Volume 156 — Georgia Reports

Affidavit of illegality of execution. Before Judge Worrill. Early superior court. October 3, 1922. The proper authorities of Early County made a tax levy during the year 1921 for the following purposes: “ 1. To pay the legal indebtedness due, or to become due during the year 1921, or past due, 4.65 mills. 2. To pay the bonded indebtedness of the county, together with interest thereon, 1.00 mills. 3.

<p>Validation of school bonds. Before Judge Worrill. Terrell superior court. July 11, 1922.</p> <p>This was an action to validate a proposed issué of bonds for the “New Bronwood School District,” Terrell County. The trustees of said district, in their answer, admitted all of the allegations in the petition, and also annexed as exhibits such parts of the record as the co.unty-tax levy for the year 1921; resolution of the county board of education consolidating the district; the issuance of commissions to the trustees of the district; resolution of the district ■ board calling the election for the bonds; notice of the election and the amount of bonds, the period at which they were to fall due, and the interest to be paid; list of registered qualified voters in the district; consolidation of the votes cast, and a copy of the returns of the election, showing number of votes cast 208, in favor of bonds, 182, against bonds 26, total number of registered qualified voters 283; also compliance with the statute in regard to the proceeding for validation. M. E. Jennings and others intervened and denied all of the allegations of the petition and the answer, except that the County of Terrell, is a local-school-tax countj'- and has been since the year 1906, and that the said county was then and has since remained subdivided into school districts, none of which, as a unit, have local taxation for schools, and have never had. It was agreed by the parties that intervenors were citizens of the district and taxpayers therein. The intervenors demurred to the petition on the grounds: (1) The answer of Martin et al. discloses that there are no legal trustees, or any trustees authorized by law calling an election, passing resolutions, or to hold an election. (2) The petition and answer are insufficient to authorize the validation. (3) Section 143 of the School Code of Georgia (Acts 1919, p. 345), as amended by the act of 1921 (Ga. L. 1921, p. 22), is unconstitutional and void, for the reasons: (a) the same is in violation of art. 8, section 4, par. 1, of the constitution (Civil Code (1910), § 6579), in that “said act authorizes the issuance of bonds for schoolhouses by local district or consolidated district, which has heretofore not levied a local tax, which said local district or consolidated district is in fact a subdistrict in a county, which county did prior to the date of the passage of said act as amended, and since, and does now levy a county-wide tax for school purposes;” (&) “said act authorizes the creation of a debt for a purpose, and by a subdivision of a loeal taxed county, which is unauthorized by and in ■ violation of” the-constitutional provision mentioned; (c) “said ■act delegates the power of taxation to a subdistrict, or consolidated district, which is a part of a county-wide system already levying a tax for school purposes, and for a purpose unauthorized by the ” constitutional provision mentioned, “ but if authorized. for the purpose named such power is vested in the county as a corporate entity, and not in any subdivision thereof;” (d) said act' violates art. 11, sec. 1, par. 1, of the constitution, which provides that ■each 'county shall be a body corporate, with such powers and limitations as may be prescribed by law;- (4) said act is violative of art. 1, sec. 4, .par. 1, of tire constitution, which provides that no special law shall be enacted in any case for which provision has been made by an existing general law, for the reason: (a) that upon the passage of said act there was a general law, and is now, existing in the State of Georgia, covering the subject-matter in question, same being found in section 440 et seq. of Park’s Code, which provides for the method of holding elections for bonds in the State of Georgia, by any county, municipality, or subdivision thereof, all of which is contravened by section 143 of the School Code, as amended in the following-respects : The general law provides that the officers charged with levying taxes, etc., for the county, municipality, or division shall give notice of the election as set forth in par. 440 of the Code, which notice shall specify the amount of bonds, etc. School Code, section 143, provides that the board of trustees shall follow the law as embodied in section 440 et seq. of the Code. It further provides that said board of trustees or board of education shall give notice of the election, the same being in contravention of the general law, in that said officers have no power or authority to levy taxes, and the general law contained in section 440 of the Code limiting the authority to give notice to the officers charged with levying taxes; (&) further, that section 441 of the Code provides that the election shall be held by the same persons and in the same manner, and under the same rules and regulations, that elections of said county, municipality, or division are held, and the returns shall be made to the officers calling or ordering the election, who shall, in the presence and together with the several managers, consolidate said returns and declare the results, it being insisted that section 143 as amended is at variance therewith, 1st, because said act provides that the board of education may order said election to be held at the school site or elsewhere, upon notice posted at three public places in said school district, not less than ten days'previous to election; (c) that the tax-collector shall furnish a certified list of the registered voters in the school district to the managers of the election ten days before the election; (d) that the ballots cast and the voting list shall be lodged with the board of trustees or board of education; (e) that the board of education or board of trustees shall be the election managers, and if for any reason they fail to act any three freeholders of the school district may qualify and act; (/) that there is no provision for the consolidation under section 143 of the School Code. (5) “ Sáid act is unconstitutional and void, for the reason that the same does permit and authorize a subdivision of a county to contract a debt, which subdivision has no authority so to do, and in a manner and fashion which is in violation of par. 1 and 2, section 7, article 7 of the constitution of the State of Georgia, and of the general law based thereon, found in section 440 et seq. of the Code, which said section 143 is at variance with the general law found in section 440 et seq. for the reasons assigned in the paragraph, supra, in the details mentioned therein, and especially in the details referring to the manner in which the election shall be called, by whom held, by whom the lists are to be furnished of qualified voters; by whom the results are to be declared, and the basis upon which the result is to be declared, it being insisted that the provisions in the School Code, section 143, are wholly at variance with those set forth in the general law, as found in code section 440 et seq.; and further, that there is no basis upon which the results may be declared of an election held, found in the school code, section 143.” (6) “ There is no provision of law authorizing local trustees of a local school district of a county having a county-wide taxation for schools to contract a debt binding the taxpayers of said local school district, or any property therein, or any resident therein, for payment of said debt; and for the further reason that there is no provision of law constituting said local trustees a body corporate, with power to sue and be sued, to plead or be impleaded, or with power to levy a tax to pay any debt attempted to be contracted by them; and for the further reason that there is no provision of law whereby the holders of bonds executed and signed by trustees of local school districts can enforce the collection of said bonds.” They also demurred specially to the second paragraph, for the reason that it does not set out how Terrell County became authorized to levy a local tax for schools, and does not set out how long said local tax has been levied; and to paragraph five, for the reason that a copy of the petition of more than one fourth of the registered qualified voters of said school district calling for’ election is not set out or attached. The demurrer filed by the intervenors was overruled, and error was assigned upon that judgment, as well as the order of the court validating the bonds.</p>

Petition for injunction. Before Judge Sheppard. Chatham superior court. June 23,' 1922.

<p>Certiorari from Court of Appeals. 29 Ga. App. 290.</p>

Equitable petition. Before Judge Sheppard. Liberty superior court. April 15, 1922. E. J. Groover and his brother, James J. Groover, called also “ Jesse Groover,” were grandsons of James W. Groover. The former lived in Tattnall Count-y, Georgia, and the latter two lived in Liberty County, Georgia.

<p>1. A complaint that the trial judge ruled out specified testimony cannot be sustained when the approved brief of evidence shows that this very testimony was admitted at some stage of the examination of the witness.</p> <p>2. On a trial for murder, an instruction based on the statement of the accused that during his absence the deceased had committed adultery with the wife of the accused was not subject to the assignment of error that it injected into the case a contention and an issue not made by the evidence or by the defendant’s statement or by any inference to be drawn therefrom.</p>

<p>1. It is unnecessary for a judge of the juvenile court’ of Fulton county to have his claim for salary audited or approved by the board of county commissioners. This court having been created by law, and the method of compensation having been provided by law, and the amount of his salary having been fixed for a designated term, and it being further provided by law that all of the expenses of the court should be paid out of county funds, it is the duty of the county treasurer to pay the salary fixed in accordance with law when earned as demanded. Upon the re'fusal to pay, mandamus will lie against the treasurer of the county to compel payment of any part of the salary when by law it is payable and after it has been demanded, although at the time of making demand no formal warrant had issued therefor.</p> <p>2. The word “ fix,” as ordinarily used, means to place securely, settle, determine, immovable, unalterable. The term imports finality and stability.</p> <p>3. The judges of the superior court of Fulton county, who are authorized by the act of 1915 (Acts 1915, p. 35) to appoint for a term of six years and fix the salary of a judge of the juvenile court, have no power during the term to alter the salary of such judge. “ It is a well-settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services.” 1 Dill. Mun. Cor. (5th ed.) § 426. Consequently the reason stated in the order of the judges, “ that the present salary received by the judge of said court is not commensurate with the amount of work he is required to perform,” affords no legal ground for an increase of the salary of the judge of the juvenile court; and it was error to require the county treasurer of Fulton county, by mandamus absolute, to pay the judge of the juvenile court a salary of $450 per month instead of $350, which was the compensation fixed by the original order of his appointment.</p>

Petitions for mandamus and injunction. Before Judge Dickerson. Chatham superior court. January 16, 1923. An election for mayor of the City of Savannah was held on January 9, 1923.

<p>Injunction and receivership. • Before Judge Ilighsmith. Jeff Davis superior court. June 30, 1922.</p> <p>In a contract of sale of a cotton-oil mill and ginning outfit and eight acres of land on which they were located, purchase-money notes aggregating $49,554.66 for the price of the entire property were executed by the vendee, who took possession under a bonil for title. The latter instrument contained an accelerating clause whereby all the notes might be declared due by the payee on failure to pay one of them at maturity. The notes were indorsed by the payee in blank. Before maturity of the first note the oil-mill and appurtenant buildings, except a small office building, were destroyed by fire. All that was left of the property was the land, the office-building, the ginning outfit and certain salvage consisting of damaged machinery, bricks, and other equipment of the .oil-niill. The property so remaining was of the value of $5000, which, when added to the amount of $35,523.10 realized from insurance on the burned property that had been paid into the United States court, in a pending suit, was insufficient to pay all the purchase-money notes. The vendee was insolvent and failed to pay the first note at maturity. Suit was instituted by alleged transferees of the notes, for judgment on the notes, to be declared a lien on the land; for injunction to prevent the vendee from disposing of the salvage; and for appointment of a receiver to take charge of the salvage, land, and office building, to be held subject to the order of the court. The answer of the defendant denied allegations in the petition to the effect that the vendor had conveyed the land to plaintiffs, and that plaintiff was holder of the notes; and alleged that the notes were transferred by the vendor to a named bank, and that such bank was holding and demanding -payment thereof. After the filing of the answer the bank last mentioned filed an intervention alleging that it held the notes under the plaintiffs as collateral security for an indebtedness of the plaintiffs, and praying for judgment, injunction, and receiver. The order sanctioning the original petition contained provisions restraining the defendant and appointing a temporary receiver, and ordering the defendant to show cause at a stated time and place why a receiver should not be appointed and an injunction should not issue as prayed. After several postponements the hearing came on at chambers more than six months after the date of the rule nisi. There was never any order with respect to the taking- or filing or service of affidavits to be used at the hearing. The intervenor did not introduce any evidence. After introduction of evidence by the plaintiffs and defendant, the judge appointed a permanent receiver and enjoined the defendant, as prayed, until the further order of court. The defendant excepted.</p>

<p>Equitable petitions. Before Judge Park. Jasper superior court. October 10, November 20, 1923.</p>

Equitable petition. Before Judge Searcy. Butts superior court. December 19, 1922. This is the second appearance of this case in this court. See Ham v. Preston, 152 Ga. 244 (109 S. E. 505), where the allegations of the petition are substantially set out. Attached to the petition are copies of the deeds — which the plaintiff, J. H. Ham, seeks to have canceled. The consideration stated in each of these deeds is love and affection and $5.

<p>Where a plaintiff' in ejectment obtained a verdict and judgment for the premises in dispute, and the defendant, excepting to the refusal of a new trial, obtained a supersedeas by making an affidavit in forma pauperis and brought up the case by writ of error, being insolvent and remaining in possession of the premises and in the enjoyment of the mesne profits, a petition by the plaintiff, invoking the equitable powers of the superior court to prevent loss, and praying that a receiver be appointed to take charge of the premises and hold the proceeds of rents subject to the order of the court and to the final determination of the ejectment case, was not subject to demurrer for want of equity and of ■ jurisdiction to entertain such petition and to pass any order as to the subject-matter.</p>

<p>Injunction. Before Judge Worrill. Early superior court. August 19, 1922.</p>

Equitable petition. Before Judge J. B. Jones. Lumpkin superior court. October 28, 1922.

<p>Claim. Before Judge Hutcheson. Campbell superior court. September 25, 1922.</p>

<p>1. This being a suit by a wife against her husband for permanent alimony, it being alleged that the husband and wife were living in a bona fide state of separation, the court did not err in excluding from evidence the testimony of a witness to the effect that prior to the separation of the husband and wife he made improvements on a house .which was upon a farm belonging to the complainant, and that the same were paid for by the husband; there being nothing in the evidence, so far as appears from this ground of the motion for new trial, to show how long before the separation the improvements were made nor the value of the same.</p> <p>2. The court did not err in refusing to permit a witness for the complainant to testify that at one time he went to the house of the defendant and shot at him. This evidence was offered for the purpose of showing the state of feeling of witness toward the defendant; but it was not allowable to give testimony of particular events or particular acts upon tbe part of the witness, where he had not denied having unkindly feelings towards the defendant, but, rather, had indicated by his answers that his feelings towards him were not kindly.</p> <p>3. Error is assigned upon the ruling of the court admitting in evidence a certain depreciatory remark set forth in the motion; but there is nothing in the ground of the motion to indicate to whom the witness referred as the person who made tile remark quoted, nor to whom the person making the remark referred; and the court will not look to other parts of the record in order to make intelligible the assignment of error and to ascertain the materiality of the evidence.</p> <p>4. The court did. not err in admitting competent evidence to show what ^vould be reasonable attorney’s fees in the ease, this being a suit for permanent alimony and attorney’s fees.</p> <p>5. There is no merit in the exception to the following charge of the court: “How I charge you, gentlemen of the jury, to begin with, I will give you the rule that would entitle the plaintiff to recover.” In view of the fact that in other portions of the charge the court properly instructed the jury that whether the plaintiff was entitled to recover at all or not was a question for them to determine from the evidence, under the instructions of the court, this charge was not likely to mislead the jury and cause them to believe “ that the court intended for plaintiff to recover under the instructions he then proceeded to give them.”</p> <p>6. It is not error for the court to fail in his charge “ to define the probative value of expert testimony on the question of disease and its communication, as charged in complainant’s amendment, and as appears in the testimony of defendant.”</p> <p>7. The court erred in failing to give in the course of its instructions a definition of cruelty or cruel treatment, as those terms are defined in the law.</p> <p>8. The failure of the court to define habitual drunkenness, in the absence of a written request to charge upon that subject, was not error. There is no such difference between the ordinary signification of this expression as derived from the definition given by lexicographers from the meaning of the expression in the law, as would cause the jury to fall into error upon this subject.</p> <p>9. In view of the ruling which reverses the judgment of the court below and which has the effect of setting aside the verdict, it is unnecessary to pass upon the question made by the demurrer to the motion made by the defendant in the first case, who is plaintiff in error in the second ease, to set aside so much of the judgment in the second case as awards attorney’s fees.</p>

<p>1. The refusal of the judge to grant a new trial on "the ground that the verdict was unauthorized by the evidence and excessive in amount, being for decision by a full bench of six Justices, who are evenly divided in opinion, Russell, C. J., and Atkinson and Hines, JJ., favoring an affirmance of the judgment as to this ground, and Beck, P. J., and Hill and Gilbert, JJ., favoring a reversal thereon, the judgment of the trial court refusing a new trial as to this ground stands affirmed by operation of law.</p> <p>2. In a suit for divorce, where the final verdict granting the wife an absolute divorce awards to her as permanent alimony specific real estate and negotiable securities and a stated amount of money, the wife is entitled, under the statutes of this State, to a decree vesting absolute legal title to the property in her, without any restrictions or limitations as to its disposition or enjoyment. Applying this principle, the judge erred in restricting the wife to the use of income from property of the character above mentioned.</p> <p>3. In a suit instituted by a wife for a divorce and permanent alimony, -where the verdict of the jury grants a final divorce between the parties and awards to the wife specified property, as indicated in the preceding division, as permanent alimony, there is no provision of law which authorizes the judge in rendering a decree on such verdict to direct that the fees of the attorneys for the plaintiff be paid out of the property awarded as permanent alimony.</p> <p>4. Where property is awarded as permanent alimony under circumstances stated in the preceding notes, it is not erroneous to refuse to include in the decree a provision that the wife, as a condition to receiving the property, shall give security for the forthcoming of the property at the death of the wife, or to appoint a receiver to hold the property and pay income therefrom to the wife.</p>

<p>Reformation of contract. Before Judge Bell. Fulton superior court. October 10, 1922.</p>

Claim. Before Judge Roop. Meriwether superior court. November 28, 1922. On May 4,1914, Samuel Lovejoy executed a security deed under the provisions of the Civil Code (1910), §§ 3306 et seq., conveying described realty to the Standard Home Company, as security for a loan. While the security deed was outstanding a judgment was obtained against Samuel Lovejoy by the Georgia Real Estate Loan and Trust Company, dated February 3, 1919, in the city court of Greenville.

<p>Equitable petition. Before Judge Hutcheson. Delvalb superior court. December 9, 1922.</p>

Injunction. Before Judge W. E. Tbouias. Lowndes superior court. July 22, 1922. The charter of the City of Valdosta (Acts 1901, p. 670) authorized paving of streets on the basis of assessment of portions of the cost of the improvement against abutting property and street-railways or other railroads having tracks running through or crossing the streets, the balance of the cost to be paid from other sources.

<p>Petition for injunction. Before Judge Kent. Laurens superior court. December 16, 1922.</p>

<p>Motion to dissolve injunction etc. Before Judge Littlejohn. Macon superior court. January 22, 1923.</p>

<p>Equitable petition. Before Judge Tarver. Whitfield superior court. January 19, 1923.</p> <p>Sapp, as administrator de bonis non upon the estate of James H. Lowery, filed a petition praying for direction as to the distribution of the estate. The will recites: “I give and bequeath to my daughter, Margaret J. Lowerjq and my son, J ames K. Lowery, jointty, all my real and personal property that I may own at my death. If the said Margaret J. or James K. Lowery wish to sell any of the property, it must be sold with the free consent of both parties; one cannot sell without the consent of the other. If there is any of the property remaining at their death, it must be equally divided between my other children.” James E. Lowery died in 1915, and Margaret J. Lowery died in 1921. The petition recites that while they were in life and in possession of the testator’s estate they became indebted upon two promissory notes, one for $275 payable to Effie Lowery, and the other for $130 payable to Cora L. Henderson; that after the death of James E. Lowery, Margaret J. Lowery became indebted to W. H. Bartenheld for services rendered and supplies furnished; and that the moneys so advanced were used for the purpose of paying taxes, assessments, and repairs on the realty, and for the protection thereof against sale to satisfy said taxes, assessments, etc., and to preserve the property from decay. The answer admitted the relationship of the parties. and the provision of the will as alleged, but denied or demanded proof of other allegations of the petition. By agreement the matter was submitted to the court without the intervention of a jury. The only evidence offered was that of Bartenfield, that the moneys advanced by him were expended in payment of insurance premiums,, taxes, grocery, coal, drug and repair bills;, that “T lived with James E. and Margaret Lowery as one of the family. Sometimes she would send me to pay various items of expense, such as taxes, insurance, grocery bills, etc. If she did not have enough money T would use my money to pay the difference. I think the amount I claim represents about the amount furnished by me. I didn’t keep any account of it or take any note or transfer of the tax executions, because I never expected to get it. When I got receipts for the various amounts I would take them and turn them over to her, including the tax receipts.”</p> <p>The court held that the will of’James II. Lowery gave to James E. and Margaret J. Lowery “ a life-estate with power of disposition, with remainder over to the other children of J. H. Lowery in all property not disposed of at the death of Margaret and James E. Lowery,” and that the various claims mentioned “are not proper charges against the estate of J. H. Lowery, nor equitable liens against the remainder interest of the children of J. II. Lowery other than Margaret J. and James E. Lowery in said estate;” and directed distribution of the estate accordingly, to the heirs of James H. Lowery, to the exclusion of said debts. To this decision Cora L. Henderson, Effie Lowery, and W. H. Bartenfield excepted, assigning error because that the court should have held and adjudged that their several claims were valid charges upon the assets in the hands of the administrator, and should be paid by him before said assets were distributed to the heirs.</p>

<p>Claim. Before Judge Higbsmith. Wayne superior court. February 6, 1923.</p> <p>A fi. fa. issued'from the city court of Jesup, in favor of Birmingham Trust & Savings Co., trustee in bankruptcy of Standard Home Co., for the aggregate amount of $1207.59, was levied upon two adjoining parcels of real estate fronting 84 feet and 50 feet, respectively, on Plum Street in the town of Jesup, having a depth of 250 feet, as the property of M. N. Stowe. . A claim to the property was interposed by Mrs. Georgia G. Stowe. Plaintiff in fi. fa. filed an equitable amendment in aid of the levy, setting out that M. N. Stowe executed to Standard Trust Co. (which became, by change in name, Standard Home Company), a mortgage covering the lot 84 feet wide, to secure the payment of a series of promissory notes, and subsequently made to Standard Home Company a mortgage covering both pieces of property mentioned, to secure another series of notes; that he failed and refused to pay certain of the notes in each series; that he suffered said property to be sold for taxes due to the town of Jesup and at the sale had pretended to bid the same off for his wife, Mrs. Georgia G. Stowé; that this was done for the purpose of defrauding plaintiff and destroying the lien of the mortgages mentioned; that the amount of the tax fi. fa. levied upon said property was $53.55; that this amount included not only taxes upon the property mentioned, but also upon other realty and seven or eight hundred dollars worth of personal property of M. N. Stowe; that although the property mentioned was worth $1500 or more, and notwithstanding the fact that Stowe owned other property sufficient to cover said taxes, he pointed out the property covered by petitioner’s mortgages, and at the sale bid the same in for barely enough to pay the taxes; and that the deed made in pursuance of said sale was therefore fraudulent' and void. The prayers were, that M. N. Stowe and the marshal of Jesup be made parties defendant; that the mortgages mentioned be foreclosed and the equity of redemption of M. N. Stowe barred; that plaintiff have judgment for the indebtedness named; that the lien of'the mortgages be set up'and established against the land; that the same be sold for the purpose of satisfying said indebtedness; and that the tax deed made by the marshal of Jesup to Mrs. G. G. Stowe be canceled as a cloud upon the title to said land and upon the lien of plaintiff’s mortgages.</p> <p>Both the defendant in fi. fa. and the claimant filed answers denying the material averments of the equitable amendment. Upon the trial the plaintiff introduced in evidence the fi. fa. in its favor against M. N. Stowe, with entry of levy, the unpaid notes, the mortgages with entries showing them to have been duly recorded, deeds under which Stowe acquired title to the two pieces of property, deed made by the marshal of the town of Jesup to Mrs. G. G. Stowe, reciting a consideration of $60.55, together with other documentary evidence; and offered oral testimony to the effect that the written application made by Stowe to the Standard Home Co. for a loan recited that the applicant was worth $4000 above liabilities; that the property mentioned was worth in 1916, at the time it was sold for taxes, approximately $1800 to $2000; that the lot fronting '50 feet on Plum Street was worth about $400, and could have been sold without the other lot. The claimant introduced the tax fi. fa. issued by the town of J esup against M. N. Stowe, together with entry of levy and other documentary evidence. She also offered the testimony of M. N. Stowe and herself, to the effect that at the time of the tax sale mentioned M. N. Stowe did not own any other property; that there was a dwelling-house on the lot 84 feet wide; that the barn was located on the lot 50 feet wide; that the property was not susceptible of subdivision; that Mrs. Stowe had paid for the property involved in this litigation, together with other property acquired from her husband,, with money derived from her father’s estate; and that at the tax sale her husband bid off the property for her. The jury returned a verdict for the claimant. A motion of plaintiff in fi. fa. for a new trial was overruled, and upon this judgment error was assigned.</p>

<p>Questions certified by Court of Appeals (Case No. 13847).</p>

Injunction. Before Judge Crum. Dooly superior court. February 17, 1923.

<p>1. In an ordinary levy and claim case the sole issue is as to whether or not the property levied upon is subject to the execution.</p> <p>(а) Accordingly, it was not error for the court to disallow an offered amendment to the claim affidavit, which amendment is quoted fully in the first division of the opinion.</p> <p>(б) The rulings of the court on the question of the inadmissibility of certain evidence set out in the opinion, and the charge of the court, being in accord with the above ruling, were not error.</p> <p>2. In view of the entire charge as set out in the 3rd division of the opinion on the subject of estoppel, there is no merit in .the criticism that the court failed to charge as contended in the third ground of the motion for new trial.</p> <p>3. The evidence, though conflicting, authorized the verdict, and the court did not err 'in refusing a new trial.</p>

<p>The court erred in directing the verdict. The evidence introduced, with all reasonable deductions or inferences therefrom, did not demand the particular verdict directed by the court.</p>

<p>Complaint. Before Judge Bell. Fulton superior court. February 5, 1923.</p> <p>Harry F. Christie and the Dennison Manufacturing Company brought suit against “William A. Wright, who is Comptroller-General of the State of Georgia,” and made this case: The Dennison Manufacturing Company, a Massachusetts corporation with an authorized capital of $7,000,000, maintains its principal office and place of business and operates its factory in Framingham, Mass., being engaged principally in the business of manufacturing tags and other specialties and selling articles to dealers in Georgia and throughout the Hnited States. In 1919 this company conducted its entire business and effected all sales at its said principal office. In so doing it employs sales agents, representatives,’ and traveling salesmen who solicit and take orders for its products throughout the Hnited States. Each sales agent and representative travels and conducts his employment in a limited territory. The company determined all its sales policies and prices, employed all its sales agents and representatives, defined their duties, received and accepted or rejected all orders for its products secured by them or otherwise from dealers in Georgia and elsewhere in the Hnited States, made all shipments of its products from said factory directly to buyers, sent out all invoices directed to them, and collected all accounts and received all moneys due from sales directly from buyers, and kept all original records relating to sales to Georgia buyers at its said principal office. The company conducted no business in 1919 in Georgia through the agency of Christie other than herein set forth. The company was engaged in interstate commerce alone in 1919 in Georgia. It did not then and does not now operate a factory or manufacturing plant, manufacture any of its products, or own any real estate in Georgia. Christie was employed exclusively by the company as sales agent and representative at an annual salary, of $5000. Christie was engaged in no occupation and was conducting no business in Georgia other than that of soliciting and taking orders for its products, with and without the use of samples, for this company from dealers residing in Georgia, South Carolina, Florida, Alabama, and Mississippi, and forthwith transmitting such orders directly to the company at its said principal office for acceptance or rejection, and conducted said business subject to the supervision and control of the company at said office.</p> <p>The company maintained an office in the City of Atlanta in its name, from which Christie so conducted his said employment in said State. In making sales of its products to dealers in said States, the company employed six additional sales agents and representatives who conducted their employment under the immediate supervision and direction of Christie, the district manager. None of said additional representatives had a place of business or office in Georgia. They conducted no business in Georgia other than that of soliciting and taking orders for its products with and without the use of samples, which were forthwith transmitted directly to the company at its principal office for acceptance or rejection. In the event of the acceptance thereof, shipments were made by the company directly to the Georgia buyers from without to within the State of Georgia. Of the orders taken by and under the direction of Christie during 1919 from dealers residing in said States in the course of his employment approximately 70 per cent, were from dealers in South Carolina, Florida, Alabama, and Mississippi, and approximately 30 per cent, were from dealers in Georgia. Christie employs one stenographer and one.filing clerk in his office. All expenses incurred in maintaining, said office, including rent, salaries, postage, incidental and traveling expenses incurred by him and said additional sales agents and representatives, are paid by Christie from a fund provided for that purpose by the company and deposited in a bank in Atlanta, with the exception that the salaries of said additional agents and representatives exceeding $1200 per annum are paid by the company directly from its principal office. Christie’s salary is likewise so paid. Christie, in conducting his said office and employment, keeps no books, renders no invoices to buyers, collects no accounts, and receives no money due from sales to Georgia buyers, and maintains no bank account in Georgia as hereinbefore set forth in the name of the company. He keeps on file in said office letters received and copies of letters written by him, a record of orders taken under his direction, and other papers and records necessary to the conduct of his employment. No stock of the products of the company is kept or carried in Georgia in anticipation of future orders and for immediate delivery pursuant thereto. Christie keeps on hand in said office a few salesmen’s samples which are not intended or offered for sale or sold, but are used solely in soliciting orders. The company ships no products in Georgia except from its factory directly to Georgia buyers in original packages upon orders therefor received from such buyers, either directly or through the agency of Christie or otherwise, and accepted at its said principal office.</p> <p>The act of August 20, 1918 (Acts 1918, p. 43), known as the general tax act, effective Jan. 1, 1919, as amended by the act of August 19, 1919'(Acts 1919, p. 45), imposes “upon every agent or representative of any foreign or non-resident corporation, said agent or representative having a place of business or office in this State, in addition to all other taxes now required of them by law, . . an annual license or occupation tax fixed in accordance with the capital stock of corporation represented by them,” this statute imposing an occupation tax of $600 upon a corporation having a capital of over $2,000,000. It requires every sales agent or representative to go before the ordinary of the county in which he proposes to conduct said business and register his name, the business in which he proposes to engage, the place where it is to be conducted, and to pay in advance said occupation tax. Failure to register and pay said tax is a misdemeanor, and-subjects such agent or representative, upon conviction, to the payment of a fine of not less than $1200, or to imprisonment as prescribed by section 1065 of the Penal Code, or to both. As applied and of force, said act requires this company to likewise register and in effect pay in advance said occupation tax of $600. To require Christie to register and pay said tax as a condition precedent to his right to engage in said business would necessarily result in depriving him of a lawful right to engage in such business, the same constituting interstate commerce free from taxation and burdensome regulations, and would necessarily result in depriving said company of its lawful right to engage in such interstate commerce in Georgia. Said tax act attempts to tax interstate commerce by imposing upon Christie a tax payable in advance for the privilege of engaging in and conducting said business in this State as the agent and representative of this company; and undertakes and attempts to impose a condition upon his lawful right to engage in interstate commerce by requiring him to register. For this reason said provisions of said act are unconstitutional and void, because they burden and regulate interstate commerce, contrary to the interstate commerce clause of the Federal constitution.</p> <p>William A. Wright, who was and is the Comptroller-General of Georgia, demanded that Christie as the agent of said company pay said license and occupation tax for 1919 of $600, or be subject to prosecution for a misdemeanor for failure so to do and doing business without registering and paying said tax. In order to avoid trouble payment was made of said amount under protest. The exaction of the $600 by the defendant was without legal authority, as said tax act as applied to said Christie or said company is unconstitutional, null and void. “ This suit is accordingly brought for the recovery of said six hundred _($600) dollars of and from the defendant, which, with . . interest thereon from April 25, 1919, at the legal rate, constitutes the damages which plaintiffs are entitled-to recover herein from the defendant.” Attached to the petition was a letter from the Dennison Manufacturing Company'and Christie to the Comptroller-General of Georgia, enclosing a check of the company for $600 to pay said occupation tax. This letter recites that “ The payment of this tax is made only by virtue of the demand made by your office that this tax must be paid either by said agent or by this company, and is made under protest,” because neither the company nor said agent is liable therefor, as they are engaged solely in the transaction of interstate commerce in this State.</p> <p>To this petition the defendant demurred on the ground, among others, that no cause of action is set out therein. The court sustained that ground of demurrer, and dismissed the petition. To this judgment the plaintiffs excepted.</p>

Habeas corpus. Before Judge Kent. Laurens superior court. May 21, 1923.

<p>Equitable petition. Before Judge Humphries. Fulton superior court. May 15, 1923.</p> <p>Dorothy B. Beeves filed her petition against P. P. Jackson, and made this case: On August 5, 1920 she was the owner, subject to a loan of $600, of certain described real estate, which she paid for from her own earnings on April 30, 1920. On August 3, 1920, she was the wife of H. A. Beeves. On the latter date her husband and Jackson represented to her that her husband was indebted to Jackson in the sum of $500, and owed a certain automobile company the sum of $1400 for repairs on his automobile, which said repair bill would, under certain conditions, be paid by the defendant, and that her husband had agreed to pay this amount of $1900 to the defendant, but her husband and defendant desired that she execute a series of notes for the sum of $50 each, one of which would mature each week thereafter, which notes would be paid by the husband. The husband and defendant desired and insisted, over her protest, that she execute a deed to her real estate to secure the payment of these notes. The husband represented that he would pay the notes. The defendant and his attorney represented to her that, the debt for which the notes were given and to secure which her deed was executed being that of her husband, the defendant would look only to her husband for payment of her notes, and would not hold her and her property liable for the debt. Having confidence in her husband and the defendant, and believing their representations, she, on August 3, 1920, executed a series of 46 notes, as above described, of the aggregate amount of $2300; and on August 5, 1920, upon further representations and insistence of her husband and the defendant, she executed her deed to certain real estate to secure said notes, a copy of the deed being attached as an exhibit to the petition. On August 5, 1920, she was. the owner, in her own right and as a part of her estate which she had paid for with her own earnings, of a certain described soda-fount and cash register. On that date the defendant and her husband represented, to her that her husband was that day, in consideration of love and affection, giving her said automobile; and, at the insistence and suggestion of defendant, her husband executed to her a bill of sale to said automobile, a copy of which is attached as an exhibit to the petition. The defendant, by his representations and those of his attorney and her husband, induced her to execute to the defendant a bill of sale of said soda-fount, cash register and automobile for the consideration of $2300. A copy of this bill of sale is attached to the petition as an exhibit. The defendant, his attorney, and her husband represented to her thát her husband was indebted, in the amounts above named, to the defendant; and that while she was assuming her husband’s debts and was pledging her estate to secure the same, she would not be expected to pay the same. She did not owe the defendant anything, and did not receive any benefit whatsoever as a result of her said conveyances and notes.</p> <p>The minimum market value, on August 5, 1920, and November 2, 1920, of the soda-fount and cash register was $600; and the minimum market value of said automobile as represented to her by the defendant was from $2000 to $2500.</p> <p>She was not called on to pay the first of said notes and heard nothing more from the defendant until November 2,. 1920, when the defendant caused to be issued from the superior court of Fulton County a bail-trover proceeding against her for the recovery of the cash register and soda-fountain, which was served by the sheriff, under which she was forced to surrender the possession and use of said property; but to her best information and belief the defendant also got possession of said automobile. She does not know what has become of all of said property seized under said proceeding, but to the best of her information and belief the same was taken possession of by the defendant and by him used, sold, or otherwise disposed of. Thereafter the defendant dismissed the bail-trover proceeding. Iier deed to real estate to the defendant recites that it was made subject to a loan deed of $600 from petitioner to Elizabeth J. Sellars. To the best of her information and belief said loan has been paid off by said defendant. When she executed said deed to secure the debt to defendant, the lot was vacant; but she learns that defendant soon after took possession of the same, erected a small building thereon, the same being used as a garage for which the tenant or tenants thereof have paid the rents to the defendant. The defendant wrongfully holds possession of the premises, and refuses to deliver the same to her. She is ready, willing, and able to allow defendant credit for the payment of' said $600 with interest, if he proves that he paid the same. He should be required to account to her for all rents, profits, and interest accruing on said property while he has been in possession thereof. He is indebted to her in the sum of $600, with interest from November 2, 1920, as a result of wrongfully seizing, taking, and disposing of her soda-fount and cash register, and is further indebted for the value of the automobile, to the amount of $2000 to $2500, and is further indebted for all the rents, issues, and profits accruing from the possession of her said real estate from August 5, 1920, with legal interest. She prays that the defendant be enjoined from disposing of the real estate; that the deed to secure her husband’s debt and the notes given therefor be delivered up and canceled; that the defendant be required to account to her for all rents, issues, pnd profits accruing from the possession and occupation of said premises; that she have judgment against him for the several sums due her as set forth above, less the amount paid by him in removing the $600 loan; if he paid the same, and that she have such other relief as may seem proper to the court.</p> <p>The deed from the plaintiff to the defendant to her real estate récites that it is executed to secure payment of a loan by the defendant to the plaintiff of $2300, evidenced by 46 notes of even date, for the sum of $50 each, the first becoming due on August 14, 1920, and one each week thereafter for 46 weeks. The bill of sale from the plaintiff to the defendant for the automobile, soda-fount, and cash register is on its face an absolute bill of sale. By an amendment to her petition plaintiff alleged that the defendant and her husband entered into a conspiracy to defraud her, and did defraud her by representing to her that she would be in no wise liable under the notes and deed obtained from her, she being a woman without any business experience. The defendant further represented to her that he was not looking to her for pa3rment. She offered to pay the defendant all moneys expended by him in paying off the loan, and in payment of taxes, until the final determination of the case.</p> <p>The defendant demurred to the petition on the grounds: (1) that no cause of action is set forth; (2) that there is no equity therein, the plaintiff asking equity without offering to do equity; (3) that the allegations of fraud are not made with sufficient definiteness and particularity to warrant the grant of the relief prayed by plaintiff. The defendant demurred specially to paragraph 3 of the petition, in which plaintiff alleged that “this petitioner, from her own earnings, bought and paid for said lot, without the help, aid, or assistance of any one, and did, in her own name, on the 30th day of April, 1920, receive a warranty deed to the same,” on the ground that plaintiff was a married woman and was living with her husband, and it was not alleged that her earnings were not his property. Defendant further demurred on the ground that the petition was multifarious as to causes of action. The court overruled the general and special demurrers, and error was assigned on this judgment.</p>

<p>Indictment for murder. Before Judge-Fortson. Jackson superior court. June 9, 1923.</p> <p>Willis Glaze, Will Dyer, and Harvey Tincb were jointly indicted for the murder of Fred Crawford on November 12, 1922, in Jackson County. Glaze alone was tried, and was found guilty, with a recommendation. The facts were as follows: Crawford was marshal of the Town of Center, and bailiff of the district in which Center is located. The defendants came into town in an automobile and got out in front of the depot. The marshal testified that the defendants were drinking, but were not drunk enough to be locked up. They went down in front of the church. An officer of the church testified that the defendant seemed to be very much under the influence of whisky; that she went to Crawford and told him there was a man drunk near the church, and asked the' marshal to get the man away, as it looked like there might be trouble, and the man should be gotten away from the church before Sunday-school and church service. The mayor testified that this church officer told the marshal that the defendants were “ raising cain, and they could not hold Sunday-school.” The mayor could hear the defendants, but could not understand what they said. The marshal arrested Glaze, who resisted arrest and struck at the marshal with his fist. They came up to the mayor to know what the bond would be. The mayor told the marshal to take a $25 cash bond or lock Glaze up. J. W. Johnson testified that he was in front of his store when the defendants drove up. They were about drunk. They got out and asked him if he knew where one Keynolds lived. He tried to tell them, but they seemed not to understand, and turned off. Glaze was drunker than the other defendants. They went down in front of the church, and one of them stopped at the side of the church. Mrs. Chandler came out of the door and started up where he was standing, faster than usual. She-said she wanted the marshal to arrest a drunk man at the church and take him away. He called the marshal and told him what she had said. The marshal said: “ The defendant is drunk, and I will have trouble with him. I have not got my gun.” The witness went home and got his gun and gave it to the marshal. The marshal put his hand on defendant’s shoulder, and defendant tried to fight, 'hitting at the marshal and jerking back. The marshal held him and hollered to Grady Osborn for help.- Osborn ran up, and the defendant seemed all right. The marshal then brought the defendant up in front of the store of witness. The mayor told the marshal to let defendant make a'$25 cash bond. The other defendants came up, got in their Ford, juggled a little, and started towards Athens. They went about 50 yards, and came back. Glaze and the marshal were talking about the bond. The defendant said he had $5 but not $25, and the marshal said he would have to lock him in the calaboose. Defendant cursed and said they would have to try him or turn him loose. The marshal said they would have to wait until the next day, as it was Sunday. All the defendants were pretty drunk, but Glaze was the drunkest. The marshal and the defendant went 50 yards up the street, and the other defendants overtook them in the car. The marshal and the defendant got in the back seat, and they went towards Commerce. In four or five minutes some one said those fellows knocked Crawford in the head.</p> <p>Carl Hayes testified that he saw Crawford knocked off of the car. He looked out towards Crawford’s house. A car was there. Crawford and another man were standing there; he heard loud voices, but could not understand what was said. Finally the defendant came around the car and Crawford with him. The defendant put his foot on the running-board and his hands on the door. Crawford and defendant stood there like they were talking. All at once the motor speeded up, and the defendant got in the car, and Crawford swung on the running-board. Crawford grabbed at the defendarit, who struck Crawford with á stick on the breast. The defendant hit him twice more. Crawford leaned over, and the defendant struck him again. Crawford then “ kind of ” struck back, and when he did he sank and the car carried his feet out from under him. Crawford seemed to be grabbing at the defendant, and defendant seemed to be punching him. After Crawford fell to the ground the car speeded up, and the persons in it did not stop to see what had become of Crawford. The road was a good firm one, and the car was going fast and was about 165 yards from the witness when Crawford fell off. When witness reached Crawford, the latter was lying in the roád, and appeared to be unconscious. He fell off the instant he was hit. Looks reasonable that the lick would have caused death. The defendant raised up and hit him.— J. P. Johnson Jr. testified that he was 50 or 75 yards from where the car was standing. Saw the man in the back seat (defendant) hit Crawford, who was standing about the middle of the running-board on the right-hand side. Defendant first hit him on the breast with his fist; and when he stooped over, it looked like he had something in his hand, when defendant hit him the last time and he fell off the car. — The sheriff testified that he was called by telephone from Commerce to come for the defendant, and went after him. Defendant was sober at the time, but had been drinking pretty heavily and was still under the influence of whisky to some extent. He found a piece of iron pipe in the car. It looked like a piece of crank-shaft. This was in a car in which they arrested another man whom they had in the calaboose.— Mark Bailey testified : He arrested Will Dyer, who was ,in an old Ford car. He found a spring leaf, a piece of pipe about eight or ten inches long, a spark-plug wrench, a kind of hammer-shaped wrench, and three liquor cans between the front and back seats of the car. Either piece of iron was an instrument that might have produced death.</p> <p>Harvey Tinch testified for the State: Dyer, Glaze; and Connie Weaver went with him to Center in his car. They got out at the depot. Dyer inquired for Henry Reynolds, and they said he lived at the right of the church. Glaze went down near the church and talked to a man in a buggy. Somebody called out, and he looked, and Crawford had hold of Glaze. He went and asked what the trouble was, and Crawford said they accused Glaze of being drunk, but Crawford could not say whether he was drunk or not. Crawford said they would go to the mayor to see about a bond. The mayor said $25, and defendant said he had only three or four dollars and that was not enough, but his brother-in-law would make bond for him in Homer, and asked Crawford to go up there with him. Defendant and Crawford started towards the latter’s house. The others overtook them, and they got into the car. Crawford and Glaze got out at Crawford’s house. Witness told defendant they would be back, and for him to stay there. They started off at a pretty good speed, looked back, and Crawford and defendant were both on the car. Just then Crawford fell off; witness did not see any one hit him; thinks he would have known it he had been hit. Defendant had a piece of iron; did not see him hit a lick. After Crawford fell off, defendant said to go on, and witness did. At the first patch of woods witness said they ought to separate, and Glaze got out; and later witness got out and told Dyer to carry his car to Dyer’s house. Witness went through the woods. — Will Dyer testified that they started up to Crawford’s house, where Glaze was to wait until they could go to Glaze’s brother-in-law to arrange a bond. “ They got in the car and rode with us up to the'deceased’s house and got out.” There had been no disturbance. Glaze got on the back seat, and the deceased on the running-board just back of witness. Tinch, put his hand around witness, and somebody raised up and said to push him off; it was Tinch or Glaze. Never heard any lick. Deceased fell off as he looked around.</p> <p>Deceased was unconscious when found. A bruise was on the back of his head, slightly to the right — a large knot. There was a depression in the flesh, but the skin was not broken. One eye was dilated and the other contracted. Outer part of skull had a linear fracture. He died of concussion of the brain.</p> <p>The defendant made the following statement: “That day we went down there we were drinking; I was drinking and the rest of them were drinking some. I went down near where they said was a church. I never noticed it being a church; just went off down the road, and the other two boys went out there to a house. I was ■talking to another fellow there, and a fellow came down there and said a woman had told him I was drunk and he would hare to arrest me. I said, ‘Well, that is all right.’ I stood there with him a minute, and he said to come on, and I said wait until the other boys got there; they were standing there around the house; I could see them, and they came on, and we went on up there. I started on up to Mr. Crawford’s house, and they turned around and overtook us as we were going up to Mr. Crawford’s; we got in the car and rode on up to Mr. Crawford’s and me and Mr. Crawford got out, and when the car started off I jumped in the car, and Mr. Crawford jumped on the running-board and fell off; we went on, and the car was going pretty pert around there; the car sure was going when he fell off; we went on up there and took the first left-hand and went off down there near a branch, and they told me I had better get .off; one of them, Tinch, said I had better get off, and he stopped the car. I got out and went over there in the woods and lay down and went to sleep. That evening late I got up and went on up the road to Commerce, and some fellow there in Commerce, policeman, came across the road where I was, and I ask him the way to Homer; after I woke up I was going-on home. After I jumped in the ear and Mr. Crawford jumped up there on it, he didn’t stay on it no time. I saw Tinch reach around Dyer, and Dyer was sorter stooped over when he put his hand around behind. I don’t know whether he pushed him off or not; I could not tell you. I reckon that is all I have to say.”</p> <p>J. P. Johnson, recalled, testified he was mayor of Center, that the ordinance of the town (later offered in evidence by the State) was in force at the time of the difficulty, and that the lines with pencil, indelible pencil and red ink, were put in at the time the ordinance was adopted, or at least had been there ever since he became mayor. J. W. Johnson testified that all the interlineations were put in the ordinance at the time it was adopted. The defendant had in his possession $33.45 at the time of his arrest.</p> <p>Upon conviction the defendant made a motion for new trial on the general grounds, and at the hearing amended the motion by adding the following grounds: (1) Upon the trial the court erred in the following particular: The State offered in evidence what purported to be section fifty of the ordinances of the Town of Center, Ga-., as follows: “Any person who shall be guilty of any disorderly conduct in the Town of Center, or under the influence of whisky calculating to disturb the peace of the citizens, shall, upon conviction, be fined by the mayor in a sum not to exceed one hundred dollars, or work on the streets sixty days, or to be confined in the guard-house not to exceed sixty days, either one or all, in the discretion of the mayor.” This ordinance -was admitted over objection of defendant on the ground that the same had been interlined with a lead pencil, inserting the words, “or under the influence of whisky,” and on the further ground that the same was irrelevant and immaterial, inasmuch as the State had failed to show that a case had been made against the defendant under the same. (%) The court failed and refused to charge the law of voluntary manslaughter, as contained in sections 64, 65, and 66 of the Penal Code of Georgia; the jury, after several hours of deliberation, having requested the court to give them instruction on voluntary manslaughter, and specifically requesting the penalty of voluntary manslaughter, although no specific request for such charge was made during the trial by the defendant. Movant contends the facts in the case required the court to give in charge the law of voluntary manslaughter. (3) One of the jurors who tried the case, Eugene Whitehead, was related within the prohibited de-. gree, being a first cousin of the wife of the deceased, which said fact was not made known to the defendant until long after the trial. The motion for new trial was overruled and error was assigned upon that judgment.</p>

Injunction. Before Judge Humphries. Fulton superior court. May 31, 1923. William Markham formerly owned the building known as the Empire Block on Whitehall Street in the City of Atlanta. This was a two-story building. The ground floor was divided into stores. The upper floor was cut up into rooms for offices and other purposes. These rooms faced upon a hallway which ran through this building from north to south and parallel to Whitehall Street.

<p>Claim.* Before Judge Sheppard. Tattnall superior court. January 6, 1923.</p>

<p>Equitable petition. Before Judge Shurley. Warren superior court. Janüary 18, 1923.</p>

<p>1. That portion of section 2782 of the Civil Code of 1910 which provides that common carriers by railroad shall be liable to the “ next of Kin dependent upon ” an employee of such common carriel-, where there is no widow or husband or child or children of such employee, is not unconstitutional on the .ground, as contended, that it conflicts with the equal-protection clause of the Federal constitution. This ffause permits classifications in such matters, when the same are reasonable and not arbitrary, and rest upon a reasonable basis.</p> <p>2. For the same reasons the portion of the code section mentioned above does not offend art. 1, sec. 1, par. 2, of the constitution of Georgia (Civil Code (1910), § 6358), which is as follows: “Protection to person and property is the paramount duty of government, and shall be impartial and complete.”</p> <p>3. The portion of the code above mentioned does not deprive the defendant of due process of law.</p> <p>4. Other grounds of the demurrer, while stated in different language, amount to a restatement of the contention that the code section, in 30 far as it provides liability for the benefit of next of kin, is in conflict with the equal-protection clause of the Federal constitution. The petition was not demurrable on any of the grounds stated, and therefore the court did not err in overruling the demurrer.</p>

<p>Petition for prohibition. Before Judge Bell. Fulton superior court. March 22, 1923.</p>

<p>1. The first and second special grounds of the motion for a new trial complain of the charge of the court on the subject of the necessity for corroborating the evidence of an accomplice. The complaint is that the court did not correctly state the contentions of the accused with reference to the presence of the witness Burkett at the scene of the homicide. The court said: “ The defendant contends that Bob Burkett, if he was present at all, was an accomplice in the killing of Alligood, and that therefore his testimony cannot be considered by the jury to the extent the jury might convict one charged with being present with Burkett, unless Burkett’s evidence is corroborated. I charge you that is the law — that an accomplice is one who takes part with another in the commission of crime knowingly and is an accomplice with the other person and is equally responsible.” The charge is not error for any reason assigned. It differs from the charge held to ce error in Smiley v. State, 156 Ga. 60 (118 S. E. 715), headnote 7, where the court stated that “ the defendant in this case contends that one of these witnesses, to wit, Bob Burkett, is shown by the evidence to be an accomplice in this case with this defendant in the offense charged in this indictment.”</p> <p>2. The fourth ground complains that the court erred in instructing the jury on the law of confessions, when there was no evidence of a confession; and furthermore, that the court erred in stating to the jury that, while there was no evidence that this defendant ever expressly confessed anything, there was evidence of certain statements made in the presence of the accused by a named witness connecting him with the crime, and that when these statements were made the accused did not deny them, and that this evidence was in the nature of a confession. This ground of the motion shows error requiring the grant of a new trial.</p> <p>3. The remaining grounds of the motion do not show error. Some of them show slight verbal inaccuracies in charges, which will be corrected by the trial judge on the next trial. Since a new trial is granted we will express no opinion upon the evidence.</p>

<p>Under the statutes of this State, entry of an execution on the general execution docket of a county in which land of the defendant is located, other than the county in which the judgment was obtained or the county in which the defendant resided at the commencement of the suit, will convey constructive notice of tlie judgment and cause the lien of the judgment to affect the land as against a bona fide purchaser for value, without actual knowledge of the judgment, who acquires the land after the execution has been entered on the docket. Relatively to land of the defendant so located, it is not necessary, in order to bind the property as against such purchaser, that the execution be entered on the general execution docket of the county in which the judgment was obtained or 'the county in which the defendant resided.</p>

<p>Indictment for murder. Before Judge Munro. • Muscogee superior court. January 27, 1928.</p>