty of the same offense, and if not acting in concert, then it follows as a matter of law, under the evidence, movant would not be guilty of any offense.”</p>

<p>Accusation of misdemeanor; from city court of Columbus — Judge Tigner. January 17, 1914.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. January 23, 1914.</p>

<p>Accusation of bastardy; from city court of Blackshear — Judge Mitchell. January 8, 1914.</p>

<p>Indictment for misdemeanor; from Laurens superior court— Judge Hawkins. January 27, 1914.</p>

<p>1. Improper argument of counsel to which the attention of the presiding judge was not called at the trial is not cause for a new trial.</p> <p>2. Exceptions not relied on in the brief or argument of counsel will be treated as abandoned.</p> <p>3. The question, “You know anything about making up any money to buy whisky?” was not objectionable as leading.</p> <p>4. Evidence that after the trial a witness for the State made a declaration under oath that his testimony at the trial was false does not require a new trial.</p>

<p>1. Refusal to give a requested instruction to the jury was harmless, the matter of the request being substantially covered by instructions given.</p> <p>2. It was not error to charge the jui-y: “If you believe a witness has been impeached, you may disregard his testimony entirely, unless it is corroborated by other evidence.”</p> <p>3. There being no evidence that a witness was an accomplice, the court was not bound to give in charge to the jury section 1017 of the Penal Code, as to testimony of an accomplice, or to define an accomplice.</p> <p>4. The fact that one is a joint defendant in an indictment and has entered a plea of guilty does not necessarily niake him an accomplice, so as to require corroboration of his testimony against'his codefendant.</p>

Indictment for assault with intent to murder; from, Terrell superior court — Judge Worrill. February 7, 1914.

<p>Indictment for assault with intent to murder; from Eulton superior court — Judge B. H. Hill. January 27, 1914.</p>

<p>Accusation of misdemeanor; from city court of Sparta — Judge Moore. February 7, 1914.</p>

<p>Indictment for assault with intent to murder; from Tift superior court — Judge Thomas. February 7, 1914.</p>

<p>The phrase “place of business,” used in the act of 1910 regulating the carrying of pistols (Acts of 1910, p. 134), as related to a farm laborer, ex vi termini includes the specific portion of a farm or plantation where one employs his time and makes his living; and it includes the whole farm or plantation if he is employed to work and does work when so directed in any and every part of it. If one’s business is farming, his place of business is not confined to houses, but may be in the field, the woodland, the meadow, or at any other place on the farm where his business of farming requires his presence.</p>

<p>On a trial for assault with intent to murder, it appearing that if the assault was committed it was made by stabbing with a knife, it was error to omit to charge the jury as to the lesser offense of stabbing, as defined in section 114 of the Penal Code.</p>

<p>Action for damages; from city court of BlaeksheaT — Judge Mitchell. October 30, 1913.</p>

<p>1. The court’s statement of the contentions of the parties was perhaps fuller than is customary or was necessary, but is not subject to objection as being hurtful to the defendant, as involving another and different transaction from that under investigation, or as tending to prejudice the jury.</p> <p>2. In a prosecution for larceny, where the issue submitted is whether the taking was in good faith and under a fair claim of right, it is not error for the court to instruct the jury that it is proper for them to take into consideration the circumstances of the case in weighing the contentions made by the respective parties.</p> <p>3. In charging the jury as to the force and effect of the prisoner’s statement, it is not necessarily error to qualify their right to believe it in preference to sworn testimony, by adding that the jury may give this preference to it if they believe it to be the truth.</p> <p>4. Where a ground of a motion for a new trial, excepting to the admission of certain testimony, fails to state the specific objection urged at the time the evidence was offered, the exception presents nothing for the consideration of this court. This is especially true when the exception itself fails to point out in any way why the admission of the testimony was prejudicial or erroneous.</p> <p>5. The court did not err in admitting the testimony set out in the 6th, 7th, 8th, and 9th grounds of the motion for a new trial. Testimony that the articles alleged to have been stolen from the garage or automobile shop had been left on a highway, in an automobile belonging to the proprietors of the garage or shop, and had been taken from the automobile on the highway by some unknown person, was relevant to rebut the claim of the accused that his taking of this property from the automobile shop a few days later was in good faith and under an honest claim of right, especially since there was evidence contradicting the statement made by him prior to his taking the property in question from the automobile shop, as to the manner in which he had acquired possession and right to the property in question.</p> <p>6. In the state of the testimony in the record and of the contentions of the parties, the instructions of the court did not tend to confuse the jury, nor. were they for any other reason assigned erroneous. The controlling issue was whether the defendant took the property in good faith for the sole purpose of repossessing himself of that which he believed was his own, or whether, knowing the property was not his own, he took it with intent fraudulently to convert it to his own use. The evidence was sufficient to authorize the verdict returned, and the court did not err in refusing a new trial.</p>

<p>1. Where a policy, insuring against loss of certain personal property by fire stipulates that the property is insured “while located and contained as described herein, and not elsewhere,” and states that it is contained in a described building, and the property is removed to a diifereht place and is there burned, and it does not appear that any authorized agent of the insurer consented to the removal, the insured is not entitled to recover on the policy.</p> <p>2. The court did not err in sustaining a general demurrer to the petition.</p>

<p>Action for breach of contract; from city court of Greenville— Judge Harwell presiding. October 27, 1913.</p>

Accusation of manufacture of liquor; from city court of Newnan —Judge Post. November 11, 1913. Judge Eoan being absent because of illness, Judge Eeid, of the Stone Mountain circuit, was designated to preside.

<p>Certiorari; from Berrien superior court — Judge Thomas. October 31, 1913.</p>

<p>Accusation of carrying pistol without license; from city court of Oglethorpe — Judge Oreer. December 26, 1913.</p>

<p>Accusation of misdemeanor; from city court of Hazleburst— Judge Knox. December 6, 1913.</p>

<p>Certiorari; from Camden superior court — Judge Conyers. December 20, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. November 2, 1913.^</p>

<p>Conviction of manslaughter; from Oglethorpe superior court— Judge Meadow. December 20, 1913.</p>

<p>A cropper or other farm laborer has the right to carry a pistol, not concealed, upon that portion of the farm on which he is employed or directed to labor, without first obtaining a license; and, consequently, the trial judge too greatly restricted the defendant’s fight by charging the jury that “such wages hand or laborer would have a right, without a license, to have or carry a pistol at his home, but would not have the right, without a license, to carry such pistol into the fields of said farm upon which he was employed to work.”</p>

Action for damages; from city court of Savannah — Judge Davis Freeman. November 34, 1913.

<p>Accusation of cheating and swindling; from city court of Houston county — Judge Biley. February 9, 1914.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. October 9,1913.</p>

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

<p>Complaint; from city court of Americus — Judge Harper. November 20,1913.</p> <p>The instruction referred to in the foregoing decision was as follows : “Where a- seller of live stock guarantees the stock being sold to be sound, such a guarantee relates to the condition of the live stock at the time and place of sale, and covers any unsoundness, known or unknown- to the seller, which may exist at the time and place of sale. I charge you further that if the seller making such a guarantee delivers over to the purchaser one or more head of live stock, if you believe that one or more of such stock were at the time infected with a disease, which later, by the natural progress of that disease, resulted in the disabling or destruction of the property, then, whether the disease at the time of sale was in such a stage as was obvious to casual inspection or npt, there would be a breach of the guarantee, and the purchaser would have a right to recover.”</p>

<p>Certiorari; from Tift superior court — Judge Thomas. December 15, 1913.</p> <p>A verdict in this case was rendered in the city court in favor of the defendant, and the case came to the Court of Appeals on exceptions to the refusal of the plaintiffs’ motion for a new trial. This court reversed the judgment and held that the evidence demanded a verdict in favor of the plaintiffs. 7 Ga. App. 304 (66 S. E. 814). The defendant then amended his plea, and set up discharge in bankruptcy. A motion to strike this plea was overruled, and at the conclusion of the evidence on the trial, the court directed a verdict for the defendant, on the ground that he had been discharged in bankruptcy. The plaintiffs presented to the judge of the superior court a petition for certiorari. He refused to sanction the petition, and this court reversed that judgment and held, (1) that the defendant was estopped from setting up discharge in bankruptcy, and (2) that on the evidence set out in the petition for certiorari the plaintiffs were entitled to recover, under the former decision of this court. 11 Ga. App. 486 (75 S. E. 828). After-wards the judge of the city court answered the petition for certiorari, and in his answer admitted that the evidence introduced on the trial was correctly set out in the petition. The judge of the superior court thereupon passed an order sustaining the certiorari and remanding the case to the city court for a new trial. To this judgment the plaintiffs excepted, contending that the judge of the superior court should have entered final judgment in their favor, there being no issue of fact to be passed upon in the city court.</p>

<p>Conviction of manslaughter; from Jones superior court — Judge James B. Park. December 15, 1913.</p>

<p>1. The court did not err in overruling the demurrer to the indictment.</p> <p>2. Every person indicted for an offense against the laws of this State, unless he waives arraignment, is entitled as matter of right to be arraigned before pleading to the indictment. When arraigned, either one or both of two issues may be presented for determination, — an issue of law or an issue of fact. The issue of law is for decision by the court, the issue of fact by the jury. When a defendant demurs to an indictment, he presents an issue of law. If the court decides this issue against him he may then present his issue of fact in a plea of not guilty. Before either issue is presented, he is entitled to be arraigned, unless arraignment is waived. When the defendant pleads without arraignment, he thereby waives this formality. When an issue of law is presented by the defendant without demanding formal arraignment, this amounts to waiver of arraignment, as to either or both issues, as this is a plea to the merits of the indictment.</p>

<p>1. On a trial for violation of the law of this State against the sale of spirituous, malt, or intoxicating liquors, an original United States internal-revenue special-tax receipt, issued to the defendant as a dealer in such liquors, is admissible as evidence, under the act of 1911 (Acts 1911, p. ISO) which provides when such a receipt shall be prima facie evidence of guilt.</p> <p>2. The court did not err in charging the jury that they might believe the defendant’s statement to the court and jury, in preference to the sworn testimony in the case, “provided they believed it to be true.”</p> <p>3. The evidence was sufficient to authorize the verdict.</p>

<p>1. Failure to make a person, who in the court below was a necessary party in the cause, a' party to the bill of exceptions, and to serve him with it, will subject the writ of error to dismissal, if it is to his interest to sustain the judgment to which exception is taken.</p> <p>(a) When a motion to dismiss a writ of error is made, upon the ground that parties interested in sustaining the judgment complained of have been omitted, their interest or lack of interest may he determined by an inspection of the record.</p> <p>(6) When it is admitted in a traverse of the sheriff’s entry of service that the person referred to in the entry was in fact served with the process, and the denial, goes no further than to assert that the person served was not duly authorized or empowered to accept service in the capacity or relation attributed to him in the entry of service, the sheriff has no interest in' sustaining the judgment of the lower court, and for that reason is not such a necessary party defendant in the bill of exceptions as that the writ of error must be dismissed because the plaintiff in error omitted to make the sheriff a party, or serve him with the bill of exceptions.</p> <p>2. Unless the charter of a corporation provides that an office shall become vacant at the expiration of the term of office for which the officer was elected or appointed, the general rule is to allow him to hold over until his successor is duly and legally elected and qualified. The failure of a corporation to elect officers does not terminate the terms of existing officers or dissolve the corporation; and since a relation proved once to exist is presumed to continue, one shown to have been duly elected such an officer of a corporation as to be authorized to accept service in its behalf, and shown to have discharged the duties of the office, will, in the absence of proof of affirmative action terminating his previous relation, be presumed to be a proper agent of the corporation upon whom service may be perfected.</p> <p>3. The conclusion of a witness for the defendant that his connection with the defendant corporation had ceased prior to the date of the sheriff’s entry of service was not supported by the facts and circumstances related by him; and consequently the witness’s conclusion of law was without any probative value; and as there was undisputed legal testimony sufficient to show that the witness’s official connection with the defendant had not been terminated, it was not error for the court to direct a-verdict finding against the traverse of the sheriff’s entry of service.</p>

<p>Conviction of manslaughter; from Appling superior court — Judge Conyers. January 21, 1914.</p>

<p>Misdemeanor; from city court of Blakely — Judge Sheffield. February 23, 1914.</p>

<p>Indictment for murder; from Houston superior court — Judge Mathews. February 14, 1914.</p>

<p>1. A judgment of the superior court, sentencing a person convicted of crime, is provable by an extract from the minutes of that court, duly certified by its clerk.</p> <p>2. Slight evidence identifying the accused with the crime may be sufficient to corroborate the testimony of an accomplice and warrant a verdict of guilty.</p> <p>3. Whether the evidence in the present ease was sufficient for this purpose .was a question for the jury; and the trial judge having approved their finding, and it not appearing that any error of law was committed by ' him, this court can not interfere with the verdict.</p>

<p>Accusation of carrying concealed weapon — Judge Cabaniss. March 17, 1914.</p>

<p>Indictment for misdemeanor; from Cobb superior court — Judge Patterson. February 12, 1914.</p>

Certiorari; from Putnam superior court — Judge Park. March 16, 1914.

<p>Indictment for misdemeanor; from McIntosh superior court— Judge Sheppard. March 13, 1914.</p>

<p>Accusation of sale of liquor; from city court of Washington— Judge Wynne. March 7, 1914.</p>

<p>Indictment for sale of liquor; from Cherokee superior court— Judge Patterson. March 10, 1914.</p>

<p>Indictment for burglary; from Floyd superior court — Judge Wright. March 7, 1914.</p>

<p>Indictment for adultery; from Appling superior court — Judge Conyers. February 23, 1914.</p>

<p>Action for damages; from city court of Baxley — Judge Sellers. October 35, 1913.</p>

<p>Conviction of manslaughter; from Morgan superior court — Judge James B. Park. October 12, 1913.</p>

<p>Indictment for misdemeanor; from Colquitt superior court— Judge Thomas. December 9, 1913.</p> <p>The indictment was against W. P. Brown and E. J. Strickland, and was in two counts. Strickland was convicted on the first count. In this count it is alleged that the defendants, on March 20, 1913, in Colquitt county, in the State of Georgia, did “knowingly 'and wilfully remove, caused to be removed, and procured to be removed, beyond the limits of the State of Georgia, certain personal property, to wit: one bay horse mule,- six years old; also one thick, blocky built, bay horse mule, six years old, has stripes down back and shoulders, and has crossed eyes, which said property was then and there held by the said W. P. Brown under conditional purchase and sale from J". J. Battle, vendor of said personal property, and by the terms of which said purchase and sale the title to said personal property was retained by the said vendor until the purchase-price of said personal property should be paid by the said W. P. Brown; the said E. J. Strickland then and there knowing, and having actual knowledge, that the said W. P. Brown held said personal property under conditional purchase and sale from the said J. J. Battle, the vendor of said property, and by the terms of said purchase the title to said personal property was retained by the said vendor of said personal property until the piirchase-price of said personal property should be paid, and that said personal property was then and there subject to said contract of sale, which said removal of said personal property was then and there knowingly and wilfully done by them, the said W. P. Brown and E. J. Strickland, without the consent and approval of the said vendor, and with intent to defraud and defeat the rights of the said vendor, and which removal of said personal property tended to injure and did injure the said J. J. Battle, vendor of said personal property, contrary to the laws of said State,” etc.</p> <p>The demurrer was on the following grounds: (1) The indictment fails to charge any offense against the laws of said State. (2) It fails to show how the said property was removed, and where it was removed, and how or where it was concealed. (3) It fails to allege that the purchase-price of the property had not been paid, or how much remained unpaid. (4) It fails to show that the prosecutor sustained loss, or how he could lose anything.</p>

<p>Levy 'and claim; from city court of Douglas — Judge Lankford. December 9, 1913.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. November 38, 1913.</p>

<p>1. Where an administrator was entitled to the possession of .certain per? sonalty as property of the decedent’s estate, and a person in possession of it promised the administrator to hold it for him, and not to part with it without an order from him, but afterwards delivered it to one not authorized by the administrator to receive it, the person so delivering it was liable to the administrator for its value.</p> <p>2. There being a contractual relation between the parties, whereby the property was held by the defendant as bailee, a tort arising from breach of his duty as bailee could be waived and an action of assumpsit bo maintained by the bailor on the promise to discharge the duty.</p>

Indictment for misdemeanor; from city court of Sparta — Judge Moore. October 21, 1913. George Creighton was convicted under an indictment charging him with having manufactured intoxicating liquors. On the trial T. B. Hightower testified: “About the 21st of August,, this year, . I went down in there near George Creighton’s house, near a little branch, and I found where there had been a still operating. Whisky had been made there. . .

<p>Indictment for sale of liquor; from Laurens superior court — • Judge Hawkins. February 2, 1914.</p>

<p>Accusation of misdemeanor; from city court of Brunswick— Judge ICrauss. March 14, 1914.</p>

<p>Accusation of sale of liquor; from city court of Elberton — Judge Grogan. February 23, 1914.</p>

<p>1. It was not error to refuse requests for further instructions to the jury, presented by counsel at the conclusion of the charge of the court, where the charge given covered the matter of the requested instructions, and was a clear and fair statement of the law applicable to the case.</p> <p>2. An assignment of error on the ground that the sentence imposed on one convicted of crime is excessive will not be sustained when the sentence does not exceed the statutory limit.</p> <p>3. Thére was sufficient evidence to authorize the verdict.</p>

<p>Indictment for false imprisonment; from Hall superior court— Judge J. B. Jones. March 12, 1914.</p>

<p>Indictment for mnxder; from Laurens superior court — Judge Hawkins. February.5, 1914.</p>

<p>1. Profane, obscene, and abusive words alone do not justify one in shooting another.</p> <p>2. As to a defense arising solely from the defendant’s statement to the court and jury in the trial of a criminal case, the court need not charge the jury, when there is no written request to give such an instruction, but if the court attempts to do so, the law covering that defense should be given.</p> <p>3. According to the defendant’s statement at the trial, the man who was shot not only used profane, abusive, and violent language towards the defendant, and thrust his hand in his hip-pocket as if about to draw a weapon, but was advancing on the defendant in a threatening manner, with his hand in his hip-pocket and using such language, when the defendant shot him. The court specifically charged the jury on the theory that the man who was shot did not attempt to do more than put his hand in his pocket and use profane and defiant language, but the charge did not fully cover the theory presented by the defendant’s statement; the instruction on this point being to the effect that if one should put his hand in his pocket and use to another language of the kind stated, “without effort or apparent effort to do more,” the other party would not be justified in shooting him. The jury would have been authorized to believe that the language used by the person shot, and his-thrusting his hand in his hip-pocket, together with his advancing on the defendant in the menacing manner stated, aroused in him a reasonable fear that his life was in danger or that a felony was about to he committed on his person. It was a question for them whether the circumstances were such as to arouse in him such a fear, and whether he shot under the influence of such fear, for the purpose of protecting his life or person. If the jury believed that such was the case, they would have been authorized to acquit him. The failure of the court to give the jury instructions covering this theory of the defense, while charging as stated above, was error requiring a new trial.</p>

<p>1. Where physical objects are introduced in evidence without objection, the general rule is that any objection which could have been made will be held to have been waived. But where, upon the suggestion oí the court ex mero motu, physical objects which have merely been referred to in the testimony of witnesses for purposes of identification, and which have not been formally tendered in evidence for the purpose of having their admissibility passed upon by the court, are sent out with the jury, to be used by them as evidence in the consideration of the case, a waiver of the right to object is not necessarily to be implied on the part of a party, where the testimony of his counsel that he did not hear the remark of the court with reference to these articles is uncontradicted.</p> <p>2. The effect of the introduction of unauthorized evidence is prima facie prejudicial to the losing party; and although it is the duty of counsel to make timely objection to evidence tendered, the exercise of ordinary diligence does not require counsel to anticipate that physical objects, - referred to in the trial but which have not been tendered in evidence, will be submitted by the court to the consideration of the jury.</p>

<p>Certiorari; from Early superior court — Judge Worrill. March 16, 1914.</p>

<p>Accusation of adultery; from city court of Valdosta — Judge Cranford. January 1, 1914.</p>

Action for damages; from city court of Savannah — Judge Davis Freeman. July 26, 1913. The questions submitted to the Supreme ^Court by the Court of Appeals in this c'ase were: 1.

<p>Action, for damages; from city court of Blackshear — Judge Mitcliell. October 30, 1913.</p>

<p>1. The reviewing court will not disturb a verdict resting upon evidence sufficient to sustain the necessary averments in behalf of the successful party, even though the evidence be somewhat weak and unsatisfactory.</p> <p>2. One can not be heard to testify in his own behalf concerning transactions between himself and a deceased person, in a suit instituted by the administrator of the decedent.</p> <p>3. There was evidence authorizing the instructions to the jury as to the essentials of a gift, and also as to the presumption of a gift, arising from the delivery of personal property by a parent into the exclusive possession of a child living separate from the parent.</p>

<p>Complaint; from city court of Atlanta — Judge H. M. Reid. October 16, 1913.</p>

<p>Complaint; from city court of Reidsville — Judge Collins. October 24, 1913.</p>

<p>The Civil Code, § 4299, provides that “An indorsement or assignment of any bill, bond, or note, when the same is sued on by the indorsee, need' not be proved unless denied on oath;” and where a defendant on oath denies the transfer, assignment, or indorsement of certain drafts from the original payee to tffe plaintiff, and “both the genuineness and legality of any indorsement or transfer of said drafts,” and no demurrer to this plea is filed by the plaintiff, the plea must be treated as such a compliance with the code section quoted above as to put the. plaintiff on proof of the indorsements or assignments relied upon to vest title in the plaintiff.</p>

<p>Action on insurance policy; from city court of Columbus — Judge Tigner. December 6, 1913.</p> <p>Roland Dixon Jones applied to the Empire Life Insurance Company, in May, 1912, for $5,0Q0 of insurance'on his life, and in his application directed that two policies he issued, one for $3,000 and one for $2,000. Except as to amounts, the policies were identical. The application was approved, and the policies were issued June 8, 1912. In the application the insured made the following agreement: “It is hereby agreed that all the foregoing statements and answers, and also those I make to the company’s medical examiner, are warranted to be full, complete, and true, and are offered to the company as a consideration for the contract, which shall not take effect until this application has been accepted by the company, at the home office, in Atlanta, Georgia, and the first premium shall have been paid to and accepted by the company, or an authorized agent, during the life and good health of the person herein proposed for a policy.”</p> <p>In the application and in the policy it is declared that the application and the policy “shall constitute the entire contract” between the parties; and the policy contains a clause providing that “all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy unless it is contained in the application, a copy of which is attached hereto.” A' photographic copy of the original application, with the statements made by the assured in answer to questions of the medical examiner, was attached to each of the policies. Among these questions and answers were the following: “5. Have you any reason to believe yourself now to be not in perfect-health? [Answer] No.” “12. Do you now or have you ever used intoxicating liquors? [Answer] No.” “13. If yes, state how often and how much? [Answer] No.” “14. Did you ever become intoxicated? [Answer] No.” “1?. Have you ever had any of the following diseases or conditions ? Answer yes or no to each question and give particulars under notes on the pink slip: [Among other diseases and conditions named] Nervousness? [Answer] No.” "Any diseases not mentioned? [Answer] No.” "18. Give name and address of each physician who has attended you within last five years, and the disease for which each treated you ? [Answer] None.” At the close of the questions propounded by the medical examiner and the answers of the applicant, the following appears: "I certify that the foregoing answers are correctly recorded by the Medical Examiner. [Signed] Eoland Dixon Jones.”</p> <p>Jones died in December, 1912, and proofs of his death were submitted to the insurance company, and demand was made for payment of the policies. The demand was refused,- and suit was brought on the policies. The defendant denied liability, because of alleged material representations made by the assured in the application, so far varying from the truth as. to change the nature, extent, and character of the risk; because of alleged fraudulent failure to state a material fact; because of alleged wilful misrepresentation made in reply to material inquiries; and because of alleged wilful concealment' of a material fact which enhanced the risk. On the call of the case for trial the defendant entered a solemn admission in judicio 'as to all the averments made in the plaintiff’s petition, except as to bad faith and the damages sought therefor, and the claim for attorney fees, but reserved the right to rebut the prima facie case so admitted. It appeared, from the testimony of the examining physician, that he propounded to Jones the questions printed in the application attached to the policy, and reduced the answers to writing in the presence of Jones, and that each question was answered as shown by the application; that the examiner had no cause or occasion to believe that the answers were untrue; and that the application was signed by Jones after all the questions therein had been propounded, and the answers written by the examiner in his presence. This physician testified that he had no knowledge of the habits of the applicant, but made inquiries in regard thereto in order to gain such information, and that after the examination was completed he recommended Jones as a first-class risk to the insurance company. He testified further, that he had been .practising medicine for a number of years, and had treated a few cases of delirium tremens; that continued use of alcohol or a sudden cessation from its continued use — the chronic use, as distinguished from a spree — causes delirium tremens; that alcoholism is a disease, "temporarily a mental disease,” and that "a person who has used intoxicants chronically and for a long time, to the extent that he has delirium tremens, is not a first-class risk for insurance, and the chronic use of alcohol for a long-continued time increases the hazard or risk of an insurance company in accepting the risk upon the person;” that "the excessive and chronic use of alcohol, according to all authorities, lowers the systemic resistance to disease;” that "every organ, especially the brain, lungs, and stomach, and heart are weakened by the continued use of alcohol;” and "the continued use, to the extent that would produce delirium tremens, produces nervousness.” The witness said further that he had never met J ones until the occasion when he made the examination for insurance at the home of Jones, one evening by lamp-light, and that there was then no apparent defect in him, but he was a hale, healthy-looking man, and the witness detected nothing defective about his condition, and found no albumin in his urine, according to the nitric-acid test; that if Jones, in making his statements to the witness, had said that within two, three, four, or five years he suffered from delirium tremens brought about b3 the chronic use of intoxicants, the witness would not have passed him as a first-class insurable risk.</p> <p>Dr. Williams testified that he attended the deceased in his last illness, together with Dr. McDuffie, who was once called in consultation, and that the deceased was ill about two weeks before his death; that according to his diagnosis the use of intoxicants had something to do with the last illness, that this was his diagnosis when he saw Jones, — "that he-was suffering' from the use of intoxicants — from alcohol;” that alcohol has a deleterious effect upon the human system, and makes those who use it more subject to and less able to resist disease; that in the opinion of the witness it frequently produces Bright’s disease, and liver, brain, and nervous troubles; that delirium tremens is a disease of the nerves of the brain, and if a man has drunk chronically to the extent that delirium tremens resulted, he would be more subject to different diseases; and that alcoholism is a disease, and a person who has suffered delirium tremens from its use would be liable to continue such use in the future; that in 1910 the witness 'attended Jones once during the absence of his then regular physician, Dr. McDuffie, and diagnosed his case at that time as delirium tremens, but the witness was unable to say that he died from delirium tremens in 1912, as the deceased had a cold, and symptoms of pleurisy and of pneumonia, with traces of pellagra. Dr. McDuffie testified that he visited the deceased in May, 1910, and found him suffering from delirium tremens, produced by excessive drinking of some alcoholic intoxicant; that he was suffering with a pronounced case, and was disturbed by hallucinations — fancied that people were troubling him, and saw snakes and things that had no existence; that the witness treated him four days, and during this time the patient had lucid intervals when his attention could be engaged and he would answer questions intelligently; that the witness talked with him when he was himself, after having treated him', and he told the witness that whisky was the cause of his condition, and that he had been drinking hard for a good while; that with this statement made by Jones, and his own diagnosis, there was no question in the mind of the witness as to the disease from which Jones then suffered; that long-continued drinking produces delirium tremens —the chronic-, continued use of alcohol; that such drinking lowers the vitality, and shortens life as a rule, hardens the'blood-vessels, and lessens resistance to disease, and many times brings on a form of Bright’s disease; that if a man drank whisky chronically to the extent that it caused delirium tremens, he would never in the opinion of witness be the man he was before, or again a physically normal man; that the witness saw Jones during his last illness, in consultation with Dr. Williams,- but Jones was not in a condition to answer any questions himself, and no definite information could be obtained from the family; that the witness was unable to say what alcohol had to do with his last illness, but felt that his condition was partly due to drinking. This witness signed the death proofs with Dr. Williams, and, in response to a question whether the deceased habitually used alcohol that influenced his last illness or death, stated that he was not sure, — that in fact he did not positively know, and was in doubt; that he felt alcoholism had something to do with the death, from what he heard during the illness of the deceased, from members of the family, of his use of alcohol.</p> <p>Two medical experts, Doctors Wooldridge and Anderson, were introduced in behalf of the plaintiff. The former testified that ' delirium tremens was a condition which might be produced by other things besides alcoholism, and that a patient suffering from the excessive use of alcohol, who responded perfectly to treatment and recovered, could, by abstaining absolutely from alcohol thereafter, be a hearty and well man — depending on the extent to which he had taken alcohol; that he would consider as material, in an examination for insurance, information that an applicant had been tréated for delirium tremens within two years prior to his examination; that it would affect the risk, though, if the patient were a 3oung man, strong and vigorous, who had delirium tremens in a mild form from excessive drinking, and had responded to about four days of treatment and was to 'all appearances hale and hearty, and two years thereafter stood a perfect physical examination, which included a test of his urine, and that the urine appeared to be normal, he would consider him an insurable risk, as excessive and habitual drinking would probably reveal itself in the urine test. The witness testified further that a man thirty-nine years of age can not endure as much as a young man, and if such a man had suffered from delirium tremens within two years prior to his application for insurance, from long-continued and chronic drinking, the witness would consider the risk affected thereby. The other expert witness for the plaintiff testified practically to the same effect, but added that he did not consider that a man thirty-seven years of age, who had been a chronic, long-continued drinker until he suffered from delirium tremens, would ever again be a normal man; and in his opinion the risk on the life of such a man for insurance would be increased. One Wardlaw testified that he had known the deceased intimately for fifteen years or more; that he had often seen the deceased take one drink a day, and had frequently taken a drink with him; he could not say-that the deceased took more than a drink a day, but during the entire fifteen years before his death, he was not 'a teetotaler, but was a man who would take a social drink, though the witness never saw him in a condition of intoxication. The policies of insurance were introduced, together with the photographic copy of tlie application therefor attached to each, and proof was made as to what would be a proper fee for the prosecution of the suit against the defendant. There was evidence from some witnesses as to reports of the drinking habits of the deceased, and much evidence from others that they, knew him in a business way and were unaware of the fact that he drank. The jury returned a verdict in favor of the plaintiff for $5,000, for $350 damages, and $300 attorney’s fees. The defendant made a motion for new trial, which was overruled, and the ease was brought here for review.</p>

<p>Complaint; from city court of Oglethorpe — Judge Greer. November 18, 1913.</p>

<p>1. The consideration of a promissory note may be a legitimate subject of inquiry though the note be under seal.</p> <p>2. “A promise in writing to answer for-the debt of another need not state the consideration therefor, but the fact of the undertaking being in writing does not preclude inquiry as to whether a consideration for the promise in fact exists; and a promise to pay the pre-existing debt of another, without any detriment or inconvenience to the creditor, or any benefit secured to the debtor in consequence of the undertaking, is a mere nudum pactum.” Davis v. Tift, 70 Ga. 53.</p> <p>3. While parol evidence is generally inadmissible to vary or contradict the, terms of a written instrument, there is a wide difference between a plea which seeks by parol to vary the terms of a written contract and a plea which affirms in effect that the contract in question never in'fact had any legal existence. In the one case the existence of a contract isr admitted; in the other the assertion that one of the elements indispensably necessary to the creation of a contract was absent amounts to a denial that the contract in question was ever legally in existence or effective.</p>

Certiorari; from Toombs superior court — Judge Bawlings. December 3, 1913. Minnie Everett was convicted in the mayor’s court of Vidalia on the charge of having violated a municipal ordinance forbidding the keeping and storing of whisky or other intoxicating liquors for the purpose of sale. Her petition for certiorari alleged that the conviction was contrary to law and to the evidence.

<p>Accusation of larceny from house; from city court of Sanders-ville — Judge Jordan. November 25, 1913.</p>

<p>Complaint; from city court of LaGrange — Judge Harwell. December 9, 1913.</p>

<p>Indictment for assault and battery; from Pike superior court-judge Eobert F. Daniel. December 19, 1913.</p>

<p>Distraint; from city court of Thomasville — Judge W. H. Hammond. December 17, 1913.</p>

<p>Action on guaranty; from city court óf Savannah — Judge Davis Freeman. January 17, 1914.</p>

<p>Under tlie code sections declaring that it is error for the judge, in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, and that where this has been done a new trial shall be granted (Penal Code, § 1058; Civil Code, § 4863), an instruction by the judge to the jury, on the trial of persons accused of the larceny of certain hogs, that in determining whether it was the intention of the accused to take hogs they knew were not theirs, the jury were to “look to . - . the way they were mai'ked,” was error requiring a new trial, one of the issues raised by the evidence being whether the hogs in the possession of the defendants, which the prosecutor contended had been stolen from him, were marked before the defendants took possession of them.</p>

<p>Action for damages; from city court of Macon — Judge Hodges. February 20, 1914.</p>

<p>1. A writ of certiorari, not applied for in forma pauperis, is void if issued in the absence of a duly approved bond of the kind required by the statute.</p> <p>2. Where an application for certiorari is a nullity, because of failure to comply with the requirement as to bond, the time within which a second application may be made is governed by the law requiring that the writ “shall be applied for within thirty days after the final determination of the case in which the error is alleged to have been committed” (Civil Code, § 5188), and is not extended by the law as to renewal of cases within six months after dismissal (Civil Code, § 4381).</p> <p>3. The ground of an unreversed judgment dismissing a certiorari is an adjudication binding the petitioner in a renewed application.</p>

<p>Certiorari; from Bryan superior court — Judge Sheppard. January 29, 1914.</p>

<p>1. While provocation by words, threats, menaces, or contemptuous gestures will not reduce a homicide below the grade of murder when the killing is for the purpose merely of resenting the provocation given, threats and menaces may, under some circumstances, be sufficient to arouse in the mind of the person to whom they are directed a reasonable fear that his life is in danger or that a felony is about to be committed upon him, and thus render justifiable a killing in defense of life or person. In the present case the law on this subject should have been given in charge to the jury in such manner as to qualify and explain the instruction (given in the language of section 65 of the Penal Code as to the law of manslaughter) that “provocation by words, threats, menaces, or contemptuous gestures shall in no ease be sufficient to free the person killing from the guilt and crime of murder.”</p> <p>2. While, in a proper case, sections 70, 71, and 73 of the Penal Code may all be given in charge to the jury, they should not be so given as to confuse the minds of the jury as to the separate branches of the law of justifiable homicide dealt with in these sections.</p>

<p>A judgment of the trial court, the effect of which is to refuse the defendant’s motion for a new trial, on the condition, complied with.by the plaintiff, that a specified sum be written off by the plaintiff from the amount of the verdict against the defendant, will be reversed,. on exception of the defendant, where the basis of the judgment, as to the amount to be written off, can not be ascertained from the record, and the evidence is in conflict as to what amount, if any, the plaintiff is entitled to recover.</p>

<p>1. There being evidence in support of the plaintiff’s allegations, that, while walking on a street of the city, she was injured by falling into a hole or washout, of which she did not know, that she was not wanting in ordinary care for her own protection at the time of the injury, and that the city failed to exercise the degree of care required of it to keep the street at that point in a reasonably safe condition for pedestrians, a verdict against the city was warranted.</p> <p>2. Where there is no contention that the city is under a duty to erect barriers or maintain lights in a street at a particular place, it is not error for the court to refuse to give to the jury an instruction negativing such a duty on the part of the city.</p> <p>3. It was not error to refuse to charge the jury that “where one voluntarily chose to take a path which was to a person in his condition manifestly dangerous, when one which was free from danger was easily accessible to him, he is guilty of such negligence as will preclude his right to recover damages for the injuries sustained by him in using such unsafe and unsuitable way.”</p> <p>4. The question by the trial judge, ‘.‘Who showed you the hole?” addressed to an alderman testifying at the trial, who replied, “I went with the city attorney,” was not error prejudicial to the defendant.</p> <p>5. The instruction that “if there is no preponderance of evidence, if the evidence stands equally balanced in the scale, [the plaintiff] is not entitled to a'verdict in the case; if the preponderance of evidence is 'on the side of the issue as contended for by her, then she is entitled to a verdict,” was not subject to the exception that it authorized a verdict against the defendant without regard to whether the defendant was negligent, or whether the plaintiff was wanting in ordinary care, or whether the place of the injury was in the street or not.</p> <p>6. The plaintiff having amended her petition by substituting the word “street” for “sidewalk,” in allegations as to injury from a hole in the sidewalk, a charge to the jury on the theory that the injury was from a hole in the street was not subject to the exception that the petition alleged that the hole was in the sidewalk.</p>

<p>Action for damages; from city court of Americus — Judge Harper. February 14, 1914.</p>

<p>'Action for damages; from city court of Elberton — Judge Grogan. March 13, 1914.</p>

<p>Indictment for larceny of cow; from'Bibb superior court — Judge Mathews. February 23, 1914. .</p>

<p>Certiorari; from Muscogee superior court — Judge Gilbert. December 17, 1913.</p>

<p>Complaint; from city court of Nashville — Judge Christian. December 12, 1913.</p>

<p>Petition for certiorari; from Berrien superior court — Judge Thomas. December 20, 1913.</p>

Action for damages; from city court of Eloyd county — Judge Reece. January 3, 1914. .

<p>Complaint; from city court of Atlanta — Judge Eeid. February 26, 1914.</p>

<p>Appeal — forfeiture of bond; from Baldwin superior court— Judge Park. January 12, 1914.</p> <p>Henry Warren Jr., having been convicted in the county court of Baldwin county of the offense of larceny from the house, executed a certiorari bond in the sum of $200, with Emmett L. Barnes as security. A scire facias on the forfeiture of.-the bond was issued by the clerk of the county court on July 11, 1913, and on the same day was served on Barnes, the security. The scire facias stated that the defendants were required to appear “at the next term of the county court, to be held in and for said county on the 4th Monday in July next, to show cause,” etc. The judge of the county court passed an order at the September quarterly term, 1913, as follows: “It appearing to the court that the process in the above case is returnable to the July term of said court, and that, the amount of the bond being $200, the monthly term of this court has no jurisdiction, ordered that the process be amended by making the same returnable to the September quarterly term of this court.” On appeal, a motion to strike this order and “to dismiss the rule nisi and forfeiture proceeding” was made in -the superior court when the case was called for trial, it being contended “that the same is contraiy to law, in that the rule nisi was made returnable to the monthly term of the county court, and that this court was without jurisdiction to forfeit said'bond, and that said court was without jurisdiction to allow said amendment, making the proceeding that was returnable to the monthly term returnable to the quarterly term of the county court.” This motion was overruled. The court then sustained a motion to strike the plea and answer, and entered a judgment forfeiting the bond. This judgment and the antecedent rulings are assigned as error.</p> <p>In the plea of Barnes, which the court struck, it is alleged, that the bond was conditioned on the appearance of the defendant Warren at the January term of Baldwin superior court; that he was present' at that term; and that the case .was finally determined at that term; that after the case was finally determined, Warren carried it to the “Supreme Court,” but that Barnes “did not enter upon a recognizance conditioned upon the outcome of said proceeding,” and his liability ceased upon the defendant’s appearance at the superior court, at the January term, 1913.</p>

<p>Indictment for larceny after trust; from Wilcox superior court— Judge Walker. February 25, 1914.</p>

<p>1. The court did not err in overruling the demurrer.</p> <p>2. A general demurrer, alleging that the petition sets forth no cause of action, was too vague and indefinite to suggest that the plaintiff had omitted to allege whether he was the owner, or merely a bailee, of the property alleged to have been injured, it appearing inferentially from the petition as a whole that he was the owner.</p> <p>3. None of the assignments of error in the motion for a new trial are sufficiently meritorious to require the grant of a new trial.</p>

<p>As a general rule, the judgment of a court is within the breast of the court until the end of the term at which it was rendered, and a sentence may be amended at any time during the term and before execution has begun; but if the defendant has complied with or entered upon the execution of a valid sentence, it can not be set aside and a new or different one imposed, even at the same term. A fortiori, a new sentence can not be'pronounced after the term has passed and the first or original sentence has been either wholly or in part complied with; and no amendment to the judgment can take place, where to allow it would require the passing of a new sentence.</p>

<p>Petition for certiorari; from Stewart superior court — Judge Littlejohn. April 4, 1914.</p>

<p>1. The judgment or decision of an inspector of foods as to the condition, character, or quality of an article of food, when submitted as evidence, is not entitled to preference over any other testimony submitted in the pending cause, unless the jury, in the exercise of their exclusive prerogative in determining as to the credibility of witnesses, should adjudge the testimony of the official to be of superior weight to the testimony of other persons in conflict therewith. The credibility of .a witness is not necessarily affected by the fact that he is in official station.</p> <p>2. The evidence authorized the verdict, and there' was no error in refusing a new trial.</p>

Indictment for misdemeanor; from Forsyth, superior court— Judge Patterson. April £7, 1914.

Accusation of carrying on a lottery, etc.; from city court of Richmond county — Judge W. F. Eve. April 24, 1914. The accusation was against H. G. Townsend and another person, and was in three counts, based respectively on sections 397, 398, and 401 of the Penal Code.

<p>Accusation of carrying pistol without license; from city court of Millen — Judge T. L. Hill. April 21, 1914.</p>

<p>Indictment for sale of liquor; from Tattnall superior court— Judge Sheppard. April 15, 1914.</p> <p>The testimony against the accused was given by two persons. Dennis Cowart testified; “I gave him $1.25 in cash for one quart of rye whisky, and he was gone about long enough to go to his house and back, and he brought me the liquor.” Joshua Collins made substantially the same statement, and said: “I went to him to get the whisky and he-told me he knew where he could get it.” A witness for the defendant testified: “I was with the defendant both times, . . when Joshua Collins and Dennis Cowart gave him-the money to get the whisky that they have just sworn about. I went with the defendant each time, and he went down to the branch back of the gin-house and bought the whisky for them from a negro named Tom. Daughtry.. He took the money from them and bought the whisky for them with their money, and delivered the whisky to them, and they got him to do that for them.” The defendant, in his statement at the trial, said that the whisky, he delivered to Dennis Cowart and Joshua Collins was not his whisky, and that he did not sell whisky to them, but each time acted only as agent for them in buying the whisky. There was no testimony in rebuttal of the defendant’s statement, or of the testimony of his witness.</p>

<p>Indictment for murder; from Kichmond superior court — -Judge Henry C. Hammond. March 14, 1914.</p>

<p>'Indictment for murder — conviction of voluntary manslaughter; from McDuffie superior court — Judge H. O. Hammond. April 15, 1914.</p>

<p>Attachment; from city court of LaG-range — Judge Harwell. November 29, 1913.</p> <p>C. Y. Truitt Company sued out an attachment against the Nashville, Chattanooga & St. Louis Railway, and filed a declaration alleging, that the plaintiff delivered to the defendant a car-load of mules, to be transported from Nashville, Tennessee, to LaGrange, Georgia; that one of the mules died in transit, and its value was $250; and that three of them were, without the knowledge or consent of the plaintiff, exchanged or substituted in transit for three others, which tvere $200 less in value than the three for which they were substituted. It was alleged that the railway company was guilty of negligence because the floor of the car in which the mules were placed was in a wet and slippery condition, and the amount of sawdust or other material placed on it was not sufficient to dry it or prevent the feet of the mules from coming in contact with it, and they could not safely stand thereon; that unusual- and unnecessary force was used in the effort to couple the car to the engine, and that in starting off with the car after it had been coupled, the engine gave an unusual and unnecessary jferk; that in stopping for the purpose of switching the car to the yards, the engine was stopped too suddenly, and the unusual and unnecessary suddenness with which it was stopped caused “a jerk and bump” to the car, and in starting off from this position the engine started too suddenly and too rapidly, and gave an unusual and unnecessary jerk to the car; that by reason of the sudden starting and stopping and jerking of the car, one of the mules fell down, and, because of the slippery condition of the floor, was unable to get up again; that after the mule had been thrown down, the car was carried back and unloaded in one of the stockpens of the railway company, with the exception of this mule, which was allowed to remain all night in the car, exposed to extremely cold weather, and was not removed until the next morning; and that the result of all of this negligence was the loss of the mule by death. It was alleged, as to the three mules substituted for mules of the plaintiff, that on arrival of the car at LaG-range the plaintiff called the attention of the agent of the delivering railroad company to the substitution, and had a written exception noted, and the agent agreed to have reparation made. By amendment it was alleged, as to the valuation expressed in the bill of lading (and relied upon by the defendant as limiting its liability), that this valuation was not agreed on in order to secure a lower rate or any particular rate, but was stated merely in a printed bill of lading used generally by the defendant without regard to the actual value of the stock shipped, and that the printed values in this bill of lading were not in fact the reasonable value of the stock shipped, and were never understood to be the real value, either by the plaintiff or the defendant.</p> <p>The defendant, in its answer, denied the allegation as to negligence and as to the substitution of three inferior mules, and pleaded that if it was liable for the loss of the mule that died, the contract of shipment limited its liability to $100, it being stated in the bill of lading, under which the shipment was made from Nashville^ Tennessee, to La Grange, Georgia, that in consideration of the acceptance by the railway company of the reduced rate of $86 per car, instead of the tariff rate of $172 per car, it is agreed "by the shipper that “should loss or damage occur for which the [railway company], may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed, . . for horses and mules, each $100, which it is agreed [is] as much as such animals as herein agreed to be worth are reasonably worth.” The defendant pleaded further that it was released from liability by the stipulation in the bill of lading that the shipper “hereby assumes all risk of injury which the animals or any of them may receive in consequence of either or any of them being wild and unruly or weak, and of the escape of any portion of said stock, or by maiming each other or themselves, or in consequence of heat or suffocation or other ill effects of being crowded in the cars.” It was further pleaded that the plaintiff had failed to give the written notification as to .the alleged loss or damage as required in the contract.</p> <p>The trial resulted in a verdict in favor of the plaintiff for $119.50. The defendant made a motion for a new trial on the usual general grounds only, the motion was overruled, and it filed a bill of exceptions. The plaintiff also made a motion for a new trial, which was overruled, and it filed a cross-bill of exceptions. The plaintiff’s motion for a new trial was upon the usual general grounds, and upon the special ground that the court erred in charging the jury that as a matter of law, the plaintiff was bound by the valuation expressed in the contract of shipment, and could not recover more than the sum of $100 for each horse or mule; and that, it being admitted by the plaintiff that it accepted the substituted mules and sold them, and that each was worth more than the $100 valuation expressed in the contract of shipment, the plaintiff could not recover for any difference in price between the mules shipped and the mules so substituted, and the only question in the case that the jury might consider was whether or not the plaintiff was entitled to recover anything for the mule which it was alleged had died, it was contended that the court erred in these instructions because they were not authorized by the evidence, and because, under the evidence, the question of damages resulting from the alleged substitution should have been submitted to the jury; and further “ because the contract of shipment and the value admitted by the plaintiff, in the pleadings, of the three substituted mules actually received by the plaintiff did not preclude a recovery by the plaintiff of the damages suffered by reason of the substitution of said mules.”</p>

<p>Action on contract; from city court of Atlanta — Judge H. M. Reid. November 1, 1913.</p> <p>The Farmers Cotton Oil Company sued T. II. Brookn & Company for $229.94 and interest,' as damages for breach of contract. Upon an agreed statement of facts the ease was submitted to the judge for determination without a jury, and judgment was rendered in favor of the defendants and against the plaintiff for $10, with interest. The plaintiff excepted to this judgment.</p> <p>The agreed statement of facts was as follows: "On the 28th day of September, 1911, T. H. Brooke & Company, of Atlanta, Georgia, defendant, .entered into a contract with the Farmers Cotton Oil Company, plaintiff, of LaGrange, Georgia, a copy of which is as follows:</p> <p>Contract..</p> <p>Atlanta, Ga., 9/28/11.</p> <p>Messrs. T. H. Brooke & Company, Atlanta, Ga. The Farmers Cotton Oil Company, LaGrange, Ga. Fifteen (15) .car-loads of sound loose cottonseed hulls. Sold to For account Amount</p> <p>Six dollars ($6.00) per ton of 2,000# f. O. b. cars' at LaGrange, Georgia. Price</p> <p>Two (2) cars immediate, three (3) cars October, five (5) cars November, ’and five (5) cars December, 1911. Shipment</p> <p>Sight draft free of exchange: sellers to pay brokerage. Terms</p> <p>'“The residence and place of business of defendant was, at the time of said contract, and ever since has been, in Atlanta, Georgia. The residence and cotton-oil mill of the plaintiff is located and always has been situated on the Atlanta, Birmingham & Atlantic [Railroad] in LaGrange, Georgia, on which railroad only is its side-track used for the loading and unloading of cars. The location of plaintiff’s mill, however, was not known to defendant when the contract, as above set forth, was entered into. There are several •railroads entering and doing business at LaGrange, Georgia. In pursuance of the aforesaid agreement and contract of purchase and sale, the said plaintiff delivered to defendant seven car-loads of loose hulls, which were accepted and paid for by defendant. On two of said cars there was a trackage or switching charge of $2 per car, the same being for transfer of said cars after loading same from the side-track of the plaintiff, located on the A., B. & A. Railroad, to the Atlanta & West Point Railroad Company’s track in LaGrange, which amount of $4 was paid by the plaintiff and charged to the account of the defendant. Likewise, on five ears of hulls, there was a charge of $2 per car for trackage or switching from the side-track of plaintiff on the A., B. & A. Railroad to that of the Atlanta & West Point Railroad in LaGrange, which sum of $10 was paid by defendant and charged to the account of the plaintiff. All seven cars were ordered by defendant shipped to Fairburn and Palmetto on the line of the Atlanta & West Point Railroad. Said railroad passes through LaGrange, Georgia. Defendant did not know that plaintiff had it charged for any trackage or switehing oil any of the seven cars of hulls until it had ordered out and received all of the seven cars of hulls. The plaintiff stood ready, willing, and able to deliver the remaining eight cars of hulls to defendant, keeping the same for the defendant and repeatedly tendering deliveries of said hulls to the defendant at the times specified in said contract and f. O. b. cars on plaintiff’s side-track on the A., B. & A. Railroad at LaGrange, Georgia. The defendant, however, refused to accept the same or any part thereof, contending that there was a breach of the contract on the part of the plaintiff, for failure and refusal to pay the $2 per car trackage or switching charge on the seven cars of hulls already delivered or on the remaining cars undelivered.</p> <p>“The defendant, under its construction of the contract, contended that it was the duty of the plaintiff to deliver the hulls as ordered by defendant free on board the cars of any railroad selected by defendant, doing business in LaGrange, and under this construction,, defendant stood ready and willing to accept the balance of the hulls due under the contract. The use of the cabalistic sign, f. O. b., in the contract, meant, as between the parties, ‘delivered free on board.’ The plaintiff refused to deliver any of said hulls free on board cars at any other point in LaGrange, Georgia, save to the A., B. & A. Railroad, at LaGrange. The plaintiff having demanded acceptance and payment, under its construction of the contract, which was refused, sold said hulls on the 13th day of January, 1912, after notice to-the defendant, at the market price, at LaGrange, Georgia, receiving therefor the. sum of $447.83, which amount was $2 per ton less than the sum that the defendant agreed to pay plaintiff therefor, and which sum was $225.94 less than the price agreed to be paid by defendant to plaintiff for said eight ears of hulls, as set forth in the contract herein above referred -to. The market price of said hulls at LaGrange, Georgia, was unchanged from December 21, 1911, to January 13, 1912.”</p> <p>The bill of exceptions states that “The following documentary evidence was introduced, by agreement: Two ‘outward inter-road switching orders.’ ‘Atlanta & West Point Railroad Company. The Western Railway of Alabama. The Farmers Cotton Oil Company, Dr., for switching car. Initials and number A. B. A. 16549; contents Cs hulls; weight 60,000; rate 200; amount 200; from Farmers Cotton Oil Company; consignee A. & W. P.; final destination, Fairburn, Georgia; issued at LaGrange Station, 10/24/1911. La-Grange, Ga., October 25, paid; signed C. M. Awtrey, agent. Instructions : This form shall be used to accomplish delivery of carload shipments, originating at industries, warehouses, and side tracks of one line for delivery and forwarding over another line. Part 1. To be rendered to agent of transportation line. . Part 3. To accompany the car to transportation line/ ” The second order was substantially as above. “Also two freight bills: 'Order notify T. H. Brooke & Company, one to Fairburn, Georgia, and the other to Palmetto, Georgia, issuing stations; billing station: LaGrange; shipper and original point of shipment: F. C. Oil Company; articles: bulk hulls; freight charges 1310; advances 200; total 1510. Beceived payment, signed T. F. Culbreath, for company/ ”</p>

Action for damages; from city court of Ashburn — Judge Tipton. December 23, 1913.

Action for damages; from city court of Carrollton — Judge Beall. October 22, 1913. H. L. Davis brought suit in the city court of Carrollton against the Georgia Bailway and Power Company, claiming damages. The following entry of service appears on the original declaration: Georgia, Carroll County.

<p>Indictment for assault with intent to murder; from Lowndes superior court — Judge Thomas. November 29, 1913.</p>

<p>Indictment for larceny; from Early superior court — Judge Worrill. February 7, 1914.</p>

<p>Complaint; from city court of Fitzgerald — Judge Griffin. February 4, 1914.</p>

<p>1. Exceptions to tlie answer to a writ of certiorari must be filed in writing, and notice thereof given to the opposite party before the case is called in its order for hearing. Ghandler v. Baggett, 13 Qa. App. 333 (79 S. E. 179); Civil Code, § 5196.</p> <p>2. Where the answer to a writ of certiorari does not verify the statement in the petition that the verdict or judgment was rendered against the complaining party, or disclose what disposition of the case was made in the trial court, the dismissal of the certiorari on the defendant’s motion affords the plaintiff in certiorari no ground for complaint. Western & Atlantia Railroad Oo. v. Clark, 2 Qa. App. 346 (3) (58 S. E. 510) Stoner v. Magms, 116 Qa. 797 (43 S. E. 45); Jessey v. Dean, 122 Qa. 371 (50 S. B. 139) ; Mannmg y. Gainesville, 125 Ga. 239 (53 S. E. 1002).</p> <p>3. In view of the rulings cited, exceptions to the answer of the magistrate (the answer failing to verify the allegations of the plaintiff in certiorari as to the rendition of the judgment complained of), which were presented upon the hearing and without notice to the opposite party, came too late, and the judge of the superior court did not err in dismissing the certiorari. Judgment affirmed.</p>

<p>Indictment for burglary; from Glynn superior court — Judge Conyers. March 7, 1914.</p>

<p>Instructions to the jury on the law of voluntary manslaughter were authorized by evidence that at a dance at which the homicide occurred, the person killed had drawn a pistol and pointed it at the defendant, without sufficient cause, and apparently with the intention of shooting the defendant, and that a bystander made him desist.</p>

<p>Conviction of adultery; from city court of Valdosta — Judge Crawford. April 1, 1914.</p>

Accusation of carrying pistol without license; from city court of Forsyth — -Judge Cabaniss. January 12, 1914. The accusation charged that Fred Hansford “did on the second day of August, 1913, in Monroe Countjq Georgia, unlawfully have and carry a pistol without first having taken out a license to carry said pistol.” The accused demurred and moved to quash the accusation, on the following grounds: (1) It charges no crime.

<p>Accusation of keeping lewd house; from city court of Fitzgerald —Judge Griffin: March 27, 1914.</p>

<p>Conviction of carrying concealed weapon; from city court of LaGrange — Judge Harwell. April 11, 1914.</p>

<p>Certiorari; from Jeff Davis superior court — Judge Conyers. March 25, 1914.'</p>

<p>Accusation of sale of liquor; from city court of Nashville — Judge Christian. April 13,1914.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. March 17, 1914. .</p>

<p>Accusation of sale of liquor; from city court of Sandersville— Judge Jordan. April 28, 1914.</p>

<p>Accusation, of carrying concealed weapon; from city court of Milieu — Judge T. L. Hill. March 20, 1914.</p>

<p>1. Where the facts required to support a second indictment would have been sufficient, if proved, to procure a conviction of the same offense under a former indictment upon which the accused had been tried, and the time of the commission of the offense alleged in the first indictment antedated the second accusation only a little more than six months, the point that the accused upon the trial of the second accusation was put in jeopardy, as to a portion of the time covered by the first indictment, could have been raised by a plea of former jeopardy, on his arraignment upon the second indictment. However, in such a case as' the foregoing, the failure to file a timely plea of former -jeopardy must be treated as a waiver of that right; and failure of the judge to instruct the jury that the defendant could only be convicted on evidence that he committed the offense after his trial upon the former indictment does not require a reversal, where the proof in behalf of the prosecution was confined to the date named in the second accusation, and there was no appropriate written request for instructions limiting the range of evidence.</p> <p>2. It is not error to refuse to declare a mistrial when the argument of counsel, though illogical, is not otherwise prejudicial to the rights of the opposing party.</p> <p>3. A ground of a motion for a new trial which merely alleges generally that the court erred in admitting or rejecting certain testimony, and does not specify the error or ground of complaint, presents nothing for the consideration of the trial Court or the court of review.</p> <p>4. The evidence was sufficient to authorize the conviction of the accused, and there was no error in refusing a new trial.</p>

<p>Indictment'for burglary; from Baldwin superior court — Judge J. B. Park. April 16, 1914.</p>

<p>Accusation of gaming; from city court of Zebulon — Judge Dupree. May 12, 1914.</p>

<p>Indictment for carrying weapon; from Clay superior .court— Judge Worrill. March 30, 1914.</p>

<p>Indictment for robbery; from Cobb superior court — Judge Patterson. April 11, 1914.</p> <p>From the evidence it appeared that on January 16, 1914, shortly after 7 o’clock in the evening and after a southbound passenger-train of the Nashville, Chattanooga & St. Louis Eailway had left Vining’s station, where it was due at 7:10 or 7:12 o’clock, a man wearing a mask and carrying a pistol, who had not previously been seen on the train, entered a car and forced several passengers to deliver pocketbooks and money to him; and that -he left the train from its rear platform when it was approaching Bolton, a station about three and a half or four miles from Vining’s station, and about half a mile south of the Chattahoochee fiver. A police officer testified that 15 or 20 or perhaps 30 minutes after this train had passed Bolton, the defendant was 'arrested there, and, in reply to questions, said that his name was John Jones, and said that he came from Atlanta on a train to see a carpenter named Smith, who lived “up the road a piece,” in a direction to which he pointed; he said he had been living in Atlanta about six months, but he refused to give the name of the street where he lived, or to tell who his people were; he had on a little gray street cap, a gray overcoat, and a “brown striped coat — corded stripe,” the same coat worn by him at the trial; his person was searched and he had between three and five dollars, but no pistol was found; he submitted to arrest without protest and without being told why he was arrested. The witness testified that he knew the people at Bolton, and that he did not know a carpenter there named Smith. Others residing at Bolton testified that they did not know such a person.</p> <p>F. W. Hadley and Bailey Varner were the only witnesses who testified that they were on the train at the time of the robbery. Hadley testified, that the robber had on a light coat and dark trousers, a light-colored overcoat, and a light-colored cap, and a mask which looked like a dirty piece of cheese cloth, and which “covered all his face except his eyes, his forehead, his chin, and below his chin;” it had very large holes for the eyes, and exposed not only his eyes but also “a good portion” of his face; his nose was not exposed, and the witness did not notice his ears or the color of his hair, and did not think of looking at his hands, but looked very closely to see through his mask, whether he was white or black, and looked very carefully at his eyes, which were of a dark color, but not black; his cap was far enough down over his face to hold the rag he used as a mask; the car was well lighted; the witness saw his general shape; he was prominently stoop-shouldered. He took from the witness a pocketbook containing $17. This witness further testified: “The next I saw of him was in the Fulton county jail. . . I talked to this defendant in jail. . . His voice was what I expected to hear. It was a voice that compared exactly with the voice of the man who robbed me, if he would raise his voice and give the command he gave on the car. When I first faced Mm he turned his eyes away and would not look at me. . . He looked away from me, and I said, ‘My brother, you are the boy that took my money away from me in the train.’” Varner testified that when he was on the back platform of the train he saw the face of the robber, unmasked, and that the defendant was the man he saw; that he saw him also in the jail.</p> <p>Witnesses introduced by tbe defendant testified that they saw him making a purchase at a store in Bolton on the evening of the robbery, and saw him leave the store when it closed at 6:20 o’clock. One of them said that he had on “a checked cap and possibly an overcoat.” It was testified that he could have caught a car of the Marietta car line, leaving Bolton at 6:25 o’clock and arriving about 6:35 o’clock at the stopping place for Yining’s; it does not go to Yining’s. Another person testified that about 7:20 o’clock that evening, while on the river car- line from Atlanta, going towards the river, he saw the defendant about 20 feet from the car, walking, between Fisher’s avenue and- Hamilton’s station. The defendant, in his statement at the trial, said that he was at the post-office store in Bolton about 6:30 o’clock, and then walked up and down there, and was arrested about 7:20 or 7:30 o’clock, and that he knew nothing of the robbery until later. “That night, I believe, two of the other passengers looked me over, and one of them said, No, that is not the man; he is not heavy enough for him, and hasn’t on the right kind of clothes.’ T said, ‘What kind of overcoat did the man have on?’ and he said, No overeoat at all;’ and I had an overcoat when I was arrested.”</p> <p>1. The alleged newly discovered witnesses were W. E. Bennett and A. J. Rogers. In Bennett’s affidavit it is stated that on the evening of January 16, 1914, he was a passenger on the “N., C. & St. L. train” bound for Atlanta, which was robbed between Smyrna and the Chattahoochee river, and that the robber took from him a purse containing $80; that the robber was an erect man with broad shoulders, who had a mask over his face, covering all the features except his eyes, and had on a gray suit of clothes and no overcoat ; that he was not John Nolan; that on the evening following the robbery, the deponent, with a passenger named Sheets, interviewed Nolan in jail, and had him talk, and became satisfied that he was not the man who robbed the train; deponent examined Nolan’s clothes carefully, and knows that the brown suit of clothes that Nolan had in his cell át the jail was not the suit of clothes worn by the robber; Nolan has a droll voice, while the man who robbed the train had a sharp-, nervous voice, with a catch in it. Deponent is á resident of New York City. In the affidavit of Rogers it is stated that when Bailey Yarner was going to the commitment trial of John Nolan, he heard Yarner sav that “he would not know the man. when he saw him, that he would be unable to recognize him;” that he “did not see well enough at the time the train was robbed to know that he was the same man that committed the robbery;” that the man that robbed the train had 'on a mask; that he did not see him with it off. These affidavits were accompanied by uncontradicted affidavits of several persons as to the good character of Bennett and Bogers, and their reputation for truthfulness, and by affidavits of the defendant and of his counsel as to their diligence in trying to, procure evidence. In the defendant’s affidavit it is stated that on January 17, 1914, two men whose names or addresses he did not then know, examined him at the jail and told him they were passengers on the train that was .robbed the day before, and that he was not the man who robbed them; it'was only through his counsel, since the trial, that he learned that one of them was W. E. Bennett and the other a Mr. Sheets; he has not 3et been able to locate Mr. Sheets; he did not at the time of his trial know of the evidence contained in the affidavit of Bogers. In the affidavit of his counsel it is stated that until after the trial they did not know of the evidence of Bennett or Bogers; that Bennett has promised to attend the next trial, and that Bogers is a resident of the county and can be had as a witness. It is stated that the defendant has been continuously in jail since his arrest. A note of the judge states that the defendant did not apply for a continuance.</p> <p>2. At the trial Bettie Price teátified that certain cartridges were just like cartridges which she found in the defendant’s room in a. hotel on Trinity avenue in Atlanta and turned over to the proprietor of the hotel. Another _ witness testified that he went to “the house on Trinity avenue and got some things that looked like this,” indicating cartridges. In the motion for a new trial this testimony is set out, and it is stated that “here the solicitor-general tendered in evidence . . some shells,” and that counsel for the defendant objected to their introduction. E. W. Hadley then testified that he got one of the bullets that went in the train when the man that robbed it discharged a pistol, and that it looked to him to be “the same bullet as one of these;” that the bullet struck a hard object and was distorted, but, as near as he could determine, it was “probably a 38 bullet from a gun that was probably a 45-ealiber gun.” The court then admitted in evidence the shells offered, over the objection that they were not proved to be the identieal shells delivered to the proprietor of the hotel by Bettie Price, or to have been in the defendant’s possession, and were irrelevant.</p>

<p>Appeal; from Fulton superior court — Judge Pendleton. November 5, 1913.</p>

<p>1. The trial judge did not abuse his discretion in refusing- to continue the ease because of the absence of a witness who was shown to be in the last stages of consumption, and not likely ever to be able to attend a future term of the court.</p> <p>2. Where two defendants jointly indicted were jointly tried, with the right reserved- to each to testify in behalf of the other, and one of the defendants was sworn as a witness in behalf of his codefendant, it was error to give instructions which, while they might have been appropx-iate if both defendants had only made unsworn statements, tended to exclude the testimony of the one who made no statement but was sworn as a witness , for the other.</p> <p>3. While provocation by words, threats, menaces, or gestures will not reduce below the grade of murder a homicide which is the result merely of resentment or passion thus provoked, threats and menaces may be sufficient to arouse in the mind of the person to whom they are directed a reasonable fear that his life-is in danger or that a felony is about to be committed on his person, and thus render justifiable a killing in self-defense, where the means of inflicting the threatened injury are apparently at hand and there is a manifestation of an intention presently to inflict it. The law on this subject should have been given in charge to the jury in this case in such manner as to qualify and explain the instruction (given in the language of section 65 of the Penal Code as to the law of manslaughter) that “provocation.by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.”</p>

<p>Indictment for murder; from Emanuel superior court — Judge Bawlings. January 13, 1914.</p>