Volume 17 — Georgia Appellate Reports

<p>1. A non-resident who invokes the aid of the courts of this State in enforcing claims against a foreign creditor will be afforded as full justice in the cause as is consistent with the laws and policy of .the State. Reeves V; Southern Railway Oo., 121 Ga. 561 (49 S. E. 674, 70 L. E. A. 513, 2 Ann. Cas. 207).</p> <p>2. The plaintiff was a resident of Alabama. The decree rendered by the United States district court in Missouri, appointing a receiver for the defendant, had no extra-territorial force, and the plaintiff was not bound by it. Linville v. Hadden, 88 Md. 594 (41 Atl. 1097, 43 L. E. A. 222). The appointment of a receiver, of its own force, gives the receiver the right to take possession of the property; but it confers upon him no power to compel the recognition of that right outside the jurisdiction of the court making the appointment. High on Eeceivers, §§ 47, 241. Where a garnishment is sued out on an attachment, the defendant being a non-resident of the State, the situs of any debt due by the garnishee to the defendant-is at the residence of the garnishee in this State. Civil Code, § 5095, Survey v. Thompson, 128 Ga. 147 (57 S. E. 104, 9 L. E. A. (N. S.) 965, 119 Am. St. E. 373). So far as this case is concerned, the residence of the garnishee is the county in which the garnishee was legally served with the summons of garnishment. Survey v. Thompson, 2 Ga. App. 569 (60 S. E. 11). The garnishment, being issued upon an attachment, gave the plaintiff a lien upon the funds garnished. Patterson v. BecJo, 133 Ga. 701, 709 (66 S. E. 911). The appointment of a receiver in a foreign jurisdiction did not of itself operate to deprive the plaintiff, merely because she was a non-resident, of her right to recover judgment against the garnishee for the amount of her judgment against the defendant, which was less in amount than the admitted indebtedness. See 34 Cyc. 489 et seq.; Catlin v. Wilcox Silver Plate Co., 123 Ind. 477 (24 N. E. 250, 8 L. E. A. 62, 18 Am. St. E. 338) ; Linville v. Hadden, supra; Gray v. Covert, 25 Ind. App. 561 (58 N. E. 731, 81 Am. St. R. 117) ; Liehenstein v. Gillett, 37 La. Ann. 522, and the eases cited in each.</p> <p>4. The garnishee’s answer set up no legal reason why judgment should not be entered against it, and the court properly granted the motion to enter such judgment.</p>

<p>Certiorari; from Eulton superior court — Judge Ellis. June 30, ' 1914.</p>

<p>1. Construing the petition as a whole and in the absence of a demurrer complaining of 'uncertainty as to the nature of the action, it is held that the action was ex delicto, and not ex contractu.</p> <p>2. Since the bill of lading attached to the plaintiff’s petition shows that it was signed by tbe carrier’s agent alone, and not by the shipper, the plaintiff was not bound by any stipulation therein by which it was sought to limit the liability of the carrier.</p> <p>3. The measure of damages was the value of the property at destination, less freight charges to that point.</p> <p>4-8. The verdict was sufficiently supported by the evidence, and there was no error requiring a new trial.</p>

<p>Action for damages; from city court of Columbus — Judge Tigner. August 19, 1914.</p>

<p>Appeal; from Walker superior court — Judge Wright. December 13, 1914.</p>

<p>Money-rule; from city court of Washington — Judge Wynne. September 7, 1914.</p>

Action for damages; from city court of Madison — Judge Anderson. October 10, 1914. The action was against the Georgia Bai'lroad and Banking Company, the Seaboard Air-Line Railway, the Southern Railway Company, and the Virginia and Southwestern Railway Company. Each defendant demurred generally and specially, and the court sustained the demurrers and dismissed the petition.

<p>Foreclosure of lien; from city court of Waycross — Judge McDonald. September 23, 1914.</p>

<p>Appeal; from Chatham superior court — Judge Charlton. August 20, 1914.</p>

<p>Appeal; from Forsyth superior court — Judge Patterson. September 12, 1914.</p>

<p>Complaint; from city court of Milieu — Judge Thomas L. Hill. July 22, 1914.</p>

<p>Action on contract; from city court of Cartersville — Judge Moon. October 10, 1914.</p>

<p>The curbing or curbstone of a street is such a “portion of the road-bed” and such an “impediment consequent upon the condition thereof” as to preclude one whose automobile has been damaged by collision with it from recovering therefor upon a policy insuring the automobile against loss or damage “caused solely by collision with another object, either moving or stationary,” but “excluding ... all loss or damage caused by striking any portion of the road-bed or any impediment consequent upon the condition thereof.”</p>

<p>Levy and claim; from city court of Jefferson — Judge Johns. October 14, 1914.</p>

<p>Action on insurance policy; from city court of Bainbridge— Judge Spooner. July 13, 1914.</p>

<p>Indictment for murder — conviction of manslaughter; from Hart superior court — Judge Park presiding. January 25, 1915.</p>

<p>Complaint; from Colquitt' superior court — Judge Thomas, July 27, 1914.</p>

<p>Certiorari; from Eorsytb superior court — Judge Patterson. September 2, 1914.</p>

<p>The action- was clearly a suit for conversion. The justice’s court was without jurisdiction, and the judge of the superior court properly sustained the certiorari and made a final disposition of the case by ■ordering that the action be dismissed.</p>

<p>Action for breach of contract; from city court of Macon — Judge Hodges. September 25, 1915.</p>

<p>Action for damages; from city court of Macon — Judge Hodges. June 18, 1914.</p>

<p>Complaint; from city court of Sylvania — Judge Boykin. April 23, 1914.</p>

<p>Certiorari; from Grady superior court — Judge Cox. September 18,1914.</p>

<p>Complaint; from city court of Madison — Judge Anderson. October 14, 1915.</p>

<p>Action for damages; from city court of Madison — Judge Anderson. October 15, 1914.</p>

<p>Money-rule; from city court of Statesboro — Judge Strange. November 17, 1914.</p>

<p>Action for damages; from city court of Blakely — Judge Sheffield. November 18, 1914.</p>

<p>Complaint; from municipal court of Atlanta. October 5, 1914.</p>

<p>Complaint; from city court of Blakely — Judge Sheffield. July 20, 1914.</p>

<p>Indictment for murder — conviction of manslaughter; from Marion superior court — Judge Gilbert. June 7, 1914.</p>

<p>Attachment; from city court of Bainbridge — Judge Spooner. September 29, 1914.</p>

<p>Action for damages; from city court of Atlanta — Judge Beid. October 15, 1915.</p>

<p>1. A plaintiff who has dismissed his suit must, before bringing a second suit for the same cause of action, either pay the costs of the former suit or lile a pauper affidavit that he is unable, on account of poverty, to pay the costs of the former suit; and when there is a failure to do either, a plea in abatement setting up these facts will be sustained.</p> <p>2. The rule announced above is controlling although the two suits may have been filed in different courts of this State; the only exception to this /ule being where the first suit is filed in the United States court and the second suit in a court of this State, or vice versa.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. November 30, 1914.</p>

<p>Action for damages; from city court of Columbus — Judge Tigner. November 28, 1914. ■</p>

<p>Action for damages; from city court of Richmond county— Judge W. F. Eve. October 12, 1914.</p>

<p>Indictment for embezzlement; from Gilmer superior court— Judge Patterson. May 7, 1914.</p> <p>The indictment charged John H. Carter with “the offense of embezzlement, for that the said John H. Carter, on the 15th day of October, in the year of our Lord 1910, in the county aforesaid [Gilmer] with force and arms, did then and there feloniously, being the president of the Gilmer County Bank, the same being a corporate body in said State, embezzle, steal, secrete, and fraudulently take and carry away from said bank thirty-three and one eighth shares of the capital stock of the Bank of Murphy, of Murphy, Cherokee county, N C., of the value of $100 each, and ten shares of the capital stock of the First National Bank of Quincy, Gadsden county, Fla., of the par value of $100 per share and of the value of $100 each, and eighteen shares of the capital stock of the North Georgia National Bank, of Blue Bidge, Fannin county, Ga., of the par value of $100 per share and of the value of $100 each, and appropriate said stock and stocks and shares to his own use, to the damage and loss of said bank; all of said shares and stocks being the property of the said Gilmer County Bank, contrary to the laws of this State,” etc.</p> <p>The demurrer was on the following grounds: (1) A share of stock is an incorporeal, intangible, invisible thing or property; shares of stock in a corporation are not chattels personal susceptible of possession, actual or constructive; shares of stock can not be embezzled, and are not embraced in the statute applicable to embezzlement. (1-A) The allegations of fact made in the indictment do not constitute the crime of embezzlement under the laws of this State; for the reasons: (a) It is not alleged that the various shares of stock described in the indictment were entrusted to the defendant, or were ever in his possession, custody, or control as president of the Gilmer County Bank. (&) It is not alleged that the defendant was ever in possession of or entrusted with the shares of stock by virtue of his being president of the Gilmer County Bank, (c) It is not alleged that the defendant, by virtue of being president of the Gilmer County Bank, was in possession of the shares of stock described, (d) It is not alleged that the defendant, by virtue of being president of tbe Gilmer County Bank, was an officer having management or control of assets, stocks, or funds of said bank, including the shares of stock described in the indictment, or was ever in possession of the same. (2) The indictment fails to charge in what manner or by what means the. defendant did “fraudulently take and carry away” the things alleged in the indictment. (3) Section 186 of the Penal Code, under which the defendant was indicted, is in violation of article 1, section 1, paragraph 2, and section 4, paragraph 1, of the constitution of this State, and is unconstitutional and void for the reasons: (a) Under said section 186 it is a felony for the president of a bank or corporation or any other corporate body in this State, or any other officers, servants or persons named in said section, to steal, while, under the general law, if any persons or officers named-in said section steal it is a misdemeanor. Said statute or section of the code does not give the same protection to the persons named therein that it does to other persons for stealing, and is therefore not impartial and uniform in its operation. (5) Under said section it is a felony for any president of a bank in this State, or the other officers or servants named in said section, to steal; if any other persons steal it is a misdemeanor, and a different punishment is prescribed. At the time of the enactment of said statute there was a uniform statute applying to all persons and giving a uniform punishment as for a misdemeanor for any and all persons that did steal. This statute denies the equal protection of the laws. It is not uniform in its nature, and is a special law enacted •in a case for which provision had been made by an existing general law; it is therefore in violation of article 1, section 4, paragraph 1 of the constitution, and is in violation of the 14th amendment of the- constitution of the United States.</p> <p>The constitutional questions raised by the demurrer, and other questions raised in the case, were certified to the Supreme Court. See 143 Ga. 632 (85 S. E. 884).</p>

<p>1. The court did not err in declining to sustain the demurrers to the - plaintiff’s petition.</p> <p>(a) The allegations of the original petition sufficiently set forth a cause of action to admit of such amendment as was allowed by the court.</p> <p>(5) If the petition was duplicitous, the amendment allowed by the court cured the defect, and in so far as the petition was ambiguous it was likewise cured by amendment.</p> <p>2. Instead of reducing an agreement to writing the parties may adopt by reference the terms of a contract already in writing. Butler v. Tifton, cGc. By. Go., 121 Qa. 817 (49 S. E. 763). The purchaser of a hotel which had been leased by the previous owner for a term of years may, by expressly assuming the obligations imposed by the lease contract, subject himself to the same liability as if the obligations were incorporated in a new and independent contract..</p> <p>3. The allegations of the petition sufficiently set forth a cause of ’action, based on adoption of the terms and conditions of the previous contract between the plaintiff and the defendant’s predecessor in title, to withstand the demurrer interposed to that part of the petition.</p> <p>4. It is the duty of a landlord, in the absence of an agreement to the contrary, to keep the premises in repair, and if, after knowledge or notice that the premises are out of repair, the landlord neglects to repair them within a reasonable time, the tenant may make the repairs and recover from the landlord the reasonable expenses incurred in putting the premises in proper repair.</p> <p>5. A tenant is not required to demand that his landlord perform the legal duty to make necessary repairs, but the tenant must give the landlord notice of the, defective condition of the property and of the consequent need for repairs, before he can charge the landlord with liability for the cost of necessary repairs wdiich the tenant has made because of the landlord’s failure to do so within a reasonable time.</p>

<p>Action for damages; from city court of LaG-range — Judge Harwell. March 13, 1914.</p>

<p>Where a railroad company delivered one of its cars loaded with lumber to another railroad company, an employee of which, some days later, while the latter company was hauling lumber thereon in its yard, was injured by lumber falling from the car, because the car-sills were so rotten that the pockets for holding standards used in hauling lumber pulled out, and he sued the company that owned the car for damages on account of the injury, it was incumbent on him to show that at the time he was injured the car was being used for the purpose for which it had been delivered, or for a purpose authorized by that company.</p> <p>(a) So far as appears from the plaintiff’s petition, the purpose for which the Seaboard Air-Line Railway delivered its car to the Atlantic Coast Line Railroad Company had been fully accomplished by unloading the lumber delivered with the car before the injury occurred, and the lumber that the Atlantic Coast Line Railroad Company was hauling on the car at the time of the injury may have been a different load, and may have been loaded in a different and less safe manner than the original load, and the use then being made of the car may have been unauthorized by the Seaboard Air-Line Railway. The contrary does not appear from an allegation that the Seaboard Air-Line Railway “knew that [this car] would be used for hauling lumber by the Coast Line.” The court did not err in sustaining a general demurrer and dismissing the action as to the Seaboard Air-Line Railway.</p>

<p>Complaint; from city court of Sylvania — Judge Boykin. October 30,1914.</p>

<p>Complaint; from city court of Athens — Judge West. November 12, 1914.</p>

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

<p>A garnishment based on a judgment against a corporation can not subject money belonging to an individual.</p>

<p>Action for damages; from city court of Atlanta — Judge H. M. Reid. October 12, 1914.</p>

<p>Indictment for burglary; from Fulton superior court — Judge Thomas presiding. January 22, 1915.</p>

<p>Accusation of misdemeanor; from city court of Louisville— Judge Phillips. February 18, 1915.</p>

<p>Indictment for misdemeanor; from city court of Madison— ' Judge Anderson. January 23, 1915.</p>

<p>Indictment for seduction; from Hart superior court — Judge Meadow. February 10, 1915.</p>

<p>Indictment for gale of liquor; from Calhoun guperior court— Judge Cox. April 10, 1915.</p>

<p>Accusation of furnishing liquor to minor; from city court of 'Wrightsville — Judge Kent. April 3, 1915.</p>

<p>Accusation of sale of liquor; from Jenkins superior court— Judge H. C. Hammond. May 8, 1915.</p>

<p>Certiorari; from Putnam superior court — Judge Park. November 2, 1914.</p>

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

<p>Accusation of misdemeanor; from city court of Carrollton— Judge Beall. February 8, 1915.</p>

<p>1. It was within the discretion of the trial judge to permit the prosecuting attorney to propound leading questions to a witness introduced for the State; and it was not error requiring a new trial for the judge to say to counsel, in the hearing of the jury, as his reason for allowing leading questions, that the witness seemed to be “an unwilling witness.”</p> <p>2. It was not error to refuse to allow counsel to ask a witness, oh cross-examination, whether she had an illegitimate child. The witness could not be impeached or discredited by proof of that fact.</p> <p>3. It was not error to refuse to allow parol proof that a witness had been convicted of crime.</p> <p>4-5. The evidence authorized the verdict, and there was no substantial merit in any of the assignments of error.</p>

Complaint; from city court of Carrollton — Judge Beall. March 28, 1914.

<p>Complaint; from municipal court of Atlanta. April 29, 1914. T. B. Higdon, for plaintiffs in error.</p>

<p>1. The court did not err in overruling the demurrer to the indictment.</p> <p>(а) The name City National Bank imports a corporation.</p> <p>(б) Allegations that a representation was made to a named person “as president” of a named corporation, and that he “as president” of the corporation relied upon the representation, sufficiently stated his relationship to the corporation, and, in connection with the other allegations, sufficiently set forth his authority to act in its behalf.</p> <p>(c) The nature of the loan in question, its form, character, and terms, were sufficiently set forth.</p> <p>(d) It being alleged in the indictment that the fraud in the representation related solely to the defendant’s interest in the tract of land of which he was alleged to have represented he was the joint owner with his brother, it was ■ not necessary to give the name of the brother. Since only the quantum of the defendant’s ownership was important, it was immaterial who was the owner of the other interest in the property; and the allegation as to who was tenant in common with the defendant might properly have been treated as mere surplusage.</p> <p>2. The court erred in admitting statements of the defendant alleged to have been made subsequently to the transaction in which he was alleged to have committed the offense of cheating and swindling. These statements were not the basis of the credit alleged to have been extended, and, having been made two months after'the alleged offense, could not serve to illustrate his motive at the time of the transaction alleged to be criminal. Raise representations made more than two months after similar representations upon which the accused is being tried for the offense of cheating and swindling are too far removed in date from the crime charged to be said to be representations made “at or about the same_ time.”</p> <p>3. If the error of the judge in admitting improper testimony, which thereafter was promptly excluded by the court, or in permitting prejudicial remarks by counsel, was not sufficiently cured by instructions of the court to the jury, counsel should have promptly moved for a mistrial; and the failure to do this may be treated as a waiver of the error.</p> <p>4. The error of admitting, over objection, parol evidence of the contents of writings is not cured by a statement on the part of counsel for the prevailing party tending to show that the parol evidence was submitted under a misapprehension on his part that the writings were inaccessible; nor were.the remarks of counsel a proper substitute for an unequivocal ruling by the court, when such a ruling was required, and when, in the absence of such a ruling, the illegal testimony still remained subject to the consideration of the jury.</p> <p>5. Some of the assignments of error, not being argued in the brief of counsel for the plaintiff in error, must be treated as abandoned; and none ,of the remaining exceptions contained in the motion for a new trial are material.</p>

<p>Accusation of misdemeanor; from city court of Dawson — Judge M. C. Edwards. July 23, 1914.</p>

<p>1. There was sufficient evidence to warrant the conviction of the accused.</p> <p>2. As to the exception which relates to the presence of the city attorney and the chief of police in the council chamber, and the question put to the chief of police and answered by him in the absence of the accused, while the mayor and council were deliberating as to the judgment to be rendered, the case is controlled by the decision in Smith v. City of Rome, 16 Ga. App. 161 (84 S. E. 615).</p>

<p>1. By the express provisions of the code (Civil Code, § 4860; Penal Code, § 1315), a judge to whom a petition for habeas corpus is presented may decline to grant the writ, without being subject to the penalty of twenty-five hundred dollars imposed by the statute, when it plainly appears from the petition that there is no legal ground for the writ.</p> <p>2. In the present ease the suit for the penalty was properly dismissed on demurrer, because the defendant judge, to whom the application for habeas corpus had been presented, after due consideration, properly declined to issue the writ.</p>

<p>Accusation of misdemeanor; from city court of Albany — Judge Clayton Jones. November 28, 1914.</p>

<p>Action for damages; from city court of Valdosta — Judge Cranford. February 15, 1915.</p>

<p>Conviction, of manslaughter; from Sumter superior court — Judge Littlejohn. February 15, 1915.</p>

<p>1. Rights and remedies conferred by existing State laws, where a shipment accepted by a carrier for interstate transportation has been lost, injured, or damaged, were not continued in force by the proviso in what is known as the Carmack amendment of June 29, 1906 (34 Stat. 595, c. 3591, pars. 11, 12) to the act of -Congress of February 4, 1887, known as the Hepburn act, 24 Stat. 386, c. 104, § 20 (U. S. Comp. Stat. 1913, § 8592), that nothing therein contained shall deprive the holder of the receipt or bill of lading of any remedy or right of action which he has under existing law. This proviso preserves only any right or remedy that the holder may have had under existing Federal law at the time of hi's action. Consequently, the rule announced by this court in Atlantic Coast Line Railroad Co. v. Thomasville Live Stock Co., 13 Ca. App. 102 (78 S. E. 1019), is unsound, and upon review is expressly overruled.</p> <p>2. A suit for damages based upon the provisions of section 2752 of the Civil Code of 1910 can not be maintained against the last of several connecting carriers, if the loss or damage to the shipment occurred in the course of interstate transportation; for under the provisions of the Carmack amendment, supra, the initial carrier alone is liable for damage to interstate shipments, and under the Federal regulation of interstate commerce (which supersedes all State regulation upon the same subject) the remedy against the initial carrier is exclusive.</p> <p>3. The action being against the last connecting carrier, to recover for damage to an interstate shipment, a motion to dismiss it, upon the ground that the Federal regulation, contained in the Hepburn act and the Carmack amendment thereto, is paramount and exclusive of State regulation, and that under the Federal statute the initial carrier alone is liable for any loss, damage, or injury to the shipment caused by any transportation company over whose line the shipment might have passed, should have been sustained.</p>

<p>Accusation of sale of liquor; from city court of Polk county— Judge Davis. March 12, 1915.</p>

<p>Appeal) from Putnam superior court — Judge Park. September 81, 1914:</p>

<p>1. Testimony of one whose name appears as the maker of a negotiable note, that he signed and delivered it merely as an accommodation maker, without filling various blanks therein, and with the understanding that the person to whom he delivered it might thereafter fill the blanks and insert a certain amount and use the note for that person’s benefit, but only- in the event that the signer should thereafter consent to the completion of the note and to its use, and that thereafter a larger amount was inserted and the note used without his knowledge or eon- . sent, would not support a plea of non est factum, or constitute a valid defense against a bona fide transferee for value and before maturity. When one of two innocent persons must suffer by the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss.</p> <p>2. Where the signer of a note containing blanks deliver it to a person not authorized to fill the blanks or to use the note until thereafter empowered to do so by the maker, but who, exceeding his authority, does fill out and use the note, evidence that the maker accepted from the payee named therein a note payable to himself, to indemnify him against loss on the note signed by him, might relate back and amount to a ratification of the act of the person to whom he intrusted the incomplete note.</p> <p>3. Where the title of the holder of a note, transferred by indorsement, is questioned by a proper plea under oath, and the genuineness of the indorsement itself is so denied, proof is necessary on the part of the plaintiff before the note thus challenged can be introduced in evidence. If, however, without proof to establish the title of the holder or the validity of the indorsement, the note is offered in evidence with an apparently sufficient indorsement thereon to convey title to the holder, and no objection to the note, with the indorsement thereon, is urged by the defendant, the failure to object will amount to consent on his part to the introduction of the note, and to a waiver of his right to exact proof of the indorsement, and he can not for the first time raise the objection in this court.</p> <p>4. Where the holder of a bill or note has acquired it as collateral security for a debt and is entitled to recover thereon, the extent of his recovery is limited to the amount of that debt, if there be a valid defense against the party transferring it to him. It is only pro tanto that he is entitled, as a bona fide holder,.to stand upon a better footing than his transferrer. Such a holder can recover against an accommodation party no more than the consideration actually advanced or the debt due him by the person for whose obligation he accepted the collateral; but in the absence of proof to the contrary, the holder of an accommodation paper, transferred to him as collateral for the debt of the person who transferred it, will be deemed to have advanced the full amount of the paper, or to hold against his debtor a claim equal to or in excess of the' paper.</p> <p>5. The court did not err in directing a verdict in favor of the plaintiff.</p>

<p>Indictment for burglary; from Baldwin superior court — Judge Park. June %, 1914.</p>

<p>Indictment for involuntary manslaughter; from Fulton superior court — Judge B. II. Hill. July 6, 1914.</p>

<p>I. Where a crop made by a tenant is subject to a lien for rent or for advances made to him by his landlord, a loan of a part of the crop by the tenant, Avithout payment of the debt and Avithout the consent of the lienholder, and with intent to defraud, whereby loss is sustained, constitutes a violation of section 721 of the Penal Code. In the present case, however, the conviction of the accused is not authorized; for the indictment alleges a sale, and does not allege any other disposition .of the crop, and there Avas no evidence that he sold any part of the crop. The testimony to the effect that he lent, Avithout the consent of the landlord, a certain part of the cotton subject to the lien might have supported a conviction, if the indictment had alleged that the accused “disposed” of it otherwise than by sale. Evidence of a fraudulent loan will not support an allegation charging a fraudulent sale.</p> <p>2. Any witness may give his opinion as to ■ the quantity of a given substance which he has examined, after he has stated the facts upon which he bases his opinion; the probative value of the opinion being at last a . matter for determination by the jury.</p> <p>3. Primary proof is dispensed with when secondary evidence is admitted without objection; and the failure to object at the time the secondary evidence is offered will generally be treated as a waiver of objection.</p> <p>4. A party will not be heard to complain that .the court erred in propounding a certain question to a witness, when it appears that the court propounded it with that party’s consent.</p> <p>5. The trial judge may, at the instance of either party, or of his own motion, during the progress of the trial, give counsel the benefit of his views of the law affecting the case at bar, but it is error prejudicial to the opposite party for the court to make suggestions or remarks tending to impress and fortify the positions of one party rather than the other.</p> <p>6. Even though it may have been irregular and improper to permit the prosecutor to examine a witness, and though the manner of the examination may have been prejudicial to the accused, the irregularity must be treated as having been waived, since no objection was interposed by the defendant at the time the permission was given, and the complaint was first made in the motion for a new trial.</p> <p>7. The court did not- err in omitting to charge the jury that if the defendant lent the cotton with the intention to repossess it and deliver it to satisfy the lien, he would not be guilty of the charge.</p> <p>8. For the reasons stated in the first headnote the court erred in overruling the motion for a new trial.</p>

<p>Action for damages; from city court of Houston county — Judge Eiley. May 18, 1914.</p> <p>Jones sued Henry Harris for damages on account of injuries alleged to have been caused by the negligence of the defendant’s son in driving the defendant’s automobile. The petition alleged, that the machine was being driven “wilfully, deliberately, negligently, and with gross disregard of the safety of . . petitioner, and absolutely in violation of all lawful requirements, at the time of said collision, by Henry Harris Jr. (the son of defendant, said Henry Harris Sr.), who is a minor, being just sixteen years of age;”-that “the said defendant, father of said Henry Harris Jr., was fully cognizant of the use of his automobile by his said son, and the use of his said car by his said son was with his full knowledge and consent;” that “the said Henry Harris Jr. notoriously operated and ran said car without ordinary prudence, and that his father knew of the want of care on the part of his said son in the use of said ear, and the said defendant negligently permitted his said son to continue to operate said car upon the public highways.” By amendment the following allegations were made: “Petitioner shows that the said Henry Harris was the owner of the said automobile at the time of the injury of this defendant by reason of the collision of said automobile and the buggy in which petitioner was riding, and that the defendant, at the time of said injury and long prior thereto, kept said automobile for the pleasure and convenience of his family, one member of whom was Henry Harris Jr.; that at the time of the collision said Henry Harris Jr. was carrying out the general purpose for which the machine was kept, and was engaged in the execution of his father’s business, to wit, that of supplying recreation and pleasure to himself as a member of his father’s family. Petitioner further shows that with the knowledge and consent of the said Henry Harris, said Henry Harris Jr. was operating the said automobile at the time of said collision, and that the said Henry Harris permitted and authorized his son Henry Harris Jr. to operate said machine; that Henry Harris Jr. was a reckless and dangerous driver, and that the said Henry Harris knew his son was such dangerous and reckless driver, but, notwithstanding such knowledge, the said Henry Harris permitted and authorized his son to drive said automobile at the time of said collision and on divers previous occasions. Petitioner alleges that the authority and permission granted to the said Henry Harris Jr. by his father to drive his said automobile, notwithstanding the knowledge on the part of Henry Harris that his son drove in a reckless manner, was negligence on the part of said Henry Harris.”</p> <p>The demurrer was on the grounds that the petition does not set forth a cause of action, and that it is not averred that the alleged tort was committed by the defendant’s command, or in the prosecution and within the scope of his business.</p>

<p>Action for damages; from city court of Atlanta — Judge H. M. Eeid. June 22, 1914.</p>

<p>1. A recovery for the homicide of the servant of a contractor who had undertaken to construct the steel framework of a building can not be</p> <p>• had against the owner of the building in process of construction, if it appears that such owner had surrendered to such contractor full possession and complete control of the premises.</p> <p>2. The obligations imposed by the building ordinances of the City of Atlanta upon contractors and owners erecting buildings are not by its terms imposed on the contractor and the owner jointly, but, where the contractor and the owner are acting independently, are imposed only upon one or the other according to the degree of control either may exercise, or the nature and conditions of the contract.</p> <p>3. The court did not err in sustaining the demurrer to the petition; but if the petition be so amended, before the remittitur from this court is made the judgment of the court below, as to set out a sufficient cause of action, it is allowed, as requested by counsel, that the case be reinstated.</p>

<p>1. In a suit upon a promissory note, in which a surety thereon had pleaded a release by reason of the fact that he was exposed to greater risk by an act of the creditor in extending, without the knowledge or consent of the surety, the time of payment of the note in question, evidence that the surety accepted property from the principal debtor after the time of payment had been extended was admissible. The testimony that the surety accepted certain certificates of stoek from the principal debtor, confessedly for the purpose of indemnifying himself against probable loss on account of the suretyship, might authorize the jury to infer that the surety actually knew (as he must be presumed to have known) that the note was outstanding; and furthermore, the fact that the principal debtor, at the request of the surety, had delivered property to the surety for the purpose of protecting him not only might amount to a ratification of an extension of the note, but would impose upon the surety ex sequo et bono the duty of discharging the obligation of his principal, unless the stock given to him to indemnify him against loss was of a value less than the amount of the note.</p> <p>2. A contract which by law is required to be in writing can not be changed by parol evidence so as to substitute therefor, by novation, a contract which is also required by law to be in writing. Evidence of a parol agreement is inadmissible to establish the novation of a contract by law required to be in writing.</p> <p>3. In order to discharge a surety by an extension of time to the principal, not only must there be an agreement for the extension, but the proof must show that the indulgence was extended for a definite period fixed by the agreement.</p>

<p>Attachment; from city court of LaGrange — Judge Harwell. October 3, 1914.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. January 18, 1915.</p>

<p>Attachment; from city court of Atlanta — Judge H. M. Reid. October 31, 1914.</p>

<p>Exceptions to auditor’s report; from city court of Monroe— Judge Stone. July 23, 1913.</p>

<p>Indictment for seduction; from DeKalb superior court — Judge Bell presiding. June 30, 1914.</p>

<p>A writ of error will be dismissed if, while it is pending, an event occurs from which it is apparent- that a determination • of the merits of the writ is unnecessary. In no case will the Court of Appeals undertake to pass upon questions presented by a bill of exceptions when the adjudication of them, even though favorable to the plaintiff in error, could not result in any practical benefit to him; and in such a case the writ of error will be dismissed. Moot questions are not for solution by courts.</p>

<p>1. One tried for seduction and convicted of fornication can not complain that the evidence showed that the consent of the female was induced solely by a promise of marriage, and that the transaction was therefore meretricious.</p> <p>2. While it is essential to a conviction of fornication that the proof show that the participants were unmarried at the time of the criminal act, the defendant’s admission in his statement on the trial, that he proposed marriage and was engaged to the female with whom he was alleged to have had sexual intercourse, will support the inference that he was an unmarried man, and will supply at least prima facie evidence of that fact, which should be rebutted. There is no presumption that a person is either single or married, but the existence of the connubial relation, or the contrary, may be shown by circumstantial evidence.</p>

Indictment for simple larceny; from Laurens superior court— Judge Kent. February 16, 1915. Simon Lanier was-convicted under an indictment charging him with the larceny of a mule, the property of J. M. Hall.

<p>Indictment for sale of liquor; from Laurens superior court— Judge Larsen. December 29, 1914.</p>

<p>Indictment for abandonment of child; from Fulton superior court — Judge W. E. Thomas presiding. February 22, 1915.</p>

<p>Accusation of abandonment of child; from city court of St. Marys — Judge McElreath. March 13, 1915.</p>

<p>Accusation of maiming cattle; from city court of Statesboro— Judge Proctor. February 12, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. March 89, 1915.</p>

<p>Indictment for robbery; from Fulton superior court — Judge B. H. Hill. March 87, 1915.</p>

<p>Indictment for embezzlement; from Morgan superior court— Judge Park. April 19, 1915.</p>

<p>Indictment for carrying pistol; from Taliaferro superior court —Judge Walker. May 5, 1915.</p>

<p>Indictment for robbery; from Fulton superior court — Judge B. H. Hill. May 8, 1915.</p>

<p>Accusation of misdemeanor; from city court of Sandersville— Judge Jordan. May 22, 1915.</p>

<p>Indictment for assault with intent to commit robbery; from Fulton superior court — Judge B. H. Hill. May 8, 1915.</p>

<p>Accusation of carrying pistol; from city court of Dawson— Judge M. 0. Edwards. May 8, 1915.</p>

<p>Conviction of stabbing; from city court of Thomasville — Judge W. H. Hammond. May 1, 1915.</p>

<p>Indictment for misdemeanor; from Twiggs superior court— Judge Larsen. November 13, 1914.</p>

<p>Certiorari; from Beu Hill superior court — Judge George. February 10, 1915.</p>

<p>Indictment for arson; from Sumter superior court — Judge Littlejohn. February 15, 1915.</p>

<p>Indictment for larceny of hog; from Tift superior court-judge Thomas. January 15, 1915.</p>

<p>Indictment for larceny; from Tift superior court — Judge Thomas. January 15, 1915.</p>

<p>Indictment for murder — conviction of manslaughter; from Laurens superior court — Judge Kent. February 24, 1915.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. April 30, 1915.</p>

<p>Certiorari; from Thomas superior court — Judge Thomas. December 23, 1914.</p>

<p>Conviction of assault and battery; from Clay superior court— Judge Worrill. April 3, 1915.</p>

<p>Conviction of manslaughter; from Walker superior court — Judge Wright. October 24, 1914.</p>

<p>Accusation of gaming; from city court of Sandersville — Judge Jordan. April 30, 1915.</p>

<p>Conviction of involuntary manslaughter; from Floyd superior court — Judge Wright. March 3, 1915.</p>

<p>Indictment for misdemeanor; from Haralson superior court— Judge Bartlett. April 20, 1915.</p>

<p>A nonsuit may properly be awarded in an action in trover where there is no proof either of actual conversion or that the defendant was in possession of the property at the time the action was brought.</p>

<p>Complaint; from municipal court of Atlanta. February 20, 1915.</p>

<p>Conviction of manslaughter; from Baldwin superior court— Judge Park. March 26, 1915.</p>

<p>Indictment for trespass;, from Habersbam superior court — : Judge J. B. Jones. March 5, 1915.</p>

<p>One can not be convicted of larceny when the corpus delicti is not established. In other words, one can not be convicted of stealing coffee which has never been stolen, so far as appears from the evidence. The mere possession of coffee, even though the possession be unaccounted for, will not authorize the conclusion that it was stolen from one who had lost no coffee.</p>

<p>Indictment for misdemeanor; from Dougherty superior court— Judge Cox. April 3, 1915.</p>

<p>Indictment for larceny of bog; from Jenkins superior court— Judge H. C. Hammond. May 8, 1915.</p>

<p>Indictment for misdemeanor; from Haralson superior court— Judge Bartlett. April 7, 1915.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. April 30, 1915.</p>

<p>Accusation of misdemeanor; from city court of LaGrange— Judge Harwell. May 12, 1915.</p>

<p>Certiorari; from Brooks superior court — Judge Thomas. May term, 1915.</p>

<p>Conviction of manslaughter; from Coffee superior court — Judge Summerall. March 13, 1915.</p>

<p>Conviction of manslaughter; from Gilmer superior court— Judge Patterson. December 5, 1914.</p>

<p>Accusation of gaming; from city court of Carrollton — Judge Beall. May 7, 1915.</p>

<p>Indictment for misdemeanor; from Laurens superior court— Judge Larsen. 'December 29, 1914.</p>

<p>Indictment for sale of liquor; from Whitfield superior court— Judge Fite. January 27, 1915.</p>

<p>Conviction of assault and battery; from Fulton superior court— Judge B. H. Hill. April 10, 1915.</p>

<p>• Indictment for robbery; from Chatham superior court — Judge Charlton. May 21, 1915.</p>

<p>Certiorari; from Brooks superior court — Judge Thomas. May 28,1915.</p>

<p>Accusation of sale of liquor; from city court of Eastman — Judge Neese. June 30, Í915.</p>

<p>Accusation of carrying concealed weapon; from city court of Jefferson — Judge Wheeler presiding. June 14, 1915.</p>

<p>Indictment for burglary; from Fulton superior court — Judge B. H. Hill. January 9, 1915.</p>

<p>Accusation for misdemeanor; from city court of Macon — Judge Hodges. January 9, 1915.</p>

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

<p>Accusation of keeping disorderly house; from city court of Washington — Judge Wynne.' May 1, 1915.</p>

<p>Indictment for burglary; from Fulton superior court — Judge B. H. Hill. May 22,1915.</p>

<p>Accusation of carrying pistol; from city court of LaGrange— Judge Harwell. May 12, 1915.</p>

<p>Accusation of misdemeanor; from city court of Nashville— Judge Christian. May 25, 1915.</p> <p>The accusation charged W. E. Lasseter with “the offense of a misdemeanor,” for that he, on the 22d day of May, 1915, did unlawfully maintain and keep a lewd house. It further charged him with “the offense of a misdemeanor,” for that he, on the 22d day of May, 1915, “did commit the offense of open lewdness and do a notorious act of public indecency by hiring out his wife for immoral purposes, tending to debauch the morals of the public, contrary to the laws of the State,” etc. The grounds of the demurrer were: 1. The accusation is fatally defective, in that the defendant is charged with keeping a lewd house, under section 382 of the Penal Code of 1910, and also charged with open lewdness and a notorious act of public indecency, under section 381 of the Penal Code; and these offenses are so entirely separate and distinct that they can not be joined in one accusation. 2. The accusation does not set out to whom the defendant hired his wife, or for what length of time, or for how much, or for what kind of immoral purpose.</p>

<p>Accusation of discharging pistol; from city court of Carrollton— Judge Beall. May 12, 1915.</p>

<p>Indictment for cheating and swindling; from Lanrens superior court. Judge Kent. May 14, 1915.</p>

<p>Certiorari; from Baldwin superior court — Judge Park. June 3, 1915.</p>

<p>Certiorari; from Terrell superior court — Judge Worrill. May 26, 1915.</p>

<p>Certiorari; from Camden superior court — Judge Highsmith. February 25, 1915.</p>

<p>Petition for certiorari; from Brooks superior court — Judge Thomas. May 28, 1915.</p>

<p>Certiorari; from Carroll superior court — Judge Beall. June 9, 1915.</p>

<p>Accusation of misdemeanor; from city court of Waynesboro— Judge Davis. June 2, 1915.</p> <p>Seaborn A. Jones was convicted on an accusation based on the section of the game law which provides that “it shall be unlawful for any person to shoot at or kill any dove or other game birds at, upon, over, or near any larid baited or baited field or land” (Acts 1911, p. 143; Acts 1912, p. 118; Park’s Annotated Code (Penal), § 594 (d) ). On the trial he admitted that he had shot at doves on baited land as alleged, but he sought to defend on the ground that he did not know that the land was baited. His motion for a new trial was on the general grounds as to the insufficiency of the evidence.</p> <p>The following evidence was introduced: Edgar Bargeron testified : “I am game warden of Burke county, Georgia. I went down to the plantation of C. I. Belt in this county on February 24, 1915, and looked over the land reported to me to be baited, and where S. A. Jones shot doves. I found about 12 blinds, i. e. stands, around the field of about six or eight acres. There were about 50 to 125 empty shells in each of these stands, and a quantity of dove feathers in each. The blinds were made out of pine tops. There was a considerable amount of wheat scattered on about four acres of this land, which could be readily seen by any one making a search. It is difficult to get birds to stick at a field that is not baited, and people do not shoot them around here with any satisfaction unless they are baited.” J. H. Jordan testified: “I live within a few hundred yards of the lands of .0. I. Belt where the doves were shot on February 22,' 1915. There were ten or twelve people around there, but I did not know them all. Seaborn A. Jones was there with a gun, and I presume he shot birds with the rest. They all got there early in the morning, some by daylight and some by sunup. There was plenty of bait (wheat) scattered over the lands where they were shooting, and it could be easily seen by any one looking on the ground for it. There were a good many birds there, but I do not know how many were killed. . , It was a natural pea field and the birds were there all winter— lots of doves there.” George L. Jones testified: “Some time early in February I noticed that doves were congregating in large numbers on the lands of C. I. Belt in this county, and Mr. Belt agreed that I could shoot the birds, telling me to bait them. I thought it would be a pretty good shoot without scattering any bait, so I did not do so until Friday before we shot them on the 22d day of February. On Friday before we shot them I scattered one bushel of wheat . . over the land. I notified quite a number of my friends, among them my brother, Seaborn A. Jones. I did not tell any of them that the land was baited, nor did any of them inquire as to whether the land was baited or not, and, so far as I knew, none of them knew that the land was baited. I did not consider it baited, as I put out such a small amount of grain, and it was such a short time before we shot them. . . There were ten or twelve persons there, and I had prepared blinds several days before we shot them. I have shot birds for a number of years, and it is true that you can’t have a satisfactory shoot unless the land is baited. There may be a number of birds in the field, but they will not stick. . . I think it was after sunup when my brother reached there. He shot over across the ditch from where the birds were baited, but later on in the day he came over and shot some over the baited land.” E. L. Hutchens testified that the defendant shot from across the ditch where the bait was scattered, and later came over to where the bait was scattered. The defendant made the following statement at the trial: “A few days before Monday, February 23, 1915, my brother . . called me over the phone and invited me to shoot some doves on February 22d on the C. I. Belt place. He said nothing about the doves being baited, and I did not ask him about it. On the morning of the 22d I went over, arriving on the field some time after sunup. I shot the doves along- with the others that were-there, but I did not know they were baited; I heard no one say anything about their being baited. I killed only about twelve or fifteen. I shot over across the ditch from where they were baited, as stated by witnesses.”</p> <p>Citations by counsel: Miley v. State, 118 Ga. 274; Clark’s Crim. L. 68; 1 Bishop’s Crim. L. 173, par. 302, sec. 3; Stern v. State, 53 Ga. 229; Reich v. State, 63 Ga. 616.</p>

<p>Petition for certiorari; from Wayne superior court — Judge Highsmith. June 17, 1915.</p>

<p>Indictment for sale of liquor; from Johnson superior court-judge Kent. June 14, 1915.</p>

<p>Indictment for sale of liquor; from Paulding superior court— Judge Bartlett. June 10, 1915.</p>

<p>Accusation of misdemeanor; from city court of Baxley — Judge Grant presiding. July 9, 1915.</p>

<p>Indictment for sale of liquor; from Dooly superior court— Judge George.’ June 12, 1915.</p>

<p>Indictment for sale of liquor; from Paulding superior court— Judge Bartlett. June 10, 1915.</p>

<p>Accusation of sale of liquor; from city court of Houston county —Judge Eiley. June 31, 1915.</p>

<p>Certiorari; from "Wilkes superior court — Judge Walker. August 5, 1915.</p>

<p>Indictment for misdemeanor;’ from city court of Greensboro— Judge Sibley. July 37, 1915.</p>

<p>Certiorari; from Laurens sujierior court — Judge Kent. July 28, 1915.</p>

<p>Conviction of manslaughter; from Emanuel 'superior court-judge Rawlings. December 26, 1914.</p>

Indictment for perjury; from Haralson superior court — Judge Bartlett. January 29, 1915. The exceptions are to the overruling of a demurrer to the indictment.

<p>Conviction of manslaughter; from Mitchell superior court— Judge Cox. June 28, 1915.</p>

<p>Accusation of larceny; from city court of Houston county— Judge Riley. June 12, 1915.</p>

<p>Indictment for larceny; from Fulton superior court — Judge B. H. Hill. February 6, 1915.</p>

<p>Indictment for robbery; from Chatham superior court — Judge Charlton. May 21, 1915.</p>

<p>Petition for certiorari) from Baldwin superior court — Judge Park. June 3, 1915.</p>

<p>Petition for certiorari) from Johnson, superior court — Judge Kent. July 36, 1915.</p>

<p>Indictment for assault and battery; from Decatur superior court —Judge Cox. August 14, 1915.</p> <p>Jim Yates (the plaintiff in'error) was indicted and tried jointly with Jesse Yates, for assault and battery. The indictment was filed May 10, 1915, and the case was called for trial and tried May 17, 1915. One of the grounds of the motion for a new trial is as follows: “That the defendants should have a new trial because the court overruled the motion of defendants to postpone the hearing of said case until the 18th of May, upon the grounds that the defendants had two witnesses, Will Gray and Ed Gilmore, absent; that they had been subpoenaed and would testify that they were present at the time of the alleged difficulty, and saw and heard all of it; that all Mr. Jesse Yates did was to try to get Mr. Jim Yates not to do anything to the prosecutor, but asked him to let the prosecutor alone; that he was acting only as a peacemaker; that these witnesses were in the county, and that the defendants would have them present and ready to go to trial on the morning of the 18th; that they were the only witnesses by whom they could prove these facts; that the defendant Jim Yates had been in jail some little time, and had asked for a bond several times upon a charge of assault with intent to murder, and that the court had refused to allow him a bond; that he could not get out to see about employing an attorney when his case was called for trial, he having had no notice of the ease being made against him, nor any arrest being made in this case;.that Mr. Jesse Yates had been arrested and given bond only on Thursday next before the trial on Monday before the calling of the case for trial, and that he had been trying all that time to arrange a bond for his brother Jim, upon the charge of assault to murder, and was preparing to try that case, and made no preparation to try this case; that if the case were postponed until the morning of the 18th, the next day, they would be ready for trial. Counsel for defendants stated in his place that he was not ready for the trial, but would be ready on the following day, and only asked a postponement.”</p>

<p>Indictment for disturbing school; from Decatur superior court— Judge Cox. August 14, 1915.</p>

<p>Certiorari; from Bibb superior court — -Judge Mathews. July 30, 1915.</p>

<p>Indictment for forgery; from Haralson superior court — Judge Bartlett. July 30, 1915.</p>

<p>Complaint; from city court of Quitman — Judge Long. December 15, 1914.</p>

Action for damages; from city court of Thomasville — Judge W. H. Hammond. December 21, 1914.

Certiorari; from Chatham superior court — Judge Charlton. December 30, 1914. Miss R. I. Worth sued Sidney Geiger in a justice’s court for $40.15, alleged to be a balance due for a “course in shorthand,” and for stationery and books.

<p>Petition for certiorari; from Berrien superior court — Judge Thomas. February 2, 1915.</p>

<p>Irrespective of the purpose of the removal, and without regard to the bona fides of the transaction, a creditor of one who is causing his property to be removed beyond the limits of the State is entitled, under subdivision 6 of section 5055 of the Civil Code, to hold the property within the jurisdiction of the courts of this State by attachment; and the creditor’s right to proceed by attachment, where it is conceded that the debtor is causing any portion of his property to be removed beyond the limits of the State, is not affected by the fact that the debtor has other property which might be subjected to the payment of his debt.</p>

<p>Indictment for larceny from house; from Irwin superior court— Judge George. February 1, 1915.</p>

<p>A writ of certiorari in a civil case, unless sued out in forma pauperis, is absolutely void if it be issued before tbe applicant lias given tbe bond prescribed by law; and the bond, to be effectual, must be approved by the judge or justice of the court in which the case was originally tried. A certificate of the - trial magistrate that the plaintiff “has paid all costs accrued in the trial and given bond as required by law in said case” is not a sufficient substitute for the written approval required by law.</p>

<p>Appeal; from Forsyth superior court — Judge Patterson. April 16, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. June 14, -1915.</p>

<p>Accusation of sale of liquor; from city court of Bainbridge— Judge Spooner. August' 16, 1915.</p>

<p>Indictment for misdemeanor; from Whitfield superior court— Judge Eite. July 27, 1915.</p>

<p>Accusation of sale of liquor; from city court of Floyd county— Judge Eeece. September 23, 1915.</p>

<p>Indictment for sale of liquor; from Emanuel superior court-judge Walker presiding. June 30, 1915.</p>

<p>Affidavit of illegality; from city court of Hazlehurst — Judge Grant. January 25, 1,9.15.</p>

<p>Certiorari; from Jackson superior court — Judge Brand. February 11, 1915.</p>

<p>1. All applications for continuances are addressed to the sound legal discretion of the trial judge (Penal Code, § 992), and his decision thereon will not be reversed unless there has been a plain, palpable, and flagrant abuse of this discretion. Sealy v. State, 1 Ga. 213 (44 Am. D. 641) ; Howell v. State, 5 Ga. 48; Roberts v. State, 14 Ga. 6; Revel v. Slate, 26 Ga. 275; Long v. State, 38 Ga. 491; Oglesby v. State, 121 Ga. 602 (49 S. E. 706) ; Rawlins v. State, 124 Ga. 31 (52 S. E. 1) Lyles v. State, 130 Ga. 294 (60 S. E. 578); Partner v. State, 3 Ga.'App. 336 (59 S. E. 823).</p> <p>2. Continuances for the absence of counsel are not favored. A strict showing is required, particularly where competent counsel other than the absent counsel has been secured, and it is not shown that the defendant was injured by the absence of his original counsel. Allen v. State, 10 Ga. 85; Horstiaw v. Oootn, 16 Ga. 526; Wright v. State, 18 Ga. 383; Loyd v. State, 45 Ga. 57, 72; Long v. State, 38 Ga. 491; Poppell v. State, 71 Ga.- 276.</p> <p>3. Where a motion for a continuance was based upon the ground that the attorney who represented the accused was physically unable to appear, and it was shown that he had been employed by the accused with knowledge of his physical indisposition, the discretion of the trial judge in refusing a continuance will not be controlled. Easterling v. State, 12 Ga. App. 690 (78 S. E. 140). In this case the physical indisposition of the counsel was caused by a broken leg, which was broken several weeks before he was employed by the accused, and he was using crutches when so employed, and his physical condition was apparent at that time to the accused, or could have been discovered by the slightest diligence. Under this state of facts there was no abuse of discretion in overruling the motion for a continuance.</p> <p>4. There was no error (as assigned in the second ground of the amendment to the motion for a new trial) in the admission of the testimony showing a free and voluntary confession of the defendant Curry.</p> <p>5. In the light of the explanatory notes of the trial judge, there is no merit in the fourth and fifth grounds of the amendment to the motion for a new trial.</p> <p>6. There was no error in the refusal of the court to grant the counsel for the defendants two hours for the argument of this case.' This was a felony case, but the offense charged was not a capital felony, and, under the law, the two defendants having elected to be tried together, their counsel were entitled to only one hour for the argument of their side of the ease, and the grant of any further time was entirely within the discretion of the trial judge.</p> <p>7. The court did not err “in declining to charge, on written request of counsel in said case, section 1009 of the criminal code of the State of Georgia.” The court had the right to assume that this request referred to section 1009 of the last-adopted criminal code of Georgia (1910) ; and that section was not applicable to the facts of the case.</p> <p>8. Those assignments of error on different excerpts from the charge of the court which are referred to in the brief of counsel for the plaintiffs in error are without substantial merit. The instructions complained of in various grounds of the amendment to the motion for a new trial are not erroneous for any of the reasons assigned therein. The other special assignments of error are entirely without merit or are not referred to in the brief of counsel for the plaintiffs in error.</p> <p>9. The evidence authorized the conviction of both defendants, and the court did not err in overruling the motion for a new trial.</p>

<p>Accusation of sale of liquor; from city court of Louisville— Judge Phillips. ’March 12, 1915.</p>

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

<p>Accusation of gaming; from Laurens superior court — Judge Kent. August 28, 1915.</p>

<p>Petition for certiorari; from Fulton superior court — Judge Pendleton. December 5, 1915.</p>

<p>Money-rule; from municipal court of Atlanta. December 31, 1914.</p>

<p>Action for damages; from city court of Thomasville— Judge W. M. Hammond. January 12, 1915.</p>

<p>Petition for certiorari; from Lowndes superior court — Judge Thomas. January 18, 1915.</p>

<p>Complaint; from city court of Hall county — Judge Wheeler. February 19, 1915.</p>

<p>Action on contract; from city court of Bainbridge — Judge Spooner. January 27, 1915.</p>

<p>Complaint; from city court of Brunswick — Judge Krauss. February 10, 1915.</p>

<p>Action on bond; from municipal court of Atlanta. March 10, 1915.</p>

<p>Conviction of assault with intent to murder; from Wheeler superior court — Judge Graham. October 4, 1915.</p>

Complaint; from city court of Tifton — Judge Eve. January 13, 1915. The Fourth National Bank of Macon sued W. E. Gibbs as principal and A. Y. Mozingos as indorser on a promissory note of Gibbs for $143.80 principal. The court, on oral motion of the plaintiff, struck the answer of Gibbs, on the ground that no valid defense was set forth therein, and rendered judgment for the plaintiff. Gibbs excepted.

Complaint; from city court of Wrightsville — Judge Hatcher. February 15, 1915.

<p>Certiorari; from Jeff Davis superior court — Judge Highsmith. March 20, 1915. '</p>

<p>Complaint; from city court of Hazlehurst — Judge Grant. March SO, 1915.</p>

<p>Complaint; from city court of Eastman — Judge Neese. March 5. 1915.</p>

<p>Complaint; from city court of Beidsville — Judge Collins. March 5, 1915.</p>

<p>Indictment for assault with intent to rape; from Bibb superior court — Judge Mathews. July 29, 1915.</p>

<p>Indictment for sale of liquor; from city court of Americus— Judge Harper. August 26, 1915.</p> <p>The plea referred to in the decision was as follows: “Now comes . . defendant, and files this his plea of former jeopardy in said case, and would show to the court that he has been put in jeopardy for the offense charged in said indictment, and can not, therefore,, be put on trial again for said offense, but should be discharged upon the following grounds, to wit:</p> <p>“1. He would show that on the 9th day of July, 1915, this date, his ease was called for trial; he announced ready, and the State announced ready; a panel of eighteen jurors were sworn, put on the voir dire, and all qualified; after which a list was furnished the State and the defendant, from which a jury was stricken. After the jury, was stricken a full panel of twelve jurors to sit on said ease had qualified and were called to the box for the purpose of hearing said case; the defendant, John Minyard, had been put on trial and plead not guilty, the jury of twelve were sworn, and the solicitor-general called all of the witnesses for both the defendant and the State and swore them in the presence of the jury, and then opened his case by making his statement to the jury, briefly outlining the State’s case and what they expected to prove, and then called George Bailey, one of the State’s witnesses, who took the stand for the purpose of testifying in said case. Immediately after this witness took the stand, but before being examined, Mr. W. W. Dozier, one of the twelve jurors who had been selected to try this particular case, arose in his place and stated that he had served on the grand jury which returned this indictment; in response to which, the court stated: ‘You will stand aside, Mr. Dozier;’ and the court requested the sheriff to procure another juror; whereupon the court, after another juror had been summoned as a talesman by the sheriff, announced that inasmuch as there is no legal jury impaneled to try this case, a new list will be prepared, leaving off the disqualified juror, and the State and the defendant will strike a jury in the case. At this point counsel for the defendant asked the court to give him time to prepare a special plea in this matter, that he wanted to file this plea; to which the solicitor-general objected. The court then stated that it presumed defendant wished to file a plea of former jeopardy, that the plea would be treated as filed, and demurrer thereto sustained; said plea could be reduced to writing later; and the court ordered the case to proceed before the same jury that had been upon him before and the additional jurors summoned by the sheriff.</p> <p>“2. This defendant contends that the former [jeopardy] consisted in his having been arraigned, a legal jury having been impaneled, which consisted of one of the jurors who had returned the bill of indictment, to wit, W. W. Dozier, and that until the court voluntarily and of his own motion ordered said juror to stand aside and ordered the sheriff to procure another juror, it was a legal jury, and both the State and defendant, having had the indictment in their possession, could have, by any diligence whatever, discovered that W. W. Dozier had been on the grand jury, for which reason they could have disqualified him; neither did so, and therefore they both waived their rights to disqualify said juror, and it was a legal jury, and the court had no right, of his own motion and without the consent of the defendant, to disqualify this juror; after which he did not have a legal jury. He insists that it was a legal jury, and that any disqualification that might have existed had been waived by both the State and the defendant; and if it became an illegal jury at all, it was on the motion of the court, and not by the consent or request of the defendant, but cn a distinct statement that the defendant was not waiving any rights, he had in the premises.</p> <p>“3. This defendant says that the court had no right to withdraw said ease from the jury of his own motion and without the consent or on the motion of this defendant, and when he did so tbe withdrawal thereof was illegal; that this defendant had been placed in jeopardy and had a right to proceed to trial before the jury he had selected.</p> <p>“This defendant would show that he made no motion for a new trial, thg,t he did not agree to the disqualification of the juror W. W. Dozier, that he did not agree to the withdrawal of the case from the jury as impaneled as aforesaid, but objected thereto and specifically stated that he would not waive his rights in the premises; that all of this was done voluntarily on the motion of the court; that there was no mistrial; and therefore this defendant insists that he has once been placed in jeopardy and he can not again be tried for the same offense and should be discharged.”</p>

<p>Indictment for burglary; from Laurens superior court — Judge Kent. September 4, 1915.</p>

<p>Complaint; from city court of Cartersville — Judge Moon. February 18, 1915.</p>

<p>Conviction of manslaughter; from Pulaski superior court— Jttdge Graham. January 21, 1915.</p>

<p>Complaint; from city court of Hazlehurst — Judge Grant. February 5, 1915.</p>

<p>Action for damages; from city court of Albany — Judge Clayton Jones. March 10, 1915.</p> <p>The petition of Sam Farkas alleged: “(1) The defendant, the Georgia Southwestern & Gulf Eailroad, is a corporation, with its principal office in the city of Albany, Dougherty county. (2) On or about January 8, 1914, the Miller Union Stock Yards delivered to the A., B. & A. Eailroad at Atlanta, Georgia, mules consigned to Sam Farkas at Albany, Georgia. (3) Defendant . . is a connecting carrier with the initial carrier, A., B. & A. Eailroad, and . . participated in the transportation of the mules from Atlanta, Georgia, to Albany, Georgia; said mules having been brought to their destination by the Georgia Southwestern & Gulf Eailroad. (4) Upon arrival of said mules one mule appeared to be injured, and died a few hours later from the injury received during transportation. Said , mule was of the value of two hundred dollars ($200.00); therefore plaintiff has been injured in the sum of two hundred dollars. (5) On April 3, 1914, Sam Farkas applied to the Georgia Southwestern & Gulf Eailroad, by written application (a copy of which is hereto attached and marked ‘Exhibit A’), to trace said car of mules and give the notice required by section 2771 of the Civil Code of Georgia. (6) The Georgia Southwestern & Gulf Eailroad has failed to trace said car of mules or give the notice as required by section 2771 of the Code of Georgia.” The petition contained a second count, identical with the preceding count except in the 2d and 4th paragraphs, which were as follows: (2) “On or about December, 1912, the Miller Union Stock Yards delivered to the A., B. & A. Eailroad at Atlanta, Georgia, mules consigned to Sam Farkas at Albany, Georgia.” (4) “ During the transportation of the mules shipped on or about December, 19-13, one mule was injured, to the damages of twenty-five dollars ($25.00) to the plaintiff, both hind legs of the mule being badly cut and skinned.” The petition prayed for “judgment against the defendant, and.that process issue,” etc. A copy-of the application referred to as “Exhibit A” was attached to the petition.</p> <p>The proposed amendment, which the court refused to allow, added the word “Company” to the name of the defendant, and substituted for paragraph 2 in each count the following paragraph: “On or about January 8, 1914, Miller Union Stock Yards delivered to the A., B. & A. Bailroad at Atlanta, Georgia, mules consigned to Sam Earkas at Albany, Georgia, and, as a part of the agreement between the Miller Union Stock Yards and the A., B. & A. Bail-road, said railroad was not to be liable for damage caused by other railroads in transportation of the stock.” It was proposed to amend paragraph 4 of the first count so that it should read as follows : “Upon arrival of said mules one bay mare mule, four years old, weighing about 1150 pounds, appeared to be injured, and died a few hours later from internal injuries received during transportation. The death of said mule was admitted by defendant’s company to have been caused by injuries during transportation. Said mule was of the value of $200.00; therefore plaintiff has been injured in the sum of $200.00.” It was proposed to amend paragraph 4 of the second count so that it should read as follows: “During transportation of the mules shipped on or about December, 1913, one mouse-colored mare mule, about six years old, was injured, to the damages of $25.00 to the plaintiff, both hind legs of the mule being badly cut and skinned.”</p>

<p>Indictment for malpractice in office; from Chatham superior court — July 26, 1915.</p>

<p>Accusation of assault and battery; from city court of Bainbridge —Judge Spooner. August 16, 1915.</p>

<p>Petition for certiorari; from Fulton superior court — Judge Pendleton. December 19, 1914.</p>

<p>Trover; from municipal court of Macon — Judge Daly. December 8, 1914.</p>

<p>Action for damages; from city court of Bainbridge — Judge Spooner. January 25, 1915.</p>

<p>Indictment for misdemeanor; from city court of Jefferson— Judge Johns. January 6, 1915.</p>

<p>Indictment for sale of liquor; from Berrien superior court-judge Thomas. August 14, 1915.</p>

<p>Indictment for sale of liquor; from Colquitt superior court— Judge Cox. August 19, 1915.</p>

<p>Indictment for sale of liquor; from Colquitt superior court— Judge Coz. April 15, 1915.</p>

<p>Indictment for fraudulent conversion; from Forsyth superior court — Judge Patterson. September 23, 1915.</p>

Accusation of misdemeanor; from city court of Washington— Judge Wynne. September 9, 1915. Lunceford was convicted on an accusation charging him with having unlawfully kept on hand intoxicating liquors at his' place of business, a barber-shop. The first and second grounds of the amendment to the motion for a new trial relate to testimony of I. T. Irvin Sr., chief of police of the city of Washington.

<p>Complaint; from municipal court of Atlanta. March 20, 1915. A. M. Brand, for plaintiff in error.</p>

<p>1. The record in this case discloses that a motion for a new trial was overruled and a bill of exceptions thereafter tendered to the trial judge and certified and signed by him; that the defendant in error duly acknowledged service of the bill of exceptions, and it was, within the time fixed by law, “deposited in the clerk’s office in the city court of Oglethorpe, to be filed, and thence to be transmitted, together with the records in said case, to the Court of Appeals of Georgia, and that said bill of exceptions has been lost, and diligent search has been made for the same and it can not be found.” The affidavit of the clerk of the city court of Oglethorpe, attached to the motion to establish the lost bill of exceptions, sets forth “that he has made diligent search for the foregoing bill of exceptions and that the same has not been filed [italics ours], and it can not be found, and has been lost or destroyed.” The court established the alleged copy of the lost bill of exceptions instanter, under the provisions of section 5312 of the Civil Code (1910), in an ex parte proceeding, without notice to the defendant in error. While it appears that the lost bill of exceptions was “deposited” in the office of the clerk of the city court of Oglethorpe, it does not appear that it was deposited with the clerk or with any person having authority to act for him, or that it came into his possession at any time; and since it affirmatively appears that the original bill of exceptions was never filed, it never in fact became an office paper, and the court erred in establishing a copy of it in a summary manner. Had it appeared that the original bill of exceptions was “deposited” with the clerk, or with any of his subordinates, even though never in fact filed, a different question would be presented. In the absence of a recital to the contrary, it must be assumed that the deposit of the paper was made without the knowledge of the clerk of the trial court; and to hold that such a deposit put the paper in the possession of the clerk would open the way for loose practices from which might flow grave consequences.</p> <p>2. This court lias no jurisdiction to entertain or pass upon assignments of error in a copy bill of exceptions improperly established in lieu of the lost original.</p>

<p>Complaint; from municipal court of Atlanta. December 10, 1914.</p>

<p>Motion to vacate judgment and reinstate ease; from city court of Atlanta — Judge H. M. Eeid. October 17, 1914.</p>

<p>Complaint; from city court of Douglas — Judge Lankford. December 17, 1914.</p>

<p>Illegality of execution; from city court of Floyd county — Judge Reese. December 15, 1914.</p>

<p>1. As a general rule, a sheriff and his sureties are liable upon his official bond for any violation of his duty which inflicts injury upon another; but this rule does not apply to his non-enforcement of an order or judgment not expressly authorized by law; and when the determination of the issue whether such an officer is subject to rule by reason of a positive act in disobedience of the order of a particular court, or for failure to act in obedience to its orders, is controlled by and must depend solely upon that court’s adjudication as to whether such act or the failure to act was in contempt of an order extraordinary as construed by the court itself, the matter is one peculiarly addressed to the discretion of that court, and the exercise of its discretion will not be interfered with. A court may sometimes rightly adjudge that disobedience of an order improvidently granted by it was not a contempt.</p> <p>2. The judgment sustaining the demurrer to the. petition was not for any reason erroneous.</p>

<p>Attachment; from city court of Cairo — Judge Singletary. December 24, 1914.</p>

<p>Complaint; from city court of Carrollton — Judge Beall. January 12, 1915.</p>

<p>Action for damages; from city court of Atlanta — Judge H. M. Reid. December 15, 1914.</p>

<p>Levy and claim; from city court of Carrollton — Judge Beall. January 12, 1915.</p>

<p>One wlio, being married and knowing that in fact the lawful husband or wife is living, goes through the form of marriage with another person is guilty of bigamy, under the provisions of section 368 of the Penal Code. The mere fact that the person with whom one goes through the form of marriage has also at the time a living husband or wife will afford no defense.</p>

<p>Complaint; from city court of Dublin — Judge Hicks. March 12, 1915.</p>

<p>Accusation of misdemeanor; from city court of Carrollton— Judge Beall. April 2, 1915.</p>

<p>Trover; from city court of Cairo — Judge Willie. May 3, 1915.</p>

<p>. Complaint; from city court of Jefferson — Judge Johns. January 6, 1915.</p>

<p>Action for damages; from city court of Carrollton — Judge Beall. January 15, 1915.</p>

<p>Action on contract; from city court of Thomasvillc — Judge W. H. Hammond. December 29, 1914.</p>

<p>Complaint; from city court of Atlanta — Judge H. M. Beid. October 15, 1914.</p> <p>The action was by the receivers of the Guarantee Trust and Banking Company, on a note payable to that company, for $530 principal, dated March 6, 1913. The defendant in his answer denied the alleged indebtedness, but did not deny the execution ,of the note. He further answered as follows: In 1907 he was importuned by agents of the Guarantee Trust and Banking Company to purchase some of its investment bonds, which they assured him were a good investment. Belying on their statement to him and trusting implicitly the officers of that company, he purchased some of the bonds, and, after signing papers therefor and making a number of payments thereon, he read one of the bonds so purchased and found that it did not state when it was due and payable, and he thereupon and repeatedly thereafter talked this over with the officers of the company, and was time after time assured by H. S. Miles, one of the officers, that the bonds were in the usual form and as good as gold, that the company was making money, and the investment would pay the defendant handsomely. Allowing himself to be soothed by these and other promises and representations, and believing that the officers of the company were honorable, upright business men, he continued making monthly payments of $80 per month to the company until he had paid it over $5,000. In the summer of 1912 a representative of the company called upon him and in its behalf advised him that the bonds so purchased were worthless, that the consciences of the officers of the company hurt them for having deceived and cheated him for such a great length of time, and that the company was prepared to take up the $5,000 worth.of bonds so purchased and give him a security which was valuable, to wit, stock in the same company, which stock was as good as gold; that they did not desire to take his money and give him nothing in return; hence they wanted to exchange the bonds for the stock; that upon the stock money could be secured. The defendant permitted the exchange of the bonds for the stock on these assurances; and, to show their good faith in the matter and back up what they had represented, the officers of the company lent him $535 of the money he had paid into the company, “and took a note, which he presumed was an ordinary collateral note, hypothecating the said stock and stipulating the money so received as a loan.” He has never seen the note since it was signed. At that time he did not read it, and he does not know its true purport or contents. At the time of signing he believed the officers of the company were acting in good faith. He is not dué the company any sum; it is due him over $5,000, which he paid it, less the $530, which they assured him he might use. He is informed and believes that the said bonds, while they might not have been worth their face value, were an absolute liability of the company and did have a value, and the officers knew the stock was worthless and the company was insolvent; hence they sought to exchange worthless stock for bonds that were an absolute liability upon the assets of the company and were therefore valuable. The officers of the company were the only ones who had access to its books, and therefore were apprised of its insolvent condition and the worthlessness of the said stock, and'they are solely responsible for such condition; hence, to further defraud the defendant, the company, through deceitful means and artful practices and false and fraudulent representations as above set forth, and through holding out that he could get money on the said stock, as a bait, cajoled the defendant into the said exchange of valuable bonds for worthless stock, and thereby cheated and defrauded him of more than $5,000. He does not owe the said $530, by reason of the facts hereinbefore stated. The said company is insolvent. “Wherefore, plaintiff not having complied with the obligations and covenants resting upon it which arose under the same contract,” the defendant prays: (a) that, by reason of the fraud in the procurement of the paper sued on, the absence of a consideration,' and the indebtedness and insolvency of the Guarantee Trust and Banking Company, he be discharged; (b) that he may recoup the sum of $5,000, or such part thereof as may be proper, out of which he has been defrauded; and he prays judgment for this sum.</p>

<p>Petition for certiorari; from Bibb superior court — Judge Mathews. October 31, 1914.</p>

<p>Complaint; from city court of Greensboro — Judge Sibley. January 6, 1915.</p>

<p>Conviction of manslaughter; from Laurens superior court— Judge Graham presiding. January 18, 1915.</p>

<p>Action on insurance policy; from city court of Richmond county —Judge W. F.,Eve. January 9, 1915.</p>

<p>Garnishment; from city court of Bainbridge — Judge Spooner. January 28, 1915.</p>

<p>Petition for possession; from city court of Americus — Judge Harper. February 6, 1915.</p>

<p>Complaint; from'city court of Blakely — Judge Sheffield. February 20, 1915.</p> <p>The Malsby Machinery Company sued Minter for a balance of $74.67 principal, besides interest and attorney’s fees, on each of two promissory notes, which recited that they were given for certain machinery described and 400 feet of chain. The defendant in his answer denied the alleged indebtedness, and denied the allegation as to notice of intention to sue for attorney’s fees, and further pleaded as follows: Defendant “shows to the court that the plaintiffs sold him 400 feet of chain to be used for the purpose of taking off the slabs and refuse from the shingle-mill, and that the notes were given for this chain, but he shows to the court that only 363 feet of chain was ever delivered to him by plaintiffs, and that there has been a failure of consideration of said notes to the amount of 37 feet of chain, which was worth, at the price that it was sold to him, at least $37.00, and that he should have a credit of that amount on said notes. He also shows to the court that the chain was sold to him for the express purpose of using same for taking off slabs and other refuse from shingle-mill, and that the-plaintiffs guaranteed to him that said chain would do this work, and that, believing these representations to be true, he bought same and gave the notes sued on to plaintiffs. However, he shows to the court that said chain will not take off the slabs or refuse, and that it is totally worthless, that he has paid to the plaintiffs on said chain $237.00, and that he here and now sues the plaintiffs for this amount, and prays judgment .for this amount against the plaintiffs.”</p> <p>The plaintiff demurred to the answer, on the following grounds: It sets up no defense. It appears therefrom that the defendant, by giving the notes sued on, estopped himself from setting up the defense set forth in the answer. It appears from the answer that the defendant received the chains, and, after inspecting and retaining them, paid the plaintiff $237; thereby waiving his right to plead failure of consideration as set forth. The answer shows on its face that it seeks to engraft an oral condition on an unconditional contract in writing. It appears from the answer that the $137 was paid after acceptance of the chains when they were patently defective, in that the chain was 37 feet less than the chain bought as alleged in the answer. .</p> <p>The court sustained the demurrer and-struck the answer, directed a verdict for the amount of the principal and interest sued for, and submitted to the jury the question whether the defendant was liable for the attorney’s fees sued for, evidence being introduced as to notice of intention to sue for attorney’s fees. On this issue the jury found against the defendant. The exceptions are to the striking of the answer, and to the overruling of the defendant’s motion for a new trial, which was based on the grounds that the verdict was contrary to law and to the evidence.</p>

<p>Certiorari; from Gordon superior court — Judge Fite. February 24, 1915.</p>

<p>Indictment for sale of liquor; from city court of Thomasville— Judge W. H. Hammond. March 1, 1915.</p>

<p>Appeal; from Cobb superior court — Judge Patterson. March 11, 1915.</p>

<p>Certiorari; from Rabun superior, court — Judge J. B. Jones. February 25, 1915.</p>

<p>Complaint; from city court of Sparta — Judge Moore. March 8, 1915.</p>

<p>Indictment for felony; from Tift superior court — Judge Thomas. March 3, 1915.</p>

Complaint; from city court of Sylvania — Judge Evans. April 14, 1915. The action was on a promissory note which recited that its consideration was a horse sold to the maker by the payees. The note contained the following provisions: “All risks of death or destruction of the property . . shall be upon the undersigned, who binds himself to pay the same in any and all events.

<p>Certiorari; from DeKalb superior court — Judge O. S. Keid. April 10, 1915.</p>

<p>Complaint; from city court of Waycross — Judge McDonald. March 18, 1914.</p>

<p>Certiorari; from Whitfield superior court — Judge Fite. April 31, 1915.</p>

<p>Certiorari; from Clay superior court — Judge Worrill. March 3, 1915.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. November 18,1914.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. January 29, 1915.</p>

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

<p>Complaint; from municipal court of Atlanta. February 3,1915.</p>

<p>Complaint; from municipal court of Atlanta. February 20, 1915.</p>

<p>Complaint; from city court of Americus — Judge Harper. February 4, 1915.</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. February 19, 1915.</p>

<p>Complaint; from municipal court of Atlanta. February 20, 1915.</p>

<p>Affidavit of illegality; from city court of Leesburg — Judge Martin. February 18,1915*</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. March 6, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. January 14, 1915.</p>

<p>Action for damages; from city court of Eatonton — Judge' Neese. April 7, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. March 21, 1915.</p>

<p>Appeal; from Haralson superior court — Price Edwards, judge pro hac vice. January 20, 1915.</p>

<p>Complaint; from city court of Reidsville — Judge Collins. May 5, 1915.</p>

<p>Attachment; from municipal court of Atlanta. May 5^ 1915.</p>

<p>Complaint; from city court of Hazlelrurst — Judge Grant. February 27, 1915.</p> <p>The action was by H. Cook & Son against the makers of a note payable “to cash or order” and indorsed in blank by the makers. The defendants demurred generally, and on the ground that it did not appear that the note was indorsed over with an order to pay to the plaintiffs, or that the plaintiffs were vested with the legal title to the note.</p>

<p>Conviction of manslaughter; from Pierce superior court — Judge Quincey. December 29, 1914.</p>

<p>Complaint; from municipal- court of Atlanta. February 20, 1915,</p>

<p>Complaint; from municipal court of Atlanta. February 5, 1915.</p>

<p>Trover; from city court of Americus — Judge Harper. February 5, 1915.</p>

<p>Action on foreign judgment; from city court of Savannah— Judge Davis Freeman. February 11, 1915.</p>

<p>Trover; from city court of Valdosta — Judge Cranford. March 3, 1915.</p>

<p>Complaint; from municipal court of Atlanta. March 3, 1915.</p>

<p>Complaint; from municipal court of Atlanta. February 24, 1915.</p>

<p>Complaint; from city court of Floyd county — Judge Eeece. March 2,1915.</p>

<p>Complaint; from city court of Hazlehurst — J. Mark Wilcox, judge pro hae vice. March 12, 1915.</p>

<p>Appeal; from Lincoln superior court — -Judge Walker. April 38, 1915.</p>

<p>Action for damages; from city cqurt of Atlanta — Judge H. M. Reid. March 37, 1915.</p>

<p>Appeal; from Madison superior court — Judge Meadow. April 17, 1915.</p>

<p>Levy and claim; from city court of Thomasville — Judge W. H. Hammond. May 1, 1915.</p>

<p>Indictment for larceny; from Floyd superior court — Judge Wright. May 22, 1915.</p>

<p>Certiorari; from Carroll superior court — Judge R. W. Freeman. June 9, 1915.</p>

<p>Where testimony set out in an indictment for perjury was that white-oak “trees,” which would average 500 feet of lumber to the tree, were cut from certain land by a named person, a general allegation of its falsity and an allegation that he had not cut any white-oak “lumber” from the land described did not sufficiently negative the truth of. the testimony.</p>

<p>Indictment for larceny from house; from Gilmer superior court —Judge Patterson. June 17, 1915.</p>

<p>Accusation of carrying pistol; from Dawson superior court— Judge J. B. Jones. August 5, 1915.</p>

<p>Accusation of larceny; from city court of Dawson — Judge Edwards. July 23, 1915.</p>

<p>Accusation of misdemeanor; from Haralson superior court— Judge Bartlett. June 18, 1915.</p>

<p>Indictment for sale of liquor; from Laurens superior court— Judge Kent. September 13, 1915.</p>

<p>Accusation of sale of liquor; from city court of Polk county— Judge John K. Davis. September 25, 1915.</p>

<p>Certiorari; from Coffee superior court — Judge Quineey. November 30, 1914.</p>

<p>Complaint; from city court of Louisville — Judge Phillips. December 23, 1914.</p>

<p>Garnishment; from city court of Blakely — Judge Sheffield. No-, vember 24, 1914.</p>

<p>1. There is in this State such an office as deputy sheriff; and there may be a de-facto deputy sheriff.</p> <p>2. Though the evidence was conflicting, it authorized the judgment rendered.</p>

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

Action for damages; from city court of Jefferson — Judge Johns. January 11, 1915. • The petition of Farabee against the Commerce Coca-Cola Bottling Company alleges, that the defendant has injured and damaged the plaintiff by reason of the following facts: (3) The defendant is engaged in manufacturing, bottling, and selling coca-cola and other carbonated beverages. (4), Plaintiff is a merchant doing business in the city of Commerce.

<p>Action for damages; from city court of Columbus — Judge Tigner. January 30, 1915.</p>

<p>Action for damages; from city court of Athens — judge West. June 10,1914.</p>

<p>Appeal; from Hall superior court — Judge J. B. Jones. January 33, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. November 25, 1914.</p>

<p>Complaint; from city court of Macon — Judge Hodges. March 16, 1915.</p>

<p>Complaint from city court of Greenville — Judge Harwell presiding. February 25, 1915.</p>

<p>■■ • Complaint; from city court of Richmond county — Judge W. F. Eve. March 19, 1916.</p>

<p>Levy and claim; from city court of Sparta — Judge Moore. March 6, 1915.</p>

<p>Action for damages; from city court of Hall county — Judge Wheeler. March 20, 1915.</p> <p>An electric-car on the defendant’s railway struck the plaintiff’s automobile when he was driving the automobile across the railway-track. He obtained a verdict for damages, and the case came to this court on exceptions to the overruling of the railway company’s motion for a new trial, in which it is alleged that the verdict was unsupported by evidence. From the evidence it appeared that the plaintiff had stopped his automobile in front of a house on a street at a point about 20 or 25 feet below a street-crossing, and, when he had finished a call at the house, he walked around to the front of the automobile, which was headed towards a railway-depot, and looked backward in the direction from which the streetcar was approaching, but did not see the car. He could see the track for about a hundred yards, and then a hill obscured his vision. He entered his automobile, arranged some bundles, and drove slowly in the direction of the depot, for a distance of about twenty feet, running close to the sidewalk for the purpose of making a turn to cross the car-track, and go back up the street in the direction from which he came. He made the turn, and when the automobile was crossing the car-track, a street-car, going towards the railway-depot, struck the rear of the machine. He testified: “I didn’t see the street-car at the time it struck my automobile. I don’t know how fast it was running; it wasn’t running very fast. . . The motorman did not give any warning of his approach that I heard. . . The curtains on my automobile were clown; I don’t think they were down all around; the back curtain was down. I would judge the street was about forty feet wide there. The street-car track is near the center of the street. I suppose there was a space of fifteen or sixteen feet between the rail next to me and the curbing. . . When I started to turn I ran as close to the curb as I could. I would say I was moving about a mile and a half an hour. I was very deliberate in my movements. I had some packages to adjust in my car; that took me some little time, I would say a minute or so. I placed the packages after I got in the ear, and after I got in it was a minute or so before I started. After I got in the ear I did not look back up the street through the back window to see if any car was coming. . . I started off exactly as if I were going to the depot. . . I didn’t make a sudden turn; I made a little curve. This was the first indication that the motorman could have that I intended to cross the track. . If the motorman had come to the top of the hill when I was arranging the packages I don’t guess he could have seen me at all, unless he could have seen me through the back glass. The back of the automobile was directly towards him, and the back curtain was down. . . I did not throw my hand out on the left-hand side to give any one notice that I was going to turn around; there was no indication made by me that I was going to turn around. I didn’t look to see if any one was coming; I didn’t give any one warning that I expected to turn. So far as I know they may have supposed that I was going to the depot until I made the turn. . . I could have speeded up and crossed faster; I went about half as fast as a man can walk. . . I didn’t consider it my business to look back and see if a car was coming; I didn’t think anything about it; I thought I had as much right there as they did. If the ear had been in fifteen or twenty feet of me I would have turned the same way. After I started I was going in the same direction they were until I started to turn. . . I didn’t give them any notice at all that I expected to cross.”</p>

<p>Complaint; from municipal court of Atlanta. February 15, 1915.</p> <p>The action was by E. E. Stanley, “doing business as Americus Machine Shop,” against W.- A. Neal & Son, on an account, one of the items of which was “commission on traction-engine sold to Mr. Brown, $150.” The trial resulted in a judgment against the defendants for the amount of this item. The plaintiff’s testimony was as follows: W. A. Neal & Son had the agency for a traction-engine. At that time the Americus Machine Shop was owned and operated by Mr. C. H. Duer and myself, but since that time I have bought Mr. Duer out, and am now the sole owner of the Americus Machine Shop and of this claim against W. A. Neal & Son. This was about the middle of 1911. We knew a Mr. Brown who lived near Americus, and knew the condition of his farm, and believed that he could be sold one of these traction engines. We spoke to Mr. W. A. Neal Jr. (one of the defendants) about it, and he asked us to take him out to see Mr. Brown. Mr. Duer carried Mr. Neal out to see Mr. Brown in an automobile belonging to the shop, and after that Mr. Duer carried Mr. Neal out several times, and I went along myself once. We recommended the engine to Mr. Brown and boosted it all we could, and did everything in our power to assist Mr. Neal in making the sale. Finally Mr. Brown bought the engine, and Mr. Neal said, right after the sale had been closed, “I am going to pay you $150 for your services in helping to make this sale.” He had not before said anything about what he would pay us; in fact nothing was said before this time about compensation, although we have made sales of this character several times before and have always been paid, and naturally. expected to be paid for our services in this matter. I have repeatedly asked Mr. Neal for this money, and he has always put me off from time to time, but has promised to pay each time that I spoke to him about it, except the last time I talked to him. At that time he was carrying me home one night. When I went to get out of the car I asked him about paying this $150, and he said, “I don’t reckon I ever will pay this.” He did not give any reason. After that I put the matter in the hands of my attorney. When he first sold the engine he said he would pay us then if he could discount the notes, but he could not discount them, so he said he would pay when the notes were collected. The notes have been collected. They were paid before this suit was brought. When the firm of Americus Machine Shop dissolved, this account against Neal & Son was transferred to me.</p> <p>W. A. Neal Jr. testified, that Mr. C. H. Duer, who at the time was a member of the firm of Americus Machine Shop, came to him and told him that he knew a Mr. Brown, who wanted to buy a traction-engine, and offered to take him out to see Mr. Brown. Some time later Mr. Duer did take him out to see Mr. Brown, and he (the witness) • on this occasion sold Mr. Brown the traction-engine. ■ Immediately after the sale of the engine he said to Mr.' Duer,.“You will get $150 out of this. We will pay you $150 for services in the sale.” He (the witness) was going to make a commission of $500 out of the sale, and promised Mr. Duer $150. Nothing was said about compensation at or before the time the sale was made, and Mr. Duer voluntarily offered to take him out to see Mr. Brown. The only services Duer rendered consisted in telling him that Mr. Brown wanted to buy an engine, and in driving him out to see Mr. Brown once. He understands that Mr. Duer went out to see Mr. Brown two or three times about buying the engine. He knew that Mr. Duer was a member of the firm of the Amerieus Machine Shop, but he was dealing with him in this transaction as an individual, and not as a member of the firm. He did not deal with Mr. F. E. Stanley or the Amerieus Machine Shop at all in this transaction. Mr. Stanley sent him a bill for. $150 for commission on sale of traction-engine to Mr. Brown, but he refused to pay it, and has told Stanley that he did not owe him or the Amerieus Machine Shop anything in regard to this transaction.</p> <p>C. H. Duer testified, that he thought Mr. Brown would buy a traction-engine, and went out to see him two or three times in regard to it. He told Mr. W. A. Neal Jr. that Mr. Brown would buy an engine, and offered to take him to see Mr. Brown, and later took him out to see Mr. Brown, at which time Mr. Neal sold Mr. Brown the engine. In this transaction he was acting for the firm known as the Amerieus Machine Shop, though nothing was said about the Amerieus Machine Shop being interested in the transaction. Mr. Neal voluntarily offered to give him $150 after the engine had been sold and after he had rendered his services. Nothing was said about compensation before the engine was sold or at the time of the sale. He expected to receive something for his services. His services consisted of going out to see Mr. Brown two or three times, and taking Mr. Neal out to see him once. The Amerieus. Machine Shop was not engaged in the business of selling engines on commission, but did a general machine business.</p> <p>The contention of the defendants was that the promise to.pay $150 was a voluntary promise, based on a past consideration, and placed no legal obligation' on the defendants to pay that amount; and that “the plaintiff could only recover on a quantum meruit for the value of the services rendered, but this suit was brought on the voluntary promise, and the value of the plaintiff’s services was not shown by the evidence.”</p>

<p>Certiorari; from Wayne superior court — Judge Highsmith. March 27, 1915.</p>

<p>1. A defendant has the right, at any time within thirty days after a case has been marked “in default,” to open the default and file his defense, provided he also within the thirty days pays all the accrued costs. Civil Code (1910), § 5654. Under this section of the code the defendant must exercise his right to open the default, not only within thirty days after the entry of such “default,” but also before the beginning of the trial term, even if such term begins before the thirty days have expired. Ingalls v. Lamar, 115 Ga. 296 (1), 298 (41 S. E. 573).</p> <p>2. At the trial term the judge, in his discretion, upon payment of costs by the defendant, may allow the default to be opened for providential cause, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court; provided that the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed' with the trial. Civil Code, § 5656. The defendants not having complied with the mandatory provisions of this section of the code, the court did not err in striking their plea and rendering final judgment for the plaintiff.</p> <p>3. It appearing from the record that the writ of error in this case was prosecuted for delay only, this court will grant the motion of the defendant in error and award to him the statutory penalty of ten per cent, damages.</p>

<p>Complaint; from city court of Polk county — Judge John K. Davis. April 5, 1915.</p> <p>The petition of W. F. Hammond against W. E.' Harris, as amended, was dismissed on general demurrer. It alleges: On February 24,1912, W. M. Baldwin sold to W. F. Stringer a certain lot of land and executed to Stringer a bond for title, a copy of which is attached to the petition. In 1913 Stringer died intestate and in possession of this land, having paid most of the purchase-price for it. On January 2, 1913, plaintiff indorsed a note of Stringer to the Commercial Bank of Cedartown,. for $100, a copy of which is attached to the petition. After the death of Stringer W. E. Harris desired to purchase the said land from the widow of Stringer, and plaintiff notified Harris that the estate of Stringer owed $100 for which he was liable to the Commercial Bank. On November 22, 1913, plaintiff and Harris agreed that the said bond for title should be transferred by Mrs. Stringer to Harris in consideration of Harris paying off the note due by Stringer to the Commercial Bank and indorsed by plaintiff, and, in accordance with this agreement, Harris on the same day paid to the Commercial Bank $10, which was credited on the note. On November 24, 1913, plaintiff agreed with Harris that he "would not have administration on said estate in order to pay said sum, in consideration of Harris paying off said note to the Commercial Bank,” and it was then agreed between Harris and the plaintiff and Mrs. Stringer that the equity in the land as evidenced by the bond for title be transferred to Harris in consideration of his paying off the balance on the note, to wit, $90 and interest. After the transfer of the bond for title it was delivered to Harris, November 24, 1913, and was held by him until March 9, 1914. On November 24, 1913, Harris, recognizing his obligation to pay said note, paid to the Commercial Bank $40 on it, leaving a balance due of $50 and interest. Harris has failed and refused to pay the note, and on March 9, 1914, transferred the bond for title to William Waddell for a valuable consideration, placing the equity in the property so that it can not be reached by an administrator, on the estate of Stringer, and thus making the estate insolvent. On July 6, 1914, plaintiff paid the Commercial Bank $50 principal and $4.56 interest, and the note was transferred to him by the bank. A copy of the transfer is attached to the petition. Plaintiff alleges that he has fully performed his contract and that Harris (?) did not have administration on the said estate because Harris agreed to pay off and take up said note, and Harris has partially performed said contract, and there is now due by Harris to plaintiff on said note the sum of $50 principal, and interest thereon from November 15, 1913, for which plaintiff prays judgment.</p> <p>By amendment it is alleged: W. E. Harris and Mrs. N. C. Stringer are brother and sister. The equity in the said land was set apart to Mrs. Stringer as a year’s support on the first Monday in November, 1913, and at the time the agreement was entered into she owned the equity in the land; and on November 22, 1913, it was agreed between plaintiff and Mrs. Stringer and Harris that Mrs. Stringer, who had prior to that time agreed to pay plaintiff the amount due on the said note, sold to Harris the equity she had in the land, for the purpose of his taking up and assuming the note, and the contract was executed on that date, the bond for title delivered to Harris, and Harris took possession of the land under the said bond for title, with the distinct agreement that Harris was to take up and pay off the note. On said occasion plaintiff had told Mrs. Stringer that he was going to have administration on the estate of W. F. Stringer, and explained to her and to Harris that if an application were made for administration, it would be necessary for her to employ counsel and lose considerable time and appear in court to fight an administration, and it was agreed between plaintiff, Mrs. Stringer, and Harris, after Mrs. Stringer had importuned plaintiff not to have administration, that plaintiff would not have administration on the said estate, but that Mrs. Stringer would transfer her equity in the said land to Harris, and in consideration of said transfer Harris was to pay the said note. Mrs. Stringer executed her part of the contract, plaintiff executed his part, and Harris partially executed his part of the contract by accepting the transfer of the bond for title and paying a part of said note', and now fails and refuses to comply with the contract. The consideration moving to Mrs. Stringer was the fact that she was saved the expense and trouble of administration on her husband’s estate and the necessity of attending court, and the consideration moving to Harris was the equity in the land, which he accepted and which was worth more than $250. The only writing entered into between plaintiff and defendant and Mrs. Stringer was the transferred bond for title, which made an executed contract at the time said agreement was made. Plaintiff released the estate of W. F. Stringer on the date on which the said bond was transferred, and he agreed not to have administration, and Harris took over the bond and the land, entered upon the land, and subsequently, to wit, on March 9, 1914, sold the land for the purpose of paying off the indebtedness at the Commercial Bank, referred to in the original petition, and, after realizing the funds to pay off said note, failed and refused to apply the same.</p>

<p>Trover; from city court of Waynesboro — Judge W. H. Davis. April 21, 1915.</p>

<p>Action for damages; from city court of Sandersville — judge Jordan. April 28, 1915. '</p>

<p>Complaint; from city court of Statesboro — H. M. Jones, judge pro hac vice. April 10, 1915.</p>

<p>Accusation of sale of liquor; from city court of Newnan — Judge Post. August 27, 1915.</p>

<p>Accusation; from city court of Floyd county — Judge Eeece. September 21, 1915.</p>

<p>Conviction of manslaughter; from Hall superior court — Judge J. B. Jones. October 30, 1915.</p>

<p>Motion to set aside judgment; from city court of Floyd county —Judge Beece. April 1, 1915.</p>

<p>Petition for certiorari; from Tift superior court — Judge Thomas. March 13, 1915.</p>

<p>Foreclosure of lien; from municipal court of Macon — Judge Chambers. March 2, 1915.</p>

<p>Certiorari; from Morgan superior court — Judge Park. March 2, 1915.</p>

<p>Certiorari; from Colquitt superior court — Judge Thomas. March 5, 1915.</p>

<p>The venue was sufficiently proved, and the evidence supported the verdict.</p>

<p>Indictment for larceny of cow; from Dougherty superior court —Judge Cox. August 7; 1915.</p>

<p>Certiorari; from Liberty superior court — Judge Sheppard. October 14, 1915.</p>

<p>Indictment for sale of liquor, etc.; from city court of Amerieus —Judge Harper. August 36, 1915.</p>

<p>Certiorari; from Wayne superior court — Judge Highsmith. October 23, 1915.</p>

<p>Appeal from Haralson superior court — Judge Price Edwards. November 24, 1914.</p>

<p>Certiorari; from Eulton superior court — Judge Ellis. January 13, 1915.</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. January 19, 1915.</p>

<p>Trover; from city court of Aniericus — Judge Harper. February 5, 1915.</p>

<p>Action, for damages; from city court of Polk county — Judge John K. Davis. March 12, 1915.</p>

Action for damages; from city court of Griffin — Judge Flynt.February 27, 1915. The petition alleges, that the defendant has damaged plaintiff in the sum of $20,000, on account of the following facts: (3) On September 29, 1913, plaintiff was night-watchman for defendant at defendant’s place of business.

<p>Trover; from city court of Floyd county — Judge Eeece. March 16, 1915.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. April 5, 1915.</p>

<p>Complaint; from city court of Tifton — Judge R. Eve. April 9, 1915.</p>

<p>Service of a summons of garnishment upon the chief clerk of the agent of a railroad company is good service upon the company, under sections 2260 and 5270 of the Civil Code of 1910, when the “agent” is absent from the office of the company and the chief clerk*is in entire charge and control of that office and of the business of the company transacted there at the time of the service.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge H. M. Reid. March 29, 1915.</p>

<p>Indictment for assault with intent to murder; from Fulton superior court — Judge B. II. Hill. May 22, 1915.</p>

<p>Trover; from city court of Cairo — Judge Willie. July 23,1915.</p>

<p>Certiorari; from Thomas superior court — Judge Thomas. Octo5, 1915.</p> <p>Certiorari; from Miller superior court — Judge Worrill. November 8, 1915.</p>

<p>Certiorari; from Thomas superior court — Judge Thomas. October 16, 1915.</p>

<p>Action on bond; from city court of Yaldosta — Judge Cranford. January 18, 1915.</p>

<p>Conviction of shooting at another; from Fulton superior court— Judge B. H. Hill. October 9, 1915.</p>

<p>Complaint; from city court of Monticello — Judge Thurman. March 18, 1915.</p>

<p>Certiorari;-from Berrien superior court — Judge Thomas. March 30, 1915.</p>

<p>Complaint; from city court of Eloyd county — Judge Eeece. March 17, 1915.</p>

<p>Complaint; from city court of Sylvester — Judge Evans. April 13, 1915.</p>

<p>1. The designation of the route by which the shipper desired the shipment to move was sufficiently made.</p> <p>2. A recovery of damages on account of the carrier’s substitution of a different route from that designated by the shipper was authorized by the evidence; and there was no error in refusing a new trial.</p>

<p>1. A contract whereby one agrees to pay another “for his board, washing, and sewing for one year, beginning September 15, 1913, and ending September 15, 1914, 2500 pounds,of middling lint cotton, to be ginned and packed in five five-hundred pound bales, and deliver the same by October 15, 1913, wherever the said Mrs. Sailors [the payee] designates,” is not severable so as to entitle the personal representative of the deceased maker of the contract to recover from the payee a portion of the cotton upon the ground that, due to the maker’s death during the period stipulated in the writing, the contract had been only partly performed.</p> <p>2. A rent contract made by a tenant of the decedent and calling for the same consideration, and payable on the same date as that named in the above-quoted contract, and transferred to the defendant at the time of the making of the contract for' services, was admissible to show the intent of the parties at the time the contract was entered into.</p> <p>(a) The execution of a paper purporting to be attested by a witness may be proved by the testimony of the maker himself that he signed the writing, so as to dispense with the necessity of proving the same fact by the subscribing witness.</p> <p>(&) Even if the transferred rent contract should not have been admitted in evidence, it does not appear that its introduction was harmful.</p> <p>3. There was no error in overruling the motion for a new trial.</p>

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

<p>Accusation of sale of liquor; from city court of Valdosta— Judge Cranford. May 29, 1915.</p>

<p>Accusation of public drunkenness; from city court of Carrollton —Judge Beall. May 5, 1915.</p>

<p>Certiorari; from Miller superior court — Judge Worrill. June 29, 1915.</p>

<p>Certiorari; from Wayne superior court — Judge Highsmith. May 24, 1915.</p>

<p>Indictment for perjury; from Chatham superior court — Judge Charlton. August 26, 1915.</p>

<p>Indictment lor larceny; from. Calhoun superior court — Judge Cox. October 8, 1915.</p>

<p>Accusation of cheating and swindling; from city court of New-nan — Judge Post. October 26, 1915.</p>

<p>Indictment for burglary; from Wayne superior court — Judge Highsmith. October 2, 1915.</p>

<p>1. The city court of Statesboro at its monthly terms is without jurisdiction to try the issue raised by the filing of a counter-affidavit to a distress warrant, where the amount claimed exceeds one hundred dollars; and a distress warrant returnable to a monthly term of that court, unless amended so as to confer jurisdiction, can not be legally tried at a quarterly term. There was no offer to amend, and, since the want of jurisdiction appeared upon the face of the warrant, the demurrer raising that point should have been sustained, regardless of the fact that the filing of the counter-affidavit made the distress warrant mesne process.</p> <p>2. In view of the error in the rulings upon the demurrer, the subsequent proceedings were nugatory.</p>

<p>Accusation of trespass; from city court of Blackshear — Judge Mitchell. October 14, 1915.</p>

<p>Complaint; from city court of Cairo — Judge Singletary. December 34, 1914.</p>

<p>Buie; from city court of Greenville — Judge Beall presiding. January 21, 1915.</p>

<p>Affidavit of illegality; from city court of Greenville. February 5, 1915.</p>

Action on contract; from city court of Albany — Judge Clayton Jones. March 10, 1915. Sam Earkas leased to S. Cohn &, Son a storehouse for a term beginning July 1, 1913, and ending July 1, 1916, at a rental of $60 per month. In the lease it was stipulated that the lessor should do all necessary repairing for the protection of the property during the term of the lease, and that he should put in a new glass front to the building, without cost to the lessees.

<p>Appeal; from Richmond superior court — Judge H. C. Hammond. January 31, 1914.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. February 15, 1915.</p>

<p>There was no error in admitting any of the evidence objected to, and, the evidence as a whole demanding a. recovery for the plaintiff, the court did not err in directing a verdict in her favor.</p>

<p>Complaint; from city court of Albany — Judge Clayton Jones, March 10, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis, March 6, 1915.</p>

<p>Affidavit of illegality; from city court of Atlanta — Judge H. M. Reid. March 6, 1915.</p>

<p>Appeal; from Brooks superior court — Judge Thomas. May 4, 1915.</p>

<p>Complaint; from city court of Milieu — Judge Hill. April 19, 1915.</p>

<p>Complaint; from municipal court of Atlanta. January 31, 1915.</p>

<p>Action for damages; from city court of Tifton — Judge R. Eve. February 3, 1915.</p>

<p>The decision in this case is controlled by the rulings of this court in Mulherin v. Porter, 1 Qa. App. 153 (58 S. E. 60), and Matthews v. Fields, 12 Ga. App. 225 (77 S. E. 11), as well as by the ruling of the Supreme Court in Cochran v. Waits, Johnson & Go., 127 Qa. 93 (56 S. E. 241). See also Hill-Atlcinson Co. v. Hasty, ante, 569.</p>

<p>Appeal; from Berrien superior court — Judge Thomas. April 10, 1915.</p>

<p>Complaint; from municipal court of Macon — Judge Chambers. April 21, 1915.</p>

<p>Trover; from city court of Madison — Judge Anderson. April 30, 1915.</p>

<p>Complaint; from city court of Savannah — Judge Davis Freeman. July 10, 1915.</p>

<p>Complaint; from municipal court of Atlanta. April 19, 1915.</p>

<p>Indictment for assault with intent to murder; from Carroll superior court. June 23, 1915.</p>

<p>Indictment for perjury; from Gordon superior court — Judge Fite. August 30, 1915.</p>

<p>Misdemeanor; from city court of LaGrange — Judge Harwell. October 19, 1915.</p>

<p>Indictment for larceny j from Milton superior court — Judge Patterson. October 6, 1915.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge H. M. Reid. December 12, 1914.</p>

<p>Action for damages; from city court of Madison — Judge Anderson. January 12, 1915.</p>

<p>Action for damages; from city court of Blakely — Judge Sheffield. January 18, 1915.</p>

<p>Action for damages; from city court of Atlanta — Judge H. M. Eeid. January 16, 1915.</p>

<p>Levy and claim; from city court of ThomasviEe — Judge W. H. Hammond. January 14, 1915.</p>

Complaint; from city court of Greenville — Judge Revill. January 19, 1915. The defendant pleaded that the consideration of the note sued on had failed because the note was for the balance of the purchase-price of two shares of stock in the plaintiff corporation, for which certificates were to be issued to him, and that the plaintiff did not issue or offer to issue and deliver such a certificate to him.

<p>Action for damages; from city court of Savannah. — Judge Davis Freeman. February 8, 1915.</p>

<p>Action for damages; from city court of Thomasville — Judge W. H. Hammond. March 1, 1915.</p>

<p>Action for damages; from city court of Yaldosta — Judge Cranford. February 16, 1915.</p>

<p>1. Where an action is brought to enforce payment of a debt for which collateral security has been given, it is incumbent on the plaintiff either to produce and restore the collateral security, or to account satisfactorily for its non-production. In a suit brought upon a note which recites that certain collateral is given to secure its payment, and in which suit the collateral is neither tendered nor satisfactorily accounted for, it is error, on general demurrer, to strike a plea which alleges that such collateral was actually deposited, and in which the ability of the plaintiff to produce the collateral is denied. Such an allegation practically amounts to an allegation that the collateral has been converted; and if this were true, the defendant would have the right to recoup the value of the converted security, as against the payment of the note.</p> <p>2. In view of the error in striking the defendant’s answer, the further proceedings in rendering the verdict and judgment were nugatory.</p>

<p>Complaint; from municipal court of Atlanta, April 19, 1915.</p>

<p>Action for damages; from city court of Eastman — Judge Neese. April 2, 1915.</p>

<p>1. Whether a trial judge has erred in directing a verdict can not be otherwise determined than by the inquiry whether, from any view of the evidence, inferences may be drawn favorable to the adverse party, upon which the jury might lawfully find contrary to such direction.</p> <p>2. Partnership or no partnership is generally a mixed question of law and fact, and can not be resolved as a matter of law unless the verdict one way or the other is demanded by the evidence.</p> <p>3. Where upon the trial of an issue of partnership or no partnership, made by one of the alleged partners, it appears that the business was conducted by one of the partners, who borrowed money for the use of the alleged partnership, it is competent to show that the other partner knew of such borrowing and made no objection thereto.</p> <p>4. It was error to direct a verdict.</p>

<p>Complaint; from city court of Eastman — Judge Neese. April 5, 1915.</p>

<p>Certiorari; from Hart superior court — Judge Meadow. April 14, 1915.</p>

<p>Trover; from city court of Nashville — Judge Christian. April 19, 1915.</p>

<p>Complaint; from city court of Savannah — Judge Davis Freeman. March 1, 1915.</p>

<p>Complaint; from municipal court of Atlanta. May 17, 1915.</p>

<p>1. The foreclosure of a mortgage on personal property as the property of the mortgagor is such a disaffirmance of title by the mortgagee as waives the assertion of title, although the mortgage may be only a part of a contract which contains also á reservation of title; since the instrument in question might either be foreclosed as a mortgage or afford the basis of an assertion of title in the payee by trover. Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29). However, though the election of one of two inconsistent remedies may be treated as a waiver of any rights under the other, a person who prosecutes an action based upon "a remedial right which he supposes he has but in fact does not possess is not thereby precluded from asserting his real rights in a subsequent action.</p> <p>2. A purchase-money note for an amount exceeding one hundred dollars, which contains a reservation of title to the personalty for the pur- . chase-price of which the note was given, and does not include a mort.gage, can not be foreclosed as a mortgage. An attempt to foreclose such a paper, being a nullity (Berry v. Robinson & Overton, 122 Ga. 575, 50 S. E. 378), does not constitute such an election as amounts to a waiver by the payee of the note to assert his title to such personalty by trover. The case at bar is distinguished from that of Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29), by the fact that the writing in that case contained a mortgage clause as well as a clause in which title to the personalty was retained, whereas in the present case nothing more appears than that title to the mule in question was retained by the vendor. The trial judge therefore erred in holding that the plaintiff, by electing to foreclose this paper as a mortgage, waived the right to assert his title. If the note in question had contained also a clause mortgaging the mule in question to the payee of the note, the case would have been controlled by the case of Kennedy v. Manry, supra, and the holding of the trial judge would have been correct.</p>

<p>Complaint; from municipal court of Atlanta. April 19, 1915.</p>

<p>Complaint; from city court of Jefferson — Judge Wheeler presiding. May 8, 1915.</p>

<p>Certiorari; from Fulton, superior court — Judge Bell. March 29, 1915.</p>

<p>Trover; from municipal court of Atlanta. May 17, 1915.</p>

<p>Action for damages; from municipal court of Atlanta. January 6, 1915.</p>

<p>Certiorari; from Hall superior court — Judge J. B. Jones. January 23, 1915.</p>

<p>Action on insurance policy; from city court of Savannah — Judge Davis Freeman. February 25, 3915.</p>

<p>Certiorari; from Sumter superior court — Judge Littlejohn. February 22, 1915.</p>

<p>1. The court did not err in overruling the demurrer to the petition.</p> <p>2. Under the facts disclosed by the record, it was error for the court to give the charges complained of in the 5th, 12th, 16th, and 17th grounds of the amendment to the motion for a new trial, for the reasons assigned therein.</p> <p>3. It was error to fail to give the requested instructions set out in the 11th, 14th, 18th, 19th, 20th, and 21st grounds of the amendment to the motion for a new trial.</p> <p>4. The other exceptions are not well taken. There were slight errors in the rulings of the court upon objections to certain questions propounded to some of the witnesses, and some inaccuracies, other than those referred to above, in the charge of the court, but these errors will doubtless be eliminated on the next trial.</p>

<p>Indictment for assault and battery; from Pulaski superior court —Judge Graham. April 21, 1915.</p>

<p>Action for conversion; from city court of Americus — Judge Harper. June 8, 1915.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. June 10, 1915.</p> <p>The petition alleged, in brief, that the plaintiff was struck on the left temple by a car of an electric railway operated by the defendant, which approached from the rear, as she was about to cross the railway-track on a path which turned to the left at that point, and on which she had been walking alongside the right of the track for some distance; that this path had been in constant use by the public from the time the railway was built; that she entered the path on an embankment, which ran along the railway-track for a distance of about 75 yards, and the person operating the car could have seen her for a distance of 100 yards before.she was struck by the car; that the car was running down grade at a speed of 25 miles an hour; that the noise of a train on another track prevented her from hearing the approach of this ear; that the motorman in charge of the car was not looking in front of it when she was struck or during the time it was running from a distance of 100 yards back of the point where she was struck, and no signal of its approach was given; that “the sole cause of her injury was the failure of said motorman to look in front of his car and on the track;” and that he was negligent in running the car at high and reckless speed, under the conditions alleged, without having his eyes in front of the car and on the track, and without giving the plaintiff notice of the approach of the car.</p> <p>The proposed amendment to the petition was as follows: “Plaintiff alleges that at the time of said injury aforesaid the defendant had permitted and there was growing upon the defendant’s right of way for a distance of 100 yards between said path and the defendant’s track and on said embankment a row of shrubs and bushes and grass and undergrowth, which cut off the view of petitioner from said motonnan and kept said motorman from seeing petitioner as she walked along in said path on said embankment; that if said trees and shrubs and bushes and growth aforesaid had not been allowed to grow and remain on said right of way of defendant and said embankment, said motorman who had said ear in charge would have and could have seen petitioner as she walked along in said path aforesaid, and would not have run said car into petitioner as aforesaid. Petitioner charges that it’ was negligence in the defendant in permitting said shrubs and bushes and growth to remain on said right of way, and that it was negligence in the defendant in not cutting and removing said shrubs and growth from said right of way.” The amendment was objected to and disallowed on the ground that it was irrelevant.</p>

<p>Trover; from city court of Camilla — Judge Bush. August 3, 1915.</p>

Indictment for larceny after trust; from Haralson superior court — Judge Price Edwards. December 30, 1914. The indictment was as follows: “Georgia, Haralson County.

<p>Complaint; from city court of Sparta — Judge Jordan presiding. April 15, 1915.</p>

<p>Action for breach of contract; from city court of Baxley — Judge Knox presiding. May 21, 1914.</p>

<p>.Complaint; from city court of Thomasville — Judge W. H. Hammond. December 23, 1914.</p>

<p>. Complaint; from city court of Thomasville — Judge W. H. Hammond. December 22, 1914.</p>

Complaint; from municipal court of Atlanta. December 24, 1914.

<p>Action for damages; from city court of Atlanta — Judge H. M. Reid. November 11, 1914.</p>

Complaint; from city” court of Macon — Judge Hodges. February 20, 1915. Adams sued on a promissory note of Hatfield, the defendant, for $275, payable to and indorsed by Arthur C. Wilson & Company, dated May 29, 1913, and due on June 30, 1913.

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. March 4, 1916.</p>

<p>1. The overruling of a certiorari is so frequently equivalent in effect to a formal order dismissing it that the two terms are practically synonymous.</p> <p>2. There was no error in overruling the certiorari in the present case. Decided February 4, 1916. Rehearing denied February, 25, 1916.</p>

<p>Action for breach of contract; from municipal court of Atlanta. January 16, 1915.</p>

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

<p>Garnishment; from city court of Waycross — Judge McDonald. April 2, 1915.</p>

<p>Appeal; from Colquitt superior court — Judge C. S. Reid. January 22, 1915.</p>

<p>Action for damages; from city court of Sandersville — Judge Jordan. March 12, 1915.</p>

<p>Complaint; from municipal court of Atlanta. February 16, 1915.</p>

<p>Complaint; from municipal court of Atlanta. April 10, 1915.</p>

<p>Forfeiture of recognizance; from city court of -Carrollton— Judge Beall. April 28, 1915.</p> <p>The material facts in each of the abov.e-stated cases are identical. Each was a proceeding in the city court of Carrollton to forfeit a recognizance for the appearance of Will Twine to answer for “the offense of a misdemeanor.” The rule nisi in each recited that the bond was conditioned for his appearance before “the next city court of Carrollton;” but the scire facias recited that the bond was conditioned for his appearance before the “next superior court,” etc. This was the basis of the demurrers. The amendment referred to in the foregoing decision (paragraph 1) made the scire facias conform to_ the rule nisi, by substituting the city court for the superior court, in the recital of the condition of the bond.</p>

<p>Complaint; from city'court of Reidsville — Judge Collins. May '3, 1915.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. March 11, 1915.</p>

<p>Appeal; from Floyd superior court — Judge Wright. October 38, 1914.</p>

<p>Motion to vacate judgment; from city court of Houston county —Judge Biley. May 28, 1914.</p>

<p>Action for damages; from city court of Hall county — Judge Wheeler. March 20, 1915.</p>

<p>Affidavit of illegality; from city court of Nashville — W. G. Harrison, judge jiro hac vice. November 23, 1914.</p>

<p>Complaint; from city court of Macon — Judge Hodges. March 2, 1915.</p>

<p>Accusation of carrying concealed weapon, etc.; from city court of Macon — Judge Hodges. October 3, 1914.</p>

<p>Action for damages; from city court of Albany — Judge Clayton Jones. May 15, 1915.</p> <p>The action was against the City of Albany and the Albany Transit Company. The petition as amended alleged, in substance, that on January 14,1914, about the hour of 6:15 p. m., petitioner’s automobile was being driven by his chauffeur south along the west side of a public street of the City of Albany, known as Monroe street, at a point near an alley which runs east and west between North and Mint streets. At that point the city had dug large holes in the street for the purpose of putting in manholes or surface-drainage connections, and in so doing had left dirt piled from two to two and a half feet high on both sides of the street, and had left the holes open. The street-railway of the Albany Transit Company occupied the street in part, west of the center of the street, and on each side of the railway was a passageway along the street for the use of vehicles. This passageway was about twenty feet wide on the east side of the street and twelve feet on the west side. The city had allowed the said manholes to remain open, and had allowed the dirt which had been excavated in the street to be left in the street, piled as aforesaid near the margin of the street and extending across it almost the entire width of the street, to the west side of the railway-track, so that the passageway for vehicles at that point was rendered so narrow that it was impossible to go south in the street without going upon the railway-track. No warning of the existence of these dangerous obstructions was given by placing guard-rails or lights, or signals of any character, at or •near them, and neither the petitioner nor his chauffeur knew of their existence, the chauffeur being unable to see them on account of the bright headlight on a street-car of the Albany Transit Company, which temporarily blinded him. When he became blinded ha immediately put on his brakes, and then for the first time saw the obstructions. The brakes of the automobile were in good working order, and it immediately stopped upon the pile of dirt in front of the excavation, but the pile of dirt threw it to' the left and on the railwaj^-track, throwing the back of the automobile 'toward the curbing. Its front right wheel became stuck in the dirt, its front part extended over the railway-track, and the back wheel was against the curb, and it was impossible for the chauffeur to go forward or backward. The street-car was then about ninety feet from it, and continued at a speed of about twenty-five miles an hour, going north and in the opposite direction from that in which the automobile had been moving; the motorman on the street-car made no effort to put on brakes or otherwise stop the street-car, and the car ran upon and struck the automobile, and damaged it in a manner described. The motorman saw the automobile on the railway-track in ample time to have stopped the street-car before striking the automobile. Petitioner and his chauffeur were without fault, and the injury was due solely to the negligence of the defendants. The city ivas negligent in failing to keep the said street in safe condition for travel, in failing to take such precautionary measures as ordinary care and diligence would require for the protection of petitioner and of other persons having the right to use'the street, in allowing the said obstructions to be placed in the street, in negligently repairing the street in the manner described, in failing to give the petitioner or his chauffeur any warning of the existence of the obstructions by placing at or near them guard-rails or lights or signals, and in failing to provide a sufficient passageway for vehicles along the street and the part of it not occupied by the railway-track. The Albany Transit Company was negligent in failing to keep a lookout ahead for petitioner, in failing to stop its street-ear in time to prevent injury to his property, in failing to have the ear under proper control so that it could be stopped in time to prevent such injury, in propelling the car at excessive speed, in failing to have it equipped with proper brakes, and in failing to exercise ordinary care and diligence for the safety of petitioner and his chauffeur. On the third day after the injury the petitioner presented to the city his claim for adjustment of the damages as required by law, more than thirty days have elapsed since the presentation of the claim, and the city has failed and refused to pay any sum for the injury.</p> <p>The city demurred generally and specially, and in its demurrer contended that the petition showed a misjoinder of causes of action and of parties, and failed to disclose any joint acts of negligence on the part of the defendants, or that there was any concert of action on their part in the alleged injury to the automobile. The demurrer was overruled. The trial resulted in a verdict for damages against the defendants. The case came to this court on exceptions by the city to the overruling of its demurrer and of its motion for a new trial.</p>

<p>Action on insurance policies; from municipal court of Atlanta.' May 17, 1915.</p>

<p>Complaint; from city court of Yaldosta — Judge Cranford. May 3, 1915.</p>

<p>Complaint; from city court of Americus — Judge Harper. April 17, 1915.</p>

<p>Foreclosure of mortgage; from municipal court “of Atlanta. May 19,' 1915.</p>

<p>Accusation of carrying concealed weapon; from city court of Albany — Judge Clayton Jones. May 31, 1915.</p>

<p>1. The conviction of the accused depended both upon his full and voluntary confession and upon proof of circumstances tending to establish the corpus delicti. “The confession being direct evidence, the conviction did not depend exclusively upon circumstantial evidence; and therefore, in the absence of an appropriate request, it was not erroneous for the court to omit to charge the law of circumstantial evidence.” Smith v. State, 125 Ga. 296, 299 (54 S. E. 127). See also McElroy v. State, 125 Ga. 37, 40 (53 S. E. 759); Owens v. State, 120 Ga. 296, 299 (48 S. E. 21); Eberhart v. State, 47 Ga. 598, 609; Cooner v. State, 16 Ga. App. 540 (4) (85 S. E. 688). In the absence of a special request so to do, the court is not bound to charge section 1031 of the Penal Code of 1910, as to the weight to be given confessions. Malone v. State, 77 Ga. 767 (5); Sellers v. State, 99 Ga. 212 (25 S. E. 178); Walker v. State, 118 Ga. 34 (44 S. E. 850).</p> <p>2. There is no substantial merit in the assignments of error as to the omission to give other specified instructions, since there was no timely written request to give the instructions referred to.</p> <p>3. While, to support a conviction of arson, it is necessary to show that the burning was not due to accidental or providential cause, and the corpus delicti must be shown aliunde the confession of the- accused, there were circumstances in proof sufficient in themselves to authorize the inference drawn by the jury that the fire was of felonious origin.</p> <p>4. “In the absence of a written request, the failiu’e of the judge to charge the jury that ‘the law presumes every fire to be accidental, until the contrary appears, where a man is charged with the offense of arson/ is not reversible error.” Randall v. State, 3 Ga. App. 653 (3) (60 S. E. 328).</p>

<p>A conviction resting upon circumstantial evidence is not authorized unless the evidence excludes every other reasonable hypothesis than that of the guilt of the accused.</p>

<p>Indictment for arson; from Walker superior court — Judge Wright. September 27, 1915.</p>

<p>Conviction of shooting at another; from Baldwin superior court —Judge Park. October 3, 1915.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. November 13, 1915.</p>

<p>Accusation of cruelty to animal; from city court of Dublin— Judge Hicks. November 15, 1915.</p> <p>The accusation charged Frank Joiner with shooting a cow of W. G-. Towns. At the trial no witness testified that he saw the shooting or saw the defendant at the time of the shooting. The evidence was wholly circumstantial. The alleged newly discovered evidence was that of a person who did not testify at the trial, and who, in an affidavit, stateá, that he knew of his personal knowledge that the cow, for the shooting of which Frank Joiner was convicted, was not shot by Frank Joiner; that he (the affiant) was in sight of and near the home of Frank Joiner on the day of the shooting, and the persons who did the shooting went away across the fields with their guns immediately; that at the time of the shooting Frank Joiner was in his home suffering from a bone felon, and did not see the shooting or the persons who did it, and for that reason did not know who did the shooting; and that he did not tell Frank Joiner or any one else his knowledge of the persons who did the shooting, until after the trial.</p>

<p>Indictment for murder — conviction of manslaughter; from Mitchell superior court — Judge Thomas presiding. June 28, 1915.</p>

Indictment for burglary; from Washington superior court— Judge Hardeman. November 8, 1915.

<p>Complaint; from city court of Baxley — H. J. Lawrence, judge pro bac vice. May 13, 1915.</p>

<p>Certiorari; from Wilkes superior court — Judge Walker. November 22, 1915.</p>

<p>1. Under the agreed statement of facts in this case, the lien of the assessment for street improvements attached to the property from the date of the passage of the ordinance authorizing and providing for the work.</p> <p>2. The court erred in overruling the motion for a new trial.</p>

<p>Action for damages; from municipal court of Atlanta. May 19, 1915.</p>

<p>Application for discharge in trover; from city court of LaGrange —Judge Harwell. June 11, 1915.</p> <p>. The Ben H. Fletcher Company instituted a bail-trover proceeding against Marsh to recover two mules. The defendant failed to deliver the mules or to give the statutory bond for the forthcoming of the property, and was imprisoned. He applied to the court for discharge from imprisonment, and in his petition alleged that he Avas not, at the date of the plaintiff’s affidavit to obtain bail, or thereafter, in possession, custody, or control of the property in question, and Avas not able to give the security required by law, or to produce the property, and could furnish satisfactory reasons for its non-production. On the hearing of the application it appeared that the mules had been delivered to him by the plaintiff under a contract of sale in which title to the property Avas reserved in the plaintiff until payment of the purchase-money. He testified that before the institution of the bail-trover proceeding he traded one of the mules to Henry Kimbrough and the other to a Mr. Cleveland, and did not know where they were; that he had no interest in them, and no one was keeping them for him. He further testified: “The reason I sold this property, I had been trading with them for twelve or fourteen years and they had not made any objection to my trading stock bought from them. Mr. King went to the field and saw Mr. Kimbrough with the mule and he never said anything about it at all. B. H. Fletcher - Company did not give me authority to trade either one of these mules, but never objected. Mr. King was representing Mr. Ben H. Fletcher. . . . I did not see any one about the trade. It Avould not be possible for me to get either one of these mules. They have not been in my possession since I was arrested. I can not give bond. I am not able to give bond in this case.” There was no contradiction of this testimony.</p> <p>The court passed an order refusing to discharge the petitioner on his own recognizance, and recommitted him to jail; and he excepted.</p>

<p>Complaint; from city court of Atlanta — Judge Beid. March 8, 1915.</p>

<p>Petition for certiorari; from Laurens superior court — Judge Kent. June 14, 1915.</p>

<p>Accusation of trespass; from city court of Columbus — Judge Tigner. July 20, 1915.</p>

<p>Indictment for misdemeanor; from Taylor superior court— Judge Gilbert. August 2, 1915.</p>

<p>Indictment for misdemeanor; from Thomas superior court-judge Thomas. August 7, 1915.</p>

<p>There was sufficient evidence to support the verdict, and there is no substantial merit in any of the assignments of error.</p>

<p>The requirement of the code that “the judges of the superior, city, and county courts shall, when the counsel for either party requests it before argument begins, write out their charges and read them to the jury” (Penal Code, § 1056) is mandatory, and when such a request is • made it is error to give a charge in any other manner.</p>

<p>Indictment for vagrancy; from Taliaferro superior court — Judge Walker. September 21, 1915.</p>

<p>Certiorari; from Dougherty superior court — Judge Cox. October 8, 1915.</p>

<p>Petition, for certiorari; from Wayne superior court — Judge Highsmith. October 25, 1915.</p>

<p>Indictment for burglary; from Fulton superior court — Judge B. H. Hill. October 23, 1915.</p>

<p>Accusation, of sale of liquor; from city court of Carrollton— Judge Beall. November 13, 1915.</p>

<p>Conviction of manslaughter; from Washington superior court-judge Hardeman. November 8, 1915.</p>

<p>Accusation of cheating and swindling; from city court of Americus — Judge Harper. October 30, 1915.</p>

<p>Certiorari-; from Bryan superior court — Judge Sheppard. November 2, 1915.</p>

<p>Petition for . certiorari; from Butts superior court — Judge Searcy. September 27, 1915.</p>

<p>Certiorari; from Franklin superior court — Judge Meadow. May 7, 1915.</p>

<p>Indictment for burglary; from Haralson superior court — Judge Bartlett. December 9, 1915.</p>

<p>Attachment; from city court of Albany — Judge Clayton Jones. May 31, 1915.</p>

<p>Petition for certiorari; from Brooks superior court — Judge Thomas. May 28, 1915.</p>

Action for damages; from city court of Macon — Judge Hodges. June 22, 1915. From the petition it appears that Homer G. Wood was struck and injured by an automobile of W. P. Stevens while it was being driven by W. A. Stephens. Wood sued the former and another jointly for damages on account of the injury; the plaintiff died and his executrix was substituted as plaintiff.

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 20, 1915.</p>

<p>Complaint; from city court of Hazleliurst — Judge Grant. June 14, 1915.</p>

<p>Appeal; from Cobb superior court — Judge' Patterson. July 22, 1915,</p>

<p>Action for damages; from municipal court of Atlanta. June 18, 1915.</p>

<p>Trover; from city court of Tifton — Judge E. Eve. September 8, 1916.</p> <p>Parks brought trover against Langley for certain corn, pork, cottonseed, hay, and fodder, raised by the defendant on the plaintiff’s land. The defendant contended that the title to the property sued for was not in the plaintiff, but in himself; that, under the contract between them, he was a tenant, and not a cropper. The plaintiff was nonsuited, and excepted to that judgment. As to the contract and the relation between himself and the defendant, the plaintiff (the only witness introduced at the trial) testified: “I rented a six-horse farm on my plantation in this county last year to D. J. Langley [the defendant], to make a crop on halves; that is, I furnished the land and the stock to work it, and he was to work and make the crops and gather the same, and we were to go halves in the crops made. I also furnished him with six sows, and he was to raise hogs on halves also. . . I was to furnish Mr. Langley and did furnish him with guano, money, and supplies, to the amount of $1,712.80, and he paid me down to $198.13, and that is the amount that he owes me now. . . I sold Mr. Langley some mules with the understanding had that if he could not pay for them I would take them back. I took a mortgage on the mules, and had to take them back, as he could not pay for them. I did not give the farm but little attention last year. My reason for not doing so was because I knew that Langley was a good farmer. . . I did not pretend to oversee the farm and give him direction. I did not retain control and supervision of the farm, but Langley used his own judgment as to the amount of cotton, corn, and other crops planted, and his method of cultivation. . . I would go out and look at the crops occasionally and advise with Mr. Langley about them. . . Langley never paid me anything for the rent of my farm last year, only gave me a part of my half of the crops made, and lacked the $198.13 of paying me for what I advanced to him during the year.”</p>

<p>Certiorari; from Dade superior court — Judge Fite. September 23, 1915.</p>

<p>Certiorari; from DeKalb superior court — Judge Smith. October 12, 1915.</p>

<p>Conviction of manslaughter; from Jones superior court — Judge Park. June 13, 1916.</p>

<p>Accusation of larceny; from city court of Dublin — Judge Hicks. June 13, 1916.</p>

<p>Conviction of manslaughter; from Houston superior court-judge Mathews. December 23, 1915.</p>

<p>Accusation of keeping on hand liquor at place of business; from city court of Bainbridge — Judge Spooner. January 17, 1916.</p>

<p>Motion for a new trial; from Banks superior court — Judge Brand. September 22, 1915.</p>

<p>Indictment for burglary; from Fulton superior court — Judge B. H. Hill. January 15, 1916.</p>

<p>Indictment for assault with intent to murder; from Floyd superior court — Judge Wright. February 1, 1916.</p>

<p>Action on insurance policy; from city court of Waycross — Judge McDonald. May 12, 1915.</p>

<p>Trover; from city court of Washington — Judge Wynne. May 18, 3 915.</p>

<p>Trover; from city court of Leesburg — Judge Martin. May 12, 1915.</p>

<p>Trover; from city court of Leesburg — Judge Martin. May 20, 1915.</p>

<p>Appeal; from Franklin superior court — Judge Meadow. June 17, 1915.</p>

<p>Certiorari; from Brooks superior court — Judge Thomas. May 38, 1915.</p>

<p>1. “No person shall be compelled to give testimony tending in any manner to criminate himself.” Article 1, section 1, paragraph 6, of the constitution (Civil Code, § 6362). “No party shall be required to testify as to any matter which may criminate or tend to criminate himself, or which shall tend to work a forfeiture of his estate, or which shall tend to bring infamy or disgrace or public contempt upon himself or any member of his family.” Civil Code, § 4543.</p> <p>(a) “The mode of impeaching a witness by proof of character ór reputation is laid down in the code (Penal Code [1910], § 1053; Civil Code [1910], § 5882). The code specifies the questions to be propounded, and ‘impliedly excludes all others.’ Barmoell v. Hannegan, 105 Ga. 400 (31 S. E. 116.) See also Gordon v. Gilmore, 141 Ga. 348 (7), 349, 350 (80 S. E. 1007). It provides for impeachment by proof that the ‘general character’ of a witness is bad, and that from that character the impeaching witness would not believe him on oath; it does not provide for impeachment by proof as to a special kind of character, such as character for chastity, or even veracity.” Budulph v. State, 16 Ga. App. 354 (85 S. E. 365). See, in this connection, McDuffie v. State, 121 Ga. 580 (7, 8), 584 (49 S. E. 708) ; Taylor v. State, 83 Ga. 647 (4), 657 (10 S. B. 442) ; Allred v. State, 126'Ga'. 537 (3) ; Doggett v. Simms, 79 Ga. 253 (4 S. E. 909) ; Huff v. State, 104 Ga. 521 (4), 524 (30 S. B. 808) ; Johnson v. State, 48 Ga. 116 (3) ; Georgia B. Go. v. Lytrend, 99 Ga. 421 (5), 422 (27 S. E. 794); Wheeler v. State, 112 Ga. 43 (3), 45 (37 S. E. 26).</p> <p>2. There was no error in the refusal of the court to grant a mistrial because of a reference by the solicitor-general to matters outside of the record, in view of the explanatory note touching this ground of the motion, and of the further fact that the judge instructed the jury to disregard entirely such extraneous matter. The harmful effect, if any, was removed by the instruction given by the court.</p> <p>3. There is no merit in the several exceptions to the charge of the court as to the good character of the defendant. The chai'ge was in exact accord with the ruling of this court in Taylor v. State, 13 Ga. App. 715 (79 S. E. 924), which controls in this case. .</p> <p>4. A specific intent to kill will not be presumed where death does not ensue, and the existence of such intent is a question of fact to be passed upon by the jury. The law imputes the intention to kill where there is in fact a killing, but not where there is no killing. In a trial for assault with intent to murder, the question of whether or not there was an intention to kill should be submitted to the jury by the court.</p> <p>5. The charge of the court sufficiently covered the law as to the right of the defendant to resist an alleged illegal arrest, and there was no error in declining to give the requested instruction on that subject.</p> <p>6. There is no substantial merit in any of the exceptions to the charge of the court, or to the failure to give any of the various instructions requested, not specifically mentioned in the foregoing headnotes, since the charge given correctly and sufficiently covered all the issues involved. Nor was there reversible error in the exclusion or admission of any testimony not referred to above.</p>

<p>Appeal; from Gilmer superior court — Judge Patterson. June 7, 1915.</p>

<p>Accusation of riot; from city court of Columbus — Judge.Tigner. October 23, 1915.</p>

<p>Habeas corpus; from city court of Milieu — Judge T. L. Hill. August 10, 1915.</p>

<p>Complaint; from municipal court of Atlanta. November 5, 1915.</p>

<p>Appeal; from Crawford superior court — Judge Mathews. May 7, 1915.</p>

<p>Petition for certiorari; from Butts superior court — Judge Searcy. November 27, 1915.</p>

<p>Indictment for sale of liquor; from Ben Hill superior court— Judge George. November 16, 1915.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. November 18, 1915.</p>

<p>Conviction of assault and battery; from Baldwin superior court —Judge Park. December 6, 1915.</p>

<p>Petition for certiorari; from Laurens superior court — Judge Kent. December 1, 1915.</p>

<p>Indictment for misdemeanor; from Berrien superior court— Judge Thomas. November 27, 1915.</p>

<p>Indictment for sale of liquor; from Miller superior court-judge Worrill. November 29, 1915.</p>

<p>Indictment for larceny of cattle; from Randolph superior court —Judge Worrill. December 4, 1915.</p>

<p>Petition for certiorari; from Johnson superior court — Judge Kent. January 8, 1916.</p>

<p>Accusation of assault and battery; from city court of Floyd county — Judge Nunnally. December 20, 1915.</p>

<p>Accusation of cheating and swindling; from city court of Athens —Judge West. December 20, 1915.</p>

<p>1. Statutes should be so construed as to maintain, if possible, their validity. It is essential to the validity of the act of 1914 penalizing the drawing and uttering of worthless checks, drafts, or orders (Acts 1914, p. 86, Park’s Annotated Code, vol. 6, §'718 (d) ), that it be construed as applying only where there is a fraudulent intent on the part of the drawer. To construe it otherwise would be to declare it an instrument for the collection of debt by the processes of the criminal law, in contravention of sound public policy and of the constitution of the State.</p> <p>2. In the passage of the “worthless-check act,” supra, the General Assembly properly intended to penalize the drawing and uttering of a check, draft, or order when the drawee accepts it with good reason to believe that the drawer actually has, in the hands of the drawee, sufficient funds to meet it. The statute was not intended to cover a postdated check accepted by the payee with distinct knowledge that the paper constitutes nothing more than a promise that, on the future date specified as the day of payment, the drawer will have in the bank the funds necessary to meet the check. In drawing a post-dated check there is either an implication that the payment is not to be finally consummated until the date named therein, or an implication that payment is postponed because the drawer has not, at the time of drawing the check, sufficient funds to meet it. In either event a post-dated check is merely a promise to pay in the future, and a breach of this promise would not subject the drawer of the cheek to the penalty of the act of 1914, although he might be guilty of cheating and swindling if he obtained money or other things of value by false and fraudulent statements, either in connection with or disconnected from'the drawing of the check.</p> <p>3. Even if the evidence in the present case would have authorized conviction upon a proper accusation of cheating and swindling, it was wholly insufficient to warrant a conviction of the specific offense of issuing a worthless check.</p>

<p>Indictment for assault with intent to murder; from Houston superior court — Judge Mathews. January 18, 1916.</p>

<p>Petition for certiorari; from Baldwin superior court — Judge Park. June 3, 1915.</p>

<p>Action for damages; from city court of Elberton — Judge Grogan. May 17, 1915.</p>

<p>Accusation of cruelty to animal; from city court of Eastman— Judge Neese. June 15, 1915.</p>

<p>Petition for certiorari; from Baldwin superior court — Judge Park. June 3, 1915.</p>

<p>Motion for new trial; from city court of Atlanta — Judge Beid. April 24, 1915.</p>

<p>Indictment for assault with intent to murder; from Effingham superior court — Judge Sheppard. June 9, 1915.</p>

<p>Indictment for assault with intent to murder; from Terrell superior court — Judge Worrill. November 27, 1915.</p>

<p>“To warrant a conviction on circumstantial evidence, the proved facts must hot only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” Penal Code, § 1010. Under this rule, the evidence in this case was not sufficient to authorize the conviction.</p>

<p>Accusation of adultery, etc.; from city court of Nashville — Judge Christian. December 3, 1915.</p> <p>The accusation was in two counts, one charging the defendant with adultery, and the other with adultery and fornication. From the evidence it appeared that he boarded at the home of the woman named in the accusation, while she was living with her husband. Iler conduct with the defendant led to disagreements between her and her husband, which culminated in her leaving her husband and the town in- which they resided. On the day on which she left the town the defendant was seen at the railroad-depot with her suitcase. The State introduced in evidence several love letters from her to the defendant. While boarding with her he bought a bracelet for her, which she wore. It was testified that on one occasion, while he was at his place of work, he was seen “making motions” to her; that she passed by and “went down in the branch, and he got excused from his work; . . he went up to her and put his hands on her and she put her hands on him; . . he just put his hands on her shoulders and she placed her hands on his waist.” The witness did “not know what they were doing,” or whether one of them kissed the other; he was thirty yards away. He did not know how long they were in that position; the defendant was gone from work about thirty minutes. No witness testified to other improper conduct between them. It was testified that the defendant was reputed to be a single man, and that he said his wife was dead.</p>

<p>1. Under our statute, the carnal knowledge of man with man,- or in the same unnatural manner with woman, constitutes the crime of sodomy. Penal Code, § 373. “There is no limitation as to the means by which this crime may be committed.” Herring v. State, 119 Ga. 709, 721 (46 S. E. 876). It can be committed by the mouth or otherwise than per anum. White v. State, 136 Ga. 158 (71 S. E. 135).</p> <p>2. When the evidence authorizes the conclusion that there was carnal knowledge between two men by the mouth of one of them, both are guilty of sodomy.</p> <p>3. The evidence authorized the verdict, and the trial judge did not err in overruling the demurrer to the indictment, the motion in arrest of judgment, or the motion for a new trial.</p>

<p>Accusation of larceny; from city court of Carrollton — Judge Beall. December'14, 1915.</p>

<p>The jury were warranted in finding that, under the circumstances shown by the evidence, the defendant, in laying his hand on that of the prosecutrix, was guilty of an assault and battery.</p>

<p>Indictment for selling liquor; from Jefferson superior court-judge Hardeman. December 18, 1915. '</p>

<p>Accusation of sale of liquor; from city court of Polk county— Judge John K. Davis. ^ February 25, 1916.</p>

<p>Complaint; from municipal court of Atlanta. June 6, 1915.</p>

<p>Indictment for murder — conviction of manslaughter; from Miller superior court — Judge Worrill. March 1, 1916.</p>

<p>Action for breach of contract; from city court of Floyd county— Judge Reece. June 17, 1915.</p>

<p>Levy and claim; from city court of Waycross — Judge McDonald. October, 8, 1915.</p> <p>Personal property, levied on under an execution issued in a foreclosure proceeding, was claimed by Jones & Damren Anto Company. The trial of the claim case resulted in a judgment adverse to the claimant, and it excepted. The instrument on which the foreclosure was based embraced a lease by Mrs. Dan Lott to Fred You-mans of a described storeroom, “to be used as a garage,” and a mortgage on personalty by the lessee to the lessor, to secure the payment of the rent of the leased premises.. It was filed for record in the office of the clerk of the superior court, and was recorded in ■ a book of deeds and leases, designated as “Book LL.” An entry on a book in the clerk’s office, entitled “Combined filing docket and index of chattel mortgages,” referred to the instrument as “agmt.” between Mrs. Lott, “grantor,” and Fred Youmans, “grantee,” recorded in “Book LL,” and gave the page on which it was recorded, its date, and the date of filing and recording. It was testified that there was no book of mortgages entitled “Book LL,” and the- instrument was not recorded in a book of mortgages. This entry was read by an attorney examining the records for Jones & Damren Auto Company before it took from Fred Youmans a bill of sale upon which its claim was based. According to this attorney’s testimony, he did not understand .from the entry that the instrument was a mortgage, and did not find the record of the mortgage..</p> <p>The mortgaged property was described in the instrument as follows : “ One lathe, one motor, one air compressor, all shafting and belting, one emery wheel stand, one stove, and all shop tools, and . . one certain gasoline tank, situated under the sidewalk, of the said garage.”</p>

<p>1. The filing of the affidavit required by section 765 of the Penal Code of 1895 (Park’s Annotated Code, vol. 6, § 790 (ff) ), that the accused has not had a fair trial and has been wrongfully and illegally convicted, is such an essential prerequisite to the sanction of a certiorari to a judgment of conviction in a county court that the omission to file the affidavit is not cured by such sanction or by the filing of an answer by the county judge, and failure to comply with the requirement of the statute works a dismissal of the petition. Blassingame v. State, 125 Ga. 293 (54 S. E. 180); Grant v. State, 126 Ga. 588 (55 S. E. 471); Bogan v. State, 127 Ga. 349 (56 S. E. 409) ; Barley v. State, 12 Ga. App. 643 (77 S. E. 1131).</p> <p>2. An averment in the petition for certiorari that the petitioner has not had a fair trial and that he has been illegally and wrongfully convicted, although the petition be verified by an affidavit of the petitioner that “the facts stated in the foregoing petition, so far as they, come within his own knowledge, are true, and so far as derived from the knowledge of others he believes’them to be true,” is not such a substitute for the specific and definite affidavit required by law as to be equivalent thereto. Consequently, the trial judge did not err in overruling the certiorari.</p>

<p>Indictment for sale of liquor; from Pike superior court — Judge Searcy. November 6, 1915. .</p>