Volume 16 — Georgia Appellate Reports

<p>1. If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover; though if the plaintiff could not have avoided the consequences brought about by. the defendant’s negligence, the defendant would not be relieved, notwithstanding the plaintiff may have in some way contributed to the injuries sustained.</p> <p>2. Where a vehicle drawn by two mules, and in which the plaintiff was seated, was driven, in violation of a municipal ordinance, from the right to the left side of a city street, across a track on which he clearly saw a rapidly-moving trolley-car approaching, and he perceived that the motorman running the car had not observed the presence of the vehicle on the track, but was looking backward, and it does not appear that he was unable to remove himself from the dangerous situation, but he remained in the vehicle until the ear collided with it, and he thereby received personal injuries, which evidently were due to his miscalculation of the speed at which the car was approaching, and his voluntary assumption of the hazardous risk of effecting a crossing under existing conditions, and also to his failure to exercise ordinary care to escape the apparent danger, he can not recover for the injuries, notwithstanding the negligence of the defendant.</p>

<p>Indictment for keeping liquor at place of business; from Campbell superior court — Judge B. W. Freeman. September 19, 1914.</p>

<p>Complaint; from city court of Atlanta — Judge H. M. Beid. March 14, 1914.</p>

<p>Action for damages; from city court of Atlanta — Judge H. M. Reid. December 1, 1913.</p>

<p>Indictment for murder — conviction of manslaughter; from Fannin superior court — Judge Patterson. January 17, 1915.</p>

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

<p>Action for damages; from city court of Douglas — Judge McDonald presiding. February 25, 1914.</p>

<p>Complaint; from city court of Quitmau — Judge Long. March 28, 1914.</p>

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

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

<p>Complaint; from city court of Floyd county — Judge Reece. April 11, 1914.</p>

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

Indictment for misdemeanor; from Cobb superior court — Judge Patterson. May 8, 1914. On the point dealt with in paragraph 4 of the decision (admissibility of testimony as to conduct of dogs in following tracks) counsel cited: Pedigo v. Commonwealth, 103 Ky. 41 (116 S. W. 344, 42 L. R. A. 432, and notes); Sprouse v. Commonwealth, 132 Ky. 269; State v. Dickerson, 77 Ohio St. 34 (82 N. E. 960, 122 Am. St. R. 479, 11 A. & E. Ann.

<p>Complaint; from city court of Jefferson — Judge Johns. December 16, 1913.</p>

<p>Complaint; from city court of Monroe — Judge Stone. January 24, 1914.</p>

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

<p>Garnishment from city court of Macon — Judge Hodges. January 17, 1914.</p>

<p>Accusation of misdemeanor; from city court of Elberton — Judge Grogan. February 27, 1914.</p>

Complaint; from city court of Savannah — Judge Davis Freeman. February 11, 1914. The petition of M. L. Sperry against the Planters Eice Mill Company was dismissed on demurrer.

<p>Action for money had and received; from city court of Atlanta— Judge H. M. Eeid. January 24, 1914.</p>

<p>. Complaint; from city court of Savannah — Judge Davis Freeman. February 11, 1914.</p> <p>The action of George A. Mercer against the Planters Rice Mill Company was based on the contract set out in the statement of facts in the case of Sperry v. Planters Rice Mill Company, ante, 35. The petition alleges, that the defendant appointed the plaintiff its agent to sell the lot described therein, that the plaintiff negotiated a sale of the property to M. L. Sperry for $65,000; that the sale was consummated by an option for which $1,000 was paid by Sperry to the plaintiff, who in turn paid it to the defendant, and thereupon the written contract of option, referred to above, was executed between Sperry and the defendant, and the defendant accepted Sperry as the purchaser, and thereafter the option was accepted by Sperry; that “said sale was thus consummated by . . petitioner with the approval of said defendant, and thereupon plaintiff fully performed his contract and defendant thereby became indebted to the plaintiff thereunder;” that under the agreement the plaintiff was to receive 2% per cent, of the selling price, which amounts to $1,625, but the defendant fails and refuses to pay this sum, and the plaintiff prays judgment for it. By amendment it is alleged that under the said option Sperry elected to take the property on the terms set out in the option and within ninety days from its date.</p> <p>The defendant demurred to the petition generally, and in special grounds of the demurrer contended that the allegations as to the consummation of the sale and the plaintiff’s performance of his contract were mere conclusions of the pleader.</p> <p>cited: Civil Code (1910), § 3587; Indiana Fruit Co. v. Sandlin, 125 Ga. 222 (1); Wilson v. Verner, 12 Ga. App. 511; Ga. Iron & Coal Co. v. Rogers, 12 Ga. App. 429 (1); Davis v. Morgan, 96 Ga. 518; Phinizy v. Bush, 129 Ga. 486; Humphries v. Smith, 5 Ga. App. 342; Truitt v. Ansley, 12 Ga. App. 329; 21 Am. & Eng. Enc. L (2d ed.), 930, 933; 29 Am. & Eng. Enc. L. (2d ed.), 860, and notes; Souffrain v. McDonald, 27 Ind. 269; Smith’s Appeal, 69 Pa. St. 474; Watson v. Coast, 35 W. Va. 463; Guyer v. Warren, 175 Ill. 328 (2), 336.</p> <p>cited: Humphries v. Smith, 5 Ga. App. 340, 343 (3); Larned v. Wentworth, 114 Ga. 208, 222; Hyams v. Miller, 71 Ga. 608, 618; Civil Code, § 3587; Harvil v. Wilson, 11 Ga. App. 156; Wilson v. Verner, 12 Ga App. 511; Jarman v. Westbrook, 134 Ga. 19; Terry v. Keim, 122 Ga. 43; Smith v. Tatum, 140 Ga. 719 (3a); Emery v. Atlanta Exchange, 88 Ga. 327; Payne v. Ponder, 139 Ga. 283, 287; Rice v. Ware, 3 Ga. App. 579.</p>

<p>Corfiplaint; from city court of Jefferson — Judge Johns. March 11, 1914.</p>

<p>Trover; from city court of Savannah — Judge Davis Freeman. April 9, 1914.</p>

<p>1. Assignments of error not referred to in the brief of counsel for the plaintiffs in error must be treated as having been abandoned.</p> <p>2. The dismissal of an action against a partnership is no bar to an action against a partnership of the same name, not comprising the same individuals. In contemplation of law, a partnership, regardless of the firm name, is an entity prima facie distinct from any other partnership or person; and this rule is not affected by the fact that some of the individuals composing the partnership may be members of another firm, engaged in the same or a similar business. The trial judge therefore did not err in sustaining a general demurrer to the plea 'of res judicata, filed in behalf of the partnership styled “Eloyd & Lee,” and alleged to be composed of J. R. Eloyd and D. C. Lee, the plea being based upon a judgment dismissing a prior suit against Eloyd & Lee, a partnership alleged to be composed of J. R. Eloyd and B. C. Lee.</p> <p>3. A judgment can not be the basis of a plea of res judicata in an action in which the parties are not the same as in the case in which the judgment was rendered, although the cause of action be the same in both cases.</p> <p>4. It is immaterial that the action was brought in six months from the plaintiff’s dismissal of a prior suit against a partnership of the same style but not composed of the same persons. A plaintiff’s dismissal of an action will not prevent him from proceeding upon the same cause of action in a suit against a different defendant; and in such a case the second petition is not a “renewal” of the action, within the provisions of section 4381 of the Civil Code, as to renewal of dismissed or non-suited actions within six months.</p> <p>5. “The fact that property is placed in the hands of a broker to sell does not prevent the owner from selling, unless otherwise agreed. The broker’s commissions are earned when, during the agency, he finds a purchaser ready, able and willing to buy, and who actually offers to buy on the terms stipulated by the owner.” Civil Code, § 3587.</p> <p>6. The evidence did not authorize a verdict for so large an amount as that awarded the plaintiff by the jury, but there is evidence in the record which authorized a verdict for the plaintiff; and therefore this court will exercise its discretionary power of terminating litigation, by directing that the verdict be reduced to an amount definitely fixed by the evidence.</p>

<p>Action for damages; from city court of Atlanta — Judge H. M. Reid. April 25, 1914.</p>

<p>Complaint; from city court of Floyd county — Judge Reece. February 14, 1914.</p>

<p>The court did not err in sustaining the general demurrer and dismissing the petition. The petition was based upon two policies of fire insurance, each of which contained a provision expressly negativing the right of any agent to waive the condition commonly known as the “iron-safe clause;” and in dealing with the petition on demurrer, the court properly disregarded mere conclusions of the pleader which were contradicted by the stipulations of the contract governing the right to recover. The stipulation which required the plaintiffs to prepare an inventory and keep books was a warranty, the breach of which avoided the policies and placed it beyond the power of the agent to amend or resurrect the contract.</p>

<p>Action for damages.; from city court of Macon — Judge Hodges. April 30, 1914.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 30, 1914.</p>

<p>1. The court erred in awarding a nonsuit.</p> <p>(a.) A clause in a policy of accident insurance, in which payment in the event of death is conditioned upon the requirement that the death shall result solely from an accidental cause, must be reasonably construed, ■ most favorably to the insured, and must be so construed as to give effect to the manifest intention of the parties in entering into the contract.</p> <p>(6) Where an old man, large and heavy, and suffering from an incurable chronic affection of the kidneys, slipped and fell in a heap while endeavoring to step down from a sidewalk into the street, with the apparent intention of crossing the street diagonally, and death resulted in a few days thereafter, and there is no evidence that the insurer was not fully aware of the physical condition of the assured, the insurer is not necessarily relieved from liability upon its contract because the death may only have been accelerated by the fall; nor is the insurer relieved even if the chronic malady from which the insured suffered may have contributed to cause his death; for if the fall was the sole proximate cause of the death, it would be immaterial that the physical condition of the insured aggravated his injury or hastened his death.</p> <p>(e) The question of proximate cause is one of fact, for determination by a jury; and in the present case the evidence in behalf of the plaintiff authorized the conclusion that, though the insured might have died within a short time even if he had not received the injury in question, he would probably have lived for a considerable period of time, and would not have died at the time he did if he had not received the injury.</p> <p>2. The opinion evidence of an expert witness is not conclusive, and is not entitled to more probative value than the jury may think it has; and especially is this true when the opinion announced by the witness is coextensive with the entire scope of the jury’s investigation, and is absolutely decisive of the only issue to be determined by the jury.</p> <p>3. Upon the evidence adduced, the plaintiff was entitled to have the court submit to the jury the issue of fact as to whether the accidental injury or a pre-existing ailment was the proximate cause of the death of the insured, with an instruction that to entitle the plaintiff to recover, the jury must be satisfied that the alleged injury was the proximate cause of the death. Whether the injury was the proximate cause was purely a question of fact, for it involved a determination, upon evidence, of the relations between the alleged causes and effects, and nothing more; and not only might the jury have found that one of the causes was a mere condition, but when two or more causes may have contributed to an injury,- and there is doubt, or the facts are of such a character that equally prudent persons would draw different conclusions, as to which of the contributing causes was the efficient, dominant, and proximate cause, the question should be submitted to the jury.</p>

<p>Accusation of misdemeanor; from city court Madison — Judge Anderson.</p>

Complaint; from city court of Atlanta — Judge H. M. Eeid. November 15, 1915. Horton C. Eyan, of St. Louis, and the Progressive Eetailer Publishing Company, of Atlanta, made a contract by letter, in March, 1911^ for services to be rendered by him until January 1, 1912, as a solicitor of advertising in St. Louis for a trade journal published by that company.

<p>1. An exception to the refusal to grant a nonsuit will not be considered, where a verdict for the plaintiff is complained of in a motion for a new trial as not supported by the evidence.</p> <p>2. An ultra vires act of a corporation is one in excess of its charter power. Corporations are granted no rights and clothed with no powers except those which are. expressly conferred by law or by their charters, or which arise therefrom by necessary implication.</p> <p>3. A corporation doing business .under a charter as a fraternal insurance society has no power to operate a “locker club,” or to contract for the purchase of intoxicating liquors.</p> <p>4. While a corporation can amend its constitution and by-laws, it can not so amend them as to make an altogether new and different kind of society. So, where a corporation is granted a charter as a fraternal beneficiary association, it has no power to change itself into a “looker club,” and to contract for the buying, handling, and dispensing of intoxicating liquors to its members.</p> <p>5. Under the foregoing rulings, such a “locker club,” having no valid charter, is not a corporation, and consequently any one of its individual members can be held liable for liquors purchased and received by the club.</p> <p>6. The plaintiff in error, being a member of the “locker club,” and ils treasurer and steward, and having himself ordered the liquors — the subject-matter of this suit — which were received at the club, was liable for the purchase-price of the liquors; especially when he filed no plea of non-joinder, naming others who should be sued.</p> <p>7. The evidence demanded the verdict directed, and the court did not err in refusing to grant the motion for a new trial.</p>

<p>Appeal; from Fulton superior court — Judge Pendleton. May 20, 1914.</p>

<p>Complaint; from city court of 'Waynesboro — Judge Davis. June 17, 1914.</p>

<p>Action for damages; from city court of Floyd county — Judge Eeece. June 4, 1914.</p>

<p>1. In an action arising ex contractu, the defendant is not entitled to open and close the argument, unless the admissions in his answer or plea are such as to concede a prima facie case for the plaintiff. Grankshaw V. Schweizer Mfg. Go., 1 Ga. App. 363 (3), 367 (58 S. E. 222). In this case the admissions in the answer were not sufficient to shift the burden of proof from the plaintiff to the defendant.</p> <p>2. An employee owes to his employer respectful and decent behavior, and disrespectful and abusive language constitutes sufficient ground for his discharge and the rescission of the contract of employment. But where in an action based on an alleged wrongful discharge the employer seeks to justify the discharge on this ground, it is for the jury to determine whether the language used was sufficiently disrespectful and abusive to authorize the discharge and the termination of the contract, and whether there had been sufficient provocation, if any, by the employer, to justify or excuse the use of such language.</p> <p>3. The other grounds of the motion for a new trial are without merit.</p>

<p>Indictment for robbery; from Fulton superior court — Judge B. H. Hill. May 30, 1914.</p>

<p>Indictment for forgery; from Whitfield superior court — Judge' Fite. June 10, 1914.</p>

Indictment for arson; from Macon superior court — Judge Littlejohn. July 11, 1914. Jim Eice was convicted under an indictment charging him with wilfully and maliciously setting fire to and burning “a certain wooden framed building, the same being a barn and storage house, the property of Ed. M. McKenzie,” etc. He excepted to the refusal to grant his motion for a new trial.

<p>Accusation of misdemeanor; from city court of LaGrange— Judge Harwell. July 13, 1914.</p>

<p>1. The words “cultivated land,” in section 217 of the Penal Code of 1910, are not intended to apply exclusively to land with growing crops upon it. If the land is actually prepared for a crop, or if it has been used for growing crops and the owner intends to devote it again, in due season, to such use, a trespass upon it may be punished under this section.</p> <p>2. A tenant is entitled to undisturbed enjoyment of his possession, and the landlord has no right to determine who shall be his guests, or to determine the time of their visits, so long as they do not infringe upon any right of the landlord, and are there on a lawful mission. Nevertheless, such visitors may not trespass upon cultivated lands in going to and from a house occupied by a tenant, but must confine themselves to the usual and proper means of approach and departure.</p> <p>3. The evidence authorized the verdict, and there is no substantial merit in any of the exceptions to the charge of the court.</p>

<p>Accusation of carrying concealed weapon; from city court of Statesboro — Judge Strange. July 2, 1914.</p>

<p>Indictment for robbery; from Fulton superior court — Judge B. H. Hill. October 10, 1914.</p>

<p>Complaint; from city court of Madison — Judge Anderson. December 4, 1913.</p>

<p>Complaint; from city court of Atlanta — Judge Beid. April 17, 1914.</p>

<p>Complaint; from city court of Americus — Judge Harper. February 5, 1914.</p>

<p>Complaint; from city court of Elberton — Judge Grogan. May 30, 1914.</p>

<p>The evidence was amply sufficient to warrant a conviction of seduction. The jury were authorized to find that the female was a virtuous unmarried woman at the time she yielded to the embraces of the defendant, and that she was induced to yield by persuasion and promises of marriage. There is no substantial merit in any of the assignments of error, and it appears from the record that the accused had a fair and impartial trial. The judgment overruling the motion for a new trial must, therefore be affirmed.</p>

<p>Conviction of manslaughter; from Laurens superior court— Judge Larsen. September 26, 1914.</p>

<p>1. An indictment charging a violation of section 311 of the Penal Code of 1910 must “disclose the official character of the officer alleged to have been obstructed and the nature of the process he was attempting to serve, or show otherwise that the officer was authorized to execute the process.” The authority of the officer to execute or attempt to execute the process is an essential element of the offense.</p> <p>2. An allegation that the defendant did knowingly and wilfully obstruct and oppose' a named person, who was then and there deputized as a deputy sheriff to execute a certain process, described as “a mortgage execution on personalty,” issued against a person named, in favor of another person named, without naming the court from which it issued, would not sufficiently show that it was a lawful process in the county in which it was sought to execute the process.</p> <p>3. Where such an indictment described the officer whom the accused was charged with resisting as “one W. S. Gresham, who was then and there deputized as a deputy sheriff to execute the process hereinafter described,” without more, this was insufficient to show the authority of the officer to execute the process in the State of Georgia, or in the county in which the attempt to execute it was made.</p> <p>4. It was not necessary for the indictment to set out the specific acts by which the defendant forcibly obstructed and opposed the execution of the process.</p>

<p>Certiorari; from Floyd superior court — Judge Wright. October 23, 1914.</p>

<p>Indictment for assault and battery; from Laurens superior court —Judge Larsen. September 26, 1914.</p>

<p>Accusation of cheating and swindling; from city court of Louisville — Judge Phillips. April 20, 1914.</p>

<p>The evidence, while circumstantial, was sufficient to establish the corpus delicti, and showed a motive on the part of the defendant to commit the crime, and sufficiently connected him therewith to exclude every other reasonable hypothesis than that of his guilt.</p>

<p>Certiorari; from Taliaferro superior court — Judge Walker. November Í4, 1914.</p>

<p>Conviction of manslaughter; from Toombs superior court-judge Hawkins. May 8, 1914.</p>

<p>Indictment for cheating and swindling; from city court of Dublin — Judge Hicks. October 19, 1914.</p>

<p>The evidence relied upon to sustain the conviction of the accused, outside of the testimony of the alleged accomplice, was wholly circumstantial and was not enough in itself to directly connect the accused with the commission of the crime.</p>

<p>Indictment for larceny after trust; from Eulton superior court— Judge B. H. Hill. October 24, 1914.</p>

<p>Accusation of misdemeanor; from city court of Carrollton— Judge Beall. November 18, 1914.</p>

<p>Certiorari; from Dodge superior court — Judge Graham. . November 19, 1914.</p>

<p>Indictment for misdemeanor; from Glynn superior court — Judge Conyers. June 1, 1914.</p>

<p>Evidence tending to show the commission of the offense at a time subsequent to the date of the affidavit upon which the accusation was founded is admissible, and upon proper objection should be excluded.</p>

<p>Accusation of carrying concealed weapon; from city court of Oglethorpe — Judge Greer. June 11, 1914.</p>

<p>Even' if the failure to punctuate properly a criminal accusation were a good ground for demurrer, the accused in the present case, hy his failure to demur, waived his right to object. Construing the accusation without reference to its punctuation, there was no such variance between the allegations and the proof as required the grant of a new trial</p>

<p>Indictment for robbery; from Chatham superior court — Judge Charlton. August 31, 1914.</p>

<p>Accusation of larceny from house; from city court of Carrollton —Judge Beall. November 7, 1914.</p>

<p>1. Where a contention of a party to a suit, set forth in his pleadings, is not supported by evidence, it is not only not incumbent upon the court to charge specifically upon that subject, but it is error to do so.</p> <p>2. The evidence was not such as to require a specific submission to the jury of the issue that “the plaintiff could not recover if his injuries were due to the fact that he went upon the platform of the street-car when there was no necessity therefor, and under such circumstances that • it was negligence for him to go thereupon;” nor was the evidence such as to require an instruction to the jury that “if the plaintiff, without cause or good reason therefor, went upon the platform at a time and under such circumstances as that the going would constitute negligence, and the plaintiff’s injuries were caused thereby, the jury would be authorized to find for the defendant.” The proximate cause of the plaintiff’s injury was the sudden jerking and lurching of the car, caused by the negligence of the defendant’s motorman, after the plaintiff had gotten upon the platform, and the consequences of this negligence — the throwing of the plaintiff from the car, thereby causing his injuries— could not have been avoided after it became existent and operative.</p> <p>3. Construed in connection with the entire charge there was no error in any of the excerpts therefrom of which complaint is made in the motion for a new trial.</p> <p>4. The evidence strongly authorized the verdict.</p>

<p>Indictment for seduction; from Pierce superior court — Judge Quincey. December 7, 1914.</p>

<p>Levy and claim; from city court of Fort Gaines — Judge Turnip-seed. June 13, 1914.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 10, 1914.</p>

<p>Habeas corpus; from city court of Cairo — Judge Singletary. November 12, 1914.</p>

<p>Motion for new trial; from city court of Nashville — Judge Christian. December 14, 1914.</p>

<p>Accusation oí bastardy; from city court of Newnan — Judge Post. December 18, 1914.</p>

<p>Accusation of pointing gun at another; from city court of Tifton —Judge E. Eve. December 14, 1914.</p>

<p>Indictment for sale of liquor; from Whitfield superior court— Judge Fite. December 14, .1914.</p>

<p>Accusation of cheating and swindling; from city court of Millen —Judge T. L. Hill. December 21, 1914.</p>

<p>Accusation of blackmail; from city court of Statesboro — Judge Proctor. January 13, 1915.</p>

<p>Accusation of cheating and swindling; from city court of Tifton —Judge B. Eve. December 14, 1914.</p>

<p>Accusation of adultery and fornication; from city court of Louisville — Judge Phillips. December 22, 1914.</p>

<p>Indictment for larceny; from Irwin superior court — Judge George. January 5, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. January 12, 1915.</p>

<p>Accusation of gaining; from city court of Hazlehurst — Judge Grant. January 7, 1915.</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Hicks. January 12, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. January-12, 1915.</p>

<p>Indictment for larceny; from Jenkins superior court — Judge H. C. Hammond. May 8, 1914.</p>

<p>Indictment for sale of liquor; from Tattnall superior court— Judge Sheppard. May 23, 1914.</p>

<p>Accusation of sale of liquor; from city court of Madison — Judge Anderson. August 17, 1915.</p>

<p>Petition for certiorari; from Ware superior court — Judge Quincey. April 11, 1914.</p>

<p>Habeas corpus; from city court of Leesburg — Judge Martin. August 28, 1914.</p>

<p>Indictment for misdemeanor; from Campbell superior court-judge R. W. Freeman. September 4, 1914.</p>

<p>Accusation of misdemeanor; from city court of Sparta — Judge Moore. September 28, 1914.</p>

<p>II. H. Elders, for plaintiff in error. G. L. Cowart, contra.</p>

<p>• Accusation of sale of liquor; from city court of Nashville — Judge Christian. December 14, 1914.</p>

<p>Indictment for sale of liquor; from Liberty superior court-judge Larsen presiding. December 15,1914.</p>

<p>Accusation of misdemeanor; from city court of Jefferson — Judge Johns. December 14, 1914.</p>

<p>Motion for new trial; from city court of Thomasville — Judge W. H. Hammond. February 8, 1915.</p>

<p>Complaint; from municipal court of Atlanta. May 20, 1914.</p>

<p>Action for damages; from Bryan superior court — Judge Sheppard. May 5, 1914.</p>

<p>1. “The highest proved value” recoverable in an action of trover is the amount which the jury, from a consideration of all the evidence, may find to be the highest value of the property during the period between the conversion and the trial, and not the highest estimate given by any witness as to ’the value during that period.</p> <p>2. The plaintiff in a trover suit may recover the amount which he proves to be the highest value of the property between the time of its conversion by the defendant and the trial of the cause.</p> <p>3. The evidence was in conflict as to the value of the property at the time of the alleged conversion, and therefore did not demand a verdict for one amount only.</p> <p>4. While there was testimony showing an admission by the defendant that the property sued for was converted by him prior to the bringing of the action, there was no evidence definitely showing its value, and therefore nothing upon which to base a money verdict.</p> <p>5. The direction of a verdict is error requiring a new trial, except where there is no conflict in the evidence, and where the evidence introduced, with all reasonable deductions or inferences therefrom, demands the verdict directed.</p> <p>6. The fact that the defendant and the plaintiff each move the court to direct a verdict in his favor does not amount to an agreement on the part of either to waive the submission of the case to the jury; nor does it estop the party against whom a verdict is directed from excepting to such direction. The contention on the part of either that the evidence demands a verdict for himself includes the further contention that it does not demand a verdict in favor of the opposite party.</p>

<p>Action on insurance policy; from Hart superior; court — Judge Meadow. May 19, 1914.</p>

<p>Complaint; from city court of Atlanta — Judge H. M. Reid. April 14, 1914.</p>

<p>Accusation of cheating and swindling; from city court of Dublin — Judge Hicks. October 12, 1914.</p>

Accusation of cheating and swindling; from city court of Eastman — Judge Neese. October 21, 1914. The accusation was based on sections 715 and 716 of the Penal Code.

<p>Where, upon the trial of one accused of selling mortgaged personalty, the property alleged to have been mortgaged and sold was described, in the indictment, as “one bull, five years old,” and the proof upon the trial •was that the defendant had mortgaged the bull described, and had after-wards sold a “red, but-headed bull,” but there was no evidence whatever that the bull sold by the defendant was the animal mortgaged, the verdict was contrary to law, being without evidence to support it.</p>

<p>• Accusation of sale of liquor; from city court of Nashville — Judge Christian. December 14, 1914.</p>

<p>Indictment for murder — conviction of voluntary manslaughter; from McDuffie superior court — Judge Conyers. December 19, 1914.</p>

<p>Accusation of misdemeanor; from city court of Saint Marys— Judge McElreath. December 5, 1914.</p>

<p>1. The act of 1902, providing how a person convicted in a police court may apply for and obtain the writ of certiorari (Acts 1902, p. 105), is a general law in force except in so far as sections 5192 et seq. of the Civil Code (1910) may conflict with it. Section 66 of the act of 1914 incorporating the city of Millen (Acts 1914, p. 1088), which declares that violators of municipal ordinances may apply for the writ of certiorari in accordance with the law governing certiorari from county courts (Penal Code of 1895, § 765), is a special law, apparently in conflict with an existing general law and violative of article 1, section 4, paragraph 1, of the constitution of Georgia; but the question as to its constitutionality is not certified by this court to the Supreme Court, for the reason that a decision of this question is not necessary to the determination of the case under consideration (Civil Code, § 6506).</p> <p>2. Where a petition for certiorari to review an alleged violation of a municipal ordinance was sanctioned, and the bond attached to the petition did not bind the defendant to personally appear and abide the judgment or sentence in his case, the bond was void. It did not comply with the provisions of the act of 1902, supra, or with sections 5192-4 of the Civil Code, or even with the provisions of section 765 of the Penal Code of 1895. Section 765 of the Penal Code of 1895 provides that an applicant for certiorari thereunder shall give bond and security as required of persons “when carrying criminal cases to the Supreme Court,” and section 1104 of the Penal Code of 1910, which provides as to the bond to be given to carry a criminal case to the Supreme Court, declares that the bond shall be “conditioned for the personal appearance of such defendant to abide the final order, judgment, or sentence of said court.” See also, in this connection, Johnson v. Eazlehurst, 8 Ga. App. 841 (70 S. E. 258); Cannon v. Americus, 11 Ga. App. 95 (74 S. E. 701) ; Dixon v. Waynesboro, 10 Ga. App. 801 (74 S. E. 302); Bush v. Boykin, 137 Ga. 464 (73 S. E. 652).</p> <p>(a) The bond given in this case declares that the accused and his security “acknowledge themselves jointly and severally bound to said mayor and city council aforesaid, and their successors in office, in the penal sum of fifty dollars, and all future' costs that may accrue in said case, for the payment of which they bind themselves, heirs, executors and administrators firmly by these presents,” and does not provide for the personal appearance of the defendant to abide the final order, judgment or sentence of any court.</p> <p>3. Where the order of the judge of the superior court, dismissing a petition for certiorari, is proper and legally justified for a reason other than that assigned by him, his action will be affirmed.</p>

<p>Indictment for furnishing liquor to a minor; from Haralson superior court — Judge Price Edwards. December 30, 1914.</p>

<p>1. The evidence as a whole authorized the instructions to the jury on the law of voluntary manslaughter.</p> <p>2. The court did not err in omitting, in connection with the instructions touching the law of manslaughter, to charge that “provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder;” especially in the absence of a written request that this part of section 65 of the Penal Code be given in charge.</p> <p>3. Failure to give an additional charge to the jury can not be taken advantage of by exception to a correct charge given.</p> <p>4. There was ample evidence to authorize the verdict, and there is no substantial merit in any of the assignments of error.</p>

<p>Indictment for murder — conviction of voluntary manslaughter; from Johnson superior court — Judge Larsen. December 31, 1914.</p>

<p>Indictment for murder — conviction of voluntary manslaughter; from Laurens superior court — Judge Larsen. December 31, 1914.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. January 22, 1915.</p>

<p>Indictment for larceny; from Liberty superior court — Judge Larsen. December 28, 1914.</p>

<p>1. This court will take judicial cognizance that the Georgia & Florida Railway Company is a corporation chartered under the laws of this State.</p> <p>2. The evidence fully authorized the verdict; no error of law appears; and the trial judge did not err in overruling the motion for a new trial.</p>

<p>Accusation of manufacture of intoxicating liquor; from city court of Zebulon — Judge Dupree. February 9, 1915.</p>

<p>Accusation of larceny; from city court of Tifton — Judge R. Eve. March 2, 1915.</p>

<p>Motion for a new trial; from city court of Thomasville — Judge W. H. Hammond. February 8, 1915.</p>

<p>Indictment for assault with intent to murder; from Floyd superior court — Judge Wright. March 3, 1915.</p>

<p>Appeal; from Fannin superior court — Judge Patterson. May 28, 1914.</p>

<p>Appeal; from Gordon superior court — Judge Fite. May 29, 1914.</p>

<p>Levy and claim; from city, court of Way cross — Judge McDonald. May 11, 1914.</p>

<p>Indictment for sale of liquor; from city court of Valdosta— Judge Cranford. November 14, 1914.</p>

<p>Action for malicious prosecution; from city court of Flpyd county — Judge Eeece. June 16, 1914.</p>

<p>.Levy and claim; from municipal court of Macon — Judge Daly. July 11, 1914.</p> <p>Freeman mortgaged a mare to E. Tris Napiér Company, and, after the mortgage had been recorded, sold the mare to Barrow, who was without actual notice of the mortgage. Afterwards the mortgage was foreclosed, and, when the execution in favor of the mortgagee was levied on the mare, Barrow filed a claim to the property. Ón the trial of the claim case the foregoing facts appeared in evidence. It further appeared that the notary public who attested the execution of the mortgage was at the time of the attestation the “secretary-treasurer” of the mortgagee; and, because of this fact and for the reason stated in the foregoing decision, the claimant moved that the mortgage be excluded from evidence. This motion was overruled; and the judge (who tried the ease without a jury) rendered judgment in favor of the plaintiff. The case came to this court on exceptions to the overruling of the claimant’s motion for a new trial, based on the grounds that the judge erred in not sustaining the objections to the mortgage, and that the judg- \ ment was contrary to law and to the evidence.</p>

<p>Complaint; from city court of Washington — Judge Wynne. July 11, 1914.</p>

<p>Indictment for wife-beating; from Haralson superior court— Judge Price Edwards. January 7, 1914.</p>

<p>Indictment for misdemeanor; from Catoosa superior court— Judge Fite. August 7, 1914.</p>

<p>Petition for certiorari; from Thomas superior court — Judge Thomas. September 26, 1914.</p>

<p>Petition for certiorari; from Thomas superior court — Judge Thomas. October 3, 1914.</p>

<p>Certiorari; from Chattooga superior court — -Judge Wright. September 18, 1914.</p>

<p>Accusation of misdemeanor; from city court of Macon — Judge Hodges. January 16, 1915.</p>

<p>Accusation of misdemeanor; from city court of Douglas — Judge Lankford. March 9, 1915.</p>

<p>Accusation of sale of liquor; from city court of St. Marys— Judge McElreath. May 8, 1914.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. May 8, 1914.</p>

<p>Complaint; from city court of Americus — -Judge Harper. May 31, 1914.</p>

<p>Indictment for misdemeanor; from Laurens superior court— Judge Kent. February 34, 1915.</p>

<p>Accusation of malicious mischief; from city court of Hazleburst —Judge Grant. February 16, 1915.</p>

<p>Certiorari; from Jeff Davis superior court — Judge Highsmith. March 5, 1915.</p>

<p>Indictment for robbery; from Chatham superior court' — Judge Charlton. May 4, 1914.</p>

Distraint; from municipal court of Atlanta. June 8, 1914. As to tbe matter ruled upon in paragraph 1 of the foregoing decision, the facts set out in the appeal to the appellate division of the municipal court are as follows: On the announcement of the verdict and judgment, the appellants made a motion for a new trial instanter, at about 11 o’clock a. m., and the court directed them to return at 12:30 o’clock ,p. m., “for this motion.” At the appointed time they appeared and…

<p>Complaint; from city court of Fort Gaines — Judge Turnipseed. May 11, 1914.</p>

<p>Action for damages; from Colquitt superior court — Judge Thomas. June 13, 1914.</p>

<p>Distraint; from city court of Eloyd county — Judge Reece. June 14, 1914.</p>

<p>Complaint; from city court of Ashburn — Judge Tipton. June 36, 1914.</p>

Indietment for larceny; from Upson superior court — Judge B. T. Daniel. July 18, 1914. The indictment charged Sneed with “the offense of larceny, for that the said . .

<p>Action for damages; from city court of Fitzgerald — Judge Griffin. July 3, 1914.</p>

<p>Accusation of bastardy; from city court of Saint Marys — Judge McElreath. September 12, 1914.</p>

<p>Levy and claim; from city court of Sparta — Judge Moore. September 25, 1914.</p>

<p>1. The right of certiorari is a constitutional right, and may be used to review any judgment of an inferior judicatory. It may be exercised without moving for a new trial in the court in which the case was tried, or it may be used as a means of reviewing the judgment upon a motion for a new trial; and the right is unaffected by anything that may have transpired in the lower court, if the remedy is pursued in due time.</p> <p>2. The right of certiorari being a constitutional right, the statutory privilege of moving for a new trial, provided in the act creating the municipal court of Atlanta (Acts 1913, p. 167), is merely cumulative, and a complaining party may avail himself of the privilege in the first instance, or not, as he chooses. The grant of the latter remedy does not debar one from resorting to certiorari as a means of obtaining a judgment which is. final unless set aside.</p>

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

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. November 10, 1914.</p>

<p>Indictment for carrying pistol; from Miller superior court— Judge Worrill. October 28, 1914.</p>

<p>Indictment for cheating and swindling; from Lincoln superior court — -Judge Walker. November 12, 1914.</p>

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

<p>Distraint; from municipal court of Atlanta. November 25,1914.</p>

<p>Accusatiou of gaming; from city court of Macon — Judge Hodges. December 19, 1914.</p>

<p>]. A receipt is a written admission or acknowledgment of payment or delivery. It is not required by law to be in a particular form.</p> <p>2. The fact that an acknowledgment of payment is in the form of an affidavit does not render it inadmissible when offered in evidence as a receipt.</p>

<p>Accusation of larceny; from city court of Newnan — Judge Post. December 16, 1914.</p>

<p>Accusation of larceny; from city court of Nashville — Judge Christian. January 20, 1915.</p>

Levy and. claim; from city court of Zebulon — Judge Dupree. . April 6, 1914. Moate executed a mortgage to Blake on a gray mare mule, a blue mare mule, and a gray horse mule, as security for a debt of $496.50 and interest. Tbe mortgage was foreclosed for $346 principal, besides interest, the execution was levied on the gray mare mule, and J. C. Collier filed a claim to the mule levied on.

<p>Complaint; from city court of Atlanta — Judge H. M. Reid. June 13, 1914.</p> <p>A judgment affirming the judgment of the court below in this case and awarding damages against the plaintiff in error for bringing the case to this court for delay only was rendered on May 17, 1915; and, on motion for rehearing, this court on June 3, 1915, vacated its judgment, Broyles, J., dissenting, and rendered a judgment affirming the judgment of the court below, but omitting damages.</p>

<p>Trover; from city court of Blakely — Judge Sheffield. May 16, 1914.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. June 25, 1914.</p>

<p>Appeal; from Eulton superior court — Judge Ellis. May 25, 1914.</p>

Complaint; from city court of Albany — Judge Clayton Jones. June 12, 1914. W. W. Pace sued J. K. Pray on a promissory note of the defendant to the plaintiff, dated January 31, 1911, and due two years after date, for $2,500 and interest. The court, on oral motion of the plaintiff, struck the defendant’s answer, and directed a verdict for the plaintiff.

<p>Complaint; from city court of Louisville — Judge Strange presiding. June 30, 1914.</p>

<p>Indictment for murder — conviction of manslaughter; from Laurens superior court — Judge Larsen. December 5, 1914.</p>

<p>Accusation of misdemeanor; from city court of Polk county— E. A. Irwin, judge pro hac vice. August 9/1914.</p>

Habeas corpus; from city court of Nashville — Judge Christian. February 23, 1915. Eichard Walden was convicted of a misdemeanor, and the sentence was that he be confined in the chain-gang for six months, or in lieu thereof pay a fine of $40.

<p>Indictment for robbery; from Chatham superior court — Judge Charlton. January 28, 1915.</p>

<p>Accusation of cheating and swindling; from city court of Louisville — Judge Phillips. March 12, 1915.</p> <p>1. The grounds of the motion to dismiss the writ of error were: (1) that the record shows that the motion for a new trial had been overruled before the amended motion, the charge of the court, and the brief of evidence had been approved by the court or filed in office; (2) that the trial judge, in his certificate to the bill of exceptions, does not certify that the bill of exceptions contains or specifies the evidence material to a clear understanding of the errors complained of.</p> <p>2. The evidence was as follows: Bouknight, the prosecutor, testified: In August, 1914, I hired the defendant to work as an agricultural laborer on my farm (identifying it) for $11.50 per month and rations. He was to work until December 24. On December 19, which was Saturday, he came to me in Louisville, 6a., and told me that he wanted to get a dollar. I told him he was already owing me. He replied, “Oh, well, that’s all right. I am coming back to work Monday morning.” He did not come back Monday morning, the 21st. I do not know why. He never returned at all to complete his contract. I know of no‘reason or good cause why he did not return. I am damaged by his act to the amount of one dollar. He owes me the sum of $8. After the contract had been made, but before he was to begin work under it, I sold him a suit of clothes for $23. I would not have sold him this suit but for the contract he had made with me and on the strength of it. This suit makes one item of my account. The other items are made up of different things I let him have and time that he lost. I have never had a settlement with the defendant. Whenever he wanted money I let him have it, which was about once a week. But I never had á direct settlement with him. I saw the defendant once between December 19 and the date I had him arrested, which was January 9. I said nothing to him about his contract or what he was owing me.</p> <p>The defendant’s statement was as follows:. I hired to Mr. Bouk'night, as he says, and I got a dollar from him on December 19. The reason I did not go back to work the next week was that it was raining and there was nothing I could do. The reason I did not want to work for Mr. Bouknight afterwards was because I could not get a settlement with him for the last two months’ work that I did for him. He owes me some now for my work.</p>

<p>1. The evidence was sufficient to warrant the verdict.</p> <p>2. The court did not err in excluding, as immaterial and irrelevant, what purported to be an affidavit of the prosecutor and principal witness for the State; the transaction to which it referred not being identified therein as the transaction involved in the trial then in progress, and there, being no testimony establishing any relation between the .facts recited.in it and the charge against the accused.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. March 12; 1915.</p>

<p>Levy and claim; from city court of Jeffersonville — Judge Shannon. June 8, 1914.</p>

<p>Complaint; from city court of Sylvania — Judge Boykin. June 8, 1914.</p>

<p>Complaint; from city court of Elberton — Judge Wynne presiding. June 6, 1914.</p>

Complaint; from city court of Thomasville — Judge W. H. Hammond. June 16, 1914. Tbe action was by D. A. Tison against J. B. Jemison & Co., a corporation.

<p>Complaint; from city court of Bainbridge — Judge Spooner. June 26, 1914.</p>

<p>1. A plea alleging that there was a total want of consideration for the note sued on; that it was executed in part payment for certain shares of stock sold to the maker by the payee, which, as the payee knew, at the time of the sale and of executing the note, was without market value and wholly worthless, and which has never since had any market value, and that the defendant obtained no benefit from the purchase bf the stock and the plaintiff sustained no loss on account of the sale, is a sufficient plea of want of consideration, as against a general demurrer.</p> <p>2. The court did not err in striking an amendment which set up new facts or a defense of which notice was not given by the original plea or answer, and which was not verified as required by the Civil Code, § 5640.</p>

<p>Appeal; from Morgan superior court — Judge Park. June 27, 1914.</p>

<p>Motion to set aside judgment; from city court of Irwin county —Judge Newbern. June 29, 1914.</p>

<p>'Complaint — appeal; from Douglas superior court — Judge Price Edwards. July 7, 1914.</p>

<p>Certiorari; from Newton superior court — Judge C. S. Reid. July 22, 1914.</p>

<p>The court did not err in sustaining the general demurrer and dismissing the petition.</p>

<p>Certiorari; from Johnson superior court — Judge Larsen. October 24, 1914.</p>

<p>Complaint; from city court of Tifton — Judge B. Eve. June 1, 1914.</p>

<p>Levy and claim — appeal; from Bibb superior court — Judge Mathews. July 15, 1914.</p>

<p>Foreclosure of mortgage; from city court of Forsyth — Judge Persons. July 13, 1914.</p>

<p>The court did not err in striking the answer and in rendering judgment in favor of the plaintiff.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. May 11, 1914.</p>

<p>Complaint; from city court of Saint Marys — Judge McElreath. May 13, 1914.</p>

<p>Affidavit of illegality; from city court of Nashville — Judge Christian. May 18, 1914.- . • ■ • ••</p>

<p>Complaint; from municipal court of Atlanta. June SO, 1914.</p>

<p>Petition for certiorari; from Tift superior court — Judge Thomas. May 22, 1914.</p>

<p>Action for damages; from city court of Bainbridge — Judge Spooner. March 27, 1914.</p>

<p>Affidavit of illegality; from city court of Floyd county — Judge Eeece. July 38, 1914.</p>

<p>Appeal; from Jackson superior court — Judge Brand. May 9, 1914.</p>

<p>The court erred in ruling out the defendant’s testimony, and in directing a verdict for the plaintiff.</p>

<p>Complaint; from municipal court of Atlanta. October 9, 1914.</p> <p>The action was by W. L. & W. M. Fain against the Atlanta Telephone & Telegraph Company. The petition alleges, that on June 26, 1909, the plaintiffs entered into a contract with the defendant, for the installation of a desk extension telephone to be connected with telephone No. 487 at the plaintiffs’ place of business at No. 490 Marietta street in the city of Atlanta, at the rate of $15 per annum or a monthly rate of $1.25; that the said telephone has never been installed, but the plaintiffs have paid each month $1.25, through the month of July, 1914, for which they have received no consideration; and that by reason of these facts the defendant is indebted to them in the sum of $76.25 principal, with interest at 7 per cent, per annum on each payment; wherefore they pray that process issue, etc. By amendment it is alleged: The said contract was signed on behalf of the plaintiffs by W. M. Fain. Before the date of said contract the office and warehouse of the plaintiffs were at Nos. 1 and 3 North Forsyth street, at which place the defendant was furnishing plaintiffs with a main-line telephone and a desk extension, for which service plaintiffs were paying $46 per annum. W. M. Fain, for and in behalf of the plaintiffs, ordered the telephone moved to their present location at No. 490 Marietta street, and had entire charge of contracting for and securing telephone service at their new place, and did not notify W. L. Fain that he had signed the contract for additional service, and W. L. Fain did not know of the existence of said contract until August 6, 1914. At the time of the execution of the contract W. M. Fain was sick and unable to look after much of the business of the firm, and shortly after the execution of the contract he became so ill that he was thoroughly incapacitated for attending to any business whatever and did not attempt to do so, and he has not for more than three years been to the office of W. L. & W. M. Fain. On account of his illness his mind became affected, and until recently he has not been in a position to communicate to the said firm any knowledge that he might have had with reference to the contract. The bills rendered to plaintiffs by the defendant were not itemized and did not show how many telephones were being charged them, but were for a lump sum for telephone service. The checks given for payment of the telephone bills from month to month were signed by W. L. Fain, who did not know that the additional telephone had been ordered, and supposed that the higher rate was the result of the raising of rates by the company when the telephones were moved to their present location. For the foregoing reasons the monthly payments have been made as the result of a mistake of facts and of ignorance, and the defendant is not entitled to retain them, and in equity and good conscience should return the various sums with interest from the date of payment. The demurrer was on the ground that no cause of action was set forth in the petition.</p> <p>cited: 50 Ga. 310; 10 Enc. Dig. Ga. Eep. 299-303; 41 W. Ya. 742; 4 Harr. (Del.) 170; 72 Ark. 552; 101 Me. 17; 34 Mass. 134; 59 Mass. 115; 61 Mass. 125; 70 Ark. 5; 54 Ind. 337; 122 N. C. 569; 187 N. Y. 552; 21 Ky. L. Eep. 1186; 92 Mo. 239; 126 Mass. 465; 33 Neb. 98.</p> <p>cited: Civil Code (1910), § 4317; 28 Ga. 242; 49 Ga. 455; 115 Ga. 70; 128 Ga. 35.</p>

<p>Complaint; from city court of Nashville — Judge Christian. October 12, 1914.</p>

Indictment for murder; from Washington superior court — Judge Eawlings. October 10, 1914.

<p>Certiorari; from Butts superior court — Judge R. T. Daniel. September 4, 1914.</p>

<p>Certiorari; from Butts superior court — Judge B. T. Daniel. September 4, 1914.</p>

<p>It is a prerequisite to suit against a municipal corporation in this State for injury to person or property that a “claim for money damages” be presented in writing to the governing authority of the municipality for adjustment, “stating the time, place, and extent of the injury, as near as practicable, and the negligence which caused the same.” Political Code, § 910. A notice which fails to specify any amount of money as damages is not a compliance with this requirement.</p>

<p>Certiorari; from Burke superior court — Judge Sheppard presiding. October 6, 1914..</p>

<p>1. The first grant of a new trial-does not exhaust the discretion of the trial judge relatively to the grant or denial of another trial, where it appears from the record that the evidence in support of the verdict was weak and unsatisfactory, or the decided preponderance of the testimony was on the side of the losing party; but in the second grant of a new trial that discretion is not so ample and must be exercised with great caution.</p> <p>2. The trial judge did not abuse his discretion in granting a new trial, notwithstanding the verdict complained of was a second verdict in favor of the same party.</p>

<p>Action on bond; from city court of Newnan — Judge Post. November 18, 1914.</p>

<p>Conviction of carrying pistol without license; from city court of Dublin — Judge Hicks. January 12, 1915.</p>

<p>Petition for certiorari; Brooks superior court — -Judge Thomas. March 20, 1915.</p>

<p>Action for damages; from city court of Bichmond county— Judge W. F. Eve. June 9, 1914.</p>

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

<p>1. Where a petition for certiorari assigned error on several special grounds, and also because “the verdict rendered by the jury in said case is contrary to law and to the evidence, and decidedly and strongly against the weight of the evidence,” and the petition set forth all the evidence adduced at the trial, together with copies of all the pleadings, the judge of the superior court did not err in overruling a motion to dismiss the certiorari upon the ground that there was no assignment of error upon the final judgment in the case.</p> <p>2. Assignments of error abandoned in the brief of counsel for the plaintiff in error will not be considered in this court.</p>

<p>Complaint; from municipal court of Atlanta. August 18, 1914.</p>

<p>Complaint; from municipal court of Atlanta. May 25, 1914.</p> <p>Dillon, Burress & Kobaclc, for plaintiffs in error.</p>

<p>Action for damages; from city court of Fitzgerald — Judge Griffin. August 28, 1914.</p>

<p>Trover; from city court of Nashville — Judge Christian. October 3, 1914.</p>

<p>Garnishment; from city court of Atlanta — Judge Eeid. October 14, 1914.</p>

Action for damages; from city court of Macon — Judge Hodges. August 7, 1914.

<p>Complaint; from city court of Macon — Judge Hodges. February 15, 1912.</p>

<p>Complaint; from city court of Thomasville — Judge W. H. Hammond. September 30, 1914.</p>

<p>Action for damages; from city court of Macon — Judge Hodges. September 12, 1914.</p>

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

<p>Indictment for murder — conviction of voluntary manslaughter; from Charlton superior court — Judge Quincey. December 29,1914.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. March 23, 1915.</p>

<p>Trover; from city court of Dublin — Judge Hicks. March 14, 1914.</p>

<p>Complaint; from city court of Cartersville — Judge Foute. March 14, 1914.</p>

<p>1. A motion to open a default judgment is addressed to the sound legal discretion of the judge, and this discretion can not be said to have been ' abused when, after a hearing upon the only valid ground of the motion, upon conflicting testimony, he adjudges that that ground of the motion is not sustained by the evidence.</p> <p>2. A defendant in an action of trover who has failed to file an issuable defense is restricted, in his cross-examination of the witnesses, to an inquiry as to the value of the1'property, and can not contest the plaintiff’s title or right of possession, as the case may be, by testimony, for the reason that he has failed to file any plea which denies the plaintiff’s title or right of possession.</p> <p>3. In an action of trover, brought by a sheriff or other levying officer as nominal plaintiff, for the use of another, the nominal plaintiff’s ownership of the chattel is sufficiently established if it be shown that the title to the property is in fact in the usee for whose benefit the action was instituted.</p> <p>4. A judgment directing a verdict will not be reversed when the finding directed was demanded by the evidence.</p>

<p>Certiorari; from Laurens superior court — Judge Hawkins. May 30, 1914.</p>

<p>1. Since the passage by Congress of the amendment of 1910 (Act of April 5, 1910, 36 Stat. 291) to the act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. Stat. 1913, §§ 8657-8665), generally known as the “Federal employer’s liability act,” a suit brought in a State court by any 'person who has a cause of action under this act can not for any reason be removed to the United States courts. Strauser v. Chicago Ry. Co., 193 Fed. 293; Symonds v. St. Louis R. Co., 192 Fed. 353; Ullrich v. New York R. Co., 193 Fed. 768; Kansas City R. Co. v. Cook, 100 Ark. 467 (140 S. W. 579) ; Lee v. Toledo &c. R. Co., 193 Fed. 685; McChesney v. 111. Cen. R. Co., 197 Fed. 85; ILulac v. Chicago &e. R. Co., 194 Fed. 747. ■</p> <p>2. The court did not err in allowing, over the defendant’s objections, the amendment to the petition.</p> <p>3. The petition as finally amended set forth a cause of action under the Federal employer’s liability act; and the demurrers thereto, both general and special, were properly overruled.</p> <p>4. The admission of certain printed rules of the defendant company was not error.</p> <p>5. Under repeated rulings of this court and of the Supreme Court, an assignment of error on the ground that the court erred in refusing to grant a nonsuit will not be considered, when the case proceeds to a verdict, 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>6. The instructions complained of contained no error requiring the grant of a new trial.</p> <p>7. The failure to give certain instructions to the jury, in the absence of timely written requests therefor, was not error.</p> <p>8. Under the pleadings and the evidence, the jury were authorized to find that the plaintiff’s injury was caused by the negligence of the defendant company, and that this negligence was also the negligence of one or more of the three individual agents of the company against whom negligence was alleged in the petition.</p> <p>9. Under the facts of this case, both the defendant company and the plaintiff, at the time of the infliction of the injury sued for, were engaged in interstate commerce, within the meaning of the Federal employer’s liability act.</p> <p>10. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Complaint; from city court of Richmond county — Judge H. C. Hammond presiding.</p>

<p>Indictment for misdemeanor; from Pike superior court — Judge R. T. Daniel. September 10, 1914.</p>

<p>1. Where a petition to the city court of Atlanta prayed for process requiring the defendant to be and appear at the “next term” of that court, and the original process required him to be and appear at the city court of Atlanta “to be held in and for said county on the first Monday in July, 1914,” but by mistake the copy-process required the defendant to appear at the city court of Atlanta to be held in and for said county on the first Monday in May, 1914, and it appeared that the original suit was filed on May 7, 1914, and the original process was issued on that day, and that the copy-process, dated May 7, 1914, was served on the defendant on May 8, 1914, and that the next term of the city court of Atlanta convened on the first Monday in July, 1914, held, that the service of the petition and the copy-process was sufficient to put the defendant on notice of the case; and his traverse to the officer’s return of service was properly overruled.</p> <p>2-6. The petition was not subject to general demurrer, and there was no merit in the special grounds of demurrer.</p>

<p>Action on contract; from municipal court of Macon — Judge Daly. October 28, 1914.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. October 28, 1914.</p>

<p>1. Generally a real-estate broker’s commission is earned when, during the agency, he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms1'stipulated by the owner (Civil Code, § 3587); but when an agreement to pay a definite amount as commission is included in a preliminary contract of sale between the owner and the proposed purchaser, by the terms of which a commission “for making the trade” is to be paid only in the event “it is closed,” a verdict in favor of the broker suing for such commission is not demanded, when there is evidence that the would-be purchaser declined to complete the sale, upon the ground that she had been advised that the title to the real estate in question was defective.</p> <p>2. The court did not err in admitting evidence illustrative of the meaning of the phrase “it is closed,” in the contract, as it was understood by the parties at the time of entering into the agreement.</p> <p>3. The plaintiffs’ right to recover a commission as real-estate brokers being wholly dependent upon their relation as agents of the vendor, it was immaterial that the agreement to pay a commission was incorporated in the anticipatory contract between vendor and purchaser, rather than in a separate instrument, or that it may have rested in parol.</p> <p>4. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Certiorari; from Bulloch superior court — Judge Rawlings. November 5, 1914.</p>

<p>Accusation of larceny; from city court „ of Jefferson — Judge Johns. December 14, 1914.</p>

<p>Indictment for murder — conviction of manslaughter; from Berrien superior court — Judge Thomas. March 8, 1915.</p>

<p>Accusation of misdemeanor; from city court of Griffin — Judge Flynt. March 13, 1915.</p>

<p>Indictment for seduction; from Toombs superior court. Judge Eawlings. May 39, 1914.</p>

<p>1. The fact of service not being denied, it- was not necessary for the defendant to file a traverse of the officer’s return, as a condition precedent to being allowed to introduce evidence to substantiate the facts alleged as the grounds of-his affidavit of illegality.</p> <p>2. To bind a party by a judgment, it must appear that he has been served with process directed to him, or else that he has, by some express or - implied waiver, dispensed with the necessity for process.</p> <p>3. There was no error in the judgment sustaining the affidavit of illegality, nor in overruling the motion for a new trial.</p>

<p>Certiorari; from Eulton superior court — Judge Pendleton. May-16, 1914.</p>

<p>Attachment; from city court of Thomasville — Judge W. H. Hammond. June 19, 1914.</p>

<p>Accusation of misdemeanor; from city court of Blackshear— Judge Mitebell. June 36, 1914.</p>

<p>Accusation of misdemeanor; from city court of Macon — Judge Hodges. October 26, 1914.</p>

<p>Action for damages; from city court of Saint Marys — Judge McElreath. October 26, 1914.</p>

<p>Action on bond; from city court of Savannah — Judge Davis Freeman. February 13, 1914.</p> <p>The statute referred to in the decision provides, that “any persons, natural or artificial in this State, lending money to be paid back in monthly installments may charge interest thereon at six per cent, per annum or less, for the entire period of the loan, aggregating the principal and interest for the entire period of the loan, and dividing the same into monthly installments, and may take security therefor by mortgage with waiver of exemption, or title, or both, upon and to real estate or personal property or both, and the same shall be valid for the amount of the principal and interest charged, and such contracts shall not be held usurious.”</p>

<p>Complaint; from city court of Douglas — Judge Lankford. April 25, 1914.</p>

<p>Action for damages; from city court of Sandersville — Judge Jordan. May 6, 1914.</p>

<p>Action on judgment; from city court of Floyd county — Judge Reece. May 13, 1914.</p>

<p>A court has plenary control of its judgments, orders, and decrees during the term at which they are rendered, and may amend, correct, modify, or supplement them, for cause appearing, or may, to promote justice, revise, supersede, revoke, or vacate them, as may in its discretion seem necessary; and where, “for good cause shown,” a judgment is considered to have been improvidently entered, the court may, at the same term, ex mero motu and without notice to either party, vacate or set aside the judgment.</p>

<p>Action for damages; from city court of Richmond county—Judge W. F. Eve. September 21, 1914.</p>

<p>Complaint; from municipal court of Atlanta. August 13, 1914.</p> <p>The Constitution Publishing Company sued May & Company on an account for advertising. The defendants pleaded that on January 1, 1913 (which was subsequent to the date of the account), there was instituted against them a proceeding in bankruptcy, of which the plaintiff had actual notice, and that they were discharged in bankruptcy and were thereby released from the indebtedness in question. At the trial the defendants introduced in evidence a copy of a newspaper — “The Atlanta Constitution,” dated January 3, 1913, which contained a statement as to the institution of bankruptcy proceedings against them; and they introduced certificates showing that they had been discharged in bankruptcy. In the brief of the evidence it is stated that “the defendants admitted in open court that the account sued on is correct, due, and unpaid,” and that it “was not listed in the schedules filed in the bankruptcy proceedings.” The trial resulted in a judgment in favor of the defendants.</p>

<p>Action for damages; from city conrt of Macon — Judge Hodges. October 21, 1914.</p>

<p>Action for damages; from municipal court of Atlanta. November 5, 1914.</p>

<p>The charge of the court was not for any reason assigned erroneous, the evidence authorized the conviction of the accused, and the trial judge ■ did not err in overruling the motion for a new trial.</p>

Certiorari; from Chattooga superior court — Judge Wright, September 18, 1914. Two suits were brought in a justice’s court against J. W. Reynolds and his wife, Mary E. Reynolds, on promissory notes signed by them jointly and payable to Mary E. Starks; Mrs. Reynolds pleaded that the notes were void as to herself, because given for a debt of her husband and not of herself. On appeal, the jury in the justice’s court in each case rendered a verdict adverse to her.

<p>Complaint; from municipal court of Atlanta. November 25, 1914.</p>

<p>1. The suit was upon a promissory note, and the only defense was failure of consideration. There being no evidence in support of this plea, no finding other than one in favor of the plaintiff was legally proper; and the directing of the verdict was harmless.</p> <p>2. In an action upon a promissory note for the purchase-price of machinery which the purchasers declined to take, a plea of total failure of consideration is unsupported when the uncontradicted evidence shows that the only reason why' the makers of the note declined to take the machinery was that they had no need for it.- In this case the note in question was executed contemporaneously with and as a part of a contract for the purchase of machinery, which contained stipulations as to delivery, payment of freight, terms of payment, rate of interest, and other matters which must ordinarily be assumed to be of value to a purchaser, and these promises on the part of the vendor of themselves supplied some consideration.</p>

<p>Construing the plaintiff’s petition in accordance with the rule which requires the court, on demurrer, to adopt inferences adverse to the pleader, rather than to make assumptions in his favor, the petition does not state any reason that would have warranted him in attempting to alight from the car at the time and place of the injury. It does not appear that the conductor had better means than the plaintiff had of knowing that the car had not stopped; and therefore it does not appear why the failure of the conductor to warn him not to alight was negligence • imputable to the defendant. So far as appears from the allegations of the petition, the car had not reached the plaintiff’s intended destination, there was no emergency requiring him to leave the car, and he voluntarily assumed the risk of alighting from the car while it was in motion. Consequently the court did not err in sustaining the general demurrer and dismissing the petition.</p>

<p>Trover; from city court of Fitzgerald — Judge Griffin. May 27, 1914.</p>

<p>Certiorari; from Worth superior court — Judge Cox. May 6, 1914.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin. July 25, 1914.</p>

<p>Complaint; from city court of Macon — Judge Hodges. July 18, 1914.</p>

<p>Action for damages; from city court of Amerieus — Judge Little-john presiding. August 11, 1914.</p>

<p>Where personal property is sold and delivered on condition that the title thereto is to remain in the vendor until the purchase-price shall have been paid, and the reservation of title is evidenced by a sufficient written contract, but the contract is not recorded within the time prescribed by the registration law, the vendor may nevertheless recover the property from one who has acquired it from the vendee by gift and for no valuable consideration, even though at the time of the gift the donee had no actual knowledge as to the vendor’s title.</p>

<p>Action for damages; from city court of Cairo — Judge Singletary. October 14, 1914.</p> <p>The action was for damages on account of the destruction of certain personal property of the plaintiffs by fire alleged to have been caused by sparks from a locomotive of the defendant. The petition alleged, that the property (a description of which was given in an itemized statement, with the value of each article) was so destroyed on November 2, 1910, while stored in the warehouse of the plaintiffs, which was situated in the city of Cairo, Georgia, at a distance of approximately forty feet from the defendant’s railroad-track, and of approximately fifty feet from the defendant’s depot. The allegations as to the cause of the fire and the negligence of the defendant were as follows; Said fire which consumed and destroyed said property was started by a spark from an engine drawing a train of cars over the tracks of said Atlantic Coast Line Railroad Company, the exact hour of which the petitioners do not know, but they are informed that the same was some time about from three to four o’clock in the morning of November 2, 1910, when, petitioners are informed, a passenger-train and freight-train passed each other' at said point. Said fire originated at night when the petitioners were away from said business, and for this reason they are unable to allege what time said train of cars passed Cairo, Georgia, or who was the engineer in charge of the engine drawing said train. Said railroad company was negligent in permitting said locomotive-engine to emit and throw said spark or sparks from the smokestack of said engine which ignited and set fire to said warehouse and to the hay stored therein and destroyed petitioners’ property, and said negligence was a lack of ordinary care on the part of said railroad company. The negligence of said railroad company as set out in this petition is the direct and proximate cause of the destruction by fire of said property. The petitioners are unable to allege what the specific defect or defects were in said locomotive or its part which caused the said spark or sparks to be thrown from the smoke-stack of said engine, but allege that if said engine and its parts which control and arrest the sparks in the smoke-stack had not been defective, the spark that set fire to said warehouse and goods stored therein and destroyed petitioners’ property would not have been emitted and thrown from the smoke-stack of said engine. By amendment it was alleged: Each and every train of the defendant passing through the city of Cairo on the night of the alleged burning of said warehouse was drawn by a defective locomotive, which, because of said defects, threw sparks of fire upon said warehouse, set the same on fire, and thereby burned and utterly destroyed the said warehouse and its contents, the said defects of said locomotives being then and there as follows, to wit: (a) They contained no spark-arrester, or other device, to prevent said locomotives, or any of them, from throwing sparks of fire a distance of one hundred feet and all other shorter distances. (&) The only device in said locomotives, or any of them, that interfered in any way with the full and free emission of sparks of fire and burning particles of fuel contained holes so large as to allow such burning particles to be emitted and thrown a distance of one hundred feet and all shorter distances, (c) The servants of defendant in charge of said locomotives, and each of them, piled into said locomotives unusual and unnecessary amounts of fuel, and in connection therewith caused an exhaust of steam to be constantly and regularly and unnecessarily sent through the smoke-stacks of said locomotives, thereby hurling said sparks and particles of fire in all directions with great and unusual and unnecessary force, (d) Each and all of said locomotives stopped on defendant’s said tracks at the point nearest said warehouse, and, while so stopped, caused the said sparks and' particles of fire to be thrown over the said warehouse as aforesaid; and, in so doing, defendant’s servants in charge of said locomotives exercised no care whatever to prevent the said injuries to said property or to prevent the throwing of said sparks upon said warehouse, (e) Each and all of said acts of defendant’s said servants, and each and all of said defects in said locomotives, contributed to the said fire that destroyed petitioners’ said property, and were the direct and proximate cause of petitioners’ said loss and damage. It was alleged that the said property was destroyed without the consent, knowledge, or fault of the plaintiffs.</p> <p>The defendant demurred to the petition generally and specially; the court sustained the general demurrer and dismissed the petition, and the plaintiffs excepted.</p> <p>cited: Civil Code, §§ 2779, 2780; Central B. Co. v. Murray, 93 Ga. 265 (5); s. c. 97 Ga. 326; Sou. By. Co. v. Ward, 110 Go. 793; Flint Biver B. Co. v. Maples, 10 Ga. App. 573 (1); Bittick v. G., F. & A. By. Co., 136 Ga. 138 (1); 6 Michie’s Dig. Ga. Eep. 242; 17 Id. 1017.</p> <p>cited: Harden v. Georgia B. Co., 3 Ga. App. 344; South Georgia By. Co. v. Byals, 123 Ga. 330; Martin v. Southern By. Co., 7 Ga. App. 324; Vinson v. Willingham, 2 Ga. App. 53 (4); Platt v. Southern Photo Material Co., 4 Ga. App. 159 (26); Shields v. Ga. By. & Elec. Co., 1 Ga. App. 174; Southern By. Co. v. Thompson, 129 Ga. 367 (7); Gainesville &c. B. Co. v. Edmondson, 101 Ga. 750; Bittick v. G., F. & A. B. Co., 136 Ga. 138 (1); Flynt v. Southern By. Co., 7 Ga. App. 316; Brown v. Mass. Mills, 7 Ga. App. 643; Stevens v. Stead-man, 140- Ga. 685; Graham v. Marks, 98 Ga. 73.</p>

<p>Distraint; from city court of Forsyth — Judge Persons. November 7, 1914.</p>

<p>Complaint; from city court of Eastman — Judge Neese. October 23, 1914.</p> <p>• The petition as amended alleges that “the Mayor and Council of the City of Eastman is indebted to petitioners [Eureka Eire Hose Manufacturing Company] in the sum of $531 principal, with interest at 6 per cent, per annum from August 1st, 1911, upon a certain contract,” a copy of which is attached to the petition. The contract recites that it is between the Eureka Eire Hose Manufacturing Company, party of the first part, and “Corporation of City of Eastman in the County of Dodge and State of Georgia,” of the second part. The signature “City of Eastman, by L. E. McVay, Chairman,”' appears below the signature made in behalf of the first party, at the end of the contract. In the contract'the party of the first part agrees to furnish to the party of the' second part 500 feet of fire-hose Of a designated kind, at $1 per .foot, and certain appliances for $31, making a total of $531, which the party of the second part agrees to pay, “terms 4 mos. open acc’t, one year thereafter at 6% int.” The bill of exceptions states that the defendant made an oral motion to dismiss the petition as amended, “because the same did not show delivery by plaintiff to defendant, and because the same did not show that the party signing the said contract was legally authorized so to do by the said Mayor and Council of-the City of Eastman;” the court “passed an order striking the paragraph of the plaintiff’s petition containing the allegation of indebtedness,” and the plaintiff offered an amendment alleging, that “the consideration moving from plaintiff to defendant in said contract and causing said indebtedness to arise was delivered to defendant as agreed, thereby creating the said debt;” and that “one L. E. McVay, at the time said contract was executed, was the authorized chairman of the finance committee, said finance committee being itself duly authorized to manage such business for the Mayor and Council of the City of Eastman as is the subject-matter of this suit, and. said L. E. McVay being duly authorized to act for said committee, thereby binding said Mayor and Council of the City of Eastman just as firmly for the subject-matter of this suit as the law contemplates.” An oral motion to dismiss the petition, with the amendment, was sustained, on the ground that no cause of action was set out therein.</p> <p>Citations by counsel: Civil Code of 1910, § 5797; Acts of 1907, pp. 566, 569; Wiley v. City of Columbus, 109 Ga. 295; Langley v. City Council of Augusta, 118 Ga. 590; 28 Cyc. 1767, 1770; Chicago v. Peek, 196 111. 360; City of Conyers v. Kirie, 78 Ga. 480; City of Dawson v. Waterworks Co., 106 Ga. 696.</p>

<p>Complaint; from municipal court of Macon — Judge Daly. November 28, 1914.</p>

Certiorari; from Bryan superior court — Judge Sheppard. December 3, 1914.

<p>Certiorari; from Berrien superior court — Judge Thomas. November 16, 1914.</p>

<p>Action for damages; from city court of Richmond county— Judge W. E. Eve. December 3, 1914.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. April 25, 1914.</p>

<p>Action on contract; from city court of Albany — Judge Clayton Jones. June 16, 1914.</p>

<p>Complaint; from city court of Eastman — Judge Neese. May 5, 1914.</p>

<p>Complaint; from city court of Blakely — Judge Sheffield. August 1, 1914.</p>

<p>Action for damages; from city court of Waynesboro — Judge Davis. June 8, 1914.</p> <p>The petition alleged: On March 38, 1913, the plaintiff was in the employ of the defendant railway company as engineer in charge and control of engine 338, drawing a certain construction-train over the defendant’s railway, plaintiff being then subject to the orders of one Lightner, the foreman of bridge construction for the defendant. On the morning of the said day the plaintiff, acting under instruction from the said Lightner, ran his said engine, drawing a .flat-car and pile-driver, from Sardis, a station on the said road, to a point near Old Church in Burke county, Georgia, where there was a washout on the line, which the plaintiff and a crew of workmen in charge of the said Lightner were to fill in and repair. At or near noon on the said day the plaintiff, in accordance with instruction from the said Lightner, placed his said engine and the pile-driver connected therewith in position to begin work of repairing the said washout. During the dinner hour on the said day the plaintiff was informed by the said Lightner that it would probably be late in the afternoon before his engine would be needed, and at Lightner’s suggestion he banked the engine, and it remained banked until about half-past three o’clock in the afternoon, when the plaintiff, believing it necessary to get his engine in readiness to move, got down from the cab, and, while he was oiling the engine, discovered that one of the wedges in the driving-box on the right side of the engine had worked loose and dropped down, and that nuts were missing from three of the four bolts which held in place the draw-head on the front of the engine. It was dangerous to operate the engine without first drawing up and tightening the said wedge and replacing the nuts missing from the bolts of the said draw-head. When the plaintiff discovered the defective condition of his engine, the engine, with the pile-driver coupled to it and in position for operation, was standing with the solid part of the driving-wheels down, so that it became impossible for the plaintiff to tighten the said wedge without either moving the engine or going under it. In order to replace the nuts from the draw-head in front of the engine, it was absolutely necessary for the plaintiff to go under the engine. The plaintiff, seeing the urgent need of making the said repairs, and in compliance with his duty to the defendant, prepared to go under his engine, first calling the attention of his fireman, Cecil Cook, to the fact that he had to get under his said engine-, and ordering the said Cook to remain on the engine while the plaintiff was making the repairs. The necessity for making the said repairs being urgent, and there being no other way in which the plaintiff could do the .service then required of him, and believing that the said Cook would be and remain in the cab of the engine as ordered, the plaintiff went under the said engine and began tightening the wedge in the driver-box, and, while he was thus engaged, an engine used in the said pile-driver was put íd motion, when, suddenly and without warning to the plaintiff, his engine began to move, and, a waste-cock on the air-reservoir catching in his trousers, he was dragged along the track for some distance, and, while trying to hang on to the engine, to keep from being crushed thereunder, his right hand came in contact with the rail, and one wheel of the engine, passing over it, cut off his second and third fingers, and mashed the fourth finger of said hand. The plaintiff, as soon as aware of his perilous position, called to his fireman to stop the engine, but, unknown to the plaintiff and against his positive orders, the said fireman had quitted the engine and was not at his post to render the plaintiff the service which his perilous situation demanded, and it was not until .after the plaintiff had been dragged for quite a distance and his hand crushed that some one climbed into the cab and brought the engine to a stop. It is alleged that the defendant was negligent in furnishing to the plaintiff an engine defective and out of repair; that it was not only defective in the respects hereinbefore pointed out, but was old and unsuited to the use in which it was employed by the defendant; that the throttle was worn and leaked, permitting steam to escape into the cylinders and causing the engine to move, to the injury of the plaintiff as aforesaid. The injuries were not due to a failure on the part of the plaintiff to use due care; at the time he received the injuries he was engaged in the performance of a duty in which he was exercising all ordinary and reasonable care and caution to avoid injury. The injuries were the direct and proximate result of the defendant’s failure to provide safe machinery with which to work, and in employing in the work with the plaintiff a negligent and incompetent fireman, whose disregard of the plaintiff’s orders and gross carelessness in leaving the engine, knowing the plaintiff to be at work thereunder, brought about- or contributed to the said injuries. Had the said fireman remained on the engine as he had been ordered to do and as it was his duty to do, he could have stopped the engine without injury to the plaintiff; and had the plaintiff been provided with a safe engine and one not in need of repairs, he would not have been injured. The defective condition of the engine was not discovered by him until the 28th day of March, 1912, shortly before he attempted to make the needed repairs. The negligence of the defendant in providing him with an unsafe engine and the negligence of the fireman in quitting the engine without notifying the plaintiff concurred to bring about the injury. The petition contained additional allegations, as to the extent to which the plaintiff had been damaged, etc.</p> <p>cited: Collins v. Sou. Ry. Co., 124 Ga. 853; Civil Code (1910), § 4426; Augusta &c. Ri Co. v. Dorsey, 68 Ga. 228 (1); Murray v. Boston R. Co., 101 Am. St. Rep. 660 (54 Atl. 289); Hubbard v. Macon Ry. Co., 5 Ga. App. 223; Conners v. Durite, 156 Mass. 163 (30 N. E. 559); 34 Am. Dig. Cen. Ed. 1673, sec. 1017(D); San Antonio R. Co. v. Lindsey, 27 Tex. Civ. App. 316 (65 S. W. 668); Ocean 8. Co. v. Matthews, 86 Ga. 423; Waycross Lumber Co. v. Guy, 89 Ga. 148.</p> <p>cited: Civil Code (1910), §§ 3130, 3131; Stewart v. Seaboard Ry., 115 Ga. 624; Sou. Cotton Oil Co. v. Skipper, 125 Ga. 368; Banks v. Schofield’s Sons Co., 126 Ga. 667; Cen. Ry. Co. v. Brandenburg, 129 Ga. 115; Freeman v. Savannah Flee. Co., 130 Ga. 449; Wallace v. Sou. Ry. Co., 10 Ga. App. 90; Butler v. Atlanta Buggy Co., 10 Ga. App. 175; Flury v. Hightower Co., 132 Ga. 300; Sou. Ry. Co. y. Taylor, 137 Ga. 707; Ga. Ry. &c. Co. Y. White, 136 Ga. 846; Howard y. Cen. Ry. Co., 138 Ga. 537; Civil Code, § 2782; Wrights-ville &c. R. Co. y. Tompkins, 9 Ga. App. 154; Cen. Ry. Co. V. Mosely, 112 Ga. 914; Moore v. King Mfg. Co., 124 Ga. 576.</p>

<p>Action for damages; from city court of Bainbridge — Judge Spooner. August 24, 1914.</p>

<p>Traverse of sheriff’s return of service; from city court of Milieu— Judge T.' L. Hill. September 21, 1914.</p>

<p>Trover; from municipal court of Atlanta. October 20, 1914.</p> <p>The petition alleges: (2) that the defendant, W. T. Gatlin, is in possession of the following described property, to wit: “one 860 iron bed, one G. 0. dresser, one G. O. stand, one C. table, 4 chairs, one F. A. rocker, one M. spring, L. C. mattress;” (3) that said property is the property of petitioners, being the same property sold by them to Lavonia Eeynolds under title-retaining contract recorded in the clerk’s office of .the superior court of Fulton county, Georgia, on February 10th, 1914, in Deed Book 186, folio 137; and (4) that the said Gatlin refuses to turn said property over to petitioners or to pay them the profits thereof, and demand for the same has been made and refused; wherefore petitioners pray that summons may issue, etc. The demurrer was on the following grounds: (1) No cause of action is set forth in the petition. (2) The petition does not allege facts which would authorize plaintiffs to retake property or reassert their rights to property sold under retention-of-title contract. (3) The petition fails to show any breach of the contract that would entitle the plaintiffs to reclaim the property. (4) The plaintiffs have failed to set up the contract in their petition, showing the rights under the contract and the breach thereof. (5) Paragraph 3 of the petition is demurred to specially because no copy of the contract referred to is attached or set out in the petition. The demurrer was overruled. On the trial the plaintiffs elected to take a money judgment, and the trial judge, after hearing the evidence, rendered a judgment in their favor for $74. Exception was taken to the overruling of the demurrer, and to the overruling of the defendant’s motion for a new trial, in which it was alleged that the judgment was unauthorized by the evidence.</p>

<p>If breaches occur at successive periods in an entire contract, an action will lie for each breach, but all the breaches occurring up to the commencement of the action must be included therein, and the plaintiff can not arbitrarily divide such breaches and bring one suit for some of them and file another suit on the same date for the others.</p>

Action for slander; from city court of Monroe — Judge Stone. October 22, 1914. The petition alleged, that on January 18, 1913, the defendant publicly, in the presence of various persons, used the following false, malicious, and slanderous words to and of the plaintiff: “You did take my overcoat. You know you are guilty of it. I intend to prosecute you, to get a bill against you for taking the coat.

Complaint; from city court of Dublin — Judge Hicks. October 19, 1914.

<p>Affidavit of illegality; from city court of Waynesboro — Judge Davis. October 29, 1914.</p>

Accusation of disturbing school; from Floyd superior court— Judge Wright. March 3, 1915. J. T. Swafford testified: On April 20, 1914, I was at the Pleasant Hill public schoolhouse in Floyd county, Georgia. Quite a crowd of people were assembled on this occasion, as it was commencement. This was a public school.

<p>Motion to set aside judgment; from city court of Dublin — Judge Hieks. May 13, 1914.</p>

<p>Complaint; from city court of Atlanta — Judge Calhoun. August 8, 1914.</p>

<p>In construing a written contract, all writings which form a part of or enter into the contract should be construed together.</p>

<p>Action for damages; from city court of Quitman — Judge Long. October 21, 1914.</p>

<p>The sole complaint of the plaintiff in error is that the verdict is without evidence to support it. Various facts and circumstances in proof support the verdict, and it was within the province of the jury to accept this proof in preference to other evidence.</p>

<p>Complaint; from municipal court of Atlanta. October 22, 1914.</p>

<p>Action for damages; from city court of Carrollton — Judge Beall. September 16, 1914.</p>

<p>Indictment for forgery; from Eloyd superior court — Judge Wright. September 26, 1914.</p>

<p>Indictment for robbery; from Fulton superior court — Judge Hill. September 5, 1914.</p>

<p>Action for damages; from city court of Sylvania — Judge Boy-kin. October 30, 1914.</p>

<p>Action for damages; from city court of Saint Marys — Judge McElreath. October 16, 1914.</p>

<p>Complaint; from municipal court of Atlanta. November 19, 1914.</p> <p>The petition alleges, in substance, that on August 21, 1911, W¡ J. Greene, now a resident of parts unknown, sold to petitioner a parcel of land on Mathews avenue in Kirkwood, DeKalb county, Georgia, known as lot 22 (further described), and executed and delivered to petitioner his bond for title, agreeing to convey the said property to petitioner on payment of $450 in accordance with the terms of the bond, and petitioner executed and delivered to the said Greene 35 promissory notes for $10 each and interest at 7 per cent, from date (August 21, 1911), payable monthly, each reciting that it was “part of the purchase-price of lot 22 on Mathews avenue.” Each of the notes came into the possession and ownership of the defendant, and petitioner paid each of them to the defendant when due. W. J. Greene never owned the said property and he had no right or title to it. At the time the petitioner paid the first of these notes he expressed his doubt as to the title being good to the defendant, through its officer or agent who had custody of the notes and who received the petitioner’s money in the defendant’s office and surrendered to him the notes, marked paid. Thereupon the defendant assured petitioner that it had had the title examined, and that Greene’s title was perfect, and that it was entirely safe and proper for petitioner to continue to pay the notes as they fell due. Petitioner has never received anything of value whatever for the money which he paid to defendant; he has received merely some worthless scraps of paper. He paid to defendant $350 as principal, together with interest thereon from August 21, 1911, at the rate of 7 per cent, per annum; and in view of the facts alleged, the defendant is indebted to him in the amount so paid, which it refuses to pay; wherefore petitioner prays process, etc. The demurrer is on the grounds: (1) that no cause of action is set out; (2) that the petition shows that the defendant was an innocent purchaser, and therefore is not chargeable with failure of consideration of the notes; and (3) that the petition shows that the defendant was not a party to the original consideration and had no notice that no valid consideration passed.</p>

<p>1. It is the duty of a master who furnishes machinery for the use of his servant to exercise ordinary care “to furnish machinery equal in kind to that in general use.” Civil Code, § 3130. Whether a scaffold furnished by a master for the use of servants was equal in kind to those in general use is not shown by testimony that it was “about the same scaffold as that in general use by the three concerns” that the witness had worked for.</p> <p>2. The court erred in admitting in evidence the model introduced as a model of the tank and scaffold on which the plaintiff’s son was at work when injured; it appearing, from the testimony of the person who constructed the model, that in material particulars it was not a correct model.</p> <p>3. The court in charging the jury committed error prejudicial to the plaintiff in not correctly stating her contentions.</p> <p>4. In connection with the instruction to the jury to see whether or not the defendant or its agent knew of the defect in the scaffold if it was defective, the court should have instructed them to ascertain whether the master, in the exercise of ordinary care, ought to have known of the defect.</p> <p>5. The instruction to the jury that if the plaintiff’s son, “about the time he was going in and upon the scaffold,” told the foreman that it was defective, and the foreman told him to go ahead and do the work, the master would be liable, was subject to the objection that the instruction tended to limit the consideration of the jury to a complaint of the servant and an assurance of the master at or about the time the servant was going upon the scaffold to do the work wherein he was injured, though it appeared, from the evidence, that this assurance was given when the scaffold was being built.</p> <p>6. One may be liable for an injury which was the natural result of his negligence, though an injury of the particular kind produced, or an injury to the particular person injured, was not reasonably to have been expected by him, in the exercise of ordinary care and diligence; and it was error to charge the jury that the plaintiff would not be entitled to recover if, from a consideration of the evidence, it appeared that the homicide in question, “under the acts of negligence alleged in the writ, was not reasonably to be expected by the'master or Ms agents, acting with ordinary care and diligence.”</p>

<p>Conviction of selling liquor, etc.; from city court of Savannah— Judge Davis Freeman. March 29, 1915.</p>

<p>Indictment for burglary; from Clarke superior court — Judge Brand. February 2, 1915.</p>

<p>Action on insurance policy; from municipal court of Atlanta. September 1, 1914.</p>

<p>Indictment for murder — conviction of manslaughter; from Calhoun superior court — Judge Cox. April 12, 1915.</p>

<p>Complaint; from city court of Waynesboro — Judge Davis. November 4, 1914.</p>

<p>1. There was no error in overruling the demurrer to the plaintiff’s petition.</p> <p>2. The demurrer to so much of the defendant’s answer as sought to set up the bar of the statute of limitations was properly sustained.</p>

<p>Indictment for receiving stolen goods; from Morgan superior court — Judge J. B. Park. April 22, 1915.</p>

<p>Levy and claim; from city court of Yaldosta — Judge Cranford. June 15, 1914.</p>

<p>Action for damages; from city court of Springfield — Judge Farr. June 15, 1914.</p>

<p>Action on life-insurance certificate; from city court of Blakely— Judge Sheffield. June 20, 1914.</p>

Trover; from city court of Savannah — Judge Davis Freeman. June 24, 1914. The Savannah Trust Company brought an action of trover against the National Bank of Savannah for 501 bales of cotton. At the conclusion of the testimony the judge directed a verdict in favor of the defendant, and the case came to this court by direct exception to the verdict.

<p>A transferee, under an assignment made “without recourse,” of a landlord’s lien for supplies advanced to aid in the making of a crop, who has the right to foreclose upon the maturing crop, but who neglects to exercise this right, preferring to rely merely upon the oral promise of the landlord to pay the debt of his cropper, to whom the supplies were advanced, can not force the landlord to apply to the payment of the transferred lien any proceeds of the crop remaining in the landlord’s hands and due as wages to the cropper who executed the lien; nor can such a transferee recover, by an action ex delicto, damages from the landlord for refusal to pay to the transferee the cropper’s share of the crop, when the cropper .has not authorized such application of his wages.</p>

<p>Where, under an agreement between an administratrix and the sureties on her bond, a particular fund was held intact by one of the sureties until the sureties were relieved, and the fund was not paid over to the administratrix until a new bond with different sureties had been given, •and accepted by the ordinary, in a different county, in compliance with the provisions of section 4096 of the Civil Code, the first sureties were released from the obligation of their bond, and were not liable for a subsequent conversion of the fund by the administratrix.</p>

<p>A railway-train operated on a fixed schedule is a “passenger-train” within the contemplation of a contract using that term, if the train includes one or more cars for the carriage of passengers under the regulations imposed by law for such transportation, notwithstanding it may include cars used exclusively for transportation of freight.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. June 18, 1914.</p>

<p>Accusation of keeping liquor, etc.; from city court of Houston county — Judge Eiley. November 30, 1914.</p>

<p>Action for damages; from city court of Floyd county — Judge Eeece. June. 5, 1914.</p>

<p>1. There was evidence supporting the contention that the efficient cause of the injury for which damages were sought was negligence on the part of the defendant as alleged in the plaintiff’s petition, unmixed with any negligence whatever on his part, and that he could not have protected himself from the consequences by the use of ordinary care.</p> <p>2. Under allegations in the petition which were supported by some proof, it was the duty of the master not only to furnish machinery that would be reasonably safe for the use intended, but to keep it free from any accumulation of shavings, and thus maintain a safe place for the servant to work. The evidence disclosed that the machine operated by the plaintiff was extremely dangerous, unless kept free from shavings, and that the duty of keeping it in safe condition was a special duty of certain other employees, and no part of the duty of the plaintiff himself, who therefore was authorized to' assume the safety of the machinery at all times. The plaintiff being a railroad employee, his employers were liable for the negligence of his coemployees.</p> <p>3. “One is bound to use ordinary care to avoid the consequences of another’s negligence; but this duty does not arise until the negligence of such other is existing, or is apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend the existence.” Freeman v. Nashville Railway Co., 120 Ga. 469 (47 S. E. 931). The court did not err in so charging the jury.</p> <p>4. There was no substantial error in the charge of the court as to the duty of the defendants “to exercise ordinary care in keeping the machinery reasonably safe for use,” and “to make a reasonable inspection of the machinery in order to keep it reasonably safe for this plaintiff to work at.” There was testimony from which the jury might have inferred that the machine which inflicted the injury was defective and unnecessarily dangerous, because, when choked up with shavings, it was likely to throw out of place the board which the operator was pressing into or against the machine, and thus to inflict injury on the person of the operator; and there was testimony showing tliat this defect could have been remedied before the injury, by the addition of a simple appliance which thereafter was attached to the machine. It was not only the duty of the defendants to furnish machinery reasonably safe for use, but, under allegations in the petition, supported by some proof, it was their further duty to maintain the machine in a reasonably safe condition for use.</p> <p>5. Taken in connection with the entire charge and in the light of all the evidence, there was no harmful error in the instruction complained of in the 8th special ground of the motion for a new trial, to the effect that it was the duty of the defendants to notify the plaintiff of any defects in the machinery of which they may have had knowledge, and from or by which the defendants knew (presumably through the employees whose duty it was to inspect this machine) that the plaintiff was likely to be seriously injured.</p> <p>6. The 9th special ground of the motion for a new trial complains that the court failed to charge the law embraced in sections 2782, 2783 and 2784 of the Civil Code of 1910 (Acts of 1909, pp. 160 et seq.). The charge as a whole was as favorable to the defendant as the evidence authorized, and the court distinctly charged that before the plaintiff could recover, it must appear, from the evidence, that the defendants were negligent, and that the plaintiff could not recover unless he himself was “absolutely” free from fault. Under the act of 1909, the plaintiff might recover even if he had been negligent himself to some extent; and the charge given was more favorable to the defendants than was required. The judge practically charged as to injuries arising from .the negligence of a coemployee, when he instructed the jury así to the duty of the defendants to make a reasonable inspection of the machinery in order to keep it reasonably safe for the plaintiff to work at. In a suit for personal injuries received in the service of a railroad company (or of receivers operating a railroad), it is immaterial whether the negligence that caused the injuries was negligence of a eoemployee or negligence of the master himself, or of one in authority under him.</p>

<p>Action for damages; from city court of Athens — Judge West. July 8, 1914.</p>

<p>Complaint; from city court of Atlanta — Judge H. M. Reid. October 15, 1914.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. November 25, 1914.</p>

<p>Complaint; from city court of Irwin county — Judge Newbern. November 11, 1914.</p>

<p>Complaint; from city court of Atlanta — Judge H. M. Beid. November 4, 1914.</p>

<p>The evidence authorized the verdict, and there was no error requiring a new trial.</p>

<p>1. Suit can not be maintained upon a sheriff’s bond for an unlawful homicide committed by a deputy sheriff, unless the wrongful act was done in the prosecution of some official duty.</p> <p>2. A homicide committed by a deputy sheriff while investigating a crime, but not in the prosecution of any official duty or upon one having any connection with the crime, is not such official misconduct as will subject the sheriff and his sureties to a suit upon his bond.</p> <p>Russell, J., dissenting. An action for damages lies in favor of any person who may be injured by the act of an officer done colore officii. In the absence of a special demurrer, the plaintiffs’ petition set forth a cause of action, and the trial judge did not err in overruling the general demurrer.</p>

<p>1. A sheriff’s bond is obligatory on the principals and sureties thereof for any breach of the condition by a deputy, although not expressed, unless otherwise declared by law, and for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by failure to perform, or by the improper or neglectful performance of those duties imposed by law. Civil Code, § 291.</p> <p>2. No preliminary recovery against the sheriff is required, to entitle the injured party to sue on the bond. Jefferson v. Hartley, 81. Ga. 716 (9 S. E. 174).</p> <p>3. The petition as amended set forth a cause of action, and the general demurrer thereto was properly overruled.</p>

<p>Action for damages; from city court of Baxley — Judge Sellers. February 5, 1914.</p>

<p>Action for damages; from city court of Atlanta — Judge H. M. Eeid. June 13, 1914.</p>

Action on contract; from municipal court of Atlanta. October 20, 1914.

<p>Action on contract; from city court of Bainbridge — Judge Spooner. June 25, 1914.</p>

<p>Affidavit of illegality; from city court of Bainbridge — Judge Spooner. June 26, 1914.</p>

<p>Foreclosure of lien; from city court of Macon — Judge Hodges. October 5, 1914.</p>

Action for penalty and damages; from municipal court of Atlanta. September 4, 1914.

<p>Complaint; from city court of Americus — Judge Harper. October 13, 1914.</p>

<p>Complaint; from city court of Americus — Judge Harper. July 25, 1914.</p> <p>Miss Allie Heard, as holder of a promissory note for $1,500 and interest, payable to Dixie Chemical & Mining Company, of Columbus, Ga., sued the makers, L. P. Gartner and W. P. Wallis, for the amount of the note, with attorney’s fees as provided for therein. The defendants sought to set up in defense certain alleged agreements between themselves and the original payee of the note, and pleaded failure .of consideration, and also pleaded a set-off. The trial resulted in a verdict against them for $1,237 principal, besides interest and attorney’s fees. Their motion for a new trial was overruled, and they excepted.</p>

<p>Action for money had and received; from city court of Floyd county — Judge Reece. February 6, 1913.</p>

<p>Accusation of sale of mortgaged property; from city court of Madison — Judge Anderson. January 20, 1914.</p>

<p>1. An indictment under section 186 of the Penal Code, which alleges that the accused did “embezzle, steal, secrete, and fraudulently take and carry away” money belonging to a banking corporation of this State, is not subject to demurrer on the ground that it fails to allege that the money was taken and carried away with intent to steal the same.</p> <p>2. The word “steal” implies a taking and carrying away and a criminal conversion. While every crime consists in the joint operation of act and intention, and on the trial of an indictment of the nature above indicated the trial judge might, with propriety, instruct the jury that the money must have been takefi with intent to steal, yet his failure to do so in the present case was not cause for a new trial; the jury having been instructed that before they could convict, they must be satisfied, beyond a reasonable doubt, that the accused did embezzle; steal, secrete, and fraudulently take and carry away the money described in the indictment.</p> <p>3. The indictment was not subject to any of the demurrers.</p> <p>■ 4. The evidence demanded the conviction of the accused, and it was therefore immaterial what the judge charged or failed to charge the jury.</p> <p>5. There being in the evidence or in the prisoner’s statement nothing in reference to the length of time he had been in jail before the trial, it was not proper for counsel for the accused, in requesting the jury, in the event of conviction, to recommend a misdemeanor punishment, to state the length of time the accused had been in jail; and the court did not err in compelling counsel to refrain from such argument.</p> <p>6. The trial judge may, in the interest of truth, interrogate a witness in order to elucidate matters which have not been made clear to the court, provided that in so doing the judge does not intimate or express an opinion in reference to what has or has not been proved or the guilt of the accused.</p> <p>7. Remarks made by a trial judge in imposing sentence after a verdict of guilty can not be made the subject-matter of review in the Court of Appeals.</p> <p>8. A certificate made and filed for the purpose of organizing a banking association under the general banking law, if in conformity with the terms of that act, is evidence of the truth of the facts that it recites; and is consequently evidence that the provisions of the statute have been complied with, and that the company was duly organized. From the time that such certificate is made, filed, and recorded, the association becomes a corporation, or quasi corporation, under the statute, possessing all the privileges and competent to exercise all the powers that the statute confers. And from that time every person is precluded from denying its legal or corporate existence in any suit or controversy whatever. The certificate is revocable for fraud in its procurement only in a direct proceeding for that purpose, brought by the State.</p>

<p>Accusation of receiving stolen goods; from city court of Black-shear — Judge B. G. Mitchell Jr. January 8, 1914.</p> <p>The motion for a new trial contained the grounds that the verdict was contrary to law and to the evidence, and the following grounds: (1) “Because the court permitted the witness Lewis Thomas to be brought from the witness-room and identified by the witness on the stand for the State, Willie Lanier, as the principal who went with him and helped him get the meat, and as the man who had been convicted the day before of stealing the meat. The defendant then and there urged the following objections: that Lewis Thomas was there as a witness, and to come around before the jury for identification as the principal thief and as the accomplice of the witness on the stand, and as the man who had been convicted the day before for stealing the meat, would tend to impeach his testimony before the jury. (The solicitor asked that said Lewis Thomas be brought for identification only.) This objection was overruled.” (2) “Because the court admitted in evidence the accusation with the verdict of guilty on it against the principal,, Lewis Thomas. The defendant then and there urged the following objection: that the accusation with the verdict of guilty on it against the principal was not admissible to show the guilt of the accessory then on trial; which objection the court overruled with the following statement: ‘It is admitted as a circumstance in the case/ ” (3) “Because the court stated in the presence of the jury, at the time the accusation was admitted in evidence: ‘It is admitted as a circumstance in the case/ ” (4) “Because the court failed to make any allusion whatever to the accusation with the verdict of guilty on it against the principal, then in evidence against the accused, in the charge to the jury, after verbal request by counsel for the defendant to charge that it was not conclusive of the guilt of the principal, and the law applicable to this contention being read and discussed before the court and jury, as contained in Anderson v. State, 63 Ga. 675, 3d headnote.” (5) “Because the court failed, in the charge to the jury, to make any allusion whatever to the contention of the defendant that the meat which it was alleged he received, and which was found in his bed, was placed there without his knowledge and consent, by another person, to divert suspicion from the real thief and lay the crime on the accused.” (6) “Because the charge as a whole gives to the jury only the contentions of the State and the law applicable thereto, and does not charge the contentions of the defendant.” (7) “Because the court charged the jury as follows: ‘It is charged by the State in this accusation, which you will have out before you, that one Lewis Thomas committed the crime of larceny from the house, of a certain quantity of meat, and that this defendant now being tried took and received this meat from the said Lewis Thomas, knowing at the time that the said meat was stolen property, and that the crime charged against Lewis Thomas was a misdemeanor under the law, and that if Thomas was guilty of a misdemeanor, then this defendant would also be guilty of a misdemeanor.’ ” (8) “Because (in view of the omissions as complained of in paragraphs 4, 5, and 6 of this amended motion, in the charge of the court to the jury) the court stated in the charge to the jury, in conclusion, as follows: ‘These are the rules of law which the court thinks necessary to enable you to arrive at a proper determination of your verdict in this case.’ ”</p>

<p>1. The cost of transportation may be a material factor in determining the value of an article; and the importance of this element is enhanced in proportion to the difficulty and expense necessarily incident to the transportation. Consequently, in an action against a county for the value of certain stone, the property of the plaintiff, alleged to have been appropriated by the county to its own use, a paragraph of the petition, alleging that the cost of quarrying and hauling the stone was $50, and that by reason of this it was worth to the plaintiff $50 more than the market value, was not subject to be stricken on oral motion, although the paragraph may have contained defects subject to appropriate and timely special demurrer. An oral motion to strike performs the office of a general demurrer, and is ineffectual unless the pleading against which it is directed as a whole is fatally defective.</p> <p>2. An exception to the court’s refusal to award a nonsuit will not be considered, where the case has proceeded to verdict, and the defendant excepts, to the verdict as without evidence to support it; for the latter exception presents for review the sufficiency of all thé’ evidence adduced upon the trial.</p> <p>3. The court did not err in admitting in evidence the plaintiff’s original petition, with the entry of filing and service thereon; for the bringing of the suit within 12 months from the time of the appropriation of the property was a sufficient presentation of the claim, within the meaning of section 411 of the code.</p> <p>4. The Court of Appeals will not invoke instruction from the Supreme Court upon a point which, in the opinion of this court, has been plainly and unequivocally passed upon by the Supreme Court; nor ask that a ruling of the Supreme Court be reviewed by that court because counsel contends that it conflicts with other rulings, when, in the decision in question, the rulings which he insists are in conflict therewith have been specifically referred to, analyzed, and distinguished.</p> <p>5. One’s right to recover the value of his property is not affected by the fact that he purchased it for much less than its value, nor is his property right diminished or the value of his property to be depreciated by the fact that his title was obtained by gift.</p> <p>6. A county is liable for the value of any private property, taken by an agent acting under general authority of the officer or officers charged with the management of the county affairs and the work of its public roads, which was needed to improve such roads and which was in fact so used.</p> <p>7. The fact that the county commissioners, with knowledge that their agent charged with the working of the roads had negligently or by mistake taken private property without compensation and had used it in improvement of a public road, nevertheless retained possession of the property will authorize the inference that they ratified the original taking, and will render the county liable for the value of the property so taken. The right to compensation under the constitutional provision, that “private property shall not be taken, or damaged, . . without just and adequate compensation being first paid” (art. 1, see. 3, par. 1) is not controlled by the ordinary rules governing rights ex contractu and ex delicto, but, being paramount in its nature, is enforceable regardless of technical classification, and the value of property taken by one authorized to act for the county, and used for the benefit of the county, may be recovered, whether the taking was wrongful or was by virtue of a contract, express or implied.</p> <p>8. The constitutional provision requiring payment of “just and adequate compensation” for private property taken for public use does not restrict the owner’s recovery to market value; and “just and adequate compensation” for property which the owner has designed for a special use, and of which he has been deprived for the public benefit without his consent, may include the cost or value of the article to the owner for the purposes for which he designed to use it.</p>

<p>1. Before evidence of the conduct of a bloodhound alleged to have been put upon the trail of the defendant can properly be received, it should appear that the dog was able, at the time and under the circumstances, to follow the scent of a person.' When such foundation has been laid and the evidence showing the conduct of the dog has been received, the jury, before they will be authorized to consider it as evidence against the accused, must be satisfied that the dog was certain and reliable in following the trail of human footsteps; and if they find from the evidence touching the matter that the dog was and is reliable and accurate in this regard, then the evidence of the dog’s work and its result may be considered, together with all the other evidence in the case, as a circumstance in determining the guilt of the accused.</p> <p>2. It was erroneous to admit testimony that the accused, while in the custody of the sheriff, under arrest made without a warrant, was carried by the sheriff to the house alleged to have been burglarized, and there placed by the sheriff in a position at a window through which the house had been entered, and in which position an occupant of the house claimed to be able to identify him as the burglar, although she was unable to do so before he was placed in this position; and that the sheriff placed him there at her request, for the purpose of enabling her to identify him as the burglar. This conduct of the sheriff was an invasion of the constitutional right of the accused not to be compelled to give evidence tending in any manner to criminate himself; and an objection to the admission of this evidence, upon this ground, should have been sustained.</p> <p>3-. It was error to admit testimony that at the time the burglary was committed, a female who occupied the room which was entered was ill and in a delicate condition. This testimony was wholly irrelevant to any issue involved in the case, and probably was prejudicial.</p>

<p>Action for damages; from Harris superior court — Judge Gilbert. January 20, 1913.</p>

<p>Actions from city court of Savannah and city court of Statesboro.</p>

<p>1. The court did not err in allowing an amendment which merely amplified the statement of the plaintiff’s cause of action. The petition charged that the death of the plaintiff’s husband was due to electricity which came into contact with his person on account of the negligence of the defendant in not removing certain wires; and if this charge was true, the defendant would be liable, whether the electricity was conveyed directly by the wires, or was conveyed by them indirectly through the post or pillar, as alleged in the amendment.</p> <p>2. A telephone company can not, by ceasing to use a part of its line and disconnecting that part from the part which continues in use, relieve itself from the duty of exercising care to prevent injury to others from the part which is no longer in use.</p> <p>3. The court properly instructed the jury upon the subject of the notice requisite to charge the defendant with liability for the dangerous condition of its wires.</p> <p>4. It was an issue of fact whether the plaintiff’s husband knew of the dangerous condition of the defendant’s wires, and could have avoided the injury to himself by the exercise of ordinary care; the trial judge accurately and fairly submitted this issue to the jury. The right of the plaintiff to recover was to be tested by the conduct of her husband at the time of his alleged homicide, keeping in view his knowledge, or lack of knowledge, of the condition of the wires. But the duty of informing the defendant of the condition of its wires did not rest upon him, and the liability of the defendant was to be tested by ascertaining whether its employees, at the time of the alleged homicide, were using that ordinary care and diligence which a prudent man would use under similar circumstances.</p> <p>5. The charge of the court was not, for any of the reasons assigned, erroneous. The requests for instructions, so far as pertinent, are fully covered in the charge given. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>