Volume 15 — Georgia Appellate Reports

Attachment; from city court of LaGrange—Judge Harwell. November 29, 1913. An attachment issued in behalf of George D. Pollock and Norris N. Smith against James E. Skelton and W. H. Bruce, to recover $1,000, alleged to be due as purchase-money for a certain bottling plant at West Point, Georgia.

Indictment for larceny; from Tift superior court—Judge Thomas. March 28, 1914. L. M. Lindsey and Thomas Self were jointly convicted of larceny; their motion for a new trial, alleging that the verdict was without evidence to support it, was overruled, and Lindsey excepted. The property alleged to have been stolen was seed-cotton in the field of Martin.

<p>Conviction of manslaughter; from Jasper superior court—Judge Park. April 27, 1914. '</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. July 25, 1913.</p> <p>Summons of garnishment, based on a judgment for $15 against David Grant, was served on Mrs. Barksdale. Her answer denying indebtedness was traversed, and, on the trial of the case in a justice’s court, the defendant in fi. fa. testified: “Mrs. Barksdale owes me $50.45. What she owes this to me for is for some building work that I had done for her. She got me to fix up some houses. T ceiled part of a house, for which she agreed to pay me $10, and I also did some other odd jobs about the house, for which she was to pay me $4.45. She has paid me $119, and this leaves her owing me $50.45.” There was no further testimony. The jury rendered a verdict finding that the garnishee was indebted to the defendant $50.45. She sued out certiorari, the judge of the superior court overruled the certiorari, and she excepted to that judgment.</p>

<p>Action for damages; from city court of Sandersville—Judge Jordan. November 11, 1913.</p>

<p>Where there is more than one apparently safe route by which persons may leave a railroad station on foot, a passenger walking from his train, in the absence of notice from the railroad company to use a particular route, is at liberty to use any route which appears to him, acting as a reasonably prudent person, to be intended for such use by passengers; and as to him the railroad company is bound to see that all such routes are reasonably safe and sufficient. Whether the route selected by the passenger is or is not apparently safe to any person exercising ordinary care is a question for the jury.</p>

Complaint; from city court of Atlanta—Judge Beid. December 13, 1913. The exception is to the overruling of a motion for a new trial.. The motion is upon the grounds that the verdict is contrary-to law and to evidence, and that the court erred in excluding testimony to the effect that the Steel Elevator & Storage Company, the maker of the note sued on, had five directors, two of whom—E. E. Gillette and J ohn E. Bell—refused to indorse it.

<p>Action for damages; from city court of Atlanta—Judge Eeid January 10, 1914.</p>

<p>. Certiorari; from Fayette superior court—Judge E. T. Daniel. March 27, 1914.</p> <p>Cotton grown in the year 1911 on & rented farm on which J. F. Whitlock resided was levied on, under an execution against him in favor of the Wynn Company, and ivas claimed by his wife, E. E. Whitlock. On the trial of the claim, in a justice’s court, the plaintiff in fi. fa. introduced testimony of 'W. T. Glower, as follows: “J. F. Whitlock in 1911 lived on my Johnson place. . . Hq rented the Johnson place from me in the year 1911. . . He gave me a rent note for the farm, and about two months later he came to me and asked me for the rent note—he said to have his wife sign the note. I do not remember if Mrs. Whitlock’s name, was on the note or not. The rent is paid. He rented for standing rent. He paid three’ bales of lint cotton, 1,500 pounds. J. F. Whjtlock brought me the warehouse receipts for the three bales of cotton last fall, and took up the rent note- for the year 1911. I do not know where said note is now. I do not remember whose name was signed to said note when paidr J.‘ F. Whitlock’s name was originally on said note. J. F. Whitlock paid off the note some time last fall, I do not remember the date. . . J. F. Whitlock signed a note for rent of the Johnson place for the year 1911, and after-wards came to me and got the note for his wife to sign. . . I do not remember of Mr. Whitlock’s ever veiling me he was renting tíie place as agent for his wife. It is true I do not remember all about this transaction, but what I have stated above I do remember. The note will speak for itself.” J. F. Whitlock testified for the claimant, as follows: “This cotton levied on is not my property, and never has been. The cotton belongs to my wife. Her name is E. E. Whitlock. She rented the land that grew this cotton. I have no interest in or title to this cotton levied on. I first rented the land for the year 1911 from Judge Glower, and afterwards can-celled the trade, and my wife rented the land. I had nothing to do with the stuff raised. It was hers, and this cotton is hers. Judge Glower filled out that note Mr. Hollingsworth is showing me, for my wife to sign, and she signed it herself. This was her cotton; it has never been mine or in my possession. Mr. Culpepper did not fill out that note. Judge Glower did it himself.” The note referred to (“produced under notice by the plaintiff in fi. fa.”) was introduced in evidence. It was dated August 22, 1910, and was signed “E. E. Whitlock,” and contained a promise to pay, by October 10, 1911, to the order of W. T. Glower, 1500 pounds of lint cotton, “for rent of Johnson place,” for the year 1911. J. W. Culpepper testified: “That note looks like it was filled out in my handwriting. My recollection is that Mr. Whitlock brought the note he gave Judge Glower for rent to my office, and I fixed out new notes for his wife, E. E. Whitlock, to sign, as she was renting the lands instead of J. F. Whitlock. This was soon after court in Fayetteville in September, 1910, when this case, or a branch of it, was up for trial.” There was no further testimony. The jury rendered a verdict against the claimant, and she took the case to the superior court by certiorari; the certiorari was overruled, and she excepted to that judgment. Among the exceptions in the petition for certiorari were exceptions to Glower’s testimony as to the rent note.</p>

<p>Appeal; from Greene superior court—J. G. Faust, judge pro hac vice. February 17, 1914.</p>

<p>1. The Court of Appeals does not appraise the credibility of witnesses. In a prosecution for keeping intoxicating liquors for sale in violation of a municipal ordinance, the municipal court is authorized to credit one witness, rather than a number of witnesses who may contradict his testimony, and in spite of efforts to impeach him.</p> <p>2. The verity of assignments of error in a petition for certiorari is tested by the answer; and an assignment of error based on a statement of fact which is denied in the answer can not be considered by a reviewing .court.</p> <p>3. The only question of law presented by the record is controlled by the rulings of this court in Athens v. City of Atlanta, 6 Ga. App. 244 (64 S. E. 711), and Callaway v. City of Atlanta, 6 Ga. App. 354 (64 S. E. 1105). Proof of the sale of intoxicating liquor is ordinarily sufficient to support the inference that the liquor in question was kept on hand for the purpose of illegal sale; and generally the fact that the intoxicating liquor is kept at a place of business is immaterial if the evidence discloses that it was kept for the purpose of sale, since the State law prohibits the keeping on hand of intoxicants at a place of business for any purpose. In such a ease, though an offense against the law of the State may incidentally have been committed, the municipal offense is distinct and separate from it, by reason of the fact that an additional element is required to complete the offense against the municipality.</p> <p>4. The judge of the superior court did not err in overruling the petition for certiorari.</p>

<p>Indictment for adultery; from Forsyth superior court—Judge Patterson. April 27, 1914.</p> <p>Gordon Glover, a married man, was convicted of adultery, alleged to have been committed with Ettie Densmore, a married woman. The entire evidence adduced on the trial, as set forth in the brief of evidence, is as follows: Mrs. M. J. Gilbert, in behalf of the State, testified: “I am acquainted with Gordon Glover and Ettie Densmore. I live in Forsyth county, and I have lived in the county nearly all my life. Gordon- Glover is a married man. Ettie Dens-more is a married woman. In April, 1913, Ettie Densmore lived with her husband on my husband’s place, in Forsyth county. They lived in a tenant house about 75 yards from where we lived. One afternoon, the 23d of April, Ettie Densmore was at my house and I saw a man passing along the road between my house and her house, and she said ‘That is my brother Jim,’ and she took her baby and started home. She was in a right smart hurry to get off. She followed on to her house. Her husband was working for my husband and with him in the field. Her husband was plowing, and, before he left the house in the afternoon to go to the field, I heard him tell her to bring him some water after a while, and when I saw her go home (as I thought, to be with her brother Jim)' I carried the water to the field and came back around through the pasture, by •her house, thinking that I would spend the rest of the afternoon with her. I came up behind an old smoke-house which was in the yard, at her place. When I got in about ten steps of the old smoke-house, I heard her little child, who was standing in front of the smoke-house, say: ‘Ma, yonder comes Gilbert.’ That is what the child called me. Then I heard the smoke-house door fly open. It flew back against an' old ladder that was standing there, and I saw Gordon Glover run out of the smoke-house, and he trotted off out to the road and left. I came around in front of 'the smokehouse, and Ettie came out of the smoke-house. She looked mightily embarrassed, and stammered and couldn’t hardly talk, and I said, ‘Thought it was your brother Jim,’ and she said ‘I thought it was Jim.’ She had locks of cotton in her hair, on the back of her head. There was cotton—seed-cotton—in the old smoke-house, twelve or fourteen hundred pounds in ,a pile. The cotton in the smoke-house was mashed down and packed, like some one had laid on it. When Ettie Densmore left my house to come home that evening it was about one o’clock. We both thought that the- man passing, going to her house, was her brother Jim. It was about an hour from the time she went home until I came from the field up to her house, by the old smoke-house, and saw her and Gordon Glover. ITer husband was plowing in plain view of her home. When I approached the old smoke-house and heard the door fly open, I was about ten steps on the south side of the smoke-house from the door, the door was in the west end of the smoke-house. Gordon came out and went off kind of by me. The well was out in the yard, just beyond the smoke-house from me. She stammered naturally.”</p> <p>Ettie Densmore, in behalf of the defendant, testified: “I know Gordon Glover, and I know Mrs. M. J. Gilbert. My husband is Arbin Densmore. We lived on Gilbert’s place in April last year. Our house was right close to Gilbert’s house. I remember the day that Gordon Glover came to our house. I had started to the field with some water to my husband where he was plowing. Mrs. Gilbert called me and told me that brother Jim was going to my house, and I looked around and saw the man going that way, and I picked up my baby and went back to see him. When I got there I found it was Gordon Glover. Gordon went to the well and drew a bucket of water, and got him a drink. I'went out there where he was. ' He asked me if Arbin was hired to Mr. Gilbert by the day to plgw, and I told him that he was. My husband, on the Sunday before, hád invited Gordon to come over that week and take a hunt.' Gordon said that if my husband was hired by the day he guessed he wouldn’t stop work to go hunting, and that he would go on back. He did not go down to the field where my husband was. He did not stay there more than two minutes. When he left'I went to the field and carried the water to my husband. My' husband was in plain view of ús all the time, and could see everything about the place, from where he was at work. Gordon did not go in the old smoke-house, nor did I go in there. There was some seed-cotton in the old smoke-house, which we had picked out for Mr. Gilbert during the winter after we had moved on the place, about the first of January. I was not in that smoke-house with Gordon Glover that day or any other day. Mrs. Gilbert did not come down there that' afternoon and catch me and Gordon Glover in that smoke-house. She never saw anything wrong with me in her life, with Gordon Glover or with any other man. She got mad at me and is mad now, and she is doing this just for spite. As soon as- she got mad and told this on me we left their place. My husband and I live on Mr. Allen’s place, and have lived there since then. My little child, that was with me that day, was only about two years old and could, talk very little.”</p> <p>The defendant, Gordon Glover, made the following statement at the trial: “On a Sunday, last April, Arbin Densmore told me to come over to his house one day the next week, and we would take a hunt. One day, just after dinner, I went over there. When I got there he was in the field, plowing for Mr. Gilbert. I went up to the well and drew a bucket of water, and his wife came out to the well and I asked her if Arbin was plowing for Mr. Gilbert by the day. .She said he was, and I told her that ‘I guessed that it would not suit him to stop,’ so I did not bother. I stayed there about two minutes, took a drink of water, and went off. He was in plain view of the house and me all the time. I did not have anything to do with his wife, Ettie Densmore, except to talk to her the minute or two that I was there. I did not go in the smoke-house by myself or with her, and it is not true that anything wrong took place between us there that day. I did not see Mrs. Gilbert there at all. She did not catch us there in the smoke-house.”</p> <p>Berry Gilbert, in rebuttal, testified: “I heard about this trouble with Gordon Glo.ver and Ettie Densmore the day it occurred. I was working in the' field with Arbin Densmore. I was trimming off terraces and ditches, and he was plowing. My wife brought -us. water that afternoon. I did not see Ettie Densmore in the field that afternoon. She did not come in the field. I was with her husband all the afternoon. She was. at my house when I went from-the field. Arbin’s house and place is in plain view of the field where-we were at work. I did not see Gordon Glover that.afternqpn.. .1 saw some man pass back through the field, who I thought was Gus Glover, Gordon’s father. The house where Arbin Densmore lived was near my house. His house and yard and old smoke-house were all in plain view of my house; anybody at my house could see the people in and about his house and place. That afternoon my wife and my grown daughter were at my house.”</p> <p>Glover made a motion for a new trial on the general grounds that the verdict was without evidence to support it, etc., and on several special grounds; the motion was overruled, and he excepted.</p>

<p>Taxation of costs; from city court of Sandersville—Judge Phillips presiding. April term, 1914.</p>

<p>Certiorari; from Payette superior court—Judge R. T. Daniel. March 27,1914.</p>

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

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

Action on contract; from city court of Greenville—Judge Eevill. May 9, 1914.

Complaint; from city court of Dublin—Judge Hicks. May 12, 1914.

<p>Complaint; from city court of Sandersville—Judge Jordan. March 23, 1914.</p>

Action on insurance policy; from city court of Brunswick—Judge Krauss. November 10, 1913. Ben Banks, his wife, her son-in-law, Henry Wilson and Wilson’s wife and “small” son, Johnnie Wilson, lived in the same house. In April, 1912, Banks, his wife, and Henry Wilson each applied for life insurance in the National Assurance Company of Atlanta, Georgia. The policy issued to Wilson was for $255, and was made payable to his son Johnnie.

<p>1. An exception to the refusal to award a nonsuit will not be considered where the jury has rendered a verdict against the defendant, and exception is taken to the refusal to grant a new trial on the ground that the verdict was not supported by evidence.</p> <p>2. Even if an inquiry as to the disqualification of a juror is confined to the question as to his qualification at the time of the trial, an objection to a juror propter affectum, on the ground that his brother-in-law is a member of a partnership owning shares of stock in the plaintiff corporation, is not met by proof that before the trial the stock was transferred to a trustee, under an adjudication in bankruptcy, in which both the brother-in-law of the juror and the partnership of which lie was a member were adjudged bankrupts. A trustee in bankruptcy is a mere agent of the court, to do what the law presumes the debtor would himself desire to do,—discharge the just obligations of the debtor. The payment of one’s debts, whether voluntary or at law, is a benefit to the debtor; and while an adjudication in bankruptcy may change the quantum of interest, it does not altogether remove the debtor’s interest in his property which is in the hands of the trustee, or qualify a brother-in-law of the bankrupt, who, prior to his bankruptcy, had an interest in the shares of a corporation, to sit in a case in which that corporation is a party. In every trial both parties are entitled to a full panel of jurors who are omni exceptione majores. And if more than one motive appears, and there is uncertainty as to which interest, if any, may affect the juror, there is no less reason for rejecting him than if his particular bias were clearly shown; the purpose of the law being to provide for a trial by jurors altogether impartial.</p> <p>3. Proof that one who was indebted to two persons (both of whom were ■ represented by the same agent) paid the dual agent a sum- sufficient to discharge the obligation upon which the suit is based shifts the burden of proof from the defendant; and when, in denial of the plea of payment, it is contended that the debtor’s payment, in the absence of any direction upon the part of the debtor, was applied to discharge another obligation instead of to the debt in suit, the existence and validity of the obligation to which the payment was applied must he established, and it must be shown that the debt was due, and was of such an amount as to have exhausted the payment made by the debtor.</p> <p>4. The original books of a mei can tile or other business should be accounted for, before secondary evidence of their contents can be admitted. Phillips v. Trowbridge, 86 Ga. 700 (13 S. E. 19).</p> <p>5. The instructions of the court upon the subject of partnership were erroneous, even if the question of partnership was involved. In a case involving more than one issue it is error, in the charge, to withdraw from the consideration of the jury any material issue in the case, or to confine them to the consideration of only one of the issues involved.</p> <p>6. In the application of payments, the debtor’s intention may be said to govern, since the appropriation of a general payment, whether directed by the debtor or applied by the creditor or by the law, is in legal intendment made in accordance with the debtor’s intention; and the intention to pay an alleged debt not proved to exist, or a debt not due, can not be presumed. In any case in which only one demand is proved to exist, and a payment has been made without any direction, the law will apply it to the payment of that demand. In the absence of evidence showing the amount, maturity, and validity of the alleged demands , against the debtor, to the extinguishment of which the admitted payment was alleged to have been appropriated, the court erred in failing to instruct the jury, in effect, that if only one demand is proved to exist, and a payment has been made without any direction, the law will apply it to that demand.</p>

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

<p>1. All claims against counties, unless held by persons laboring under disabilities, must be presented to the proper county authorities by written demand within 12 months after they accrue or become payable, or they will be barred, under the provisions of section 411 of the Civil Code of 1910.</p> <p>2. In a suit against a county, an allegation that the'claim sued upon was presented “as provided by law” and within 12 months after the accrual of the claim will not supply the place of a distinct allegation that it was presented in writing and within 12 months from its accrual.</p>

<p>Complaint; from city court of Americus—Judge Harper. April 27, 1914.</p>

Certiorari; from Wilcox superior court—Judge George. March 26, 1914. In February, 1914, cows belonging to Heath and kept on his premises in Wilcox county were found in an uninclosed field of Bellamy in the same county, and were impounded and held in the possession of Bellamy, who claimed the right to impound them under the provisions of the stock law (Civil Code, § 2036), proclaimed to be of force in the county by virtue of an election held in July, 1913.

<p>Trover; from city court of Oglethorpe—Judge Greer. December 2, 1913.</p>

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

Action for damages; from city court of Richmond county—Judge W. F. Eve. January 6, 1914. The plaintiff was injured by a fall from an electric-car on which she was a passenger, and in her petition she alleged that her injuries were caused by the negligence of the defendant’s employees in charge of the car, in starting it when she was attempting to alight from it, and in causing it to give a sudden, violent, and unusual jerk.

<p>Appeal; from Gilmer superior court—Judge Patterson. Decem- ' ber 13, 1913.</p>

<p>Distraint; from city court of Griffin—Judge Flynt. December 30, 1913.</p>

<p>Action on bond; from city court of Eloyd county—Judge Eeece. January 8, 1914.</p>

<p>1. A negotiable note purporting to be given for “value received” is prima facie presumed to be founded on a full legal consideration. Rowland v. Harris, 55 Ga. 141; Purcell v. Armour Packing Co., 4 Ga. App. 253, 259 (61 S. E. 138) ; Bing v. Bank of Kingston, 5 Ga. App. 578 (4), 580 (62 S. E. 652).</p> <p>2. Where evidence introduced is not properly connected with any issue on trial, the court may, in the exercise of a sound discretion, allow the party who introduced it to withdraw it, notwithstanding the opposing party may have introduced testimony to rebut it. If evidence is irrelevant, it should not be submitted to the jury, and there is no error in withdrawing such evidence at any stage before the case is finally submitted to them.</p>

<p>Action for damages; from city court of Atlanta—Judge Keid. November 22, 1913.</p>

<p>Complaint; from city court of Dawson—Judge M. C. Edwards. December 16, 1913.</p>

Action for damages; from city court of Savannah—Judge Davis Freeman. April 2, 1914.

<p>Indictment for sale of liquor; from Douglas superior court— Judge Price Edwards. January 14, 1914.</p>

<p>1. The rule which entitles a party in the trial of a cause to have the jurors who are empaneled omni exceptione majores may disqualify a juror who is an employee of a corporation in which the defendant is a stockholder. A juror is objectionable propter affectum whenever it is shown that his finding may bé affected by his personal interest in the result; and the probability as to whether that interest will produce bias is to be determined by the ordinary general rules of human experience. For this reason a person is not competent to serve as a juror in a cause when there exists any business relation between himself and one of the parties which may tend to influence the verdict.</p> <p>2. An employee of a corporation in which the defendant corporation was largely interested (although the defendant was a minority stockholder), and whose sole means of income depended upon this position, which was terminable at the pleasure of his employer, would, according to ordinary human experience, be presumed to feel an interest in the retention of his situation, and a corresponding desire to avoid doing anything which might jeopardize the continuance of the relation. It could not be assumed that such a juror would be insensible to the fact that the defendant had a voice which (according to the evidence in this case), so far as the juror knew, might be controlling in the determination of that question of gravest moment to him,—whether he would retain his position if the defendant corporation owning stock in the corporation which gave him employment should consider the verdict reached by his concurrence improper or excessive.</p> <p>3. The issue whether a juror is competent or incompetent propter affectum is to be determined by his mental attitude toward the cause of action and the parties thereto. The issue is partly one of fact and partly one of law, but where the evidence discloses facts from which bias or interest is to be inferred, the court must take judicial notice of the fact that the juror will most probably act in accordance with the bias disclosed. Rulings as to the competency or incompetency of jurors are based upon judicial knowledge of the improbability that a human being, even though he be a juror, will readily acquiesce in a finding adverse to his interest, his bias, or his prejudice. The presumption that a juror is competent is rebutted whenever the circumstances or influences by which he is environed and may likely be affected are not in dispute, and are such that the inherent probabilities, according to universal human experience, compel the conclusion that he is more likely to lean toward one side of the issue than toward the other.</p>

<p>Indictment for sale of liquor; from Twiggs superior court—Judge Hawkins. April 27, 1914.</p>

<p>Certiorari; from Crisp superior court—Judge George. July 12, 1913.</p>

<p>Action for damages; from city court of Baxley—Judge Sellers. October 39, 1913.</p>

<p>The writ of error presents for review only the determination of an issue of fact, which was properly soluble by a jury, to whom it was fairly submitted, and for that reason the judgment refusing a new trial will not be reversed. Numerous circumstances in proof authorized the jury to find that the inference resting upon the statement of its manager, that the garnishee was indebted to the defendant, instead of being rebutted, was fully supported.</p>

<p>1. Where the transferee of a note is unable to maintain an action on it in hi? own name, his rights may be enforced by an action in the name of his assignor, suing for his use; and where an action on the note has been brought in his own name, an amendment naming the assignor as plaintiff, suing for his use, does not change the cause of action or substitute for the' original plaintiff a new and distinct party. It merely truly characterizes the original plaintiff. The fact that the assignor is the administi’ator of the estate of the original owner of the transferred note does not constitute an exception to this rule.</p> <p>2. Where a statutory notice, given before the filing of a suit of the character stated above, for the purpose of fixing liability for attorney’s fees as provided for in the note sued on, indicates that the suit is to be brought by the holder of the note, the notice is not rendered ineffectual by an amendment naming the assignor as plaintiff, suing for the use of the holder.</p> <p>3. The filing of a plaintiff’s petition, unless followed by proper service on the defendant, is not the commencement of a suit. Where notice of intention to bring suit on a promissory note stated that the suit would be returnable to the September term of the court, and the plaintiff’s petition, though filed in due time for the September term, liad no process attached to it and service was not made until after the court in November granted an order to perfect service for the December term, the notice was not a compliance with the statute making notice of intention to sue a prerequisite to the recovery of attorney’s fees on the note. Notice naming a term preceding the term to which the suit is returnable will not suffice. A demurrer to that part of the petition which relates to the claim of attorney’s fees should therefore have been sustained.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. November 18, 1913.</p>

<p>Appeal; from Floyd superior court—Judge Wright. January 13, 1914.</p> <p>On the ground that it did not affirmatively appear that the appeal was entered within four days from the rendition of the judgment, the defendant moved in the superior court that the plaintiff’s appeal to that court from the judgment of a justice’s court be dismissed. A judgment overruling this motion was reversed by the Court of Appeals (14 Ga. App. 7, 80 S. E. 23), and, on the subsequent call of the case for trial in the superior court, when the defendant moved that the remittitur from the Court of Appeals be made the judgment of the superior court, the appellant offered a written motion in which it is stated that the plaintiff “amends the appeal in said case, and for grounds of amendment says that the appeal in said case was filed with the justice of the peace after trial of said case, within four days from rendition of the judgment by said justice of the peace, and that plaintiff will prove the filing of said appeal within the time allowed by law, by evidence aliunde.” The court allowed the amendment, over .the following objections of the defendant: (1) The superior court has no jurisdiction to entertain a motion to amend before the remittitur has been entered. (2) If the judgment of the Court of Appeals be made the judgment of the superior court, the appeal would automatically stand dismissed, and there would be nothing to amend. (3) The Court of Appeals did not grant permission to amend the proceedings before its judgment is made the judgment of the superior court, and without such permission the superior court is without authority to allow the amendment. (4) The proposed amendment is not an amendment to the pleadings, but “an effort to offer proof to sustain a position that is stare decisis.” The court then entered on the remittitur an order reciting that the judgment of the Court of Appeals “is made the judgment of this court, except that, plaintiff having amended, the appeal is not dismissed.” To this the defendant .objected on the ground that the judgment of the Court of Ap-' peals should be made the judgment of the superior court “without any limitation,” and that the appeal should be dismissed. This objection was overruled; and, over the objection that the docket of the justice’s court was the best evidence as to when the appeal was filed, the justice of the peace from whose judgment the appeal was entered was allowed to testify in behalf of the appellant that the appeal was filed April 16, 1912. The witness first testified that this date was shown by his docket, which he had left at home, and that he testified from the docket and from a memorandum taken from it, and that without the aid of the docket he could not give the date; but on further examination he stated that after having examined his docket and refreshed his recollection, he testified positively, from recollection, independently of the docket, that the appeal was filed April 16, 1912. April 13, 1912, was the date of the judgment from which the appeal was taken. A motion of the defendant to dismiss the appeal was overruled, and the court, after hearing evidence, and after excluding the only evidence offered by the defendant, directed a verdict for the plaintiff. The nature of the original proceeding and of the evidence excluded sufficiently appears from the foregoing decision of the Court of Appeals, paragraph 2. Exceptions were taken to the directing of the verdict and to the antecedent rulings stated.</p>

<p>Appeal; from Wheeler superior court—Judge Graham. October 28, 1913.</p> <p>Leopold Adler sued Dr. M. Morrison in a justice’s court, on an open account for articles of dress furnished on November 21, 1907, to the defendant’s wife, amounting to $81.42. The defendant filed a plea denying indebtedness, and denying that he had authorized the purchase of the goods. The trial of the ease, on appeal, in the superior court resulted in a verdict for the defendant. The plaintiff moved for a new trial, alleging that the verdict was. contrary to law and to the evidence; and the ease came to this court on exceptions to the refusal of the motion.</p> <p>From the evidence it appeared that the defendant and his wife resided together in Mount Vernon. She testified: “I bought the articles mentioned in the bill of particulars in Savannah, at the instance of Dr. Morrison, my husband, and he stated to me that he would pay for them, but delayed payment, as he stated to me, for the purpose of disgracing my credit in Savannah and to prevent me from buying more on his account. This credit was extended to him by the plaintiff. The articles were bought for myself and minor children, and were necessary, and such articles of clothing as we had been accustomed to. It is not true that I abandoned my husband on the date of this purchase, but, on the contrary, I only remained in Savannah about three days on the occasion of buying the merchandise herein set out, and afterwards returned to Mount Vernon, where I resided, and put my children in school. It is not true that the defendant furnished me all the necessaries of life for myself and children while I lived with him. The articles bought of the plaintiff and set out in the bill of particulars were actual necessaries for myself and children, which he refused to buy for us, but told me to go to Savannah and get them. Defendant did not provide my children with the necessaries, and did not try to keep me at home, nor keep the children in school. I did not hear from the defendant while in Savannah this time; I was there only three days. I did not ask defendant to furnish me with anything while I was in Savannah this trip. Each package I bought contained a slip showing the articles I bought, the price paid, and that the credit was extended to Dr. Morrison. The plaintiff asked me who to charge the articles to, and I told him to Dr. Morrison, the defendant, and had them call Col. Meldrim and others, whom I do not now recall, and asked them to recommend him, which they did. I told them to charge the goods to Dr. Morrison. My husband was not accustomed to buy for me skirts costing $16.50, gloves costing $3.50, jewel box $1.50, hat-pin $1.50, belt $1.50” (referring to items of the account).</p> <p>The defendant testified, that he had not bought goods from the plaintiff and had not told the plaintiff to sell goods to his wife; that he always bought what she needed for herself and the children; that he “bought her a whole lot of stuff in Glenwood just before • she claims to have bought the goods sued for, and she said she wouldn’t have them, and threw them in an old house in the back yard; she said she wouldn’t have them because they were bought at Glenwood;” that he gave her $75 and told her -to'buy what she and the children needed, and she took the money and went off to Savannah with it, a day or two before the date of this bill; that he never consented for her to buy any goods of the plaintiff on his credit; that it was not necessary for her to do so, because he had furnished her with ample.funds to buy what she needed.; that he did not tell the plaintiff that he had given her any money; that he was a practising physician and was “doctor for the Seaboard Air-Eine Kailway at Mount Vernon” at that time; he did not know what he was worth; he was a “sort of a specialist on typhoid fever,” and-he owned “a good deal of land” in the county; “if there was any good-society” in Mount Vernon his family went in it; he had three minor children at that time,a boy and two girls, one girl about half grown; he .tried to send them to school, but their-mother .would not let them go; he bought his wife whatever she told him to get; she said she wanted to buy something for herself and children with the money, at the timé he gave her the $75, just before she went to Sa- - vannah and bought the goods sued for. Charlie Morrison testified that he remembered the giving of the $75 by the defendant to the defendant’s wife, his mother, and that she took the money and went to Savannah.</p>

Trover; from city court of Bainbridge—Judge Spooner. February 4, 1914. On May 13, 1910, the Blish Milling Company, of Seymour, Indiana, shipped from that place to Bainbridge, Georgia, a car-load of flour, consigned to itself, with order to notify Draper-Garrett Grocery Company. The bill of lading, acknowledging receipt of the flour at Seymour, Indiana, was issued by the Baltimore & Ohio Southwestern Bailway Company.

<p>Action for money had and received—appeal; from Fulton superior court—Judge Ellis. January 23, 1914.</p>

<p>Affidavit of illegality; from city court of Louisville—Judge Phillips. January 19, 1914.</p>

<p>1. “A levy by an officer who has no authority is the same as no levy.” Morris V. Tinher, 60 Ga. 466; Collins v. Hudson, 69 Ga. 686. The levy of a ó. fa., issued upon a judgment rendered by the city court of Waynesboro, was not a valid levy, where it did not .appear that the officer making the levy was legally appointed a deputy sheriff of the city court, or that in making the levy he assumed to act as a deputy of the sheriff of that court, but, on the contrary, it appeared that he acted as a “special deputy sheriff of Burke county.” Under the organic law of the city court of Waynesboro, the sheriff of Burke county and his deputies are, by virtue of their offices, sheriff and deputy sheriffs of the city court, but the sheriff of the county is required to give bond as sheriff of that court, and the law declares that all executions issuing from the city court shall be directed to the sheriff of the city court of Waynesboro and his deputies. Acts of 1903, p. 174, § 23.</p> <p>2. Where a defendant has obtained possession of property by giving a forthcoming bond, which recites the factum of the levy, he is thereby estopped from denying the completeness and sufficiency of the seizure of the property, made by the levying officer, but may nevertheless test at the trial the validity of the process levied or the authority of the officer to make the levy. Peeples V. Garrison, 141 Ga. 411 (81 S. E. 116).</p> <p>3. “Constables can not be sheriffs or sheriff’s deputies.” Civil Code, § 4688. Where the authority of one who signed a pretended levy on a fl, fa. as “special deputy sheriff” was questioned by affidavit of illegality, and the only evidence on the issue was testimony that he was constable for a certain militia district in the county, though not under bond, and that two or three years before the date of the entry in question he was sworn in as a special deputy by the sheriff of the county, but gave no bond as such deputy, and only occasionally served processes and levied executions for the sheriff, and that the sheriff asked him to make this levy, it appeared that his act as such deputy was .not valid and legal. As acting constable he would be a de facto officer prohibited by express statute from serving occasionally as a sheriff or deputy sheriff.</p> <p>4. On the proof submitted, and without amendment to the entry of the levy establishing any connection between the pretended deputy and the city court of Waynesboro, the affidavit of illegality should not have been dismissed, and the court erred in overruling the motion for a new trial.</p>

<p>Affidavit of illegality; from city court of Fitzgerald—Judge Griffin. January 8, 1914.</p>

<p>1. In an indictment for larceny from the house, the ownership of the house and of the goods alleged to have been stolen can properly be laid in a person who had possession of the house and the goods as the owner’s agent at the time of the theft.</p> <p>2. The oral personal expressions of a judge preliminary to passing upon a motion for a new trial do not affect a final and unequivocal judgment, ' granting or refusing a new trial.</p> <p>3. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Accusation of sale of liquor; from city court of Millen—■ Judge T. L. Hill. April- 20, 1914.</p>

<p>Action for damages; from city court of Madison—Judge Anderson. April 13, 1914.</p>

<p>Levy and claim; from city court of Fitzgerald—Judge Griffin. April 4, 1914.</p>

<p>Action for damages; from city court of Bainbridge—Judge Spooner. June 25, 1913.</p>

<p>Garnishment; from city court of Atlanta—Judge Beid. October 14, 1913.</p>

<p>Complaint; from city court of Hazlehurst—Judge Knox. September 20, 1913.</p>

<p>Complaint; from city court of Carrollton—Judge Beall. January 5, 1914.</p>

<p>1. 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>2. In a suit against a county for damages because of an alteration in a public road, whereby a portion of the road was discontinued and abandoned and a new road established in lieu thereof along a line half a mile farther away from the plaintiff’s property, allegations that the road was altered “some time during the year 1910,” and that the plaintiff’s written claim for damages was filed with the county authorities on October 14, 1911, are not sufficient to show presentation of the claim or demand within twelve months from the accrual of the right of action.</p>

<p>Complaint—appeal; from Lowndes superior court — Judge Thomas. March 7, 1914.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 31, 1914.</p>

<p>Accusation of misdemeanor; from city court of Millen—Judge T. L. Hill. April 20, 1914.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. May 8, 1914.</p>

<p>1. There was no material variance between the allegations of the petition and the evidence introduced by the plaintiff.</p> <p>2. Where, prior to the child-labor law of 1906, a child of tender years was injured while operating a machine, of which the defendant had put her in charge, whether the character of the machine was such that the dangers in operating it were patent to a child of her age and capacity, and whether she was guilty of negligence in the way in which she actually operated it, and thus brought her injury upon herself, are questions which should have been submitted to a jury, under, proper instructions from the court.</p> <p>3. The evidence in this case presents questions which should have been submitted to a jury, and it was error to grant a nonsuit.</p>

Action on insurance policy; from city court of Atlanta—Judge Eeid. September 17, 1913.

<p>A petition as upon an open account, with a copy of the alleged account attached, one item of which is, “To contract price of bank building,” is not subject to demurrer on the ground that “there is not set forth in the petition, nor attached thereto, a copy of the contract referred to in exhibit A [the account], nor are the terms and stipulations of said contract substantially set forth in the petition.” The words “contract price” do not necessarily imply a written contract; and even if they do, the suit was properly brought, for the contract is not declared on, does not constitute the cause of action, and there is no prayer for relief based thereon. Civil Code, § 5541. The contract (if there be one in writing) is merely evidence of the indebtedness, and could be used as such. If the defendant intended to rely on a special contract in writing, there should have been an appropriate plea setting up the contract.</p>

<p>Action for damages; from city court of Bichmond county—Judge Y. F. Eve. June 25, 1913.</p>

<p>Foreclosure of lien; from city court of Athens—Judge West. October 19, 1913.</p>

Certiorari; from Fulton superior court—Judge Pendleton. November 6, 1913. The petition for certiorari was by the Georgia Railway & Power Company. According to the allegations of the petition, the J. M. High Company obtained a judgment against one Ramey, and sued out process of garnishment, which was served upon the Georgia Railway & Power Company. Upon a traverse of the answer of the garnishee, only one witness testified.

<p>1. The trial judge having in his original order on the motion for a new trial ordered “that the movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said case,” the court did not err in refusing to dismiss the motion because of the failure of the movant to file a brief of the evidence, until the day of the hearing. The movant presented a brief which was approved by the court after the motion to dismiss was made but before passing on that motion.</p> <p>2. Service of a rule nisi on a motion for a new trial may be made by the movant’s attorney at law, and the entry of service be verified by his affidavit.</p> <p>3. It appears that two of the notes offered in evidence, in support of the administrator’s answer to the garnishment, to show indebtedness of the defendant to the decedent, and which the court excluded on the ground that they were barred by the statute of limitations, were not barred; and it appears that certain sums paid by the decedent in behalf of the defendant and at his request, on a note excluded on the ground that it was barred, were paid within four years before the administrator’s answer to the garnishment, and therefore, these items were not barred by the statute of limitations. The court erred in rejecting this evidence, and also erred in directing a verdict.</p>

<p>Conviction of manslaughter; from Johnson superior court— Judge Hawkins. November 26, 1913.</p>

<p>Action for damages; from city court of Nashville—Judge Cranford presiding.</p>

<p>Complaint; from city court of Atlanta—-Judge Reid. November 6, 1913.</p>

<p>This cáse is controlled by the ruling of this court in Stanley v. Sterling Life Insurance Co., 12 Ga. App. 475 (77 S. E. 664).</p>

Complaint; from city court of Miller county—Judge Geer. Jan-, uary 13, 1914. The action was against the Southern Railway Company and the Pullman Company, for injuries alleged to have been received by the plaintiff while alighting at Roekmart, Georgia, from a Pullman poach, which formed a part of the train of the Southern Railway Company. As to the Pullman Company the suit was dismissed on general demurrer; and the ease came to this court on exceptions to that judgment.

<p>Complaint; from city court of Miller county—Judge Greer. February 7, 1914.</p>

<p>Motion to open default; from city court of Atlanta—Judge Eeid. December- 13, 1913.</p>

<p>1. So far as the evidence is concerned, a verdict for either party would have been authorized.</p> <p>2. No error in the charge of the court requires a new trial.</p> <p>(а) In the absence of an allegation that the defendant or its servants were negligent in failing to keep proper lookout in anticipation of the presence of persons or children at, near, or upon the tracks of the defendant street-car company, and of any request for instructions to the jury on this subject, the instructions given were sufficient to direct the attention of the jury to the testimony introduced in regard to the habits of children to play in the street in question, and to instruct them as to the bearing of this testimony upon the particular acts of negligence alleged.</p> <p>(б) An instruction to the effect that “ordinary care and diligence is the care and diligence which the street-car company owes and owed to pedestrians upon the street and persons using the street, of whatever age,” means the care and diligence which every prudent man would use under the peculiar circumstances, and is not subject to the criticism that it is an expression or intimation of opinion on the part of the court that there might have been negligence on the part of some one in relation to the child alleged to have been injured; especially in view of the fact that the court had previously told the jury that the plaintiff, as an infant of tender years, was not chargeable with any duty to care for her own safety, and that no negligence of her parents could be imputed to her. Viewed in connection with the context in the charge, the instruction was favorable rather than unfavorable to the plaintiff.</p> <p>(c) An instruction abstractly correct can not be attacked because additional instructions which might have been appropriate were not given.</p> <p>(d) The word “would” is often interchangeable with the word “should,” and, as referring to the duties of the employee in the present case, it does not appear that the plaintiff was injured by reason of the fact that the court used the former rather than the latter word.</p> <p>3. The court did not err in overruling the grounds of the motion for a new trial based upon the evidence alleged to be newly discovered, since it was merely cumulative and impeaching, and it was not probable that it would produce a different result on another trial.</p>

<p>Complaint; from city court of Nashville—J. Z. Jackson, judge pro hae vice. February 9, 1914.</p>

<p>1. In a suit upon an account, when the hill of particulars is improperly headed, the defect is amendable.</p> <p>2. The conduct of a party in connection with a particular business may amount to an admission of his partnership therein; and it was not erroneous, under the plea denying partnership in this ease, to admit testimony relating to the conduct of a defendant in and about the business of the alleged partnership. Where a person collects accounts, indorses notes, and in many instances does acts indicating a superintendency or control of a business, it is for the jury to say whether these circumstances are sufficient to raise the presumption that he was a partner in the business.</p> <p>3. “The declaration of an alleged member of a partnership, in the nature of an admission that he was a member thereof, is admissible for the plaintiff on the trial of an action against the firm, to which the declarant has interposed the defense of ‘no partnership’ as to him.” Hence it was not error to admit in evidence a writing signed in the firm name by such a defendant as “treasurer,” over the objection that it was “prejudicial and inadmissible unless the plaintiffs had knowledge of the same prior to the extension of credit.” The question at issue not-being whether the defendant held himself out to be a partner, but whether he was in fact a member of the firm, the writing was admissible as tending to prove the actual existence of the partnership. American Cotton College v. Atlanta Newspaper Union, 138 Ga. 149 (74 S. E. 1084); Fleshman v. Collier, 47 Ga. 253 (2).</p> <p>4. The plaintiffs, having introduced evidence to prove the account sued on, and testimony tending to establish the fact of partnership, made a prima facie ease, and the burden of showing that there was no partnership was then cast upon the defendant denying the partnership, and the court did not err in refusing to grant a nonsuit.</p> <p>5. The charge of the court on the law of partnership announced correct principles of law, and was adjusted to the evidence.</p> <p>6. Where a plaintiff, in an attempt to bring a suit in lieu of a dismissed suit between the same parties'and for the same subject-matter, requests of the clerk of the court in which the former suit was pending a bill of the costs of the suit, and in good faith pays the bill as rendered, and takes the clerk’s receipt for the costs “in full,” the receipt is prima facie evidence that all the costs have been paid.</p> <p>7. ' Since there is an implied promise to pay for property accepted and used, it was not error for the court to charge the jury that if the lumber sued for, even though not ordered by the defendants, was delivered to them, and it went into the assets of the partnership (if there was a partnership) and became a part of the assets, and they used or received the profits of the property, or the property itself, they should find for the plaintiffs.</p> <p>8. The evidence warranted the verdict, and there was no error in refusing a new trial.</p>

<p>Accusation of misdemeanor; from city court of Brunswick— Judge Krauss. April 2, 1914.</p>

<p>Certiorari; from Hancock superior court—Judge Park. March 26, 1914.</p>

<p>Indictment for larceny; from Johnson superior court—Judge Hawkins. April 24, 1914.</p>

<p>Action for damages—appeal; from Fulton superior court—Judge Pendleton. May 20, 1914.</p>

<p>Action for damages; from city court of Bainbridge—Judge Spooner.. October 8, 1913.</p>

No error of law appears, and the evidence supports the verdict. Action for damages; from city court of Bainbridge—Judge Spooner. August 30, 1913.

<p>Garnishment; from Walker superior court—Judge Wright. November 12, 1913.</p>

<p>This court can not determine by review whether the refusal of the judge of the superior court to sanction a petition for certiorari was error, where the petition is not incorporated in the bill of exceptions, and when what purports to be the oi-iginal petition (with various unidentified exhibits), though attached to the bill of exceptions, is in no.way identified or verified by the judge of the superior court as being the original petition which was presented to him and which he refused to sanction.</p>

<p>Conviction of assault with intent to rape; from Lowndes superior court—Judge Thomas. January 1, 1914.</p>

<p>When in a criminal ease not only the evidence but the defendant’s statement demanded the verdict rendered, a new trial will not be granted, even though the judge may have committed errors in his charge to the jury, in rulings on evidence, and in refusing to order a mistrial on account of improper argument of counsel. If the jury reached the only result which was legally possible in. the ease, the judgment of the trial judge will not be reversed merely for the purpose of allowing the case to he heard again, in order that the same result may be more technically reached.</p>

<p>Indictment for carrying pistol; from Laurens superior court— Judge Hawkins. September 20, 1913.</p>

<p>1. The rule that the title to money placed in a bank on general deposit ' passes immediately to the bank, and the relation of debtor and creditor is thereby created between the bank and the depositor, and the credit of the banker is substituted for the money, applies also to checks or drafts, where they are received on deposit to be treated as cash, and this is the intention of both parties.</p> <p>2. If the intention is that the bank shall not be responsible for drafts or checks deposited, except as an agent for collection, title to.,the paper will remain in the depositor throughout.</p> <p>3. Ordinarily, when checks or drafts are deposited in a bank, the presumption is that they are deposited for collection merely, and not as cash; but where a check or draft is drawn in favor of a bank holding it or with which it is deposited, the contrary presumption is authorized.</p> <p>4. A credit made in anticipation of collection will be deemed to be merely provisional, and the bank may cancel the credit or charge back the paper to the customer’s account, if it is not paid; but if it appears that the parties intended that the title to the paper should pass, the mere fact that it was understood that the bank would have the right to charge the amount of the paper back to the depositor.in case it should prove to be uncollectible will not change the relation of debtor and creditor.</p> <p>5. - Where vendors of goods delivered the goods to a common carrier for shipment to their own order, with direction to notify the purchasers, and a draft upon the purchasers for the price of the goods, payable to a bank, wa? drawn by the shippers and, with the bill of lading attached, was deposited by them to their credit in the bank, and the deposit was subject to their check and they drew checks against it which were paid by the bank, title to the goods and to the proceeds of the draft vested in the bank. • „ .</p>

<p>Complaint; from city court of, Oglethprpe—Judge Greer. February 10, 1914.</p>

<p>1. A sufficient assignment of error to give this court jurisdiction is presented where the bill of exceptions excepts to and assigns error upon the refusal of the court to dismiss, on general demurrer, an affidavit of illegality.</p> <p>2. Where no motion for a new trial is made, the plaintiff in error may either incorporate in the bill of exceptions the evidence material to an understanding of the errors complained of, or specify the brief of evidence and have it sent up as a part of the record. Civil Code, §§ 6140 (1), 6141.</p> <p>3. Under the act creating the city court of Bainbridge (Acts 1900, p. 104, Acts 1901, p. 94), executions issuing from that court shall be directed “to the sheriff or his deputy of the city court of Bainbridge, and all and singular the sheriffs or their deputies of the State of Georgia.” Hence, executions issuing from the city court of Bainbridge may be levied by . the sheriff of that court or his lawful deputy, or by the sheriff of Decatur county (or any other county of this State), or his deputy.</p>

Action for damages; from city court of Atlanta—Judge H. M. Reid. March 14, 1914. The action was for injuries from a fall through a hole in the floor of the defendant’s building on December 29, 1911. It was filed December 29, 1913. By amendment the petition alleged that ■the 28th day of December, 1913, was Sunday.

<p>Complaint; from city court of Macon—Judge Hodges. March 31, 1914.</p>

<p>1. Where one indicted for assanit with intent to murder is convicted only of unlawfully shooting at another, he can not complain of an omission to charge the jury that he could not be convicted of assault with intent to murder unless a specific intent to kill be proved. The verdict is an acquittal of that offense.</p> <p>2. At the trial the accused made a statement to the court and jury, but did not refer to or deny the shooting for which he was being tried; and the prosecuting attorney, in his argument to the jury, referred to the fact that the defendant did not deny that he fired the shots, which were heard by several of the witnesses. Although a prosecuting attorney, in his argument to the jury, can not properly refer to the defendant’s omission to make a statement at the trial or to introduce evidence, he may, when the defendant has made such a statement, comment upon the omission to refer therein to facts of significance resting peculiarly within the defendant’s knowledge, just as he may discuss the probative value of the assertions actually made in the statement.</p> <p>3. The testimony tending to show the defendant’s guilt was wholly circumstantial, and is not sufficient to exclude every other reasonable hypothesis than that of guilt; and for that reason only the court .erred in refuging a new trial.</p>

<p>Conviction of assault; from Morgan superior court—Judge Park. May 9, 1914.</p>

<p>Indictment for larceny after trust; from city court of Madison— Judge Anderson. May 2, 1914.</p>

<p>Indictment for assault with intent to murder; from Chatham superior court—Judge Charlton. May 18, 1914.</p>

<p>Certiorari; from Greene superior court—Judge Park. June 4, 1914.</p>

<p>Indictment for pointing pistol; from Webster superior court-judge Littlejohn. May 20, 1914.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. May 27, 1914.</p>

<p>Indictment for furnishing liquor to minor; from Walker superior court—Judge Wright. June 3, 1914.</p>

<p>Accusation of sale of liquor; from city court of Forsyth—Judge Persons. June 6, 1914.</p>

<p>Indictment for seduction; from Walker superior court—Judge Wright. June 3, 19 Í4.</p>

<p>Indictment for sale of liquor; from Webster superior court— Judge Littlejohn. June 17, 1914.</p>

<p>1. Under the rulings of this court in Young v. State, 10 Ga. App. 116 (72 S. E. 935), and in Faison v. State, 13 Ga. App. 180 (79 S. E. 39), it was proper for the trial judge to give in charge to the jury the law of voluntary manslaughter, for there was evidence authorizing the inference that there was a mutual intent to fight on the part of the accused and the deceased.</p> <p>2. That the court may have erred in charging the law of murder in the present ease affords the accused no ground for complaint, since he was convicted of voluntary manslaughter.</p> <p>3. In the absence of an appropriate request, the failure of the court to define the term “felony,” when used in instructions to the jury with reference to the' right of a person to kill another in order to prevent a felony from being perpetrated upon him, is not error requiring a new trial. Helms v. State, 138 Ga. 827 (7), 833 (76 S. E. 353).</p> <p>4. The evidence authorized the verdict.</p>

<p>Conviction of stabbing; from city court of Houston county— Judge Eiley. May 23, 1914.</p>

<p>Complaint; from city court of Hazlehurst—Judge- Knox. February 13, 1914.</p>

<p>Action on contract; from city court of Cairo—Judge Singletary. February 28, 1914.</p>

<p>Levy and claim; from city court of Thomasville—Judge W. H. [•Tammond. March 4, 1914.</p>

<p>Accusation of misdemeanor; from Chatham superior court— Judge Charlton. May 4, 1914.</p>

<p>1. An application for a writ of certiorari, to correct errors alleged to have been committed in the criminal court of Atlanta, need not be accompanied by a bond conditioned for the appearance of the accused to answer and abide the final order, sentence, and judgment of the court, as is required in petitions for certiorari from municipal courts.</p> <p>2. “Until the time for the answer to the writ has arrived, the statements of the petition as to the evidence, rulings of the court, or any other fact which developed or transpired in any proceeding in the lower court, taken as the truth, are to be applied by the reviewing court to such assignments of error as are properly presented by and contained in the petition.” Linder v. Renfroe, 1 Ga. App. 58 (2) (57 S. E. 975).</p>

<p>Indictment for robbery; from • Sumter superior court—Judge Littlejohn. July 6, 1914.</p>

<p>Indictment for robbery; from Sumter superior court—Judge Littlejohn. July 6, 1914.</p>

<p>Action for damages; from city court-of Atlanta—Judge H. M. Reid. January 17, 1914.</p>

<p>Certiorari; from Richmond superior court—Judge H. C. Hammond. October 39, 1913.</p>

<p>Trover; from city court of Tifton—Judge R. Eve. March 14, 1914.</p>

<p>1. When the trial judge has really exercised his discretion in passing upon a motion for a new trial, the reasons which influence him in giving direction to the case are usually unimportant to the court of review. “It is prima facie to be presumed that a trial judge has exercised his discretion, when he grants or refuses a motion for a new trial;” and the judgment upon such a motion can not be impeached by statements of the presiding judge not contained in the order overruling or granting the motion. The fact that it is recited in the bill of exceptions that the judge, in passing upon the motion, orally stated that he did not feel that he should grant a new trial, in view of the fact that the Court of Appeals had reversed his decision of nonsuit on a former trial, does not affect the ease nor authorize the conclusion that the discretion of the trial court was not exercised, when the order overruling the motion for a new trial contains nothing to indicate that the judge was dissatisfied with the verdict, or that he failed to exercise hi's discretion, as required of him by law.</p> <p>2. The decision of this case is controlled by the ruling in Harvey v. Rome Scale & Manufacturing Co., 13 Ga. App. 571 (79 S. E. 487).</p> <p>3. Though there was evidence which would have warranted a finding for the defendant, there was some evidence to authorize the verdict in favor of the plaintiff; and since there is no substantial complaint other than that the plaintiff failed to sustain his case by a preponderance of evidence, it was not error to refuse a new trial.</p>

<p>Indictment for compounding felony; from Chattooga superior court—Judge Wright. April 21, 1914.</p>

<p>Appeal; from Taylor superior court—Judge Gilbert. April 20, 1914.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. April 27, 1914.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. May 26, 1914.</p>

<p>1. Where the jury in a criminal case are fully and correctly instructed by the court on the law as to the defendant’s statement to the court and jury, and as to their duty to acquit unless satisfied of his guilt beyond a reasonable doubt, the omission to charge specifically that such a doubt may grow out of the defendant’s statement is not error.</p> <p>2. Where an indictment charged the theft of three hogs, particularly described as the property of a named person, and the evidence disclosed that these three hogs, as well as a fourth hog, the ownership of which was unknown, had been stolen, an instruction to the jury that if they believed, beyond a reasonable doubt, that the defendant unlawfully, wrongfully, and fraudulently, took and carried away the hogs described in the indictment, with intent to steal the same, and if they believed such hogs or any one of them to be the property of the person named in the indictment as the owner of the three hogs alleged to have been stolen, then the offense of larceny would be made out, is not subject to objection as authorizing the jury to convict in the event they believed the defendant had stolen a hog not described in the indictment, and which did not belong to the person named therein as the owner of the three therein described.</p> <p>3. On the trial of a criminal case which depends entirely on circumstantial evidence it is the duty of the court to charge the jury as to the weight and value of circumstantial evidence, even where not requested so to do; but where the case does not depend solely upon circumstantial evidence, it is not error for the court to omit such a charge, in the absence of a timely written request.</p>

<p>1. Where the jury in a criminal case are fully and correctly instructed by the court on the law as to the defendant’s statement to the court and jury, and as to their duty to acquit him unless satisfied of his guilt beyond a reasonable doubt, the omission to charge specifically that such a doubt may grow out of the defendant’s statement is not error. Early v. State, 14 Ga. App. 467 (2) (81 S. E. 385), and citations.</p> <p>2. Where an indictment charged the theft of three hogs particularly described, and alleged to be the property of a named person, and the evidence showed the theft not only of these three hogs, but of a hog not mentioned in the indictment, and the court charged the jury as follows: “If you should not believe that the defendant unlawfully, wrongfully, and fraudulently took and carried away, with intent to steal, the hogs described in the bill of indictment, or any one of them, as charged in this bill of indictment, or if you have a reasonable doubt that the defendant did so or not, you ought to acquit,” the charge was not subject to the objection that this instruction authorized the jury to convict the defendant if they should believe he had stolen the hog not described in the indictment, and the ownership of which was not proved; especially where the court, in the same connection, further confined the jury to a consideration of the charge in the indictment, by instructing them that they would be authorized to convict if they believed the defendant did, on a day named, unlawfully, wrongfully, and fraudulently take and carry away, with intent to steal the same, “any one or more of the hogs described in this bill of indictment, belonging to J. M. Windsor [named in the indictment as the owner], if the evidence shows that any one of them belonged to him.” This instruction authorized the jury to convict only in the event they believed, from the evidence, that the defendant had unlawfully, wrongfully, and fraudulently taken and carried away, one or more of the three hogs described in the indictment, as the property of the person named therein as owner, with intent to steal the same, and provided they believed the hogs to be the property of the alleged owner, and it did not authorize them to convict the defendant for the theft of any hog not included by the description in the indictment or not the property of the person named in the indictment as owner.</p>

<p>Accusation of sale of liquor; from city court of Blackshear— Judge Mitchell. April 6, 1914.</p>

<p>No material error was committed by the court, and the evidence warranted the verdict.</p>

<p>Selling the goods of another without actually taking possession of them is not a sufficient taking to constitute larceny. Where one has neither actual nor constructive possession of the property of another, but points it out, claims it as his own, and actually sells it as his property and receives payment therefor, he is not guilty of larceny, in the absence of some act constituting an asportation. But where in such a case the purchaser takes the property into his own possession in good faith, believing that it is the property of the seller, and removes it to any distance whatever, the seller is guilty of larceny, since the purchaser takes and removes the property as his innocent agent, and the act of the purchaser amounts to an asportation by the seller.</p>

<p>1. Where one contracts to work as a farm laborer for another for a period of six months, from a day named to another day named, at a fixed number of dollars per month, on a farm “tended” by the employer, “on lands owned by” another person named, in a named county of the State of Georgia, not only is the place where the contract is to be performed sufficiently indicated for all purposes, but the contract is sufficiently certain and definite as a whole to support a prosecution under the “labor-contract act” (Penal Code, §§ 715-716).</p> <p>2. The presumption of an intent to defraud, arising under the “labor-contract act” (Penal Code § 716), is not rebutted by proof that the defendant agreed, at some time after his breach of the contract and after the time the labor was to be performed, to return the money advanced by the employer.</p> <p>3. In a prosecution under the “labor-contract act,” supra, the burden is upon the State to show that there was loss or damage to the hirer. If there has been part performance of the contract, by labor for a certain number of days, loss and damage to the hirer is shown, where it appears that the amount or value advanced was in excess of what would be due for the labor for that time at the rate per month stipulated in the contract.</p> <p>4. In a prosecution for a violation of the “labor-contract act,” supra, the State, to complete its presumptive case, must show that there was no good reason why the contract was not performed, or no good reason why the accused did not return the money advanced to him. Without this proof the case for the State is incomplete, because the prosecution has failed to create the evidentiary presumption necessary to rebut the presumption of innocence.</p>

<p>Indictment for murder—conviction of manslaughter; from Clay superior court—Judge Worrill. July 13, 1914.</p>

<p>Certiorari; from Newton superior court—Judge C. S. Reid. July 29, 1914.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. May ¡26,1914.. ' '</p>

<p>Indictment for gaming; from Worth superior court—Judge Cox. July 30, 1914.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. November 25, 1913.</p>

<p>Motion to set aside judgment; from city couit of Atlanta—Judge H. M. Reid. March 27, 1914.</p>

<p>Complaint; from city court of Miller county—Judge Geer. February 7, 1914.</p>

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

<p>Indictment for robbery; from Fulton superior court—Judge B. H. Hill. June 27, 1914..</p>

<p>Accusation' of sale of liquor; from city court of Carrollton—. Judge Beall. July '22, 1914.</p>

<p>Indictment for misdemeanor; from Baldwin superior court-judge Park. July 15, 1914.</p> <p>Reddick was tried in the county court on an indictment charging that on October 31, 1913, he “did sell and barter, for a valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors, and other drinks which if drank to excess will produce intoxication, to one Will I-Iazel, and did keep on hand said liquors at his place of business, to wit, his store in the cityr of Milledgeville, Ga., contrary to the laws of said State,” etc. The jury returned a verdict of guilty, and he sued out certiorari; the certiorari was overruled by the judge of the superior court, and he excepted.</p> <p>On the trial Will Hazel testified, for the State, that he came to Milledgeville in October, 1913, to work for the city as a detective “to run down blind tigers,” and that on the evening of October 31 he went to the grocery store of the defendant in Milledgeville to buy whisky, accompanied by his employer, Vickers, who remained outside while he entered the store; that with money given to him by Vickers he bought a half-pint of whisky, which he brought back and delivered to Vickers; that when he entered the store he asked the defendant to let him have some whisky, and the defendant reached under the counter and got a bottle of whisky and delivered it to him; that the defendant was at the circus all day, and came back to the store about night, when the purchase was made. Vickers testified, that he went with the witness Hazel to the defendant’s store on October 31, but that he remained outside of the store, in the dark; that he gave Hazel money to go in and buy whisky, and that after Hazel entered the store he could see him through the window; that he saw the defendant hand something to Hazel over the counter, which Hazel brought to him (Vickers), and which proved to be a half-pint of whisky. This witness further testified that the defendant offered to sell him a pint of whisky during the morning of the same day, at the circus grounds, and this testimony was objected to by the defendant, aá irrelevant, because it tended to establish another crime, distinct entirely from the particular crime of selling liquor to Hazel, with which the defendant was charged, and because it did not appear that the attempt to sell was made at the place of business of the defendant. The petition for certiorari assigns error on the ground that the court erred in admitting this testimony, and also on the ground that the verdict was contrary to law and evidence, and without evidence to support it.</p>

Accusation of cheating and swindling; from city court of Elberton—Judge Grogan. September 21, 1914. The accusation charged that Georgia Oliver “did . . unlawfully, falsely, and fraudulently represent to S. Parham & Company . that . .

<p>Complaint; from city court of Americus—Judge Harper. February 4, 1914.</p> <p>The plea referred to in the decision alleges, that £he note sued on was given as a part of the purchase-money of two Flanders cars or automobiles, the balance of the purchase-money on the cars having been paid; that these cars were sold to the defendant for $1,577.75, the price of cars to agents,—that is 15 per cent, off the list price for similar cars, freight added; that these ears were bought to resell, and were purchased of the plaintiff on condition that the plaintiff would give territory to the defendant for the handling of the same line of automobiles that the plaintiff handled in Americus; that the territory was to be from Huntington eastward to Flint river and the contiguous section thereto and the county of Lee in the State of Georgia; that the prices to be charged by the defendant for the automobiles handled in the said territory were to be the list prices of the factory making the ears, and that the compensation of the defendant for handling the cars was to be 15 per cent, of the purchase-price,—that is, the list price of the ears; “the plaintiff agreeing that it would not go into the territory of the defendant, and defendant would not sell cars out of the territory allotted;” that upon the consideration of the territory as aforesaid, the defendant purchased two cars as aforesaid; that the plaintiff agreed to give the defendant 15 per cent, of all supplies purchased of the plaintiff as part of the agreement as aforesaid; that this was done at stated times; that the plaintiff on several occasions recognized the contract and territory so allotted to the defendant; that this contract was entered into on August 26, 1912; that some time in the fall of the year 1912, while the contract of agency was in force, the plaintiff, without the consent of the defendant, entered the territory of the defendant, and sold to designated persons residing therein three cars described, the list prices of which are given, aggregating $3,250, and that "the commissions agreed to be paid as aforesaid” aggregate 15 per cent, of this, to wit, $487.50, which the defendant prays be recouped of the plaintiff and set off against the plaintiff’s demands.</p>

<p>Complaint; from municipal court of Atlanta. February 17,1914.</p>

<p>Complaint; from municipal court of Atlanta. April 6, 1914.</p>

<p>Breach of contract; from municipal court of Atlanta. April 22, 1914. - ‘</p>

<p>One under arrest who, without provocation, uses opprobrious words or abusive language to or of the officer who has him in legal custody, and in the officer’s presence, is punishable under section 387 of the Penal Code, if the character of the words or language is such as would ordinarily and naturally tend to cause a breach of the peace when addressed to a private person.</p>

<p>Complaint; from city court of Cartersville—Judge Foute. March 9, 1914.</p>

<p>Accusation of sale of liquor; from city court of Greenville— Judge Eevill. June 3, 1914.</p>

<p>Accusation of gaming; from city court of Columbus—Judge Tigner. June 22, 1914.</p>

<p>Even if the accusation charged an offense (and it appears from the record that it did not), there was not sufficient evidence upon which to base a judgment of guilty. The mere fact that the mortgagor of certain hogs, alleged to be running at large, failed to comply with a voluntary promise to catch and deliver these hogs to the officer, so as to enable the officer to levy a mortgage fi. fa., is not a circumstance of such probative value as to exclude every other reasonable hypothesis than that the mortgagor did not own the hogs in question at the time he executed the mortgage, and that his representations of ownership, made at that time, were fraudulent.</p>

<p>Accusation of misdemeanor; from city court of ■ Brunswick— Judge Krauss. August 17, 1914.</p>

<p>1. Defects in an indictment afford no ground for a new trial. Exceptions which go merely to its form should be made by demurrer, before trial. For matters affecting its real merits, the remedy after trial is by motion in arrest of judgment.</p> <p>2. While the offense of cheating and swindling is not complete unless the representations are both deceiving and injurious, it is not necessary that the defendant himself be benefited bj' his fraud.</p> <p>3. Where one is on trial for an attempt to commit the offense of cheating and swindling, and the charge of the court upon the subject of “attempts” is correct, in the absence of a thnely written request for further instructions as to mere preparatory acts, the failure of the judge to so charge is not error.</p> <p>4. Where an indictment alleged that representations were made to A., and the proof showed that they were made directly to B., but in A.’s presence and hearing and for the purpose of having A. to act upon them, and that at the same time the one who made the representations handed to A. a fraudulent bill, directly connected With the representations, and that A., acting upon these representations, made in his presence and hearing, had B. to “O. K.” the bill, held, that this did not constitute a material variance between the allegations in the indictment and the proof.</p> <p>5. Proof of presentation of the bill for payment was sufficient proof of demand for payment.</p> <p>0. The court committed no error in sustaining the solicitor-general’s objection to allowing tlie witness to state the substance of a conversation between himself and the British consul.</p> <p>7. Where an indictment for cheating and swindling alleged that “any amount of money paid by said captain in response to said demand was taken by the captain from any wages then due or to become due to said Anderson,” and the proof showed that no money was actually paid by the captain, but that an attempt was made to get him to pay it, this variance was immaterial, when the State had abandoned its attempt to convict the accused of cheating and swindling, and contended only for a verdict for an attempt to commit that offense, and when the jury brought in a verdict for an attempt only.</p> <p>8. The evidence authorized the verdict, and there was no error in the overruling of the motion for a new trial.</p> <p>9. The other assignments of error are without merit.</p>

<p>Certiorari; from Jackson superior court—Judge Brand. June 27, 1914.</p>

<p>1. The carrying of the pistol is the corpus delicti of the statutory offense of unlawfuRy carrying a pistol without having obtained the license prescribed by law.</p> <p>2. Proof of the corpus delicti is essential to authorize a conviction of crime.</p> <p>3. The evidence of the defendant’s guilt, which he was by force compelled to produce against himself, having been properly excluded, the testimony as to an inculpatory admission alone was wholly insufficient to authorize the judgment of guilty.</p>

<p>Indictment for misdemeanor; from McIntosh superior court— Judge Sheppard. October l'f, 1914.</p>

<p>The evidence was sufficient to authorize the conviction.</p>

<p>Certiorari; from Floyd superior court—Judge Wright. October 29, 1914.</p>

<p>Accusation of gaming; from city court of Zebulon—Judge Dupree. October 29, 1914.</p>

<p>1. Where a petition for certiorari in a criminal or quasi-criminal case contains no distinct allegation as to failure to prove the venue, the judge of the superior court may not grant the wrjt on the ground that the venue was not proved.</p> <p>2. Objections to testimony, not made in the trial court, will not be considered by this court.</p> <p>3. On the trial of one accused of the violation of a municipal ordinance in keeping intoxicating liquor for the purpose of sale, proof of one sale of such liquor by the accused may be sufficient to show the purpose of the keeping.</p> <p>4. Where proof of general bad character of a witness has been introduced to impeach him, and no evidence is offered to sustain his character, and no corroborating circumstance is proved, it is nevertheless in the province of the jury, or of the court trying the case without a jury, as the ease may be, to determine whether he has been impeached or whether his evidence is credible.</p>

<p>Indictment for sale of liquor; from Campbell superior court— Judge E. W. Freeman. October 18, 1914.</p>

<p>Certiorari; from McDuffie superior eourt—Judge H. C.' Hammond. October 19, 1914.</p>

<p>Accusation of assault and battery; from city court of Albany-Judge Clayton Jones. October 15, 1914.</p>

<p>Indictment for sale of liquor; from Laurens superior court— Judge Larsen. October 19, 1914.</p>

<p>1. Where, on the trial of one charged with the violation of an ordinance of the City of Atlanta, proof was made that the offense was committed at “No. 9 East Alabama street . . in this city,” the venue was sufficiently shown.</p> <p>2. On a trial by a recorder, under a municipal ordinance providing that “it shall not be lawful for any person or persons having charge or control of any pool or billiard room and tables kept for hire to admit into any such room any minor, or to allow any minor to play at any such billiard or pool tables, without the written consent of the parent or guardian of such minor,” where the uncontradicted evidence disclosed that the defendant had such a room and such tables under his charge and control, and kept them at his own expense and gave them his personal attention day by day, and that the general public frequented the place and used them constantly, the recorder, notwithstanding the absence of any specific evidence that the room and tables were kept for hire, was authorized to infer that the defendant kept them for pecuniary gain or “for hire,” and'not from motives of benevolence alone; and the circumstances proved excluded every other reasonable hypothesis,</p> <p>3. The evidence was sufficient to authorize the judgment rendered by the recorder, and the judge of the superior court did not err in overruling the certiorari,</p>

<p>Indictment for burglary; from Putnam superior court—Judgp Park. October 3, 1914.</p>

<p>Certiorari; from Taliaferro superior court—Judge Walker. October 30, 1914.</p>

<p>Indictment for felony; from Clarke superior court—Judge Brand. November 3, 1913.</p>

<p>Action for damages; from city court of Thomasville—Judge W. H. Hammond. April 8, 1914.</p>

<p>Accusation of keeping lewd house; from city court of Richmond county—Judge W. F. Eve. April 8, 1914.</p>

<p>The question of the liability of the city in the present case is controlled by a former decision in the same case (Harris v. City of Rome, 10 Ga. App. 409, 73 S. E. 532). No error in the trial is alleged; and since the evidence is sufficient to support the plaintiff’s case as laid, the court did not err in refusing to grant a new trial.</p>

<p>Indictment for robbery; from Chatham superior court—Judge Charlton. August 25, 1914.</p>

<p>1. Under the provisions of the game-law (Acts of 1911, pp. 137-146), it is unlawful for any person to hunt, without first obtaining a license, except upon his own land or in his own militia district; and when lawfully hunting in his own militia district he can not lawfully follow hounds in pursuit of foxes, deer, or any other animal, to and upon another’s lands in another militia district, without such a license, even though he has permission from the owner to hunt thereon.</p> <p>2. The act of 1912, amending the game-law of 1911, by the terms of section 3 of the amending law effectually repeals the exception provided for>in section 18 of the act of 1911, which allowed persons lawfully hunting to follow hounds in pursuit of foxes, deer, and other animals not protected by that act, upon lands of another without the permission of the owner of such lands; and the law as now amended prohibits any and all persons, with or without a license, from hunting or fishing upon lands other than their own without permission of the landowner.</p>

<p>Indictment for assault with intent to murder; from Telfair superior court—Judge Graham. October 28, 1914.</p>

Accusation of keeping liquor at a public place, etc.; from city court of LaGrange—Judge Harwell. May 13, 1914. From the evidence it appeared that the defendant sent to a liquor dealer a money-order for .100 pints of whisky, to be shipped to himself, stating that the whisky was for the personal use of himself and others named, and stating the number of pints ordered for each.

<p>1. A court of justice will not lend its aid to the enforcement of any contract the making of which is prohibited, nor to the enforcement of anything necessary to complete the accomplishment of an unlawful purpose. “If the contract is executed it will be left to stand; if it be executory neither party can enforce it.”</p> <p>2. There was no error in overruling the demurrer to the amendment to the defendant’s answer, which set up that the contract upon which i’ ■' plaintiff relied was contra bonos mores; and the evidence demanded the verdict.</p>

<p>Accusation of larceny from house; from city court of Albany— Judge Clayton Jones. October 19, 1914.</p>

<p>The pendency of a common-law action does not preclude the suing out of an attachment against the defendant; and where, after levy of the attachment, the defendant pays to the sheriff the principal, interest, and costs upon the attachment, in order to relieve his property from seizure, he is not by this payment discharged from any additional liability to which he might have been subject in the original action pending against him.</p>

<p>A contract stipulating that one of the parties thereto shall receive as compensation for certain services a half of the profits of the business to be conjlucted, and shall not provide any of the assets nor he bound for any of the losses, is not a contract of partnership; and the party thus receiving a portion of the profits for his services is not hound for debts of the business.</p>

<p>Action for damages; from city court of Thomasville—Judge W. H. Hammond. December 6, 1913.</p>

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

<p>1. A judgment refusing a nonsuit will not be reversed, if from an exarm ination of the record it appears that the evidence as a whole was sufficient to support the verdict returned in favor of the plaintiff.</p> <p>2. The evidence was sufficient to authorize the' verdict, and there is no substantial merit in any of the assignments of error.</p>

<p>Complaint; from municipal court of Atlanta. April 20, 1914. Dillon, Burr ess & Kobah, for plaintiff in error.</p>

<p>Motion to set aside judgment; from city court of Millen—Judge T. L. Hill. January 23, 1914.</p>

<p>Certiorari; from Floyd superior court—Judge Wright. April 1, 1914.</p>

<p>1. A writ of certiorari is not amendable so as to require an answer from an officer as to whom issuance of the writ was not prayed in the original petition for certiorari.</p> <p>(a) Where, in a petition for certiorari, complaint is made of the actions or rulings of two magistrates, each of whom participated in different stages of the proceeding, but the petition for certiorari fails to ask that one of these magistrates be required to answer the writ, the petitioner can not, by filing exceptions to the answer of that magistrate to whom the writ of certiorari was originally directed, require an answer from the magistrate from whom no answer was invoked in the original petition for certiorari, and to whom consequently the writ had not been directed. The trial judge properly disallowed exceptions which sought, after the issuance of the writ of certiorari, to engraft upon the proceeding the issuance of another writ directed to an entirely different officer.</p> <p>2. The only issue presented by the record is one of fact, and, there being ample evidence to support the verdict, the judge of the superior court did not err in overruling the certiorari.</p>

<p>1. Tlie rule that “a defense established by the positive and uncontradicted testimony of unimpeaclied witnesses can not lawfully be arbitrarily disregarded” does not mean that the jury are obliged to believe testimony which they in fact discredit, but means that they are to consider the testimony of every witness who is sworn, and not arbitrarily disregard the testimony of any witness on account of liis employment, business affiliations, or environment; and it does not require the jury to believe testimony which is purely opinionative. As to opinionative evidence the opinion of the jury at last is conclusive.</p> <p>2. The evidence authorized tlie verdict in favor of the plaintiff, and the judge of the superior court did not err in overruling the cer’tiorari.</p>

<p>Complaint; from municipal court of Atlanta. May 16, 1914.</p>

<p>1. Unless prompt objection is made to an irregularity or impropriety in the progress of a trial, when known to counsel, it will be treated as having been waived.</p> <p>[a) “To ask counsel publicly in the presence of a jury trying a case whether the jury should be allowed to disperse is error;” but where the judge, on making such an inquiry, called counsel to the bench before any response had been made, and the jury did not hear the response, and it was there agreed by counsel on both sides that the jury might disperse, the court did not err in overruling a motion, made upon the reassembling of the court after a recess, that a mistrial be declared on account of the judge’s question to counsel.</p> <p>2. The evidence authorized an instruction upon the law prohibiting the keeping of intoxicants at a place of business, and the instruction given was not prejudicial to the accused.</p> <p>3. The jury were properly instructed on the law as to the scope and effect of the defendant’s statement to the court and jury, and the court was not required, in the absence of an appropriate and timely written request, to give any further instruction on that subject.</p> <p>4. The statement of a defendant on the trial of a criminal ease is not evidence, and the judge is not required, while giving instructions as to the law applicable,to the consideration of the evidence, to reiterate reference to the .defeJidant’s statement, and to incorporate such reference in each and every instruction relating to the evidence and the law applicable thereto.</p> <p>5. While the jury have the right to consider the defendant’s statement apart from the evidence, and may base their verdict upon hia statement alone, even though it be unsupported, still, when the jury had been fully and correctly instructed to this effect, it was not error to charge as follows: “As to the question of his being guilty upon either one of the theories about which I have charged you, you look to all the evidence and all the circumstances in the case, all the evidence for and against; and in this connection you have the right to consider the prisoner’s statement.” This was not subject to exception on the ground that it depraved the jury of the right to consider the defendant’s statement apart from the evidence, or on the ground that it tended to depreciate the statement.</p> <p>6. In the absence of an appropriate and timely written request for additional instructions, the charge of the court upon the subject of reasonable doubt was not, for any reason assigned, erroneous.</p> <p>7. Bills of lading, supplemented by warehouse receipts, in which one accused of selling intoxicating liquors, or of keeping such liquors on hand at his place of business, has acknowledged the delivery to himself of such intoxicating liquors, may supply a circumstance of such relevancy as to render these papers admissible in evidence.</p> <p>8. The fact that one who was behind the counter of a “near beer”- saloon sold whisky, without hindrance or protest from the proprietor of the saloon or any agent of the proprietor, may authorize the inference that in making the sale the seller was an agent of the proprietor; and it is certainly sufficient to place upon the proprietor the burden of showing that the seller was not in fact his agent.</p> <p>9. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Indictment for larceny; from Coffee superior court—Judge , Quiñcey. September 12, 1914.</p>

<p>Accusation of gaming; from city court of Carrollton—Judge Beall. November 11, 1914.</p>

<p>1. It is not always essential that noise or disorder should disturb more than one person, to constitute a violation of a city ordinance making it an offense to “make any unnecessary noise calculated to disturb the peace and good order of the city, or otherwise act in a disorderly manner</p> <p>2. The evidence in behalf of the city, though somewhat weak and unsatisfactory, was sufficient to uphold the conviction.</p>

<p>Indictment for assault with intent to murder; from Fulton superior court—Judge B. H. Hill. October 24, 1914.</p>

<p>Indictment for abandonment of child; from Haralson superior court—Judge Price Edwards. October 16, 1914.</p>

<p>In a prosecution for a violation of the “labor-contract act” (Penal Code, § 715), the burden rests upon the State to show that there was no sufficient reason for the breach of the contract on the part of the defendant, or, in default thereof, that there was no good and sufficient reason why the money advanced on the strength of the contract was not returned. “Without this proof the State’s case is incomplete, because the prosecution has not created the evidentiary presumption necessary to rebut the presumption of innocence. Presumably the accused had good and sufficient cause.” Thorn v. State, 13 Ga. App. 10 (78 S. E. 853). See also Lewis v. State, ante, 405 (83 S. E. 439).</p>

<p>Certiorari; from Gilmer superior court—Judge Patterson. October 17, 1914.</p>

<p>Certiorari; from Muscogee superior court—Judge Cox presiding. November 16, 1914.</p>

<p>Accusation of misdemeanor; from city court of Tifton—Judge R. Eve. November 6, 1914.</p>

<p>Complaint; from city court of Carrollton—Judge Beall. December, 1913.</p>

<p>Action for damages; from city court of Atlanta—Judge Reid. January 21, 1914.</p>

<p>Action for damages; from city court of Atlanta—Judge H. M. Reid. January 24, 1914.</p>

<p>Action for damages; from.city court of Sparta—Judge Moore. February 17, 1914.</p>

<p>Attachment; from city court of Carrollton—Judge Beall. September 11, 1913.</p>

<p>Action for breach of contract; from city court of Elberton— Judge Grogan. February 23, 1914.</p>

<p>Motion to vacate judgment; from city court of Blakely—Judge Sheffield. February 26, 1914.</p>

<p>Accusation of assault and battery; from city court of Monroe— Judge Stone. March 9, 1914.</p>

<p>Action for damages; from city court of Emanuel—Judge Raw-lings. January 3, 1914.</p>

<p>Action on insurance policy; from municipal court of Atlanta. March 24, 1914.</p>

<p>1. Ordinarily the invalidity of a void contract may be asserted by any person whose interest may be affected by its provisions.</p> <p>2. Generally one may convey to another authority to perform, at any time in the future, an act in his behalf; but a present conveyance of authority to execute a salary order or to complete an assignment of wages, by filling in certain blanks, when the wages have not been earned at the time that the assignment is signed in blank, is void. If the assignment as completed purports to convey to the assignee salary which has been earned prior to the purported date of the assignment, prima facie the assignor’s debtor would be liable to the assignee of the'wages, but payment of the debt for wages evidenced by a purported assignment will not discharge the debtor from liability to the maker of the assignment, if the payment be made with full knowledge of the fact that the assignment is void.</p>

<p>1. The Supreme Court has upheld, the constitutionality of the act approved August 20, 1913, creating the municipal court of Atlanta, and the appellate division thereof.</p> <p>2. A question of law which was neither raised nor passed upon in the lower court can not be considered by a reviewing court.</p> <p>3. The amendment correcting the date of the court’s order was proper.</p> <p>4. Where there is no proper brief of evidence, and apparently no bona fide effort to prepare one, this court will not consider assignments of error which are dependent upon a consideration of the evidence.</p>

Complaint; from city court of Washington—W. A. Slaton, judge pro hac vice. March 6, 1914. D. C. Gartrell sold a horse to Horton, and, being indebted to E. S. Johns, he caused the note for the purchase-money, amounting to $100, to be made payable to Johns, instead of to himself, and turned it over to Johns, with two others, amounting to $135, as collateral security for his debt. The note for the horse was indorsed by J. L. and B. W. Gartrell.

“In estimating the value of personalty unlawfully detained, the plaintiff may recover the highest amount which he can prove between the time of the conversion and the trial.” Civil Code, § 4514. The time of the conversion referred to in this section is the time when the defendant himself converted to his own use the property sued for. Trover; from city court of Tifton—Judge E. Eve. March 14, 1914.

<p>•-Trover ;■ from municipal court of Atlanta. April 6, 1914.</p>

<p>Action for damages; from city court of Douglas—Judge McDonald presiding. Eebrnary 24, 1914.</p>

<p>Affidavit of illegality; from municipal court of Atlanta. April 19, 1914.</p>

<p>1. That the sole consideration of the note upon which the suit was based was an agreement that this note was to be given and accepted in accord and satisfaction of another note, upon which the defendants were liable to the plaintiff, is undisputed; and there is sufficient evidence in behalf of the defendants to authorize a finding that the attempted accord, by the terms of which their note for $450 was to be satisfied by delivering to the plaintiff, in exchange for it, certain mules and a new note for $112, was never executed, for the reason that the plaintiff failed and refused to deliver the first note to the defendants as he agreed, and placed it in the control of the surety thereon, with the result that the surety was subrogated to the rights of the plaintiff, and the defendants were subjected to liability to the surety. This evidence fully supported the plea of failure of consideration,' for unless it appeared that the plaintiff’s-agreement or promise to deliver the $450 note, instead of actual performance by delivery of the note, had been accepted by the defendants in satisfaction, the accord was merely executory. Proof that there was no such completed accord and satisfaction as was essential to supply a consideration for the note in suit authorized a finding for the defendants, because (according to the precise concept of the term “accord and satisfaction”) nothing pertaining to an alleged accord and satisfaction must be left unsettled; and if either the giving or the acceptance in satisfaction be lacking, there can be no accord and satisfaction.</p> <p>2. There is no assignment that any error of law was committed upon the trial; and though there is conflict in the testimony, the evidence warrants the conclusion that since the plaintiff did not comply with his contract to deliver the previous note, the accord was not satisfied; and therefore the court did not err in overruling the motion for a new trial.</p>

<p>Action for damages; from city court of Bainbridge—Judge Spooner. January 9, 1914.</p>

<p>Distraint; from municipal court of Atlanta. May 5, 1914.</p> <p>Oscar MeYere rented an apartment from Withers for a term of six months and ten days from February 15, 1913, under a written contract which provided that the owner was “to furnish heat” in the building until the first day of April. MeYere moved into the apartment February 12, and moved out about the last of February. He paid rent for the time he was in the apartment, but refused to pay more. Withers sued out a distress warrant for unpaid' rent, and MeYere interposed a counter-affidavit, denying that it was due. At the trial he testified: “I never saw the apartment which I leased, but saw one which Mr. Withers said was identical with the one I leased, brit it was not true. The apartment leased was never comfortably heated during the time I remained there. All of the rooms were cold. I had to buy coal the day after I moved in the apartment, and I kept a fire burning continually in the grate in the bedroom while I remained there. I could not keep any servants on account of the fact that the apartment was so cold, and I had to send my wife’s meals to her from town. I notified the office of Ealph 0. Cochran Company [the plaintiff’s renting agent] three times about the lack of heat, and I also notified Mr. Withers three or four times about the lack of heat, and finally he told me that I could move out if I was not satisfied, and I did move out on February 27th or 28th. Several days before that time I had taken my wife to the Marion Hotel on account of the fact of my apartment being so cold that I could not keep her there.” A physician testified that he attended the defendant’s wife seven or eight days while she was living in the apartment in question, and “the apartment was always uncomfortably cold, and there was always a fire burning in the bedroom grate.” Another witness testified: “I lived in the same building with Mr. MeYere, but in the apartment below him, and I lived there for several months and was living there during the month of February, 1913. During the whole time I was there the apartment was never comfortably heated, and during the cold season I kept a fire in my grate all the time. The apartment I lived in was heated by the same furnace as the one which heated Mr. MeYere’s. One of the radiators in my apartment was generally hot.”</p> <p>The plaintiff testified: “I never heard any complaint from the defendant that his apartment was not sufficiently heated, and never heard him make any complaint at all. The whole apartment was heated by the same furnace. I live across the hall in the same building, and I visited the furnace about four times a day, and tlio same is always hot and usually uncomfortably so'. During the time Mr. MeYere was there I was able to buy some extra radiators at a cheap price, and I would have put a part of the same in Mr. MeYere’s apartment, and sent a man out there several times, but he could not get in the apartment. . . I was in Mr. MeYere’s apartment on one occasion. I found one of the radiators in the dining-room turned off.” Another witness testified: “I was connected in February, 1913, with the Ealph 0. Cochran Company, and I rented the apartment in question to the defendant. He called after he went into the apartment to see me, and stated that his wife was sick and he wanted to move out. I did not hear any complaint from him about there not being sufficient heat until he moved out.” Hammond, an engineer and plumber, testified that in November, 1912, he installed the heating plant in the building in question, and that it was amply sufficient to heat the whole building. He testified also that he tried to install some extra radiation in the building, a part of which was to go in the apartment oE Mr. MeYere, and that he was “out on several occasions,” and could not get into the apartment.</p> <p>The verdict was for the plaintiff. The exceptions are to the overruling of the defendant’s motion for a new trial, based on the grounds, that the verdict was contrary to law and to the evidence; that the court erred in the instructions which are set out in paragraph 2 of the foregoing decision; that the court erred in admitting the plaintiff’s testimony that he sent a man to put in additional radiators in the defendant’s apartment, and the man could not get in the apartment, this testimony being objected to as irrelevant because the witness had testified that no additional radiation was necessary, and that he had never received a complaint as to the apartment not being sufficiently heated, and because there was no evidence that the defendant had been apprized of the desire to gain admission to the apartment; also that the court erred in refusing to allow the defendant’s attorney to ask the defendant if he had any conversation with the witness Hammond as to the facilities of the heating plant. It does not appear what answer was expected, or that the expected answer was stated to the court.</p>

<p>For the jury, without the knowledge or consent of the prisoner, to receive and keep in their room, while deliberating on the’ case, articles of goods which “the State sent out to the jury-room,” and which were alleged to have been stolen on the night of the burglary in question, and which had been identified in the presence of the jury, but had not been introduced in evidence, was unwarranted by law, and was presumably prejudicial to the defendant.</p>

<p>Complaint; from municipal court of Atlanta. April 17, 1914.</p>

<p>Appeal; from Franklin superior court—Judge Meadow. March 30, 1914.</p>

<p>Garnishment; from municipal court of Atlanta. May 16, 1914.</p>

<p>Where the killing of the plaintiff’s cow by a train of the defendant was shown, and the plaintiff relied entirely upon the legal presumption of negligence against the railroad company, a recover}'' was authorized unless this presumption was fully overcome by proof. Where there were seeming conflicts \or contradictions, as to material facts in the case, between the opinionative testimony of the defendant’s engineer and the physical facts as disclosed by his testimony, and where the owner of the cow testified that the railroad-track was straight for several hundred yards from where the cow was killed, back toward Albany, and that the train coming from Albany had killed the cow, and that the right of way of the railroad company at this point was such that the cow could have been readily seen for several hundred yards by the engineer of the train, and where it appeared from the testimony of the engineer, who sought to explain the killing and to show the absence of negligence, that he made no effort to stop the train, because he thought it impossible to do so, and that, although he saw the cow when it was 50 or 60 yards distant, it was so close that, in his judgment, it was impossible for him to do anything toward stopping the train before reaching the point where the cow was, and that he did not blow the whistle, or cut off the steam, or make any attempt to keep from hitting the cow, because when he first saw the cow he thought it useless to make an effort to keep from striking it, held, that it was for the jury to determine whether the explanation offered in behalf of the defendant completely rebutted the presumption of negligence created by the killing of the cow; and they might legitimately have concluded that the explanation of the killing was insufficient; the credibility of the witnesses as well as the question of negligence being’exclusively for them.</p>

<p>Accusation of sale of liquor; from city court of Floyd county— Judge Eeece. October 17, 1914.</p>

<p>1. Where a decree of the chancellor clothed with jurisdiction to administer the estate of an insolvent corporation directs that its debtors be sued by the receivers appointed by the court of equity, the decree confers upon the receivers full authority to maintain against a subscriber to the capital stock of the corporation an action for the recovery of an unpaid balance of the subscription. Such a decree can be set aside only in a court of equity, and is not subject to collateral attack in another court. Nor is the validity of the decree affected by the fact that it is interlocutory (for the purpose of marshaling the assets), and not a final decree concluding the administration of the estate of the insolvent.</p> <p>2. Whether a subscription to the capital stock,of a defunct corporation shall be enforced for the purpose of equalizing by contribution stockholders who have paid their subscriptions in full is a matter addressed solely to the discretion of the court charged with the duty of administering the estate of the corporation. The exercise of tlie chancellor’s discretion upon an equitable petition, in directing the receivers to sue and authorizing them to recover sums due on stock subscriptions, leaving the appropriation of the fund when collected to the determination of the court of equity, can not be brought in question by the defendant in a suit brought in pursuance of the order.</p> <p>(a) A direction by the judge of a superior court to receivers appointed by Mm, to collect stock subscriptions from such subscribers as in the receivers’ opinion are “legally liable,” is not a delegation of the court’s equitable powers, but a mandatory direction to the court’s servants and officers not to proceed against any apparent debtor where investigation has developed that he has'a legal defense which would defeat recovery.</p> <p>3. Upon the dissolution of a corporation its property and assets constitute a fund for the payment of its debts and for distribution among its stockholders, and the individual liability of stockholders is an asset of the corporation which may bo enforced by a receiver for the corporation. And if a court of equity, in the exorcise of its powers and in its sound discretion, determines that the assets of a defunct corporation should be marshalled, a judicial ascertainment of the amount due by a debtor of the corporation is not an essential preliminary to the bringing of an action by the receivers to recover upon the alleged indebtedness; for the suit itself, when authorized by the court of equity, is a proper means of ascertaining the amount of the debtor’s liability to the corporation. A suit by the receiver on unpaid stock subscriptions is the same thing as a suit by the corporation itself.</p> <p>4. The fact that a court of equity, in the exercise of its powers and discretion, is administering the estate of a corporation by the hands of a receiver, and that the distribution of the fund when collected can only be effected in a court of equitable jurisdiction, affords no bar to the collection of the assets by the processes of the common law.</p> <p>5. A plea of general issue raises no issuable defense to a suit brought upon an unconditional contract in writing.</p> <p>0. A plea alleging that the time of payment of an unconditional subscription to the capital stock of a corporation has been extended by its directors presents no bar to an action on the contract of subscription, when it is not alleged in the plea either that there was a consideration for the alleged extension or that the directors were authorized by the stockholders to extend the time of payment.</p> <p>7. A plea alleging that a subscriber to the capital stock of an insurance company was relieved from liability because the remedy of the company was to cancel his stock and forfeit all previous payments to the company, but which failed to allege that the requisite notice prescribed by section 2396 of the Civil Code had been given to the delinquent subscriber, or that the stock had’ in fact ever been cancelled, is subject to demurrer, not only for these reasons, but also upon the ground that the remedy provided of cancellation of the stock and forfeiture of payments is cumulative only and does not prevent the corporation from proceeding to collect the unpaid subscription by a suit upon the original contract.</p> <p>8. The provisions of section 2251 of the Civil Code, which gives any citizen the right to sue either the association or a member of the corporation, etc., and to recover from the member or members sued the amount due for unpaid stock, and which properly limits in such a case the amount of the plaintiff’s recovery to the amount actually due him by the delinquent member, does not impose any limitation upon the power of a court of equity to require a complete adjudication of the rights of all parties interested in the subject-matter, nor abridge the court’s power to prevent a multiplicity of suits by determining the respective rights of all parties interested who may be before the court. This code section has no application to a suit in which the receiver is endeavoring to enforce, for the benefit of fully paid subscribers to the capital stpck of the corporation, contribution on the part of those subscribers who have not paid .their subscriptions to the capital stock.</p>

<p>Accusation oí misdemeanor; from city court of Forsytli—Judge Persons. November 7, 1914.</p>

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

<p>Complaint; from city court of Macon—Judge Mathews presiding. January 9, 1914.</p>

<p>1. The court committed no error in refusing to sustain the general demurrer.</p> <p>2. The court erred in striking from the petition the alleged rule of the defendant railway company, that “second-class and inferior trains must approach and run through yard limits under full control, expecting to</p> <p>find tlie main line occupied.” Both the plaintiff as an employee and the railway company were bound by the rules of the company; and the plaintiff, having alleged that he was run over and injured by a second-class train, was entitled to allege and prove that this train was being . operated in violation of the rules of the company.</p> <p>3. It was not error to strike from the petition the following rule, alleged to . be a rule “governing engineers” of the defendant company, to wit: “They must keep a constant and vigilant lookout, while running, for obstructions, defect of track, and signals,” which rule, it was alleged, waá not being observed at the time of the injury; it not appearing from the petition that, if this rule had been observed, the injury would not have occurred, or that the failure to observe the rule contributed in any way to the plaintiff’s injury.</p> <p>4. It was not error to Strike from the petition an allegation that it was customary to ring the bells and blow the whistles of trains passing on a double track, and that this custom was not followed on the trains passing at the time the plaintiff was injured; since it did not appear from the petition that the custom was binding on the defendant, or that the plaintiff knew of the custom or relied on it, or that if the custom had been followed at that time, the injury would not have occurred.</p>

<p>Complaint; from city court of Cairo—Judge Singletary. April 3, 1914.</p>

<p>Trover; from city court of Dawson—Judge M. C. Edwards. March 16, 1914.</p>

<p>Action for damages; from city court of Greensboro—Judge Sibley. April 2, 1914.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. March 19, 1914.</p>

<p>Action for damages; from city court of Macon—Judge Daly. April 15, 1914.</p>

<p>Action for damages; from city court of Thomasville—Judge W. H. Hammond. April 15, 1914.</p>

<p>Affidavit of illegality; from city court of Baxley—D. M. Parker, judge pro hac vice. February 13, 1914.</p>

<p>Complaint'; from city court of Tifton—Judge K. Eve. May 1G, 1914.</p>

<p>Complaint; from city court of Atlanta—Judge H. M. Beid. January 26, 1914.</p>

<p>Complaint; from city court of Atlanta—Judge H. M. Reid. January 23, 1914.</p>

<p>1. As to the several exceptions relating to rulings affecting only the partnership, this case is controlled by the ruling of this court in Gary v. Simpson, ante, 280 (82 S. E. 918).</p> <p>2. An admission which, by shifting the burden of proof, will entitle the party making it to the opening and conclusion of the argument must be such a direct and unequivocal admission of the contention of the opposite party as to the material facts at issue as dispenses with the necessity for proof of those facts, and such an admission as, without more, would require a verdict in favor of the party upon whom the burden of proof originally rested. An admission of the correctness of an account upon which a suit against a partnership is brought, made by one of the individuals alleged to be a partner, who has filed a plea denying the alleged partnership, is not equivalent to an admission of the partnership.</p> <p>3. When a case proceeds to trial, and exception to the verdict is thereafter taken upon the ground that it is contrary to evidence, a consideration of the merits of the court’s ruling upon a motion for nonsuit is merged into the consideration of the sufficiency of the evidence to authorize the verdict.</p> <p>4. (a) While agency can not be proved by mere unsworn declarations of one assuming to be an agent, there is no provision of law that renders the alleged agent himself an incompetent witness to testify to the fact that the relationship exists. One who is in fact the agent of another is just as competent a witness on the subject as the principal himself would be.</p> <p>(b) When notice of a fact is communicated to a general agent or to a special agent in absolute charge of a particular business, knowledge of all the facts suggested by the notice is imputable to the principal.</p> <p>5. In a suit against a partnership and the individuals alleged to compose it, evidence affecting one or more of the partners, though not applicable to another partner, is not for that reason to be excluded from the jury’s consideration of the case as a whole. In this case no harm resulted from the admission of such evidence, since the court instructed the jury not to consider telegrams or letters alleged to have been sent by one of the alleged partners, as affecting the other partner.</p> <p>6. Under the ruling in Armour v. Ross, 110 Ga. 414 (35 S. E. 787), the evidence as to agency was competent, and supports the conclusion that the plaintiff in error was a partner in the alleged firm; and therefore there was no error in the instructions of the court to which exceptions are taken.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. March 2, 1914.</p>

<p>Complaint; from Colquitt superior court—Judge W. E. Thomas. April 10, 1914.</p>

<p>1. The Congress of the United States has, by section 20 of the interstate-commerce act of 1887, as amended by the act of June 29, 1906, section 7, paragraphs 11, 12, 34 Stat. 593, e. 3591 (U. S. Comp. 1913, § 8592), known as the “Carmack amendment,” legislated directly upon the carrier’s liability for loss of or damage to interstate shipments, and this legislation supersedes all regulations and policies of this State upon the same subject.</p> <p>2. Upon common-law principles and authorities, where a shipper signs and accepts from a carrier a bill of lading in which is a clause stipulating that “claims for loss or damage shall be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than ten days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event,” it constitutes a binding contract; and this clause is not void upon the ground that the carrier seeks thereby to limit its liability, and does not give as consideration therefor extra service or monetary consideration to the shipper, or that it is contrary to the public policy of the State. Such a clause, when applied to shipments of perishable products, such as turnips, is not an unreasonable limitation as to the time in which the claim is to be presented.</p> <p>3. A correct judgment will not be reversed even if the reason stated for its rendition is incorrect or insufficient.</p>

<p>Accusation of misdemeanor; from city court of Dublin—Judge Hicks. October 1-9, 1914.</p>

<p>1. Tlie court in charging the jury did not err in the statement of the plaintiff’s contentions.</p> <p>2. In view of the improper argument of counsel, in which it was stated that the ultimate liability for any damages that might be awarded by the jury would fall upon others than the nominal parties in the case, the court’s instructions to the jury on that subject were warranted and appropriate. If the remarks of counsel had been such as tended to inflame passion or to prejudice the minds of the jury, the court might have used a more immediate and drastic remedy, but since the only possible harmful effect of the statement made by counsel would have been to withdraw the minds of the jury from the real issues in the case, the court did not err in refusing to order a mistrial on account of the improper argument.</p> <p>3. The amount of compensation for pain and suffering is determinable only by the enlightened consciences of impartial jurors, and the court correctly instructed the jury that if they found there was an injury, and ' that there was pain and suffering, it was for the jury to ascertain from the evidence the exact injury and the nature of the pain and suffering, whether extreme or slight, and, after they had determined the nature, extent, and duration of the pain and suffering, to fix such an amount as compensation as their enlightened consciences as fair and impartial jurors might dictate. This instruction was not subject to exception as suggesting to the jury to find for permanent injuries.</p> <p>4. A verdict for damages based on personal injuries and pain and suffering-can not be said to be legally excessive unless it is manifestly the result of bias or prejudice, or improper influence.</p>

<p>Appeal; from Pike superior court—Judge E. T. Daniel. January 31, 1914.</p>

<p>Complaint; from city court of Tifton—-Judge R. Eve. May 5, 1914.</p>

<p>Distraint; from municipal court of Atlanta. May 16, 1914.</p>

<p>Motion to set aside judgment; from city court of Leesburg— Judge Greer presiding. January 16, 1914.</p>

<p>Action for damages; from city court of Valdosta—Judge Cranford. February 6, 1914.</p>

<p>Action for damages; from city court of Yaldosta—Judge Cranford. February 6, 1914.</p>