Volume 18 — Georgia Appellate Reports

<p>1. Reference to the defendant as “the prisoner,” or “the prisoner at the bar,” in instructions of the court as to the statement of the accused, and in other parts of the charge to the jury, on the tri.al of one indicted for a misdemeanor, was not subject to exception on the ground that it was unfair to him and tended to degrade and humiliate him, and to disparage his statement, although he had not been actually imprisoned and was under bond for his appearance at the trial.</p> <p>2-5. The statute which forbids an expression or intimation of opinion by the judge to the jury as to what has been proved, or as to the guilt of the accused (Penal Code, § 1058; Civil Code, § 4863), was not violated in the statement of contentions or in other instructions to the jury, or in the language of the judge to a witness, to which exception is taken in the motion for a new trial.</p> <p>6. The conviction was authorized, and there was no error that required a new trial.</p>

<p>Accusation of unlawful sale of cocaine; from city court of Richmond county — Judge W. E. Eve. December 11, 1914.</p>

<p>Certiorari; from Pulton superior court — Judge Pendleton. November 30,1915.</p>

<p>Indictment for robbery; from Pulton superior court — Judge B. H. Hill. January 29, 1916.</p>

<p>Indictment for sending threatening letter; from Decatur superior court — Judge Cox. February 19, 1916.</p>

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

<p>Conviction of manslaughter; from DeKalb superior court— Judge Smith. November 4, 1915.</p>

<p>Accusation of assault and battery; from city court of Carroll-ton — Judge Beall. February 11, 1916.</p> <p>J. W. Morrow was convicted on an accusation charging him with assault and battery upon Mrs. H. B. Long. She testified, that while she and her husband were living at the defendant’s home,the defendant, without her consent, placed his hands on her person, tried to put his arms around her, “loved” her “up a lot of times,” and asked her to “stay with him,” that while riding in an automobile with her he tried to kiss her, and that he “run his hand down” her dress, etc. In the brief of counsel for the plaintiff in error all grounds of the motion for a new trial, except the 2d, 8th, and 9th, were expressly abandoned. In the 2d ground it was alleged that the court erred in failing to charge the jury (though not requested so to do) that it was incumbent on the State to prove in what county the alleged offense was committed. The 8th ground is stated in the decision. The 9th ground was as follows: “Becaiise the court erred when he overruled the counsel’s motion for the defense to declare a mistrial when the solicitor, during the argument of the case, made the following remark: 'It just goes to show the conduct of J. W. Morrow about running after women.’ When he made this remark counsel for the defendant asked that a mistrial be declared, and objected to the language being used. The court overruled the motion without any remark to the jury whatever, and the same is assigned as error.”</p>

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

<p>Accusation of misdemeanor ;• from city court of Dublin — Judge Hicks. November 15, 1915.</p>

<p>Indictment for larceny of cow; from Morgan superior court— Judge Park. December 4, 1935.</p>

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

<p>Certiorari;, from Jenkins superior . court — Judge Hammond. October 25, 1915.</p>

<p>Where the only instruction as to the rule which authorizes an inference that one found in the recent possession of goods shown to have been stolen was that “it is a principle of law that if, recently after a crime has been committed, property stolen is found in the possession of any one, the presumption is that he is the thief, provided he does not give a reasonable explanation of his possession,” followed by the further instruction: “Now, if you believe this man, recently after this crime is alleged to have been committed, was found in possession of any of this property, in the absence of reasonable explanation satisfactory to the jury that he is innocent and not guilty, you would have the right to infer that he was the thief,” the use of the words “this property” necessarily suggested the inference that the property, if any, which the jury should find was found in the possession of the defendant was in fact stolen, so as to constitute an expression of an opinion as to what had been proved on one of the material issues in the case; and was therefore a violation of the provisions of the Penal Code, § 1058 (Civil Code, § 4863). Eor the reason just stated, the judge erred in overruling the motion for a new trial.</p>

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

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. October 2, 1915.</p>

<p>Foreclosure of lien; from Ben Hill superior court — Judge George. October 16, 1915.</p>

<p>Complaint; from city court of Quitman — Judge Long. October 11, 1915.</p>

<p>Complaint; from Pulaski superior court — Judge Graham (transferred from city court). October 29, 1915.</p>

<p>1. The terms of the instrument upon which the suit was based precluded any defense resting upon fraudulent misrepresentations made prior to the writing; and a waiver of all warranties, both express and implied, includes a waiver of latent defects in the article purchased.</p> <p>2. There is no merit in the exception to the effect that the instructions of the trial judge withdrew from the jury the defense that the instrument which was the basis of the suit was obtained through fraud. The statement that fraud was committed is a mere conclusion of the pleader, unsupported by the allegation of such facts as would show that a fraud was actually committed. As matter of pleading, fraud is alleged, not by nomenclature, but by stating facts which show its existence.</p> <p>3. The -charge of the court is not in violation of the provisions of section 4863 of the Civil Code.</p> <p>4. The verdict is supported by evidence and there was no errr in refusing a new trial.</p>

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

<p>Indictment for manufacture of liquor; from Wilkes superior court — Judge Walker. December 23, 1915.</p>

<p>Accusation of sale of liquor; from city court of Hazlehurst— Judge Grant. August 16, 1915.</p>

<p>Indictment for incestuous adultery and fornication; from Pulton superior court — Judge B. H. Hill. January 8, 1916.</p>

<p>Indictment for malpractice in office; from Wheeler superior court — Judge Sheppard presiding. January 8, 1916.</p>

<p>Certiorari; from Eulton superior court — Judge Ellis. January 13, 1916, •</p>

<p>Accusation of misdemeanor; from city court of Cairo — Judge Willie. January 2, 1916.</p>

<p>Complaint; from city court of Houston county — Judge Biley. May 18, 1915.</p> <p>Mrs. Houser was sued by a partnership, doing business under the name of Eberhardt Machine Works, for the amount of a balance alleged to be due on an account for work done and material furnished in repairing a ginnery. From the evidence at the trial it appeared that she was the proprietor of what was known as The Planters Warehouse, and conducted a cotton-warehouse business through her husband, O. M. Houser, “manager.” A member of the plaintiff firm testified: “The way I came to do this work and furnish this material was this: Mr. Houser stated to me one day that he was figuring on getting the Cheek ginnery as a feeder to his warehouse business, as he thought that if he could get this, ginnery and operate it, it would increase his receipts of cotton. . . Several days later we examined the ginnery and machinery, and he asked me if I could fix it up, and I told him that I could, and he notified me to go ahead and do the work and repair the outfit. This I did, and that is what the defendant owes me this money for. I knew Mr. Houser was running the warehouse business for Mrs. Houser, his wife, the defendant, and he told me that he wanted this gin as a feeder to his warehouse business. I would not credit Mr. Houser. I did not credit him. I credited Mrs. Houser, and extended the credit on the strength of her responsibility alone. The account was charged on our books to cO. M. Houser, manager/ and the bills were presented to him, and he gave us checks . . signed by ‘Q. M. Houser, manager/ to apply on the account. Mr. Houser never told me that he was buying this ginning outfit as agent or manager for his wife, and he did not tell me to charge the items in this account sued on to him as manager or agent for his wife. I never had any conversation with Mrs. Houser in regard to the matter. She never authorized me to charge the account to her. . . I did not know that Mr. Houser was acting as agent for his wife or doing business as manager for his wife except by general rumors around town.” Ho other witness testified. The plaintiffs introduced in evidence a power of attorney from the defendant, reciting that she was proprietor of The Planters Warehouse, and that the business of the warehouse was conducted by her through O. M. Houser, “manager,” and constituting him her agent in the “business of conducting cotton warehouse and selling guano,” and authorizing him to bind her “by any contract or writing or otherwise which he [might] see fit to make in the conduct of said business.” The plaintiffs introduced also a subsequent power of attorney from the defendant, authorizing O. M. Houser to contract in her name with English, Johnston & Co. as to the delivery of cotton and as to other matters, to sign checks, to transfer to English, Johnston & Co. any money to her credit with them or with any other person, and to compromise and settle any obligation of hers with them or with any other person, and to do in her name all acts necessary to be done in the premises. These writings antedated the account sued on. At the conclusion of the evidence introduced by the plaintiff, the court, on motion of the defendant, granted a nonsuit.</p>

<p>Levy and claim; from city court of Nashville — -Judge Christian. April 12, 1915.</p>

<p>Action on contract; from city court of Savannah — Judge Davis Freeman. June 19, 1915.</p>

<p>Lien foreclosure; from municipal court of Atlanta. June 28, 1915.</p>

<p>Appeal; from Tift superior court — Judge Thomas. July 9, 1915.</p>

<p>Action for damages; from city court of Nashville — Judge Christian. July 2, 1915.</p>

<p>Appeal; from Clarke superior court — Judge Brand. June 29, 1915.</p>

<p>Accusation of misdemeanor; from city court of Greensboro — Judge Sibley. June 17, 1915.</p>

<p>Indictment for perjury; from Berrien superior court — Judge Thomas. July 17, 1915.</p>

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

<p>Accusation of misdemeanor; from city court of Tifton — Judge Eve. August 2, 1915.</p>

<p>Certiorari; from Morgan superior court — Judge Park. August 14, 1915.</p>

<p>1. In a suit upon promissory notes a prayer for the establishment of a special lien on real estate, conveyed as security for the payment of the debt evidenced by the notes, does not render the proceeding a “case respecting title to land;” and in such a suit the city court of Thomasville has jurisdiction to declare a special lien on the realty.</p> <p>2. The trial judge did not err in striking the second paragraph of the defendant’s original answer. A mere allegation that a note is wholly without consideration, and therefore null and void and unenforceable, amounts to nothing more than a plea of general issue, and is too vague and indefinite to constitute a proper plea of failure of consideration.</p> <p>3. The amendment to the defendant’s answer was insufficient to raise an issue as to fraud in the procurement of the notes in question, and the alleged plea of rescission, being merely • an attempt to engraft a contemporaneous parol agreement upon a valid written instrument, without showing any reason for its omission from the written agreement, was properly stricken, after the trial court had afforded the defendant an opportunity to amend his answer and cure the defects pointed out by the plaintiff’s demurrer.</p> <p>4. After the defendant’s answer had been stricken, and after the plaintiff had stricken his claim for attorney’s fees, it was not error to render a judgment for the plaintiff for the principal and interest of the notes, and to adjudge that the judgment be a special lien upon the land described in the defendant’s deed which was attached to the petition.</p>

<p>Affidavit of illegality; from city court of Moyd county — Judge Nunnally. November 2, 1915. '</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. October 29, 1915.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. February 22, 1916.</p>

<p>Petitiou for certiorari; from Carroll superior court — Judge R. W. Freeman. November 15, 1915.</p>

<p>Complaint; from city court of Hazlehurst — Judge' Grant. November 30, 1915.</p>

<p>Indictment for wife beating; from Cobb superior court — Judge Patterson. February 36, 1916.</p>

<p>Levy and claim; from city court of Eastman — Judge ISTeese. May 5, 1915.</p>

<p>Trover; from city court of Dawson — Judge Edwards. June 24, 1915.</p>

<p>Where a landlord seeks by bail-trover against-his cropper to recover property, the title to which the plaintiff holds merely as security for supplies furnished, or other debt, and he elects to take a money verdict, he can not recover more than the amount of the debt for which the property stands as security. .</p>

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

<p>Accusation of abandonment of child; from city court of Dublin —Judge Hicks. August 9, 1915.</p> <p>Paragraph 3 of the decision relates to the following grounds of the motion for a new trial: “Because the court erred in permitting the attorney for the State . . to address the following remarks to the defendant while arguing said ease before the jury: ‘'If you have as much manhood in your bones and under skin as an Egyptian mummy, you would support that child/ without reprimanding said attorney, forcing him to retract same, or granting mistrial upon motion of counsel, duly made for that purpose, and in permitting said counsel to say that he not only refused to retract said statement, but that he repeated it.” “Because the court erred in permitting said attorney mentioned in foregoing paragraph to use the following remarks of the defendant while addressing the jury in argument of case: ‘These letters show that the defendant was one of those straggling, itinerant class of criminals/ and in not reprimanding said attorney or declaring mistrial in accordance with timely motion for that purpose made by counsel for defendant; the court stating in each instance, when counsel made motion for mistrial, that counsel for both sides had the right to state their contentions -to the jury, but that the jury would decide the case in accordance with evidence delivered from the stand, as applied to the rules of law given in charge by the court.”</p>

<p>Conviction of manslaughter; from Muscogee superior court— Judge Gilbert. August 6, 1915.</p>

<p>Accusation of cheating and swindling; from city court of Milieu — Judge T. L. Hill. October 18, 1915.</p>

<p>Action for damages; from city court of Waycross — Judge Lank-ford presiding. September 23, 1915.</p>

<p>Conviction of assault with, intent to murder; from Morgan superior court — Judge Park. December 11, 1915.</p>

<p>Indictment for sale of liquor; from Wayne superior court— Judge Highsmith. February 12, 1916.</p>

<p>1. Without regard to the propriety of the instruction complained of therein, the 4th ground of the motion for a new trial, which complains of an excerpt from the charge of the court touching the law of mui’der, is without merit, both for the reason that the defendant was convicted of manslaughter, and because the court did not thereby intimate any opinion as to who was the aggressor in the fatal encounter.</p> <p>2. No expression or intimation of opinion as to what was proved was made by the trial judge in the instructions complained of in the 5th and 6th grounds of the motion for a new trial.</p> <p>3. The court did not, in instructing the jury that “there is involved in this case another grade of homicide,” express or intimate an opinion that the defendant was guilty either of voluntary manslaughter or of any other grade of homicide.</p> <p>4. There was no harmful error in declining to permit a witness, who was not offered as an expert and did not qualify as an expert, to answer hypothetical questions or give his opinion whether or not certain shot fired from the gun of the defendant would have struck the deceased if he had been standing in a particular position suggested by the question. It does not appear that the witness had given any facts or reasons for the conclusion or opinion anticipated from him, and generally the opinion of a witness as to the existence of a fact is not admissible in evidence. Penal Code, § 1047. See also Central Railroad v. DeBray, 71 Ga. 407 (8).</p> <p>5. The court did not err in excluding testimony of a witness touching a self-serving narrative said to have been given to him by the accused a short time after the tragedy. The evidence was not admissible as part of the res gestae, since it was not so closely connected with the occurrence as to be free from all suspicion of device or afterthought, and a mere narrative ordinarily carries with it' the impression of afterthought. Southern Railway Co. v. Brown, 126 Ga. 4 (54 S. E. 911), and citations; Park’s Annotated Penal Code, § 1024, and citations.</p> <p>6. The admission of the evidence set forth in the 9th and 10th grounds of the motion for a new trial furnishes no ground for reversal. The testimony complained of in the 9th ground was offered in rebuttal of the defendant’s statement to the jury; and it does not appear that the evidence complained of in the 10th ground was harmful, even if for any reason inadmissible.</p> <p>7. The court on giving in charge to the jury the provisions of the Penal Code as to voluntary manslaughter, that “provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder-,” did not err in failing, in that immediate connection, to qualify this charge by instructing the jury that provocation by words, threats, menaces, or contemptuous gestures might be considered by the jury in determining whether or not the defendant acted under the fears of a. reasonable man at the time the fatal shot toís'fired, and that if he did act under such fears, he was justifiable and should be acquitted. See Deal v. State, 145 Ga. 33 (88 S. E. 573).</p> <p>8. The evidence was sufficient to support the verdict.</p>

<p>Certiorari; from Franklin superior court — Judge Meadow. August 2, 1915.</p>

<p>Complaint; from city court of Cairo — Judge Willie. July 24, 1915.</p> <p>On June 30, 1914, the Pictorial Eeview Company brought suit against Abe Poller for $128.49 and interest, alleged to be due on an open account for patterns, monthly fashion books, etc., beginning in February, 1912. The defendant in his answer denied the alleged indebtedness, and attempted to set up matters of defense relating to an alleged contract, the terms of which did not appear in .the pleading. The paragraphs in which the contract was mentioned were the 4th, 5th, 6th, and 9th; and a motion to strike these paragraphs was sustained as to the 4th and overruled as to the others. The trial resulted in a verdict in favor of the defendant for $50. The plaintiff, in its bill of exceptions, complains of the overruling of the motion to strike the 5th, 6th, and 9th paragraphs of the answer, the refusal to direct a verdict in its favor, and the overruling of its motion for a new trial.</p> <p>The 4th paragraph of the answer is as follows: “And further answering plaintiff’s petition, says that on the 27th day of Deeember, 1911, he signed a contract with said company for the purpose of handling certain goods of theirs, consisting of different styles of patterns; that the agent of said company induced defendant to sign said contract by persuading him to undertake to handle the plaintiff’s goods, assuring him that if he would make a trial of same he would find them to have such merit that he would continue to handle them, and' by the representations made by said agent this defendant was led to believe, and signed said contract with the firm belief and understanding, that it was only a temporary contract for trial of plaintiff’s goods; defendant putting up $75 cash in order to pay for the first goods to be shipped.” The paragraphs which follow the stricken paragraph are: “ (5) The defendant being a foreigner, not educated in the English language, never having attended English schools, did not know and understand the contents of the contract, except as to the quality of the patterns and the price thereof, but understood that any time he was dissatisfied with his contract he was authorized to rescind it, they to refund defendant’s money, and he to return the goods, and he to have full credit for them, provided they were not injured by defendant. (6) Soon after defendant began to handle goods of plaintiff, and when he received demands from plaintiff wholly at variance with his understanding of the contract, defendant gave notice to plaintiff of his desire to rescind this contract and to relieve himself of any obligations thereunder, and asked them to take back the goods on hand, which under their contract they were to take back semi-annually. This they refused to do. (7) Defendant says he now has on hand the property of the plaintiff, 1814 patterns of the value of 7% cents apiece, making $146.05, and 319 patterns worth 5 cents apiece, making $15.95, and two tills, $5 each, making $10; making a total sum of $172 of goods now in defendant’s hands belonging to plaintiff, and which are held for plaintiff’s account and its benefit, and which defendant has heretofore tendered to plaintiff, and now tenders same to it, and holds same subject to its order. (8) Defendant further says that of the $75 which he paid in as a cash credit he is yet due back to plaintiff the sum of $50 after being allowed all credits for moneys forwarded for goods by defendant for plaintiff. (9) Defendant says that the representations of plaintiff as to length of time of said contract, and as to terms of said contract, were a fraud on this defendant. Wherefore defendant prays that he have judgment' against plaintiff for the sum of $50 which they have in hand of moneys belonging to plaintiff, together with the costs'of this proceeding.”</p> <p>From the evidence it appeared that on December 27, 1911, the plaintiff signed a contract with the Pictorial Eeview Company for the purchase of patterns, etc., from that company in stated quantities and at stated times, and for fixed prices, in which it was provided that the, agreement was *to remain in force from date and for five years after first shipment of patterns.” The first shipment of patterns under the contract was made by the plaintiff on February 13, 1912. It was testified for the plaintiff that the account was correct, due, and unpaid, and that the plaintiff had complied with the contract in all respects. An agent of the plaintiff testified: “I solicited Abe Poller, . . the defendant, who signed a contract to handle a stock of Pictorial Eeview patterns. The contract he signed was in the usual form, and I explained every feature of it to him before he signed the contract. He understood fully what it was at the time he signed it. -I submitted the contract to defendant, and he looked at it some considerable time before he signed it. He talked with me about it also. The different features of the contract were discussed with him before he signed it. He looked at it and had opportunity to read it, and a sufficient length.of time to read it before signing it. I left him a carbon copy.” An employee of the defendant testified: “I was present when agent of plaintiff and defendant talked over a contract. . . I did not hear anything said as to how long the contract was to last.” The defendant testified: “I signed that contract; that is my signature. When I signed the contract I did not know it was a five-year contract. The man who got me to sign the contract stayed all day and persuaded me until I signed it. He told me that I could sell these patterns and that they would sell well, but they did not sell well, and a lot of them accumulated on my hands. I could not read much when I signed the contract. I can read better now. He did not tell me for how long a time the contract was to last. I did not ask him, but if I had known it was for five years I would not have signed it. I thought the contract was for one or two years probably. The patterns came according to contract and were all right, but they did not sell fast and they soon got out of style. I sent a few of the patterns back and got them exchanged according to contract. I sent all of them back after this suit was instituted and asked them to give me credit for them, but they refused to do it. After giving me credit for the patterns I sent back they are due me back $50 of the money I paid, and I paid for all the patterns I used and I do not owe them one cent, but the company owes me $50. I thought I could give up the contract at any time or at the end of any six-month period. I would not have signed the contract had I not been deceived as to the length of time it was for. I am a foreigner and ,do not understand English' language much. I could not read English but little when I signed the contract; I can’t much now, but have learned most I know about it since I signed the contract.”</p>

<p>1. The rule that assignments of error based upon rulings on demurrers to the pleadings can not be reviewed by motion for a new trial is not only so ancient as to inspire respect, but so hoary with age as to compel reverence..</p> <p>2. One who defers the prosecution of his remedy under a forthcoming bond until after he has claimed the fund ai'ising from a sale, under judicial process, of the property the production of which' the bond was given to secure, is confined to his election, and is estopped to assert the invalidity of the sale.</p> <p>3. To recover upon a forthcoming bond, it is essential to show damages as well as a breach of the obligation, or, in other words, to show what damages resulted from the alleged breach.</p> <p>4. The trial judge may give the reasons which influence him in the admission or exclusion of testimony, without expressing an opinion of what has been proved. Even though the judge, for the purpose indicated, recites or reviews some of the testimony already adduced, this is no violation of section 4863 of the Civil Code.</p> <p>5. The fact that a tender of the property after the day fixed for the sale, or a tender of other property instead of that levied upon, will not serve to avoid liability upon a forthcoming bond, does not interfere with the defense of estoppel, where there is proof that there was a waiver of the obligation to produce the identical property at the time and place fixed for the sale. That there was such waiver can well be shown by the acceptance of funds with knowledge that they were derived from property sold in lieu of that for the production of which the forthcoming bond was given.</p>

<p>" Complaint; from city court of hTewnan — Judge Post. July 28, 1915.</p> <p>In the case of Carson against Lythgoe the trial judge refused to open a default, directed a verdict against the defendant, and entefed judgment thereon; all of which is complained of in the bill of exceptions. The motion to dismiss the writ of error is based on the ground that after the case had been disposed of in the trial court as stated above, and before the bill of exceptions was signed, the plaintiff in error filed a suit against Carson, the defendant in error, which is still pending, based upon the same cause of action that the plaintiff in error had sought to set up in his proposed answer to the former suit, and that this amounted to an acquiescence in the rulings and judgment complained of in the bill of exceptions, and therefore the questions presented therein are moot questions. On this motion the following cases were cited: Randolph v. Brunswick & Birmingham R. Co., 120 Ga. 969; Brown v. Atlanta, 123 Ga. 491; Seaboard, Air-Line Ry. v. Randolph, 126 Ga. 245 (4).</p>

<p>Complaint; from city court of Monticello — Judge Thurman. July 28, 1915.</p> <p>The suit was filed December 29, 1913. The transaction on which the suit was based occurred on November 26, 1909. The defendants contended that as the wrongful act complained of was committed more than four years before the filing of the petition, the suit was barred by the statute of limitations; and on this ground a motion to dismiss the action was sustained. The plaintiffs contended that, the action being based on a fraudulent violation of trust and confidence reposed by them in the defendant Bay M. Persons, the statute of limitations did not begin to operate against them until they discovered the fraud, at a time within the four years preceding the filing of the suit.</p> <p>The following facts were alleged: In 1909 and 1910 the defendants,- Eay M. Persons and Harvey Persons, were operating a cotton warehouse at Norwood, Georgia, and Eay M. Persons, as manager of the warehouse, had an arrangement with the agent of the Georgia Eailroad (which was operated by the plaintiffs as lessees), under which cars were placed at the warehouse and loaded by Eay M. Persons with cotton to be shipped over the railroad by the defendants, and when the cars were thus loaded, Eay M. Persons would notify the agent of the railroad, who, after verifying the loading, would issue bills of lading. On or about November 26, 1909, Eay M. Persons informed the billing clerk of the railroad at Norwood that he had loaded in a designated car 26 bales of cotton shipped by the defendants for Eay & Co. to Davison & Pargo, cotton factors at Augusta, Ga., and upon this statement the billing clerk issued to him a bill of lading for that number of bales. Immediately after the bill of lading was issued it was discovered that there were only 25 bales in the car, and immediately and before the car was sealed the attention of Eay M. Persons was called to this fact and he was asked to return the bill of lading for correction; he admitted the mistake, and, when requested to return the bill of lading for correction, said that he would make the correction on the bill of lading before forwarding it to the consignees, and insisted on being allowed to do so, and the plaintiffs’ agent trusted and relied upon him to make the promised correction, but he failed to make the correction and forwarded the bill of lading to the. consignees. The consignees, on discovering the shortage of one bale, filed a claim against the Georgia Eailroad for the market value of the bale, and on March 31, 1910, the Georgia Eailroad was forced to pay them its value, $83.80, to the injury and damage of the plaintiffs in that sum, and they sue for that amount, with interest thereon. The conduct of Persons in the several acts stated above, as to the bills of lading, was wrongful and fraudulent and in violation of trust and confidence reposed in him by the agent of the plaintiffs. It is alleged that the plaintiff had no means of knowing of the failure until called upon to make good the shortage, and that the reason for not filing suit immediately on being forced to pay the claim was that Persons kept promising to adjust the matter. By amendment it is alleged, that owing to the trust and confidence reposed in Persons to make the correction as promised, the bill of lading being in- his possession and not in that of the plaintiffs, the agent of the plaintiffs was lulled into a sense of security and was prevented from discovering that Persons had not made the correction, until the consignees filed their claim-for the shortage on February 5, 1910. The plaintiffs were prevented from discovering the fraud by reason of the character of the act, Persons alone knowing that he had not made the- correction, and concealing the fact from the plaintiffs and their agent until after the claim against the Georgia Railroad was filed. They could not by the exercise of -reasonable diligence have sooner discovered the fraud.</p>

<p>Action on contract; from city court of Valdosta — Judge Cranford. August 28, 1915.</p>

<p>1. An indictment which charged “the offense of misdemeanor,” for that the defendant “did contract to sell, take orders for, and' solicit personally and by- agent, and by and through the United States mails, and by and through the Southern Express Company, the sale of spirituous liquor, malt liquor, and intoxicating liquor, contrary to the laws of said State,” etc., was not subject to demurrer bn the ground that it set forth no crime, or that it failed to state who was the agent and how he contracted to sell, take orders, and solicit, or that it failed to state how the defendant used the mail or the express company as his agent.</p> <p>2. Over the objection that certain printed circulars with prices of intoxicating liquors were not signed by the defendant and had only a printed signature, and that it was not shown that the defendant had anything to do with the mailing of such circulars to the witness, the trial judge admitted, with the printed matter referred to, testimony to the effect that the witness received such circulars by mail, addressed to him, postmarked “Augusta, Ga.,” with printed forms for ordering intoxicating liquors, and envelopes on which were printed the defendant’s name, a street number in Augusta, Ga., the number of a post-office box, and a telephone number. Erom other evidence it appeared that the defendant was engaged in the business of selling liquors in Augusta, Ga., at the street number given on the envelope; and it was testified that intoxicating liquor was received in response to orders sent by mail on such printed blanks and in such envelopes. The defendant, in his statement at the trial, admitted that he “had some circulars printed,” and did not deny that he directed the printing or mailing of the circular introduced in evidence. Held, that the admission of the evidence objected to was not cause for a new trial.</p> <p>3. A ground of a motion for a new trial based upon the admission of testimony must show what objection to it was urged at the trial. To say , merely that a new trial should be granted because the court erred in admitting the testimony “over the timely objection of movant’s counsel,” “movant’s counsel contending that said evidence was irrelevant,” does not show that this contention was made at the trial.</p> <p>4. There was no error in admitting testimony that in response to a written request signed in the defendant’s name, the witness sent to him a mailing list with names taken from the tax-books of the county, and received in payment a check signed in the defendant’s name.</p> <p>5. An instruction to the jury to the effect that the defendant would be guilty if he “mailed, or caused to be mailed, or authorized the mailing, or subsequently ratified and accepted the fruits of a letter or circular” soliciting the sale of intoxicating liquors, etc., was not subject to the exception that it authorized the jury to convict without proof of knowledge as to how such trade was solicited, and whether the letter or circular was mailed by him or any one authorized by him or not.</p> <p>6. The evidence authorized the verdict.</p>

<p>Indictment for robbery; from Fulton superior court — Judge B. H. Hill. November 13, 1915.</p> <p>Paragraph 2 of the decision relates to the following part of the charge of the court: “They [the defendants] come before you and they say they got the property of this prosecutor, but they say they did not get it by robbery, but by other means described. And you have the right to believe their statements in preference to the sworn testimony in the case. Now, which do you believe? It is for you to decide which is the truth, and you can believe their statements in preference to the testimony of the witness who testifies about it, who testified where he was, under what circumstances he was robbed, where he went and reported it, and where he found his watch. You can take into consideration his character and deportment as a witness on the stand, in arriving at the truth of his testimony, and then you can take the statements of the two defendants; consider their deportment, consider their manner and their statements, and, as I have said, you have the right to believe them in preference to the evidence, if you see proper to do so.” In the motion for a new trial it was alleged that the court erred in the charge as to what the witness testified, “because the statement of the court as to the things that the witness had testified about intimated an opinion as to the evidence, and summed up the various things which the prosecutor had testified as occurring, as against the statements of the defendants, and altogether excluded from his statement any reference whatever to the testimony of W. N. Carter and Willie Anderson (witnesses for the defendants), who also testified in the case.”</p>

<p>Conviction of assault and battery; from Laurens superior court —Judge Kent. November 24, 1915.</p>

<p>Indictment for sale of liquor; from Pike superior court — Judge Searcy. November 21, 1915.</p>

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

<p>Indictment for burglary; from Polk superior court — Judge Bartlett. December 6, 1915.</p>

<p>1. The provisions of section 6144 of the Civil Code (relating to those cases where a motion for a new trial is not a necessary antecedent to a review by bill of exceptions) do not apply when there is no exception other than that the verdict was contrary to the evidence, or that, being without evidence to support it, the finding was contrary to law. A party Can not complain of a verdict as being contrary to evidence without first moving for a new trial, for “where a case has been tried by a jury and a verdict rendered therein, and the losing party desires to have the correctness of the verdict reviewed by this court, a motion for a new trial is indispensable.” Holsey v. Porter, 105 Ga. 837 (31 S. E. 784).</p> <p>2. When there is no complaint of any error of law, and a review of the verdict is sought by direct bill of exceptions without a motion for a new trial, the writ of error will be dismissed.</p>

<p>Indictment for burglary; from Colquitt superior court — Judge Thomas. December 20, 1915.</p>

<p>Accusation of misdemeanor; from city court of Valdosta — Judge Cranford. January 1, 1916.</p>

<p>The evidence authorized the verdict of voluntary manslaughter; there was no sufficient showing as to diligence to procure at the trial the evidence alleged to have been discovered thereafter, and the new evidence was merely cumulative of the defendant’s statement at the trial and impeaching as to the testimony for the prosecution. The trial judge therefore did not abuse his discretion in overruling the motion for a new trial.</p>

<p>Indictment for manufacture of liquor; from Wilkes superior court — Judge Walker. December 23, 1915.</p>

<p>Indictment for arson; from Coweta superior court — Judge ft. W. Freeman. January 20, 1916:</p>

<p>Accusation of assault and battery; from city court of Bainbridge — Judge Spooner. January 31, 1916.</p>

<p>Certiorari; from Carroll superior court — Judge E. W. Freeman. January 14, 1916.</p>

<p>Certiorari; from Carroll superior court — Judge E. W. Freeman. January 14, 1916.</p>

Indictment for arson; from Houston superior, court — Judge Mathews. January 18, 1916. A group of wooden buildings, consisting of a barn, a stable, and a corn-crib, on a farm occupied by Eli Hicks as a tenant, was destroyed by fire at night. The fire was discovered about 11:30 o’clock. Nothing was known as to its origin. There were indications that it started at the corn-crib and was carried by the wind to the other buildings.

<p>Certiorari; from Fulton superior court — Judge Ellis. January 11, 1916. .</p>

<p>Accusation of keeping gaming house; from city court of Savannah — Judge Davis Freeman. March 1, 1916.</p>

<p>Accusation of larceny; from city court of Dublin — Judge Hicks. January 15, 1916.</p>

<p>Action for damages; from city court of Milieu — Judge T. L. Hill. April 19, 1915.</p>

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

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. May 35, 1915.</p>

<p>Certiorari; from Jeff Davis superior court — Judge Highsmith. April 26, 1915.</p>

<p>Complaint; from city court of Tifton — Judge E. Eve. June 7, 1915.</p>

<p>Affidavit of illegality; from municipal court of Atlanta. May 21, 1915.</p>

<p>Certiorari; from Eulton superior court — Judge Pendleton. May 21, 19.15.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. March' 30, 1915.</p>

<p>Complaint; from city court of Statesboro — Judge T. L. Hill presiding. July 9, 1915.</p>

<p>Levy and claim; from city court of Thomasville — Judge W. H, Hammond. July 23, 1915.</p>

<p>Complaint; from city court of Quitman — Judge Long. July 13, 1915.</p>

<p>Complaint; from municipal court of Atlanta. July 27, 1915.</p>

<p>Distraint; from city court of Floyd county — Judge Eeece. August 19, 1915.</p>

<p>Complaint; from city court of Leesburg — Judge Clayton Jones presiding. July 19, 1915.</p>

<p>Action for damages; from city court of Fitzgerald — Judge Griffin. August 6, 1915.</p>

<p>Action., for damages; from city court of Atlanta — Judge Beid. April 38, 1915.</p>

<p>Certiorari; from Fultou superior court — Judge Bell. July 28, 1915.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. May 7, 1915.</p>

<p>Action for money had and received; from city court of Savannah — Judge Davis Freeman. August 23,' 1915.</p>

<p>Certiorari; from Eulton superior court — Judge Pendleton. May 21, 1915.</p>

<p>Complaint; from city court of Tifton — Judge R. Eve. September 18, 1915-</p>

<p>Complaint; from municipal court of Atlanta. ’ September 27, 1915.</p>

<p>Certiorari; from Morgan superior court — Judge Paris. August 14, 1915.</p>

<p>Accusation of carrying pistol; from city court of Brunswick. October 7, 1915.</p>

<p>The circumstances in proof were sufficient to exclude every other reasonable supposition than that the accused had stolen the pants alleged to have been stolen, and which were found in his possession about six weeks after he was seen in the owner’s store looking at them. The probative value of his explanation of his possession was a matter addressed to the judge, who by consent tried the case without a jury. And though the fact that he had given two contradictory explanations would not of itself be sufficient to authorize a conviction of larceny, it might tend to discredit the statement made by him on his trial, in which he attempted to explain his possession of the property in question.</p>

<p>Levy and claim; from city court of Bainbridge — Judge Spooner. October 30, 1915.</p>

<p>Accusation of misdemeanor; from Miller superior court — Judge Worrill. November 20, 1915.</p>

<p>Accusation of misdemeanor; from city court of Madison — Judge Anderson. December 28, 1915.</p>

<p>Action for damages; from municipal court of Macon — Judge Chambers. June 12, 1915.</p>

<p>Indictment for murder — conviction of voluntary manslaughter; from Clayton superior court — Judge Smith. March 11, 1916.</p>

Action for damages; from city court of Reidsville — Judge Collins. June 7, 1915. On November 14, 1911, the Perkins Lumber Company was sued for damages on account of the killing of the plaintiff’s husband by reason of the negligence of the defendant, in the running of a passenger-train on a railroad operated by the defendant, while he was a passenger thereon. The defendant filed a plea of discharge in bankruptcy, as follows: “1.

<p>Action on contract; from city court of Dublin — Judge Hicks. June 14, 1915.</p>

<p>Complaint; from city court of Floyd county — Judge Eeece. August 18, 1915. .</p>

<p>Complaint; from municipal court of Macon — Judge Chambers. August 15, 1915.</p>

<p>Indictment for larceny; from Richmond superior court — Judge H. C. Hammond. August 14, 1915.</p>

<p>Complaint; from city court of Athens — Judge West. August 20, 1915.</p>

<p>Trover; from city court of Hazlehurst — Judge Lankford presiding. August 18, 1915.</p>

<p>Action for damages; from city court of Millen — Judge T. L. Hill. August 30, 1915.</p> <p>The petition alleges, in brief, that the plaintiff is a widow and was the mother of James Rufus Jackson, who, on September 30, 1914, was killed by a railroad-train of the defendant. The deceased was a farm-hand, seventeen years of age, with an earning capacity of $240 per annum. At the time of his death he was on the defendant’s right of way in the town of Millen, having gone there for the purpose of attending a minstrel show, which the defendant had allowed to place a tent on the right of way and about nine feet south of a public-street crossing. The deceased, by reason of being thrown with an unusual crowd was compelled to seek fresh air, and consequently left the tent and walked over to the railroad, where he seated himself on the end of a cross-tie. He was subject at time to attacks of vertigo, brought on by excitement or any unusual occurrence whereby he was thrown with a large crowd and unable to get a supply of fresh air. “When deceased reached said point at said street-crossing [about nine o’clock at night] a passenger-train of defendant, coming from Macon and known as the ‘Shoo-fly,’ and which backs in around the Y at Millen, going in the direction of the depot of Millen and running at a dangerous rate of speed, without any light except two small danger siguals commonly attached to the rear of all trains, suddenly and without warning rah upon deceased, striking him, knocking him down, and killing him. Deceased was struck hy the rear coach of said train, there being three coaches intervening between deceased and the engineer pulling said train.” Defendant was negligent in the following particulars: (a) In running the train backward without sufficient lights and at an unusual rate of speed, to wit, about fifteen miles an hour. (6) In not giving the customary signals at the street-crossing which it passed over just prior to killing the deceased, thus showing that the train-crew were not at their proper or customary posts of duty, or else were grossly negligent in failing to give proper signals of the approach of the train, (c) In permitting the show to use the right of way for the purpose of congregating a crowd thereon adjacent to the railroad-track and a public-street crossing in an incorporated town, the show being in such a place as to easily distract the attention of the train-crew operating the train and cause them to be negligent and watch the crowd and tent instead of the operation of the train. (d) In making no attempt to stop the train or check its speed after they discovered the deceased upon the track and in front of the train as it moved backward. The conductor and the brakeman of the train were standing on its rear platform at the time, and saw the deceased on the track, or could have seen- him had they been attending to their duties, in ample time to bring the train to a stop before striking him, and they made no attempt to stop it or to check its speed. The defendant’s employees on the rear coach failed to keep a. lookout for persons or'things on the track. The defendant was especially negligent in its failure to keep such a lookout at that time and place. Each of the said acts of negligence contributed to and proximately caused the homicide. The deceased was in the exercise of ordinary care. He was in a few feet of a public-street crossing where the track was in constant use by the public both hy day and by night, with the defendant’s full knowledge and consent, 'and hy reason of the renting of the premises hy the defendant for the purpose of allowing the show'to perform. Ho signal of the approach of the train was given him, it was running rapidly, and under the conditions stated he could-not see its approach until it was immediately upon him and it was too late for him to avoid being struck. By reason of the homicide the defendant has damaged the plaintiff in the sum of $7,000, which sum, or any part of it, the defendant refuses to pay.</p> <p>The amendment which the court refused to allow was as follows:</p> <p>“1. Plaintiff is the widowed mother of said deceased and at the time of said homicide was in ill health and unable to labor or earn a living, she was possessed of no property, and was entirely dependent upon the labor of said deceased for her support and maintenance. 2. Said defendant wilfully and wantonly ran its train over and killed said deceased after they knew he was upon their tracks.”</p> <p>The defendant demurred to the petition generally, and to specified parts, which it moved to strike, without stating why it demurred to these parts.</p>

<p>Complaint; from city court of Hall county — Judge Wheeler. May 30, 1915.</p>

<p>Complaint; from municipal court of Atlanta. September 27, 1915.</p>

<p>Indictment for manufacture of liquor; from Wilkes superior court — Judge Walker. December 23, 1915.</p>

<p>Action for damages; from city court of Eastman — Judge Neese. ' September 4, 1915.</p>

<p>Complaint; from city court of Waynesboro — Judge. Davis. June 21, 1915.</p>

<p>Certiorari; from Jefferson superior court — Judge Hardeman. September 16, 1915.</p>

<p>Complaint; from city court of Hazlehurst — Judge Grant. August 20, 1915.</p>

<p>Complaint; from city couTt of Hazlehurst — Judge Grant. September 20, 1915.</p>

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

<p>Complaint; from city court of Albany — Judge Clayton Jones. October 12, 1915.</p>

<p>Certiorari; from Henry superior court — Judge Searcy. October 18, 1915.</p>

<p>Indictment for murder — conviction of manslaughter; from Washington superior court — Judge Hardeman. January 26, 1916.</p>

<p>Accusation of assault and' battery; from city court of Polk county — Judge John K. Davis. December 6, 1915.</p>

Action on contract; from city court of Atlanta — Judge H. M. Eeid. June 13, 1914.

<p>Complaint; from city court of Elberton — Judge Grogan. November 12, 1914.</p> <p>The action was for an amount alleged to be due under the terms of an instrument in the form of a promissory note, with a recital that it was given for a described automobile, and with provisions to the effect that the title should remain in the vendors until payment of the debt, and that in the event of destruction of the property the loss should fall upon the maker of the note, and additional provisions relating to the security for the payment of the debt and to its collection. The instrument' was silent as to any warranty on the part of the vendors. The defendant pleaded failure of consideration and breach of warranty, and prajred that he be awarded damages in a stated sum for the alleged breach of the contract. The verdict was for the plaintiffs, but for an amount less than that of their .claim, and they made a motion for a new trial, in which, besides complaining of the verdict, they alleged, that the conrt erred in giving certain instructions to the jury, to the effect that the defendant would be entitled to recover if there was a breach of an express warranty as contended; and that the conrt erred in admitting, over the objection of the plaintiffs, the following testimony of the defendant: “When I bought the automobile from Mr. Maxwell and before I signed the note sued on, !Mr. Maxwell, who is a member of the plaintiff firm, warranted the car to be as good as new. I didn’t know anything about automobiles, and I bought the car upon the express warranty of Mr. Maxwell that it was as good as new.” The grounds of objection presented by the plaintiffs when this testimony was offered were: that the contract of sale was in writing and showed a definite and complete contract, and parol evidence was not admissible to add to, vary, or contradict its terms; that in the absence of any allegation of fraud, accident, or mistake, it-would be conclusively presumed that all prior or contemporaneous representations were integrated in the written contract; and that as the contract was certain and complete and contained no warranty, an express warranty could not be added by parol testimony.</p> <p>The case came to the Court of Appeals on exceptions to the overruling of the motion for a new trial,- and this conrt submitted to the Supreme Court the question whether it was allowable for the defendant to interpose and support by parol evidence the defenses set up in his pleas. Questions were also submitted as to the effect of the decisions of the Supreme Court in the cases of Pryor v. Ludden & Bates, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267), and Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711), and as to whether these decisions were in conflict. The certified questions, with a copy of the written instrument involved, and the .opinion of the Supreme Court thereon, appear in 145 Ga. 200 (88 S. E. 954). That court (two Justices dissenting) held: “Applying the law as announced . . , it was incompetent to set up and prove by parol so much of the special plea as sought to set up . express warranties as to the quality of the property, but competent to set up and prove by parol other portions of the plea as will fully appear in the opinion.”</p>

<p>Complaint; from city court of Atlanta — Judge H. M. Eeid. March 24, 1915.</p>

<p>Complaint; from city court of Nashville — Judge Christian. June 1, 1916.</p>

<p>Complaint; from city court of Greenville — Judge Bevill. April 22, 1915.</p>

<p>Action on contract; from city court of Albany — Judge Clayton Jones. May 18, 1915.</p>

<p>Levy and claim; from municipal court of Macon — Judge Chambers. June 23, 1915.</p>

<p>1. The construction of railroad yards is an engineering problem so peculiarly within the province of the railroad company that when an employee enters its service in a yard built by the company he assumes the risks arising from the mode in which the yard is constructed and its tracks are arranged, and can not thereafter maintain an action for injuries received by him in the service of the company on account of such construction or arrangement of tracks.- Consequently, in this case the close proximity of one of the switch-tracks to the other was not negligence as to the plaintiff, who was an employee. Tutts v. Detroit &c. Ry., 122 U. S. 189 (7 Sup. Ct. 1166, 30 L. ed. 1114); Charleston &c. Ry. Co. v. Brown, 11 Ga. App. 493 (75 S. E. 826). This is the law of this case under the former decision of this court therein. Kirbo v. Southern Railway Co., 16 Ga. App. 49 (84 S. E. 491).</p> <p>2. There was no evidence that there had been any. recent change in the condition of the tracks, and it appears that if they were out of alignment this condition was due to long-continued use, and was a condition of which the plaintiff knew by reason of his work upon them. He therefore assumed all risks due to this condition.</p> <p>3. Since the evidence in behalf of the plaintiff eliminated the only questions which this court in its previous decision required to be submitted to a jury, it was not error to grant the nonsuit.</p>

<p>Complaint; from city court of Thomasville — Judge W. H. Hammond. July 9, 1915.</p>

<p>Action on insurance policy; from city court of Macon — Judge Hodges. September 20, 1915.</p>

<p>Complaint; from city court of Hazlehurst — Judge Grant. August 20, 1915.</p>

<p>Action for damages; from city court of Cairo — Judge Willie. October 14, 1915.</p>

<p>Trover; from city court of Cairo — Judge Spooner presiding. November 1, 1915.</p>

<p>Action for damages; from city court of Cairo — Judge Willie. April 28, 1915.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. October 28, 1915.</p>

<p>1. It appearing, from the petition for certiorari, that the result reached upon a former investigation of the same case in the magistrate’s court had been reviewed by a previous certiorari, and that the holding of the judge of the superior court in sustaining the previous certiorari must, in the state of the record, have been properly construed by him as an adjudication to the effect that the defendant was entitled to amend his plea, and no exceptions having been taken to that judgment of the superior court, the ruling became the law of the case. Consequently, in sustaining the present petition for certiorari and setting aside a verdict in behalf of the defendant, upon the ground that it was contrary to the evidence (it also appearing that evidence offered by the defendant was repelled because of a defect in his plea), it was not error for the judge to give express direction that in a future trial of the case the defendant should be permitted to amend his plea.</p> <p>2. A trial before a jury in a justice’s court is a proceeding de novo, and, although in the previous trial the presiding justice may have stricken a plea which he erroneously refused to permit the defendant to amend, the defendant may either offer to amend the plea or offer a new or additional defense upon the same terms and conditions as if there had been no previous trial.</p>

<p>1. When the crime charged is only a misdemeanor, any number of offenses of the same nature may be included in the same accusation. It is well settled as to misdemeanors that different counts charging offenses of the same nature may be joined in one indictment.</p> <p>2. The general principle underlying the passage of the act which penalizes the carrying of a pistol without a license is practically identical with the purpose of the statute which prohibits the carrying of concealed weapons, and an accusation which in one count charges the carrying of a pistol concealed in violation of law, and contains an allegation in another count that the defendant had a pistol in his manual possession at a place which was neither his residence nor place of business, without having obtained the license required by law, is not, subject to demurrer upon the ground of misjoinder.</p> <p>3. If fuller instructions as to the defendant’s right to have a pistol under the circumstances of the particular ease had been desired, they should have been requested. The instruction complained of is not subject to the exception that the defendant’s right to carry a pistol was thereby limited to the defense of his person, property, and habitation as against unlawful attack and invasion. On the contrary the instruction that the defendant would not be punishable for having the pistol, if he “procured it to prevent a breach of peace,” in effect put his contention before the jury more favorably than he was entitled to have it presented.</p> <p>4. The evidence authorized the verdict.</p>

<p>Conviction of assault with intent to rape; from Floyd superior court — Judge Wright.. February 15, 1916.</p>

<p>Accusation of larceny; from city court of Carrollton. February 23, 1916.-</p>

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

<p>Garnishment; from city court of Blakely — Judge Sheffield. May 19, 1915.</p>

<p>Petition for certiorari; from Pulton superior court — Judge Pendleton. May 19, 1915.</p>

<p>Complaint; from city court of Eastman — Judge Eeese. July 19, 1915.</p>

<p>Certiorari; from Morgan superior court — Judge Park. October 17, 1915.</p>

<p>1. In a suit upon a due-bill, where, so far as it appears, there was no demurrer, and where the only defense asserted was that the due-bill had been paid,, a finding for the plaintiff was not vitiated merely because the writing which was the evidence of the defendant’s indebtedness and the basis of the suit did not contain the word “dollars,” or show that the debt was payable in money, otherwise than by the use of the figures “227.45.”</p> <p>2. It is the duty of courts to construe unambiguous writings, but it is for the jury to determine as to the meaning of ambiguities in a contract, solving all doubts by the rules of everyday life and in the 'light of ordinary experience. Since it is a matter of general knowledge that in this country the decimal system is not generally used in measuring any commodity or stating the amount of an indebtedness except in money, and since it is a matter so well known that judicial notice must be taken of the fact that in this country the decimal system is used exclusively in computing money, a jury can properly determine that the figures “227.45,” in any statement of indebtedness, refer only to a payment in money, even though the usual dollar-mark does not precede them.</p> <p>3. Under the foregoing rule, if the plea of payment was not established to their satisfaction, the jury were authorized to render a verdict in favor of th'e payee’s administrator, for $227.45 and interest, upon a paper reading: “Richland Inn, Richland, Ga., J. Thad Williams, Prop., Due T. O. Whaley 227.45, two hundred twenty-seven and 45/100. J. H. Hening. 10/20/1910.”</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Hicks. September 13, 1915.</p>

<p>Foreclosure• of mortgage; from city court of Floyd county— Judge Nunnally. November 3, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 20/1915.</p>

<p>Certiorari; from Morgan superior court — Judge Park. November 5, 1915.</p>

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

<p>1. The corpus delicti of the offense of manufacturing intoxicating liquor was sufficiently established by the circumstances in proof; and the cir- ■ cumstances were sufficient to connect the ■ accused with the unlawful manufacture and authorize the verdict of guilty.</p> <p>2. An instruction by the court to the effect that the accused would be guilty if he took any part in the manufacture of intoxicating liquors as charged in the accusation is not subject to the objection that “it states the law of accomplices too broadly and does not define such participation in the common criminal design by the accused as in law would warrant his conviction.”</p> <p>'3. The instruction by the court that when the accused “pleads an alibi the burden is upon him to prove that alibi ” is not subject to the objection that the court did not, in immediate connection with this instruction, charge the jury that an alibi need not be proved beyond a reasonable doubt, and that it is sufficient if it be proved to the reasonable satisfaction of the jury, and that evidence of alibi is to be considered with the rest of the evidence, and if the evidence as a whole raises a reasonable doubt of guilt, the doubt must be resolved in favor of the accused.</p>

<p>Certiorari; from Butts superior court — Judge Searcy. September 30, 1915.</p>

<p>Action on bond; from city court of Thomasville — Judge W. H. Hammond. November 15, 1915.</p>

<p>Complaint; from» city court of Hall county — Judge Wlieeler. May 19, 1915.</p>

<p>Complaint; from city court of Monticello — Judge Thurman. December 37, 1915.</p>

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

<p>1. The judge of the superior court did not err in sustaining the certiorari and in entering a final judgment, the effect of which was to annul the judgment of the municipal court of Atlanta which denied and overruled an affidavit of illegality, interposed by a surety on a bond given to dissolve the garnishment, in which the garnishee had answered that the sum he was due to the defendant in garnishment was for wages.</p> <p>2. An answer in which the garnishee sets up that the sum due by him to the defendant is for wages exempt from garnishment need not be traversed, if the defendant gives a dissolution bond; for the giving of such a bond changes the parties, hy shifting the issue from one between the plaintiff and the garnishee to an issue between the plaintiff and the defendant. If, upon the filing of the bond, the garnishee pays the money which has been arrested by the process of garnishment, he is discharged, but inasmuch as upon an issue which may be adjudicated between the plaintiff and the defendant, touching the fund which was garnished and was thereafter released by the giving of a bond, the plaintiff, if he prevails, may forthwith enter judgment against the sureties upon the dissolution bond, such sureties, not having been parties in the previous litigation, may file an affidavit of illegality setting up either that the fund was not subject to garnishment, or any other defect by reason of which they are relieved from the obligation of the bond. Were this not so, the surety upon a bond given to dissolve a garnishment, against whom a judgment is entered, would not have had his day in court.</p>

<p>In the trial now under review there was practically only one issue of fact, to wit, whether the failure of the defendant to produce the property, in accordance with the obligation of her forthcoming bond, resulted in damage to the plaintiff in fi. fa. When the case was heretofore before this court it was held that proof that the property levied upon, and for the forthcoming of which the bond sued upon was given, belonged to the principal obligor in the bond, instead of to the defendant in execution, might show that the breach of the bond did not result in damage to the plaintiff, and therefore would present a good defense. Brown Guano Co. v. Coker, 13 Ga. App. 614 (79 S. E. 582). Erom this ruling it resulted that the relationship existing between the defendant and her husband, so far as it referred to the cultivation and production of the crop levied upon, became also an issue incidental to the determination of the more important issue as to whether the property levied upon was her property or the property of the defendant in fi. fa., the husband. The issues of fact involved in the solution of these questions were fairly submitted to the jury; the excerpts from the charge of the court, when construed with the context, are not subject to the exceptions urged against them, and the evidence was ample to authorize the verdict in favor of the plaintiff.</p>

<p>Certiorari; from Glynn superior court — Judge Highsmith. September 10, 1915.</p>

<p>Conviction of manslaughter; from Douglas superior court— Judge Bartlett. June 14, 1915.</p>

<p>Indictment for murder — conviction of manslaughter from Baldwin superior court — Judge Park. September 27, 1915.</p>

<p>Complaint; from city court of Nashville — Judge Christian. October 25, 1915.</p>

<p>1. The court did not err in overruling the motion to dismiss the plaintiff’s petition.</p> <p>2. The action being for damages on account of sickness alleged to have been caused the plaintiff by drinking from a bottle a liquid manufactured, bottled, and sold by the defendant, and bought by the plaintiff from a grocer to whom the defendant had sold it for the purpose of being sold to the public as a harmless and refreshing beverage, and which, it was alleged, by reason of the negligence of the defendant, contained the body of a dead and putrid mouse, discovered by the plaintiff after she had swallowed a part of the contents of the bottle, and there being evidence supporting the allegations of the petition, and from which a jury could infer that the plaintiff’s Sickness and physical pain were caused by the poisonous nature of the liquid, and that the manifestation of the sickness by vomiting and otherwise was an exhibition of nature’s effort to expel a poison, although a jury might prefer the inference that the plaintiff’s suffering was due to mental anguish caused by her discovery of the loathsome contents of the drink, it was error to grant a nonsuit.</p>

<p>1. Under the facts of this case the following instructions of the court were error: (1) “While the railroad company is not an insurer, the company is under duty to exercise extraordinary care to see that a passenger is not injured by negligence or wilful misconduct of employees while acting within the scope of their employment.” (2) “If you find that the assault was made as alleged, but the assault was not justified, or that the assault was not a wilful or negligent tort committed on the person of the plaintiff by the employee of the defendant while the employee was engaged in the conduct of the defendant’s business, there could be no recovery.” These instructions were not adjusted to the pleadings or the evidence. The undisputed evidence was that the only person who assaulted the plaintiff was the “news butcher” of the train, and that he was not an employee of the defendant. These instructions were also susceptible to the construction that the court expressed an opinion, or assumed, as a matter of fact, that the person who assaulted and injured the plaintiff was an employee of the defendant company.</p> <p>2. It was error for the court to refuse to give the following charge, requested by the defendant: “If you find, from the evidence in this case, that the trouble referred to in this case between the plaintiff and the newsboy came up suddenly and unexpectedly, and the conductor of the train had no knowledge thereof until after the same had happened, and could not reasonably have anticipated that the same was likely to occur, then I charge you that there can be no recovery as against the defendant in this case.” This instruction should have been given because there was evidence to show that the assault by the newsboy upon the plaintiff was committed suddenly and unexpectedly, and that the conductor of the train had no knowledge thereof until after the trouble bad occurred, and that he could not reasonably have anticipated that the assault was likely to occur. There is no allegation in the- plaintiff’s petition, nor was there any proof upon the trial, that any other employee of the defendant knew anything about the assault, or could have prevented it. While the plaintiff testified that the conductor was present when the assault occurred, saw it, and made no effort to stop it, the conductor, on the other hand, swore that he was not present, did not see it, and knew nothing of it or of the incidents leading up to it until long afterwards. The requested charge was not covered by the charge actually given.</p>

<p>Certiorari; from Glarke superior court — Judge Brand. December 29, 1915.</p>

<p>One who employs another to steal an article from the owner is not guilty of larceny where the person so employed and taking it from the owner acts with the owner’s consent and as his agent.</p>

<p>Action for damages; from city court of Albany — Judge Clayton Jones. May 15, 1915.</p>

<p>Complaint; from city court of■ Thomasville — Judge W. H. Hammond. June 24, 1915.</p> <p>On August 15, 1914, George M. Forman brought an action against James Williams for principal, interest, and attorney’s fees on promissory notes, some of which were made payable on dates subsequent to the .date on which the suit was filed. The petition alleges that the notes were given for a loan; that at the time of procuring the loan and executing the notes, and for the purpose of securing the payment of the notes, the defendant executed and delivered to the plaintiff a security deed which appears on record in the office of the clerk of Thomas superior court, in Book 3C, page 234, conveying to the plaintiff certain real estate (described in the petition); that in all of the principal notes it is agreed that “should any default be made by me in the payment of either interest coupons hereto annexed as stipulated, then the principal of this obligation, in the discretion of the holder, shall become due and payable at the date of such default, regardless of the date of maturity,” and in the said security deed it is stipulated that “if default is made in the prompt payment of either one of the interest coupons or principal notes, or insurance premiums as stipulated, or shall fail to pay any taxes assessed against. said property before the same becomes delinquent, then the debt hereby secured, principal, interest, attorney’s fees, insurance premiums, and all other claims shall become due and payable at the option of said party of the second part;” that certain of the principal notes and of the notes for interest (described) matured and remain unpaid, “and by reason of such default in the payment of said principal and interest notes, petitioner has heretofore, in accordance with the authority given in said principal note, as well as the deed to secure the payment of the same, declared the whole of said indebtedness due and payable;” that a stated amount (the entire unpaid principal) is due as principal, and stated sums as interest, with 10 per cent, thereon as attorney’s fees (provided for in the notes); and that' demand has been made on the defendant for the payment of said sums of money sued for, but defendant fails and refuses to pay the same. Service of the ten-days notice required by law, in order to recover attorney’s fees, is alleged, and copies of notes referred to in the petition are exhibited; and it is prayed (a) that the plaintiff be given a verdict and judgment against the defendant for the amount of the indebtedness, including principal, interest and attorney’s fees, and costs; (&) that said judgment be declared to be a general judgment against all of the property of the defendant, as well as against the property included in the said security deed; and (c) that process issue directed to the said defendant, etc.</p> <p>The defendant demurred to the petition as follows: 1. All allegations and prayers by which the plaintiff seeks to recover on notes maturing on and after August 10, 1915, which notes are alleged to be due now solely because of default in the payment of other notes, should be stricken, because: (a) The suit as to said notes is prematurely brought, the said notes by their own terms being not yet due. (&) It nowhere appears that time was expressly made of the essence of the contract, (c) If the condition in the notes, quoted in the 4th paragraph, is sufficient to authorize the plaintiff to declare the entire debt due for default in the payment of the matured note, then, by the terms of said condition, the plaintiff could so declare only “at the date of such default,” and it does not appear that the plaintiff so declared, or upon what particular date the plaintiff made the election. (d) If the court holds the language of the security deed, quoted in the 4th paragraph of the petition, sufficient to make time of the essence of the contract, or sufficient to authorize the plaintiff to declare unmatured notes due for default in the payment of matured notes, then, by the terms of said notes and by the alleged terms of the deed, and also by requirements of the law, the plaintiff should have promptly so declared upon the happening of the condition, if at all, and the date of such declaration should be specifically set forth; and moreover, it not appearing that plaintiff acted promptly or within a reasonable time, or that he did not waive his option to declare the whole debt due, and this suit being filed more than twelve months after said option arose, said option now stands waived by plaintiff’s acquiescence in said default, and. by his lack of diligence and by operation of law. 2. Prayer “b” of the petition should be stricken, (1) because no copy of the alleged security deed is set forth; (2) because no such special judgment is authorized in a court without equity jurisdiction; and (3) because the alleged contract shoivs on its face that said deed is tainted with usury and void, there being no provision in said contract for writing off or remitting unearned interest upon declaring the whole debt due for default in paying a part, and plaintiff’s voluntary action in this suit having no such effect upon the original contract. 3. The entire petition, and particularly prayer “e,” should be stricken, (1) because no cause of action is set forth, and (2) because there is no prayer for process to be directed as required by law, the process prayed for being one directed to the defendant.</p> <p>The defendant pleaded in abatement as follows: 1. Plaintiff’s suit is for various amounts and upon various notes which will not become due until August 10, 1915, and on dates thereafter, except for plaintiff’s alleged right to sue now for the entire debt because of defendant’s default as to payment of that part of the alleged debt which has matured. 2. If plaintiff ever had the right to declare the whole debt due and sue therefor because of defendant’s default as to payment of any part of it, the plaintiff has waived and renounced such right by reason of the following facts, to wit: (a) On August 16, 1913, defendant wrote to plaintiff for an extension of time on the amount then due. Plaintiff replied under date of August 19, 1913, saying: “Keplying to your favor of the 16th inst., we are willing to let the installments due under the above loan run until October 1, 1913, but we must insist, however, on receiving your remittance on or before that date.” (5) On November 24, 1913, defendant wrote plaintiff for leave to sell 50 acres of the land to which plaintiff holds the security deed, the price to be $1,000, and the proceeds to be paid to plaintiff. Plaintiff replied under date of December 3, 1913, reciting this request and saying: “We beg to say that we are willing to release said fifty acres on payment to us for the full purchase-price, to be applied as above stated.” This letter was a full and complete acceptance of the defendant’s offer; and in pursuance of said supplemental contract defendant expended certain sums of money and lost several days of valuable time in an effort to make the sale contemplated by the said letters, and found a purchaser, and put him in possession, and he is yet in possession, but has not paid the agreed purchase-price of $1,000, for the reason that plaintiff has failed and refused to make him a satisfactory title to said 50 acres of land, (c) Since the second installment of said indebtedness became due the plaintiff has served no notice upon defendant, nor communicated with defendant in any way whatever, except by service by suit delivered to defendant by an officer of this court as shown by his entry on the petition. 8. For each and all of the foregoing reasons, the suit is prematurely brought, and should abate and be dismissed, so far as relates to notes due solely by virtue of defendant’s default as to payment of either the first or the second installment or both.</p> <p>There was also a plea of usury, in which, among other things, it was alleged: “In all the negotiations leading up to the said transaction the plaintiff was represented by his regular and duly authorized agent, to wit, T. B. McKenzie, Esq., who as such agent began the negotiation, and all services performed by him were performed for said George M. Forman; and not for the defendant; yet, as a part of said transaction, the plaintiff required the defendant to pay plaintiff’s said agent for said services, out of the amount so apparently advanced by the plaintiff, the sum of $550.00, which sum was retained by the plaintiff and paid to the plaintiff’s said agent, and was not in fact advanced to defendant.”</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. October 30, 1915.</p> <p>Mrs. Booth was sued upon her promissory note payable to the plaintiff, and pleaded that it was given to secure the payment of a debt of her husband. From the evidence it appeared, without contradiction, that her husband went to the plaintiff’s salesman to buy shoes for his store, and the salesman, after inquiry as to his financial condition, declined to sell the shoes to him, but offered to let him have a certain lot of shoes if Mrs. Booth would give her note for the purchase-price, and the husband took to her the note sued on, which was prepared by the plaintiff’s salesman, and procured her signature to it and forwarded it to the salesman, and afterwards the shoes were received by the husband, addressed to him, and were sold by him in his store. The wife had no interest in the store and was not in business of any kind. She owned some property, and the plaintiff’s salesman testified that on being informed of this and that she was “good financially,” he told the husband that he would have the shoes “shipped out,” if the husband would procure her signature to the note; and on receipt of the note through the mail, he telegraphed for the shoes to be shipped. He did not see or talk with her until after the suit was brought. The verdict was for the plaintiff, and the case came to this court on exceptions to the overruling of the defendant’s motion for a new trial. In the ground referred to in paragraph 3 of the decision it is alleged that the court erred in charging the jury as follows:</p> <p>“If you should find that the sale was about to be made to her husband, and that upon inquiry and further investigation the insolvency of her husband was ascertained, or that his financial condition was unsafe to the extent that the seller did not want to assume the risk by selling to him, and that the plaintiff in the case refused to sell to the husband, but that the sale was made to the wife, not as a surety, but to her individually, and that the sale was the original undertaking by the wife, and that she gave up her note closing up the transaction as her individual transaction, and that has been shown to your satisfaction by a preponderance of the evidence, you ought to find in favor of the plaintiff.” It was contended that these instructions were not authorized by the evidence.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. October 30, 1915.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. December 30, 1915.</p>

<p>Complaint; from city court of Columbus — Judge Tigner. May 3. 1915.</p>

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

<p>Complaint; from city court of Savannah — Judge Davis Freeman. May 21, 1915.</p>

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

<p>Indictment for murder — conviction of manslaughter; from Haralson superior court — Judge Bartlett. June 29, 1915.</p>

<p>Lien foreclosure; from city court of Waynesboro — Judge Davis. June 31, 1915.</p>

<p>Action for damages; from city court of Atlanta — Judge Beid. June 12, 1915.</p>

<p>Complaint; from city court of Savannah — Judge Davis Freeman. April 15, 1915.</p>

<p>Appeal; from Gordon superior court — Judge Pite. September 3, 1915.</p>

<p>Complaint; from city court of Zebulon — Judge Dupree. August 16, 1915.</p>

<p>Certiorari; from Jackson superior court — Judge Brand. May 8, 1915.</p>

<p>Complaint; from city court of Zebulon — Judge Dupree. September 27, 1915.</p>

<p>Action for damages) from city court of Atlanta — Judge Eeid. October 9, 1915.</p>

Complaint; from city court of Atlanta — Judge Reid. October 30, 1915.

<p>Trover; from city court of Hazlehurst — Judge Grant. October 21, 1915.</p>

<p>Trespass; from city court of Blakely — Judge Sheffield. November 16, 1916.</p>

<p>Bail-trover; from city court of Greensboro — Judge Sibley. Hovmber 5, 1915.</p> <p>Davis executed to Boswell a bill of sale to certain live stock and a wagon as security for the payment of a promissory note for $135. Davis failed to pay his note when due, and Boswell instituted a bail-trover proceeding against him. A condemnation-money bond was given by the defendant. He pleaded that before the suit was brought the live stock died by the act of God and without fault on his part. He admitted possession of the wagon and offered to return it. The trial resulted in a verdict against him for $100. As to the animals in question it was testified by a witness for the plaintiff that the mule named Felix, he thought, was still at the defendant’s place, and was worth $75, and the last time he saw the brindle cow she was at the pasture of one Phelps, and that she was worth $35. He thought the mare Annie was dead, and she was worth $75. The defendant and his witnesses testified as stated in the decision, and that none of the animals died through any fault on his part. It was also testified that there was no demand for a return of the stock. The case came to this court on exceptions to the refusal of a new trial. In the motion for a new trial it was alleged that the court erred in failing to charge the jury that the officer serving trover proceedings must, under the law, first make demand upon the defendant for bond, and, on his failure to give bond, must search for the property and seize it, and that only in the event that the property could not be found would the officer be authorized to arrest and imprison the defendant. It was also alleged that the court erred in failing to charge that if the evidence showed that at the time the bail-trover proceedings were instituted and affidavit for bail filed, the property in question was not in the custody or control of the defendant, “it was not requisite that an existing physical impossibility to produce the property, should be the result of misadventure or blameless conduct on the part of the defendant, but if it existed at all when the process was sued out, and continued to exist without any fault or misconduct of the defendant since that time, a verdict should be returned for the defendant.”</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. October 30, 1915.</p>

Action for damages; from city court of Savannah — Judge Davis Freeman. December 7, 1915. Mrs. Davis fell when attempting to alight from a passenger-car of a train of the Atlantic Coast Line Railroad Company in the Union Station at Savannah; and she sued the Union Station Company for damages on account of injuries resulting from the fall.

<p>Petition for certiorari; from Wayne superior court — Judge Highsmith. January 7, 1916.</p>

<p>Petition for certiorari; from Wayne superior court — Judge Highsmith. January 22, 1916.</p>

<p>Indictment for sale of liquor; from Emanuel superior court— Judge Hardeman. March 13, 1916.</p>

<p>The evidence was sufficient to authorize the jury to find that there was an unlawful sale of intoxicating liquor; and there was no error that requires a reversal of the judgment overruling the motion for a new trial.</p>

<p>Indictment for burglary; from Laurens superior court — Judge Kent. March 15, 1916;</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Hicks. April 17, 1916.</p>

<p>Couvictiou of assault aud battery; from Jasper superior court. —Judge Park. April 18, 1916.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. April 31, 1915.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. May 5, 1915.</p>

<p>Complaint; from city court of Thomasville — Judge W. H.-Hammond. July 7, 1915.</p>

<p>Eule for contempt; from city court of Americus — Judge Harper. July 31, 1915.</p>

<p>Failure to specify an amount in the verdict did not render void for uncertainty a verdict for the plaintiff, in an action for a stated sum and interest thereon, to which there was a plea of set-off.</p>

<p>Complaint; from city court of Savannah — Judge Davis Freeman. Uovcmber 15, 1915.</p>

<p>Complaint; from municipal court of Atlanta. November 30, 1915.</p>

<p>Indictment for seduction; from Early superior court — Judge Worrill. March 1, 1916.</p>

<p>Conviction of shooting at another; from Campbell superior court —Judge Smith. February 10, 1916.</p>

<p>Indictment for larceny of cow; from Bibb superior court— Judge Mathews. February 19, 1916.</p>

<p>Indictment for assault with intent to murder; from Wilcox superior court — Judge George. February 26, 1916.</p>

<p>Certiorari; from Franklin superior court — Judge Worley. April 5, 1916.</p>

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

<p>Certiorari; from Bibb superior court — Judge Mathews. April 15, 1916.</p>

<p>Accusation of misdemeanor; from city court of Americus — Judge Harper. April 8, 1916.</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Hicks. April 17, 1916.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. June 16, 1915.</p>

<p>1. It was not error to refuse to charge the jury that a certain fact, if proved, “would be a circumstance tending to prove lack of fraudulent intent.” Such an instruction would have invaded the province of the jury-</p> <p>2. It was not error to refuse to charge the jury to the effect that if they believed there was no fraudulent intent on the part of the accused, an offer by him in good faith “to replace the shortage, if any, . . might relieve him from the count covering such shortage.”</p> <p>3. An order by the trial judge, given privately and not in the hearing of the jury, directing the sheriff to take into custody the defendant, who was under bond for his appearance and was present at his trial, was not subject to exception on the ground that it conveyed to the jury the impression that the court believed that he was guilty.</p> <p>4. The court did not err in not giving to the jury an instruction, not requested in writing, that mere neglect by the defendant to pay over money of the corporation to the corporation would not be sufficient to convict him.</p> <p>5. There is no merit in the exception that the court erred in not giving to the jury an instruction, not requested in writing, that, in order to convict the accused, it was necessary to show not only the receiving of money, but also attempted concealment, flight, falsification of accounts, or evasion. This proposition was sufficiently covered by instructions given.</p> <p>6-7. The court did not err in admitting in evidence a receipt of the defendant for money collected for the corporation named in the indictment, though the indictment did not relate to that money; nor did the court, in charging the jury, err in omitting an instruction, not requested in writing, that this evidence was admitted for the sole purpose of illustrating the intent of the accused as to matters alleged in the indictment, and that, as the indictment did not include this item, the jury could not base their verdict thereon.</p> <p>8. The omission of the court to define to the jury the words “circumstantial evidence,” where not requested so to do, after giving in charge the rule as to circumstantial evidence, as laid down in the Penal Code, § 1010, is not error requiring a new trial.</p> <p>9-10. The court having fully and correctly charged the jury on the law touching the defendant’s statement to the court and jury, an instruction that the jury should “take the facts” as they got them “from the witness stand” did not restrict the jury to the testimony and eliminate from their consideration the defendant’s statement, in reaching their verdict. Nor did it exclude from consideration the documentax-y evidence.</p> <p>11. The cliax-ge of the court sufficiently instructed the jury to the effect that if they should fixxd the defendant guilty axxd recommend that he he punished as for a misdemeanor-, such recommexxdation would be effective only on approval thereof by the coux-t.</p> <p>12. The verdict was supported by the evidence.</p>

<p>Affidavit of illegality; from city court of Tifton — Judge R. Eve. October 7, 1915.</p>

<p>Appeal; from Dodge superior court — Judge Graham. September 7, 1915.</p>

<p>1. A prayer for the establishment of a special lien against the land for the amount alleged to be due may properly be included in the petition in an action on a promissory note given for the purchase-money of land for which the defendant holds the plaintiff’s bond for title.</p> <p>2. The defendant’s plea was insufficient as a plea of usury.</p>

<p>Certiorari; from Morgan superior court — Judge Park. September 18, 1915.</p>

<p>1. In charging on the doctrine of contributory negligence, the court should instruct the jury to diminish the amount of the damages in proportion to the amount of fault attributable to the plaintiff. The use of the expression that such “fault, or failure to exercise due care and diligence, . . would authorize the jury to diminish the damages,'’ etc., is error. If both parties are at fault, and the plaintiff could not, by the exercise of ordinary care and diligence, have avoided the injury caused by the defendant’s negligence, then, notwithstanding the plaintiff may have been to some extent negligent, he would be entitled to recover damages, but the amount of such damages should be diminished by the jury in proportion to the amount of fault attributable to him. It is not discretionary with the jury to diminish the damages in such a ease, as the law is mandatory and requires the jury so to do.</p> <p>2. It is error for the court to instruct the jury as to what is diligence or negligence, except negligence per se. The question as to diligence or negligence is peculiarly a question for the jury, and for the court to instruct them what the servant of the railway company should do under certain circumstances in the exercise of ordinary care and diligence -is an invasion of the province of the jury. Though the language used be that of a reviewing court, it is improper for the trial judge to employ, in a charge to the jury, language which expresses an opinion as to what is ordinary care and diligence.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 33, 1915.</p>

<p>Accusation of sale of mortgaged property; from city court of Louisville — Judge T. L. Hill presiding. February 23, 1916.</p>

<p>Certiorari; from Richmond superior court — Judge H. C. Hammond. December 21, 1915.</p>

<p>Certiorari; from Chatham superior court — Judge Charlton. November 9, 1915.</p> <p>The certiorari was dismissed by the judge of the superior court on motion based in part on the ground that “the ordinances, for the violation, of which the plaintiff in certiorari was tried in the municipal court, are not set out in the petition, either literally or in substance, and it is not alleged that there were no such ordinances.”</p>

<p>Petition for certiorari; from Appling superior court — Judge Highsmith. February 14, 1916.</p>

<p>Accusation of sale of liquor; from'city court of Hall county— Judge Wheeler. March 18, 1916.</p>

<p>Accusation of sale of liquor; from city court of Ashburn — Judge Tipton. March 20, 1916.</p>

<p>Accusation of carrying pistol; from city court of Bainbridge— Judge Spooner. April 16, 1916.</p>

<p>Certiorari; from Fulton superior c.ourt — Judge Bell. March 16, 1916.</p>

<p>Accusation of misdemeanor; from city court of Americus— Judge Harper. April 8, 1916.</p>

<p>Indictment for misdemeanor; from Jasper superior court— Judge Park. April 18, 1916.</p>

<p>Certiorari; from Gwinnett superior court — Judge Brand. April 24, 1916.</p>

<p>Action for damages; from city court of Savannah. — Judge Davis Freeman. May 21, 1915.</p>

<p>Certiorari; from Effingham superior court — Judge Sheppard. May 18, 1915.</p>

<p>Certiorari; from Pulton superior court — Judge Bell. May 15, 1915.</p>

<p>Complaint; from city court of Sparta — Judge Moore. April 16, 1915.</p>

<p>Trover; from city court of Sparta — Judge Moore. June 17, 1915.</p>

<p>Trover; from city court of Thomasville — Judge W. H. Hammond. ' June 26, 1915.</p> <p>Battle brought trover against Hood for a mule. A verdict for the plaintiff-was directed by the court, and the defendant excepted. From the evidence it appeared, that the plaintiff was originally the owner of the mule and sold it to Deas, taking from the purchaser a purchase-money note, in which title to the animal was retained in the vendor until payment of the note, which was unpaid at the time of the trial; that the purchaser mortgaged the mule to the defendant, and eventually traded it to him, and the defendant sold and delivered it to another person. One of the issues in the case was whether the -record of the note retaining title in the plaintiff operated as constructive notice, it being contended that at the time of the recording the maker was not a resident of the county in which it was recorded; but, in view of the ruling as to the sufficiency of the evidence as to actual notice, that evidence alone will be set out. The wife of Deas testified that at the time the mule was traded to the defendant, she told him “that Battle had a claim against this mule, and that Mr. Deas ought not to trade it.” Also: “I told Mr. Hood before he traded with my husband for the mule herein sued for, and before said -mule was turned over to him by my husband, that my husband had no right to trade said mule while Mr. Battle (the plaintiff) held papers against it, and that my husband had not finished paying Mr. Battle for said mule.” The _ defendant testified, that before the mule was mortgaged to him, “Deas said he had bought it from Battle and paid cash for it;” but when Deas finally traded it to him Mrs. Deas was present and “said that Mr. Deas had not finished paying Battle for the mule, and that Deas ought not to trade him. . . Mr. Deas'said that this was not so, that Battle had nothing against the mule, that Battle owed him something for letting a pair of horses run over him once in his stable, from which he was paralyzed, and that was why he let him have the mule for a payment of $50 cash, without taking any paper against the mule.” He (the witness) “knowing about the injury Deas had received, thought.he was telling the ■truth, and traded on the strength of that statement.”</p>

<p>Complaint; from municipal court of Macon — Judge Chambers. June 23, 1915.</p>

<p>Action on contract; from city court of Yaldosta — Judge Cranford. September 8, 1915.</p> <p>The petition alleged: On or about July 31, 1913, the defendant entered into a parol contract with petitioner, in terms as follows: The defendant represented to petitioner that he had a body of timber he wished to sell for sawmill purposes, consisting of approximately 5400 acres (described in tbe petition). Defendant stated to petitioner that bis selling price on said tract of timber- was $70,000, the terms of sale to be a cash payment of not less than $15,000, and the balance to b§ paid in installments as the timber was cut, and in such sums as would protect defendant against loss when all the timber was cut. Defendant agreed also to lease said timber, allowing from seven to ten years to cut it. Defendant agreed with petitioner that in the event he succeeded in finding a prospective purchaser for said tract of timber, he, the defendant, would not sell the same to any one until petitioner had either sold or failed to sell the same, and-further agreed to pay petitioner for his services five per cent, of the selling price aforesaid, and all that he might receive above said selling price. In pursuance of 'said contract petitioner advertised said ‘timber for sale, and succeeded in procuring one W. M. Gignilliat, of Brunswick, Ga., as prospective purchaser of said timber, and said Gignilliat, during the summer of 1913, macle repeated visits to said tract of timber for the purpose of inspecting it and with a view of buying it. While said Gignilliat was a bona fide prospective purchaser of said timber and before he had time to submit to petitioner a final offer for the same, the defendant, in direct violation of his covenant not to do so, sold the said timber to J. bT. Bray & Company, thereby breaching his covenant in said contract wherein he agreed not to sell timber so long as petitioner had a prospective purchaser negotiating for the same.. When defendant made the sale to J. IT. Bray & Company, he knew that Gignilliat was a bona fide prospective purchaser negotiating therefor preparatory to purchasing said timber, and that Gignilliat had been procured as a prospective purchaser by petitioner. Gignilliat, had he been permitted by the defendant to complete his negotiations for the purchase of said timber, would have, within a reasonable time, paid $70,000 for it. He was able, and would have been, within said reasonable time, ready and willing to purchase said timber under the terms and conditions prescribed by defendant. By reason of said breach of covenant defendant prevented petitioner from selling said property to said Gignilliat under the terms and conditions prescribed by defendant, thereby preventing petitioner from earning said $3,500, his commission for the sale thereof; all to petitioner’s loss and damage in said sum. On September 19, 1913, defendant paid petitioner $30 to apply on said indebtedness, but fails and refuses to pay the balance due.</p> <p>In a second count of the petition the allegations as to the contract between the plaintiff and the defendant were repeated, and it. was alleged that in pursuance of the contract the plaintiff advertised the timber for sale, and succeeded in procuring Gignilliat, a prospective purchaser, who made repeated visits to the tract of timber and inspected it, and finally, on September 11, 1913, during the life of the contract, made to plaintiff an offer of $75,000 for the tract of timber and offered to comply with the terms and conditions under which' defendant had proposed to sell; which offer was communicated to defendant by plaintiff on September 12, 1913; and that, while Gignilliat was a bona fide prospective purchaser and after he had made this offer, defendant, in violation of his covenant not to do so, sold said timber to J. N. Bray & Company, thereby breaching his covenant in said contract wherein he agreed not to sell said timber to any one as long as plaintiff had a prospective purchaser negotiating for the same.</p> <p>The demurrer was on the grounds, that no cause of action was set out; that the agreement was without consideration; that it was too indefinite to be the basis of a recovery; that it was incomplete; and that it appeared that the minds of the parties did not meet as to material parts of the alleged contract.</p>

<p>Where the petition in an action for breach of warranty alleged that the warranty was that the defendants “would guarantee the well to be constructed by them [on the plaintiff’s farm] to be a success, i. e. that’it would furnish sufficient good water for the purpose necessary and convenient on said farm,” and the plaintiff testified that no time was specified in the warranty, but it “was to be long enough to prove that • the well would stay good and all right,” and there was no further testimony as to the time for which the warranty was to continue, it was error for the court to charge the jury on the theory that the defendants represented that the supply of water would be continuous, and that they would keep the well in good condition.</p>

<p>Indictment for murder; from Baldwin superior court — Judge Park. October 19, 1915.</p>

<p>Complaint; from city court of Statesboro — Judge T. L. Hill presiding. August 4, 1915.</p>

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

<p>Motion to dismiss writ of error.</p> <p>This was a proceeding under sections 6068 and 6069 of the Civil Code of 1910, in which the judge ordered the sale of perishable property on which the sheriff had levied in a hail-trover proceeding, and which had not been replevied. The exceptions were to this order.</p>

<p>Accusation of larceny after trust; from city court of Athens— Judge West. December 30, 1915.</p>

<p>Complaint; from city court of Floyd county — Judge Nmmally. November 3, 1915.</p>

<p>Indictment for murder — conviction of manslaughter; from Mitchell superior court — Judge Cox. February 9, 1916.</p>

<p>Indictment for keeping lewd house; from Wilkes superior court —Judge Walker. March 18, .1916.</p>

<p>Accusation of misdemeanor; from Habersham superior court— Judge J. B. Jones. December 18, 1915.</p>

<p>Indictment for misdemeanor; from Cobb superior court — Judge Patterson. March 18, 1916.</p>

<p>Petition for certiorari; from Bibb superior court — Judge Mathews. March 27, 1916.</p> <p>R. H. Borders was convicted in the recorder’s court of the city of Macon on the charge of having violated a municipal ordinance which made it unlawful to keep a “blind tiger,” or keep for sale intoxicating liquors in the city. The case came to this court on exceptions to the refusal of the judge of the superior court to sanction the issuance of a writ of certiorari.</p>

<p>Accusation of pointing gun; from city court of Polk county— Judge John K. Davis. March 29, 1916.</p>

<p>Accusation of larceny from house; from city court of Dublin— Judge Hicks. May 8,'1916.</p>

<p>Indictment for larceny of hog; from Calhoun superior court— Judge Cox. February 23, 1916.</p>

<p>Action on insurance policy; from city court of Elberton — Judge Grogan. June 38, 1915.</p>

<p>Action on insurance policy; from city court of Elberton — Judge Grogan. August 31, 1915.</p>

<p>Action, on insurance policy; from city court of Carrollton— Judge Beall. October 15, 1915.</p>

<p>Where the holder of a note for the purchase-money of personalty, secured by a duly recorded mortgage thereon, retakes possession of the property, by agreement with the purchaser, at an agreed valuation to be applied on the debt, no part of which has been paid, and cancels the note and sells the property to another person, the latter may successfully maintain his claim of title to the property as against va junior mortgage made by the original purchaser during the time he was in possession of the property, which was unforeclosed at the time the property was returned to the original seller, if it appears that the value of the property at the time it was returned did not exceed the amount then due on the purchase-money debt, and the transaction was free from any fraud against the holder of the junior mortgage.</p>

<p>Indictment for subornation of perjury; from Fulton superior court — Judge Benjamin EL Hill. January 22, 1916.</p> <p>The indictment charged that the accused procured Stella B. Griffin to commit the offense of perjury “in a judicial proceeding then pending in the city court of Atlanta, . . in the ease of Miss Stella B. Griffin vs. George B. Ranch, said proceeding being an action in trover, . . a lawful oath to testify the truth first having been administered to” her “by Hon. A. E. Calhoun, judge then and there presiding, said judge having legal power and authority to administer such oath in said cause, and said city court of Atlanta having jurisdiction of said cause, . '. and Hon. A. E. Calhoun having legal authority to preside and render judgment in said cause/’ etc. The proceeding referred to in the indictment was instituted in July, 1915, and the testimony referred to was given on July 19. It was contended in behalf of the accused that Judge Calhoun was without jurisdiction to preside as judge of the city court of Atlanta in that proceeding. .As to his authority to preside Judge Calhoun testified: “I am judge of two courts, judge of the criminal court [of Atlanta], and judge of the city court (second division) of Atlanta. . . I have equal jurisdiction with Judge Eeid in that court. I tried this case [the case referred to in the indictment]. The city court of Atlanta was in session at that time. . . The city court did not hold any July term, but it was not adjourned; . . the court was open for business. . This application to discharge Eauch from jail, that is the paper I tried. . . I presided as judge of the city court of Atlanta. . . Judge Eeid was not then in the city. . . He was not disqualified to try this case. He did not call me in to preside. He did not have to call me in. . . I hold that court when I please, just like I hold the other one. Judge Eeid did not apply to me to preside for him and hear this application. . . I was not holding the second division of the city court of Atlanta at that time.” Judge H. M. Eeid testified: “I am judge of the city court of Atlanta, first division. Judge Calhoun is judge of the second division. . . 1 was in Philadelphia, Pennsylvania, the whole month of July. . . I left before the opening of the July term of the city court, and I asked Judge Calhoun to preside for me in opening that term and granting the fall [default?] verdicts and judgments and such things as came before him at the opening of the term. . . The July term met on the first Monday of July, 1915. I simply requested Judge Calhoun to open the court and to render such default judgments in which no defense had been filed at that term. It is called the appearance docket. We did not have any court for the trial of contested cases, and I just asked him to preside and take such verdicts and judgments as I would have done at the opening of the term. That was the extent of my request. Judge Calhoun agreed to do it. It has been customary for Judge Calhoun to try such business in the second division as I would send him as judge of the first division. . . I have understood all the time he would preside whenever it was stated he had time or whenever anybody wanted him. I can not say we had any definite agreement as to that, but that was the practice. I was not disqualified for any reason that I know of in the case of Stella Griffin against George B. Rauch. Judge Calhoun and I never agreed that he should try that case. I never asked him to do so. . . The proceeding brought by George B. Rauch to be discharged from custody, there was no agreement between Judge Calhoun and myself as to that proceeding, and no request from me. that he should preside. . . My court was in recess, but had not adjourned. It was not in session trying civil cases in July at all. . . Since Judge Calhoun has been on the bench the practice grew up that he should preside in the trial of civil cases when convenient for him. . . As to the case of Stella B. Griffin against George B. Rauch, . . as to whether or not the agreement made with Judge Calhoun when I went away covered his acting in that kind of a case, I don’t know that I can answer that specifically. I have always understood, and meant Judge Calhoun to understand, he could do anything for me he could in connection- with the court, but to state that I ever made that request specifically, I can not say I did.”</p>

<p>Action for damages; from city court of Millen — Judge T. L. Hill. April 19, 1915.</p>

<p>Action on contract; from city conrt of Americns — Judge Harper. June 21, 1915.</p>

<p>In a suit for damage to certain property, where the items of damage are set forth in the petition and amount in the aggregate .to a stated sum, alleged to be “the market value of said property,” which is the total amount, sued for, and the evidence on the trial of the case fails to show in any way the market value of the property, the plaintiff is not entitled to recover general damages or nominal damages, being confined to the special damages set forth in his writ.</p>

<p>Complaint; from municipal court of Atlanta. May 21, 1915.</p>

<p>Where an agent executes, without authority from his principal, a bond in the name of his principal as surety, and fails to disclose his lack of authority to the other parties to the instrument, and they have no knowledge of such lack of authority, and no ratification by the principal appears, and the principal is without knowledge of the agent’s failure to comply with the specific requirements of a written power of attorney, which furnishes his sole authority- to bind the principal, and, on account of the implied representation as to his authority to bind the principal in the manner attempted, a beneficiary in the instrument suffers injury, the injured person may recover damages from the agent individually.</p>

<p>Where a bank sends to a correspondent bank a draft, with a bill of lading attached, for collection, and the drawee has on general deposit with the collecting bank, when the draft is received, a sum more than sufficient to pay it, and, in conformity with his usual custom and course of dealings, instructs the collecting bank to pay the draft, and the collecting bank agrees to pay it by charging it to his account, and thereupon surrenders to the drawee the bill of lading attached to the draft, in accordance with this understanding and agreement, the transaction constitutes a payment of the draft as between the drawer and the drawee, although the collecting bank was insolvent at the time and was placed in the hands of receivers on the following day, its insolvency being unknown to the drawee at the time he received the bill of lading and directed that the amount of the draft be charged against his account with the bank, and, so far as appears, being also unknown to the officials of the bank at that time.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge Reid. September 27, 1915.</p>

<p>Complaint; from city court of Blakely — Judge Sheffield. November 18, 1915.</p>

<p>, Complaint; from city court of Nashville — Judge Sellers presiding.</p>

<p>Complaint; from city court of Athens — Judge West. November 22, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. December 2, 1915.</p>

<p>Complaint; from municipal court of Macon — Judge Chambers. January 20, 1916.</p>

<p>Action for damages; from Chatham superior court — -Judge Davis Freeman. February 9, 1916.</p> <p>From the petition it appears, that the plaintiff, being unable to pay his fare for transportation on the railroad, attempted to ride on a freight-car, and “located himself on an iron ladder” on the side of the car; and that while he was in this position and while the train was in motion, one of the men employed in the running of the train wilfully and maliciously shot him, refused to stop the train and allow him to alight, stamped upon his fingers, and forced . his hand loose from the hand-hold, causing him to be hurled 'from the car. He sued jointly the railway company and three persons alleged to be respectively the conductor, the flagman, and the brakeman of the train. The petition was in three counts, each charging a different one of these employees with having committed the assault, and charging the other two with having participated therein by consent, advice, and command. Each of the defendants demurred separately, on the grounds that no cause of action was set forth, and that there was a misjoinder of parties defendant; and the railway company demurred on the additional ground that it did not appear that the employee jnaking the assault was acting within the scope of his authority from the railway company or while in the performance of any duty in its behalf. The case came to this court on exceptions to the overruling of the demurrers.</p>

<p>Under the prohibition law (Penal Code, § 426) one may be guilty of the sale or barter of liquor “for valuable consideration” though the consideration be only a stolen article, to which no title passes as against the person from whom it was "stolen.</p>

<p>Indictment for arson; from Dougherty superior court — Judge Cox. April 14, 1916.</p>

<p>Lien foreclosure; from city court of Atlanta — Judge Reid. April 13, 1915.</p>

Action for damages; from city court of Savannah — Judge 'Davis Freeman. May 21, 1915. (1) While the plaintiff, a car inspector of the railway company, was under a car of one of its trains, making repairs, the train moved and dragged him for some distance, causing injuries to his back, which resulted in great pain and incapacitated him from work.

<p>1. As to amendments adding new and distinct parties, no exception to the rule which prohibits such amendments unless expressly provided for by law (Civil Code, § 5683) has been created by the provisions of law relating to amendments in suits in tlie municipal court of Atlanta (Acts 1913, § 37 (e) ) ; and an amendment by which it was sought to convert a suit in that court into a suit against a partnership and the individuals composing the firm, trading as “The City Drug Store,” was not allowable where the suit was originally against one of these persons individually, though based on an account against “The City Drug Store” and on notes signed “The City Drug Store by” that person.</p> <p>2. It is hot proper to award a nonsuit after both the plaintiff and the defendant have introduced evidence.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. July 10, 1915. •</p>

<p>Complaint; from city court of Quitman — Judge Cranford. September 27, 1915.</p>

<p>1. Error was assigned upon the following instruction to the jury: “If you are satisfied of the guilt of the defendant, under the rules given you in charge and under the evidence, the form of your verdict may be, ‘We, the jury, find the defendant guilty;’ in which event he would be punished as for a felony; and that would be the penalty unless you should recommend that he be punished as for a misdemeanor, in which event, if your recommendation should be approved by the court, that would be the penalty, and in that event the form of your verdict would be, ‘We, the jury, find the defendant guilty and recommend that he be punished as for a misdemeanor.’ ” This charge, when fairly construed with its context, did not contain any intimation or expression of opinion that the court thought the defendant was guilty of the offense charged in the .indictment. Nor was it erroneous for any other reason assigned, fihe jurors get the law from the court. The judge did not instruct them that he had authority to sentence the defendant as for a misdemeanor in the event that they should find him guilty and fail to recommend that he be punished as for a misdemeanor. It would, in fact, have been error if the court had so informed them. Blackman v. State. 78 Ga. 592 (3 S. E. 418); Cunningham v. State, 103 Ga. 239 (29 S. E. 926); Echols v. State, 109 Ga. 508 (34 S. E. 1038). Accordingly, it will be presumed that the jury did not know that the court had this inherent right; and hence the charge excepted to could not have misled them into thinking that the court believed the defendant, under the evidence introduced, was guilty of the offense charged.</p> <p>2. The following instructions were not error: (1) “Eraud may not be presumed, but, being in itself subtle, slight circumstances may he sufficient to carry conviction of its existence.” (2) “Moral and reasonable certainty is all that can be expected in legal investigations. In civil cases the preponderance of testimony is considered sufficient to produce mental conviction. In criminal eases a greater strength of conviction is necessary to justify a verdict of guilty,”</p> <p>3. It was not error to refuse to give the requested charge as complained of in the 11th ground of the amendment to the motion for a new trial, as the law embodied in this request was sufficiently covered by the charge given, as certified by the trial judge in qualifying his approval of this ground.</p> <p>4. One who is related within the prohibited degrees to a mere depositor of a bank is not incompetent to sit as a juror upon the trial of the president of the bank on the charge of violating section 204 of the Penal Code.</p> <p>5. Under the facts of this case, and especially the explanatory note of the trial judge, the court did not err in allowing in evidence, over the objection of the defendant, the declaration filed by the attorney-general of the State and the order of the judge of the superior court thereon, or the report of the trustee of the Crawford Oil Mill.</p> <p>6. There is no substantial merit in any of the other grounds of the amendment to the motion for a new trial.</p> <p>7. The court was authorized to take judicial cognizance of the fact that the Athens Trust & Banking Company was a chartered bank, within the meaning of section 204 of the Penal Code. Griffin v. State, 15 Ga. App. 520 (83 S. E. 891), and cases there cited. See also Cason v. State, 16 Ga. App. 820 (86 S. E. 644).</p> <p>8. The evidence was ample to authorize a finding that the bank was insolvent, and that the insolvency was caused by the mismanagement and fraud of the defendant.</p>

<p>Certiorari; from Terrell superior court — Judge Worrill. November 17, 1915.</p>

<p>Action for damages; from city court of Sandersville — Judge Jordan. October 35, 1915.</p>

<p>Complaint; from city court of Eloyd county — Judge Éeece. October 5, 1915.</p>

<p>Action for libel; from city court of Albany — Judge Clayton Jones. May 17, 1915.</p>

<p>1. A bill of exceptions reciting that the court erred in sustaining the demurrer, to which judgment “said defendant excepted and now assigns the same as error,” contains a sufficient assignment of error.</p> <p>2. The court did not err in sustaining the demurrer to the affidavit of illegality.</p>

<p>Complaint; from city court of Eloyd county — Judge Nunnally. December 18, 1915.</p> <p>In October, 1914, the Interstate Chemical Company sued Camp & Camp on an open account. At the trial there was a motion to dismiss the action because the evidence showed that the title to the account was in the First National Bank of Eome. The plaintiff then offered an amendment alleging that the suit was for the use of that bank, — that on January 29, 1914, the plaintiff, being indebted to that bank in a stated sum, entered into a written contract with the bank (a copy of which was exhibited), by which the plaintiff transferred the account in question to the bank as security for the plaintiff’s indebtedness. The court allowed the amendment, over the objection that it added a new party defendant. The hill of exceptions recites that “when this amendment was allowed, the defendants, through their attorneys, stated that they were not ready to go on with the trial of the case, and that the nature of the case was a changed motion, and they wanted to file a' special demurrer to the declaration as amended and investigate the facts connected with the amendment and the Pirst National Bank’s relation to the case.” The court declined to continue the case. At the conclusion of the evidence the defendants moved a nonsuit- because no right of action was shown in the Interstate Chemical Company at the time the suit was brought and no amount was shown to be due at the time the account was transferred to the bank. The plaintiff then offered an amendment as follows: “The Pirst National Bank of Borne, Georgia, hereby relinquishes any and all lien or claim of title to the claims of account involved in this suit, and acknowledges that the title thereto is in the Interstate Chemical Company, and asks that its name he stricken as party plaintiff in this case.” The court allowed this amendment, over the objection that it could not cure the defect of want of title in the plaintiff at the time the suit was brought. Error was assigned on each of the rulings stated above, as well as upon other rulings dealt with in the decision of the Court of Appeals.</p>

<p>Action for damages; from city court of Polk county — Judge John K. Davis. January 12, 1916.</p>

<p>Complaint; from city court of Nashville — Judge Christian. June 1, 1915.</p>

<p>Action on bond; from city court of LaGrange — Judge Harwell. May 4, 1915.</p>

<p>Action for damages; from city court of Saint Marys — Judge MeElreath. August 21, 1915.</p>

<p>Complaint; from municipal court of Atlanta. September 37, 1915.</p>

Action for damages; from city court of Washington — Judge Wynne. October 13, 1915. Dennard sued J. F. Cogan & Company for damages on account of fire which destroyed timber on land which the plaintiff alleged to be Ms property, and the trial resulted in a verdict against the defendants. The case came to this court on exceptions to the refusal of a new trial.

<p>Trover; from city court of Nashville — Judge Christian. October 13, 1915.</p>

<p>Affidavit of illegality; from municipal court of Atlanta. October 21, 1915.</p>

<p>Motion to set aside judgment; from city court of Amerieus— Judge Etarper. November 12, 1915.</p>

<p>1. Where the credit to be given or other consideration of a guaranty is executory and uncertain as to the amount for which, jor the time at which,' the guarantor is to become liable, notice of acceptance of the _ guaranty must be given to the guarantor in order to bind him.</p> <p>2. The court erred in not sustaining the general demurrer to the petition.</p>

<p>Action for damages; from city court of Griffin — Judge Elynt. November 18, 1915.</p>

<p>Certiorari; from Eulton superior court — Judge Pendleton. November 23, 1915.-</p>

<p>A conviction of simple larceny was warranted, the evidence authorizing the inference that the accused knew, at the time the money was demanded of her, that the money alleged to have been stolen, and which she had picked up in the street and at first refused to surrender, was the property of the person who first demanded it, and that she appropriated it with intent to steal.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. June 12, 1915.</p>

<p>1. The verdict was supported by evidence.</p> <p>2. The error in giving to the jury instructions as to contributory negligence, in a case arising under the Federal “employer’s liability act,” was cured by the subsequent express withdrawal of these instructions and by the statement of counsel for the defendant in the presence of the jury.</p> <p>3. The use of the word “accident,” in the charge of the court, did not amount to an intimation of opinion that the injury complained of was the result of a mere accident. From its context it is apparent that it was used as the equivalent of the word “injury,” and must have been so understood by the jury.</p> <p>4. The instruction to the jury that “relevant testimony in behalf of the railroad company by its employees can not, if they be unimpeached, be disregarded” by the jury, in arriving at their conclusion as to the truth of the issue, was not, when considered in connection with the other instructions of the court, subject to the exceptions taken.</p> <p>5. There is- no merit in the exception that the withdrawal of the instructions relating to contributory negligence left the 'jury without proper instruction to guide them if they found that the defendant was negligent and the plaintiff chargeable with contributory negligence.</p>

<p>Appeal; from Franklin superior court — Judge Park presiding. July 7, 1915.</p>

<p>Complaint; from city court of Floyd county — Judge Eeeee. June 11, 1915.</p>

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

<p>1. To keep a lewd house is penal under the laws of this State, and any person who knowingly rents or sells personal property to be used in such a house will not be assisted by the courts to recover such property or the value thereof. The contract, being contra tonos mores, will not support an action.</p> <p>2. Where an electric piano is sold to a woman of ill-fame by a dealer who knows her to be such, and knows that the piano is to be used in a lewd house for the purpose of attracting men thereto.and entertaining them therein, the contract is founded upon an illegal and immoral consideration, and where such contract is not fully executed, neither party can enforce it.</p> <p>3. Under the foregoing ruling and the facts of this case, the suit was based upon an illegal and immoral consideration, and the plaintiff was not entitled to recover.</p>

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

<p>'Complaint; from city court of Macon — Judge Mathews presiding. September 30, 1915.</p>

<p>A defense in the nature of a set-off can not be proved where not pleaded; and on the trial of an action upon an open account, to which only a general denial of indebtedness had been pleaded, it was error to allow the defendant to introduce, over objection, evidence that the plaintiff agreed that a half of the amount of a certain account should be credited on the account in suit.</p>

<p>Trover; from city court of Savannah — Judge Davis Freeman. December 11, 1915.</p>

<p>Certiorari; from Morgan superior court — Judge Park. December 4, 1915.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. November 11, 1915.</p>

<p>Certiorari; from Floyd superior court — Judge Wright. December 22, 1915.</p>

<p>The petition as amended set forth a cause of action, and was not subject to the general or the special grounds of the demurrer.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Ereeman. December 18, 1915.</p>

<p>In passing upon a motion to open a default and vacate a judgment against the defendant at the term at which they were entered, the trial judge has a broad discretion, which will not be controlled unless manifestly abused. No abuse of discretion is shown in this case.</p>

<p>Complaint; from Ben Hill superior court — Judge George. December 15, 1915.</p>

<p>Garnishment; from-city court of Floyd county — Judge Nunnally. January 7, 1916.</p>

<p>Trover; from city court of Bainbridge — Judge Spooner. January 12, 1916.</p>

<p>Attachment; from city court of Atlanta — Judge Reid. January 8, 1916.</p>

<p>Indictment for felony; from Liberty superior court — Judge Sheppard. November 19, 1915.</p>

<p>Action ou insurance policy; from city court of Lloyd county. December 16, 1915.</p>

<p>Indictment for murder — conviction of manslaughter; from Ware superior court — Judge Summerall. . March 11, 1916.</p>

<p>Indictment for murder; from Polk superior court — Judge Bartlett. April 25, 1916.</p>

<p>1. Where two distinct corporations, through their respective and separate manufacturing plants, discharge noxious and poisonous gaáes into the atmosphere, which invade the premises of adjacent residents and cause an actionable nuisance, the corporations are not jointly liable for damages, where there is no common design or concert of action, but each is liable for its proportion of the damages only.</p> <p>2. Where two such separate and distinct corporations in proximity to each other operate their respective and separate plants for manufacturing fertilizers, and, from each plant, noxious and poisonous gases are discharged into the atmosphere and invade the premises of a near-by resident, and so poison and befoul the air therein as to cause sickness and death in his family, and otherwise to injure him, and to create an actionable nuisance, but where there is no common ownership or operation of the plants, no community of interest, and no common design, purpose, concert, or joint action, a suit by the adjacent resident against the two corporations jointly, for damage caused by their respective acts thus separately committed, can not be maintained.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. November 4, 1915.</p>

<p>Complaint; from city court of Ployd county — Judge Hunnally. January 6, 1916.</p>

<p>Certiorari; from Bichmond superior court — Judge H. C. Hammond. December 31, 1915.</p>

<p>Trover; from city court of Nashville — Judge Christian. January 10, 1916.</p>

<p>Action on contract; from city court of Louisville — Judge^ T. L. Hill presiding. February 1, 1916.</p>

<p>The court erred in sustaining the general demurrer to the petition.</p>

<p>Indictment for murder — conviction of manslaughter; from Newton superior court — Judge Smith. February 7, 1916.</p>

<p>Indictment for embezzlement; from Toombs superior court— Judge Kawlings. December 39, 1915.</p>

<p>Indictment for murder; from Haralson superior court — Judge Bartlett.</p>

<p>Indictment for misdemeanor; from Gordon superior court— Judge Fite. March 11, 1916.</p>

<p>Indictment for libel; from Bibb superior court — Judge Mathews. March 1, 1916.</p>

<p>Action for damages; from municipal court of Macon — Judge Chambers. Juty 20, 1915.</p>

<p>Action fox damages; from city court of Hall county — Judge Wheeler. May 1,1915.</p>

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

<p>Complaint; from city court of Nashville — Judge Lankford presiding. May 30, 1913.</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. October 9, 1915.</p>

<p>Action for damages; from city court of Polk county — Judge John K. Davis. November 22, 1915.</p>

<p>Action for damages; from city court of Douglas — Judge Lank-ford. November 24, 1915.</p>

<p>Certiorari; from Fulton superior court' — Judge Ellis. January 13, 1916.</p>

<p>Motion to set aside judgment; from city court of Ashbúrn— Judge Tipton. January 24, 1916.</p>

<p>Indictment for sale of liquor; from Floyd superior court-judge Wright. March 9, 1916.</p>

<p>Indictment for embezzlement; from Wayne superior court— Judge Highsmith. February 15, 1916.</p>

<p>Certiorari; from Laurens superior court — Judge-Kent. April 24, 1916.</p>

<p>Certiorari; from Laurens superior court —Judge Kent. April 24, 1916.</p>

<p>Certiorari; from Laurens superior court — Judge Kent. April 24, 1916.</p>

<p>Certiorari; from Laurens superior court — Judge Kent. April 24, 1916.</p>

<p>Indictment fox sale of liqnor; from DeKalb superior court— Judge Smith. May 9, 1916.</p>

<p>There was no material variance between the allegata and the probata as to the person with whom the crime was committed, and who in the indictment was designated as Maria Story, although the witnesses testified that the person in question was Marie Story.</p>

<p>Indictment for burglary; from Polk superior court — Judge Bartlett. April 25, 1916.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. May 5, 1916.</p>

<p>Accusation of cheating and swindling; from city CQurt of Carroll-ton — Judge Beall. April 19, 1916.</p>

<p>Accusation of gaming; from city court of Cartersville — Judge Moon. April 19, 1916.</p>

<p>Indictment fox assault with intent to murder; from Burke superior court — Judge H. C. Hammond. April 24, 1916.</p>

<p>Complaint; from municipal -court of Atlanta. November 8, 1915.</p>

<p>Foreclosure of mortgage; from city court of Nashville — Judge Christian. November 8, 1915.</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. January 20, 1916.</p>

<p>Complaint; from city court of Sandersville — Judge- Jordan. January 28, 1916.</p> <p>Andrew Thompson sued Curry as administrator of the estate of I. H. Thompson, for $110 and interest thereon from March 1, 1912, alleged to he due on an open account for money lent to I. H. Thompson on that date. On the trial a witness for the plaintiff testified: .“Some time about the first day of March, 1912, I was working in the barber-shop of Andrew Thompson, . . and his father, I. H. Thompson, came into the shop and got from Andrew $110 in cash. I saw Andrew count him out the money to pay a note with. . . After the money was paid over I saw Andrew Thompson writing something on a scratch-pad, and I. H. Thompson signed it, hut I do not know what the writing was, . . whether it was a receipt for the money, or just an entry of the loan, or what it was.” W. A. Peddy testified for the.plaintiff: “I held a note . . upon which I. H. Thompson was surety, and I called upon him to pay this note, and he paid me $110 in money in March, 1912. The money was paid to me in my store. . . I had the note there and gave it over- to Thompson. At the time I. H. Thompson paid me the money he told me that he got it from Andrew Thompson that day. The note exhibited to me . . for $110 is the only note I ever held against I. H. Thompson, and is the one he paid to me.” At the conclusion of the evidence introduced by the plaintiff, the defendant moved for a nonsuit, upon the grounds: (1) that it does not appear that I. H. Thompson was indebted to the plaintiff on an open account; (2) that the defendant showed that if there was any indebtedness to the plaintiff, it was in writing signed by the decedent, and the plaintiff could not recover in a suit upon an open account; and (3) that the evidence was insufficient to authorize a recovery. The court overruled the motion. The sole witness for the defendant testified, that he knew that I. BT. Thompson deposited money in the Bank of Harrison; that he saw I. H. Thompson draw money out of the bank once in March, 1912; and that after Thompson’s death he found among the decedent’s private papers a certain deposit slip dated March 2, 1912, showing a deposit of $115.50, and found the note mentioned by the witness Peddy. The deposit slip was offered in evidence by the defendant, and the court excluded it. At the conclusion of the evidence the court directed a verdict in favor of the plaintiff, for the amount sued for. The defendant excepted to the refusal to grant a nonsuit, to the exclusion of the deposit slip, and to the direction of the verdict.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. January 12,1916.</p>

<p>Action for damages; from city court of Floyd county — Judge Nunn ally. February 15, 1916.</p>

<p>Accusation of keeping gaming-house; from city court of Columbus — Judge Tigner. May 16, 1916.</p>

<p>Accusation of larceny; from city court of Columbus — Judge Tigner. May 6, 1916.</p>

<p>Indictment for sale of liquor; from Stewart superior court— Judge Littlejohn. May 19, 1916.</p>

<p>Action for damages; from city court of Tifton — Judge R. Eve. December 17, 1915.</p>

<p>Action for damages; from city court of Nashville — Judge Christian. May 31, 1915.</p>

<p>Complaint; from city, court of Blakely — W. H. Krause, judge-pro hae yiee. September 4, 1915.</p>

<p>Action for damages; from municipal court of Macon — Judge Chambers. February 5, 1916.</p>

<p>Action'on insurance policies; from city court of Ashburn — Judge Tipton. April 20, 1915.</p>

<p>Complaint; from city court of Blackshear — Judge Mitchell. August 19, 1915.</p>

<p>Attachment and claim; from city court of Waynesboro — Judge W. H. Davis. October 27, 1915.</p>

<p>Action on life-insurance policy; from municipal court of Macon —Judge Chambers. August 14, 1915.</p>

<p>Complaint; from city court of Savannah — Judge Davis Freeman. November 15, 1915.</p>

<p>Complaint; from city court of Cartersville — Judge Moon. October 27, 1915.</p>

<p>Complaint; from Wilcox superior court — Judge George. October 22, 1915.</p>

<p>Motion to reinstate ease; from city court of Nashville — Judge Christian. November 26, 1915.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. November 34, 1915.</p>

<p>Certiorari; from Jones superior court — Judge Park. November 11, 1915.</p> <p>Herndon sued Jones county for $10 as his fee for holding an inquest, as coroner, over the dead body of one Middlebrooks. From the evidence it appeared that Middlebrooks was killed by Morton in self-defense, in the presence of one witness; and the fact that this witness was present and all the other facts relating to the homicide were known to the coroner before the inquest was held. The •judge of the superior court, on certiorari, held that the county was not liable.</p>

<p>Levy and claim; from city court of Hazlehurst — Judge Grant. December 18, 1915.</p>

<p>Complaint; from city court of Cairo — Judge Willie. January 17, 1916.</p>

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

<p>' Certiorari; from Fulton superior court — Judge Pendleton. December 31, 1915.</p>

<p>Levy and claim; from city court of Brunswick — Judge Krauss. February 14, 1916.</p>

<p>Complaint; from Jasper superior court — Judge Park. February-24, 1916.</p>

<p>Petition for certiorari; from Thomas superior court — Judge Thomas. March 1, 1916.</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. March 7, 1916.</p>

<p>Certiorari; from Gordon superior court — Judge Fite. March 11, 1916.</p>

<p>Complaint; from city court of Nashville — -J. Z. Jackson, judge pro hac vice. November 9, 1915.</p>

<p>Indictment for felony; from Jenkins superior court — Judge H. C. Hammond. November 15, 1915. -</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. March 15, 1916.</p>

<p>Appeal; from Floyd superior court — Judge Wright. • February 4, 1916.</p>

<p>Foreclosure of mortgage; from city court of Reidsville — Judge Collins. March 9, 1916.</p>

<p>Action fox damages; from city court of Atlanta — Judge Reid. March 30, 1916.</p>

<p>Action, on contract; from city court of Atlanta — Judge Reid. April 1, 1916.</p>

<p>Tlie fact that one who is in possession of a promissory note has placed upon it an indorsement making it payable to another, which remains uncanceled, does not of itself show that title to the note has passed out of the holder.</p>

<p>Action upon bond; from city court of Tbomasville — Judge- W. H. Hammond. March 18, 1915.</p>

<p>Action for damages; from city court of Carrollton — Judge Beall. August 19, 1915.</p>

<p>1. When a promissory note is payable on a day certain at a bank, the maker has until the expiration of banking hours on the day of its maturity to pay it; but action thereon may be begun thereafter on the same day, if demand for payment bo made and refused on that day. 3 R. C. L. 1335, § 567; 2 Daniel, Neg. Instr. (6th ed.) §§ 1208, 1219, pp. 1356, 1359; Vandesande v. Chapman, 48 Me. 262; Church v. Clark, 21 Pick. (Mass.) 310; Whitwell v. Brigham, 19 Pick. (Mass.) 117; Blitch v. Brewer, 80 Ga. 333, 335 (9 S. E. 837), and authorities cited.</p> <p>(а) The holding in Raefle v. Moore, 58 Ga. 94 (3), that “A note payable one day after date becomes due on the day after it was made, and can not be sued until ibo day following,” is not in conflict with the decision in BKteh v. Brewer, supra, or with the ruling here made, since no demand and refusal on the day of maturity appears in the former ease. See also Beach v. Atkinson, 87 Ga. 288 (13 S. E. 591), which under the particular facts of the case is not in conflict v, 1th this decision.</p> <p>(б) Under the undisputed facts in evidence, t’.ie action was commenced at 8 o’clock on the day of the maturity of the note, after the expiration of business or banking hours, and after demand for payment of the note (payable by its terms at a bank) had been made and refused.</p> <p>2. While the law appoints a particular person to make service of the copy summons which constitutes the process of a justice’s court, the defendant can waive service by this particular person and accept it from another; and if he accepts it from the justice of the peace who issued the summons, he will be bound thereby.</p> <p>3. There was no error in admitting in evidence the docket of the justice of the peace with the entry of judgment thereon, and also a later entry correcting or amending the previous entry, especially in view of uneontradicted testimony .establishing- the identical facts recited in the amended entry. If an entry of service on the original summons could be amended, or made nunc pro tunc, no good reason appears why a like entry on the docket of the magistrate could not also be amended or made nunc pro tune.</p> <p>4. The court did not err in directing a verdict finding the property subject to the fi. fa., as the verdict was demanded by the evidence. A proper plea for damages having, however, been interposed by the plaintiff in fi. fa., whether or not the evidence submitted authorized the inference that the claim had been interposed for delay only was a question for determination by the jury, and the court erred in declining to submit that issue with proper instructions.</p>

<p>1. Under tlie law existing at tlie time of this transaction a national bank was not prohibited from taking, in good faith, a mortgage on real estate, as security for debts previously contracted.</p> <p>2. The answer alleged that the note sued on was a renewal note, and that the mortgage given to the bank by the maker of the note was executed to protect the plaintiff in error on past-due indebtedness of the maker to the bank, upon which the plaintiff in error was indorser. This did not violate any of the provisions of the national bank act.</p> <p>3. It was error to strike the answer upon the ground that, the note and mortgage being given to renew and secure a past-due debt, the national bank was not authorized to take real estate as security.</p>

<p>Appeal; from Ware superior court — Judge Summerall. December 9, 1915.</p>

<p>Action for damages; from.city court of Savannah — Judge Davis Freeman. Febfuary 9, 1916.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. January 15, 1916.</p>

<p>Action on guaranty; from city court of Floyd county — Judge Nunnally. February 15, 1916.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. February 9, 1916. - '</p>

<p>Money rule; from city court of Newnan — Judge Post. February 15, 1916.</p>

<p>Action for damages; from municipal court of Atlanta. Eeb- • ruary 4, 1916.</p>

<p>Foreclosure of mortgage; from city court of Thomasville— Judge W. H. Hammond. February 5, 1916.</p>

<p>Complaint; from municipal court of Macon — Judge Chambers. March Í0, 1916.</p> <p>King Brothers & Company sued the Central of Georgia Railway Company in the municipal court of Macon on an assignment of wages of an employee of the defendant. The case came to the Court of Appeals on exceptions to the dismissal of the suit on demurrer, based on the following grounds: (1) It appears from the petition that the municipal court of Macon has no jurisdiction of the action, but that the venue is in the courts of Chatham county, Georgia, only. (2) The petition shows that the assignment is a partial assignment only, and this court, not being a court of equity, can not entertain the action.</p> <p>The petition alleges, that the defendant is a corporation with an agency and place of business located within the limits of the City of Macon in this State, and is subject to the jurisdiction of the municipal court of Macon; that the defendant is indebted to the plaintiffs in the sum of $38.50, under the following facts: Will Easter was an employee of the defendant during the month of August, 1915. He was performing his duties as an employee of the defendant within the said State and in the county of Bibb under an existing contract made in the said county, and, while so employed during the said month, he earned as salary or wages the sum of $38.50; and on September 6, 1915, in consideration of $35 cash paid to him by the plaintiffs, he executed and delivered to the plaintiffs a sale, transfer, and assignment of the said earned wages or salary, amounting to $38.50, and thereby vested in the plaintiffs the legal title of the said salary or. wages. Written notice of this assignment was served on. the defendant by the plaintiffs on September 8, 1915, at which time the defendant was in possession, custody, and control of the said August salary or wages and had not paid the same to Will Easter or to the plaintiffs, or to any one else authorized by either to receive the .same. Demand for payment of the assignment has been duly made on the defendant, and it refuses to pay the same. The said sale and transfer was a total assignment of a specific fund and was not a partial assignment of a general fund in the hands of the defendant, and the legal title to the said fund is in the plaintiffs.</p> <p>The assignment, a copy of which is attached to the petition, is as follows: “Macon, Ga., Sept. 6th, 1915. In consideration of the sum of $35.00 cash in hand this day paid me, the receipt of which is-hereby acknowledged, I hereby sell, transfer, and assign to King Bros. & Co., doing business in the City of Macon, Georgia, my account for salary or wages already by me earned during the month, of August and amounting to $38.50, and due me by Central of Georgia Railway Company. I hereby direct my employer to pay to King Bros. & Co. said account amounting to $38.50. This is an absolute and unconditional sale of said account, and is not a loan or advance of money, and is not a discount; I am not a debtor to the purchaser; this is an original transaction, and is not a renewal or extension of any kind. In order to induce King Bros. & Co. to make the purchase of this account at and for the above amount of money paid me, I hereby state and warrant to be true that I am employed by Central of Georgia Railway Company in the capacity of switchman, that I was so employed during tire month of August, 1915,' and while so employed I earned as salary or‘wages the sum of $38.50, that there are no offsets or counterclaims against said account, that there are no orders, drafts, garnishments, or attachments outstanding in any way affecting said account, and that said account is just, true, due, and unpaid, and that I have not heretofore sold or transferred the same. I hereby authorize the purchaser of this account, in my name and stead and as my attorney in fact, to sign any and all checks, vouchers, receipts, and acquittances necessary and proper to be signed in order to collect said account and to evidence payment of the same. In testimony of all which I hereto set my hand and affix my seal, this 6th day of Sept., 1915. [Signed] Will Easter.”</p>

<p>Complaint; from city court of Houston county — Judge Eiley. February 15, 1916.</p>

<p>Complaint; from city court of Hazlehurst — j. Mark Wilcox, judge pro hae vice. March 20, 1916.</p>

<p>Action for damages; from city court of Oglethorpe — Judge Greer. March 16, 1916.</p>

<p>Complaint; from municipal court of Atlanta. March 20, 1916.</p>

<p>1. Where the suit was against two persons as joint makers of a promissory note, a plea by one of them in behalf of the other was not a plea of the latter.</p> <p>2. Where in a suit upon a promissory note it is sought to recover, in addition to principal and interest, a certain per centum thereon as attorney’s fees for collection, as provided for in the note, and it appears, from the allegations of the plaintiff’s petition, that notice of intention to" bring the suit has been given in conformity with the statute (Civil Code, § 4252), and no defense has been interposed, the averment as to the giving of notice will be held to have been admitted, and no proof other than the implied admission is necessary to authorize a recovery of such fees.</p> <p>3. It appearing that the case was brought to this court for delay only, damages are awarded against the plaintiffs in error.</p>

<p>Action on bond; from city court of Savannah — Judge Rourke presiding. March 18, 1916.</p>

<p>Complaint; from city court of Carrollton — Judge Beall. February 16, 1916.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. March 18, 1916.</p>

<p>1. Under {he act establishing the municipal court of Atlanta (Acts 1913, p. 145, see. 58), a constable of a militia district of Eulton county partly within and partly without the limits of the City of Atlanta, who executes or attempts to execute within the city limits of Atlanta a criminal warrant issued by a justice of the peace or a notary public and ex-officio justice of the peace of his district, shall be considered in contempt of the municipal court of Atlanta, and may be punished therefor by that court.</p> <p>2. The municipal court of Atlanta did not err in overruling the demurrers to the contempt proceeding, or in adjudging the constable guilty of contempt.</p>

<p>Complaint; from city court of Louisville — Judge Jordan presiding. April 7, 19 L6.</p>

<p>Complaint; from city court of Cairo — Judge Willie. April 19, 1916.</p> <p>The Southern Bank & Trust Company sued O. D. Sellers upon a draft drawn by him on the Pelham Oil & Fertilizer Company, payable to the Bank of Whigham. The petition alleged, that the plaintiff advanced to the payee the amount of the draft, and in due course presented it to the drawee for payment, and x>ayment was refused; that the sum so advanced was not refunded, and the defendant refused to pay the same. The draft bore the following indorsement: “Pay to the order of any bank, banker, or trust company. (All prior indorsements guaranteed.) Feb. 8, 1915. Bank of Whigham, Whigham, Ga., E. B. Stapleton, Cashier.” The case was tried by the judge of the city court upon an agreed statement of facts (set out in the following opinion), and he rendered judgment in favor of the defendant.</p>

<p>Affidavit of illegality; from city court of Yaldosta — Judge Cranford. April 24, 1916.</p>

<p>Under the plaintiff’s allegations, he had a cause of action against the city for injuries caused by electricity from electric-light wires of the city on which the insulating material had become worn, and with which he came in contact on his way from work as a lineman of a telephone company, when descending the telephone company’s pole to which they were attached.</p>

<p>The word “provisions,” as used by the constitution and the code of this State, in authorizing debtors to waive exemptions except as to “wearing apparel and not exceeding three hundred dollars worth of household and kitchen furniture and provisions” (Civil Code, §§ 6584, 6586, 3413), does not include hogs.</p>

<p>Garnishment; from city conrt of Americus — Judge Harper. April 6, 1916.</p>

<p>1. It is competent for a depositor to testify that he deposited certain trust funds with a bank, and in so doing dealt with the cashier of the bank as cashier, and not as an individual.</p> <p>2. Instructions given by the depositor to the cashier as to how the funds could be invested were admissible in a suit against the bank to recover the amount of the deposit.</p> <p>3. Merely giving to the jury a synopsis of the contentions contained in the petition was not an intimation of an opinion on the part of the court upon the evidence, and could not so have impressed the jury, especially as it was preceded by the statement that the plaintiif “sets up in his petition,” etc.</p> <p>4. The exceptions to the charge of the court are without merit, and the verdict was authorized by the evidence.</p>

<p>Complaint; from city court of Thomasville — Judge W. H. Hammond. March 31, 1916.</p>

<p>Judge Hodges being disqualified, Judge Hill, of the Atlanta circuit, WAS DESIGNATED TO PRESIDE IN HIS STEAD.</p> <p>Accusation of misdemeanor; from city court of Macon — Judge Hodges. April 21, 1916.</p>

<p>1. The court erred in admitting in evidence, as a part of the res-geste, a declaration of the deceased, made twenty'minutes after he was shot.</p> <p>2. The excerpt from the charge to the jury with reference to protecting one’s family is erroneous, under the facts in the case.</p>

<p>Complaint; from Irwin superior court (transferred from city court of Ocilla) — Judge Graham presiding. April 28, 1916.</p>

<p>Certiorari; from Laurens superior' court — Judge Kent. April 24, 1916.</p>

<p>Petition; from municipal court of Macon — Judge Chambers. May 2, 1916.</p>

<p>The appeal bond given in this ease was a sufficient compliance with the law; the magistrate erred in dismissing the appeal, and the judge of the superior court erred in overruling the certiorari.</p>

<p>1. The prisoner’s statement at the trial was not excluded from the consideration of the jury by the instruction that “the discovery of the truth is limited to the testimony in the case;” this being followed by an instruction that they might give the prisoner’s statement such weight as they saw proper, and believe it in preference to the sworn testimony in the case.</p> <p>2. An instruction to the effect that if the person killed was making an attack upon .the accused with a weapon likely to produce death, it would be a felony, and “would reduce the crime from murder to some other crime, provided it was not justifiable entirely throughout,” was not subject to the objection that under the facts recited, the killing would be justifiable homicide, and that “the court should have charged the jury, under these facts, to acquit the defendant, but under this charge the jury was forced to find the defendant guilty of some other crime.”</p> <p>3. The instruction on the defense that the accused killed under the fears of a reasonable man was not subject to the exception that it restricted him to that defense.</p> <p>4. The court is not required to charge the jury on a theory based solely on the statement of the accused, when no timely written request for such an -instruction has been made.</p> <p>5. The verdict was authorized by the evidence.</p>

<p>Complaint; from municipal court of Macon — Judge Chambers. May 12, 1916.</p> <p>The plaintiff’s petition was in distinct paragraphs, but the paragraphs were not numbered.</p>

<p>Complaint; from city court of Miller county — Judge Geer. May 6, 1916.</p>

<p>Accusation of abandonment of child; from city court of Carroll-ton — Judge Beall. May 11, 1916.</p>

<p>1. The judgment was not subject to attack by affidavit of illegality on the ground that it was -based upon a debt from which the defendant had been discharged in bankruptcy.</p> <p>2 The court did not err in dismissing the affidavit of illegality or in overruling the motion for a new tiral.</p>

<p>1. The maker of a promissory note, indorsed by the payee for accommodation, induced a third person, in consideration of $100 paid by the maker, to pay the amount of the note, on the day of its maturity, to a bank that had discounted it, and thus take it up to keep it from going to protest. The accommodation indorser was not a party to this transaction, had no knowledge of it, and did not consent to it. The conduct of the maker and of the person taking up the note operated to discharge the indorser, under the facts in the case.</p> <p>2. The court charged the jury that the plaintiff contended that he “did pay the amount due on it and had it delivered to him, and that it was not intended, and did not pay off, extinguish, and discharge the note at all — simply paid the amount due on it and had the note delivered to him.” This submitted a transaction that could not have legal existence. It doubtless confused the jury and caused them to stray from the true issue in the case. Viewed in the light of the evidence, if the volunteer paid the amount of the note and had it delivered to him, he either purchased 'the paper or paid the debt. If he purchased the note, the indorser was not discharged. If he paid the debt, the liability of the indorser was extinguished as a matter of law.</p>

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

<p>Complaint; from city court of Millen — Judge T. L. Hill. May 2, 1916.</p>

<p>The court erred in sustaining the motion for a nonsuit. The case is controlled by the decision of the Supreme Court in Hines v. Johnston, 95 Ga. 629 (23 S. E. 470).</p>

<p>Complaint; from city court of Kichmond county — Judge Black. May 30, 1916.</p>

<p>Distraint; from municipal court of Atlanta. November 20,1915.</p>

<p>Certiorari; from Pulton superior court — Judge Ellis. January 14, 1916.</p>

<p>Complaint; from city court of Greenville — Judge Bevill. May 19, 1915.</p>

<p>Complaint; from city court of Brunswick — Judge Krauss. July 22, 1915.</p>

<p>Application for mandamus.</p>

<p>Complaint; from municipal court of Atlanta. March 8, 1916.</p>

<p>Trover; from city court of Macon — Judge Hodges. February 4, 1916.</p>

<p>Foreclosure of lieu; from city court of Sylvania — Judge Evans. February 14, 1916.</p>

<p>Appeal; from Greene superior court — Judge Park. February 3, 1916.</p>

<p>Complaint; from city court of La Grange — Judge Harwell. February 10, 1916.</p>

<p>Levy and claim; from city court of Blakely — Judge Sheffield. March 20, 1916.</p>

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

<p>Appeal; from Gordon superior court — Judge Fite. March 27, 1916.</p>

<p>Trover; from city court of Houston county — Judge Eiley. March. 16, 1916.</p>

<p>Indictment for larceny after trust; from Berrien superior court —Judge Thomas. . May 6, 1916.</p>

<p>Money rule; from city court of Thomasville — Judge W. H. Hammond. March. 28, 1916.</p>

<p>Complaint; from city court of Waynesboro — Judge W. H. Davis. April 25, 1916.</p>

<p>Money rule; from city court of Washington — Judge Wynne. March 9, 1916.</p>

<p>Trover; from municipal court of Atlanta — December 8, 1915.</p>

<p>Motion for new trial; from municipal court of Atlanta. January 13, 1916.</p>

<p>Action on insurance policy; from municipal court of Macon— Judge Chambers. February 11, 1916.</p>

<p>Action for damages; from city court of 'Washington — Judge Wynne. March 6, 1916.</p> <p>The action was filed September 30, 1915. According to the allegations of the plaintiff’s petition, the defendant received for collection, as an attorney at law, in the year 1913, certain claims, amounting to $1,175.83, against the plaintiff, a merchant, and the plaintiff paid to him $790.25 in part payment of these claims, up to March 6, 1914, under an agreement with the defendant that on payment of that sum the defendant would remit it to the creditors and allow the plaintiff further time to secure and pay the remainder of the indebtedness. It is alleged, that on or about March 8, 1914, the defendant, without the knowledge or consent of the plaintiff, and while in possession of the money collected from him, wrote to a named mercantile agency, from whom the defendant had received some of these claims for collection, that the plaintiff had offered a settlement of 66-2/3 cents on the dollar, and that this settlement must be put through by the creditors of the plaintiff by March 11, and, unless some kind of settlement was made at once, a receiver would have to be appointed to take charge of the plaintiff’s affairs. It is alleged that this communication was false, malicious, and libelous, and was intended to and did injure and damage the plaintiff in the sum of $15,000, in his business and character as a merchant and as an honest, upright citizen. The statement contained in the said communication was made for the fraudulent purpose of keeping about $541.37 out of the money collected from the plaintiff on the said claims, and to conceal the fact that the defendant had collected more than enough cash to pay 66-2/3 cents on each dollar of the claims and had the balance of said, claims in perfectly solvent condition, and that the said balance would be paid by the plaintiff. Within thirty days after the date of the said libelous matter, the plaintiff paid the defendant $200, and in the following November $35, on said claims, and on December 4, 1914, gave his note, with security, for the balance, $200, and this note was collected by the defendant. The defendant, in pursuance of his wrongful, malicious, and libelous scheme and intent to injure plaintiff, without plaintiff’s knowledge or consent and against his desire, wrongfully settled all the said claims by paying 66-2/3 per cent, thereof as a settlement in full, during March, 1914, and after the said libelous communication. The defendant purposely concealed the compromise and settlement from the plaintiff, so that the plaintiff should pay over to him the 33-1/3 cents on the dollar, amounting to $541.37, and damaged him by making his creditors believe he had compromised his debts to their loss, thereby damaging his character as a merchant and as a citizen, and damaging his trade and business. The plaintiff, not knowing that his debts had been compromised by the defendant, went on paying the said claims in good faith to the defendant, and, after the compromise had been secretly effected by the defendant, he paid over to the defendant $425, to be credited on the said claims, which the plaintiff then believed to be outstanding against him. Until June, 1915, the plaintiff did not know his said debts had been compromised by the defendant, and then he discovered the fact of the compromise when he placed an order for goods with a certain firm (named), whose claim against him the defendant held for collection and compromised as aforesaid, and the said order was “turned down” by the said firm, who assigned as their reason therefor that the plaintiff had forced them to accept two thirds of their claim as a full settlement. The plaintiff’s want of knowledge of the compromise of his indebtedness before the date alleged was brought about by the fraudulent practices of the defendant, done with intent to keep him in ignorance of the true status of the settlement, and in furtherance of the defendant’s scheme to retain the $541.37 aforesaid. Certain other creditors (named) refused the plaintiff credit after March 12, 1914, because their claims had been settled at the rate of 66-2/3 cents on the dollar, they believing the settlement had been authorized by him. He did not know of this compromise until June, 1915, and had no reason to suspect it, and for this reason could not explain the refusal of his creditors to ship as ordered by him, or why his credit was injured. He was in a great measure dependent on the said creditors for goods to carry on his business, and when they refused him credit he was forced to open credit with others, and, as a blacklisted merchant, he failed to obtain credit with others. It is alleged that the defendant is indebted to the plaintiff in the sum of $15,000 in damages on account of the wrongs and injuries set forth.</p> <p>By amendment it is alleged that the defendant wilfully, fraudulently, and artfully concealed from the plaintiff that he had written the communication referred to above, and that he had compromised the plaintiff’s debts, for the further purpose of keeping the plaintiff in ignorance of his cause of action against the defendant, growing out of the said libelous communication; that the defendant effected such concealment of the false proposals of settlement by privately writing the plaintiff’s creditors, by failing to communicate to the plaintiff the fact that such letters had been written, and by fraudulently accepting payment in full of his indebtedness after the letters had been written; that the defendant purposely, and with intent to defraud the plaintiff, and for the purpose of concealing from him the false proposals of settlement, accepted payments on his indebtedness over an amount required to pay 66-2/3 per cent, of it, without communicating to him the fact of having written the letters containing the false proposals of settlement, when the defendant was aware that the plaintiff did not know, nor could reasonably be expected to know, by reason of such letters having been privately written, that such false proposals had been made; thereby inducing him to believe his creditors required payment in full of his indebtedness; that to further effect the concealment of such false proposals of settlement, the defendant represented to the plaintiff that he was collecting payment in full of the plaintiff’s indebtedness as attorney for the plaintiff’s creditors, and that the said creditors were demanding and receiving payment in full of the amounts due them; thereby fraudulently keeping him in ignorance of the said false proposals.</p> <p>The defendant demurred on the grounds, among others, that no cause of action was set out in the petition; that the action was barred by the statute of limitations; that the allegations as to concealment of the cause of action did not show what was said or done by the defendant; and that it was not sufficiently set forth how the defendant deterred the plaintiff from knowing, nor why he could not in the exercise of ordinary diligence have discovered his alleged cause of action. The demurrer was overruled, and the defendant excepted.</p>

<p>Levy and claim; from city court of Washington — Judge Wynne. March 13, 1916.</p>

<p>Action for damages; from city court of Valdosta — Judge Cranford. April 14, 1916.</p>

<p>Appeal; from Eayette superior court — Judge Searcy. March 23, 1916. - ' ’</p>

<p>1. The recorded contract relied on as retaining title in tlie plaintiff until payment of the purchase-money for the' property in question, signed “O. K. Cash Grocery,” appearing to have been signed in the presence of a subscribing witness, who in his affidavit of probate stated that he saw it “duly signed and executed by O. K. Cash Grocery,” and describing the property as an “American Slicing Machine and Sharpener,” was properly admitted in evidence, over the objections that it did not appear to be signed by any person, firm, or corporation; that it was not witnessed according to law; that the description of the property was insufficient; and that the paper was not entitled to be recorded.</p> <p>2. The court did not err in directing a verdict against the defendant for the amount sued for.</p>

<p>Action, for damages; from city court of Atlanta — Judge Eeid. April 13, 1916.</p>

<p>Action for damages; from city court of Quitman — Judge Long. May 18, 1916.</p>

<p>Action for damages; from city court of Nashville — Judge Christian. May 9, 1916.</p>

<p>Indictment for murder; from Berrien superior court — Judge Thomas. June 3, 1916.</p>

<p>Accusation of sale of liquor; from city court of Miller county— Judge Geer. May 6, 1916.</p>

<p>Indictment for larceny of cow; from Liberty superior court— Judge Sheppard. May 20, 1915.</p>

<p>Indictment for sale of liquor; from Webster superior court— Judge Littlejohn. May 30, 1916.</p>

<p>Indictment for assault with intent to murder; from Jasper superior court — Judge Park. May 26, 1916.</p>

<p>An act penalized by a law of the State may be penalized also by a municipal ordinance, if there is in the muncipal offense some essential ingredient not essential to the State offense, or if the municipal offense lacks some ingredient essential to the State offense. In such case a conviction of the municipal offense is no bar to punishment for the State offense.</p>

<p>Conviction of receiving stolen goods; from Wilkes superior court —Judge Walker. April 14, 1916.</p>

<p>Certiorari; from Houston superior court — Judge Mathews. April 14, 1916.</p>

<p>Certiorari; from Houston superior court — Judge Mathews. April 14, 1916.</p>

<p>Accusation of misdemeanor; from city court of Polk county-judge J. K. Davis. June 5, 1916.</p>

<p>Indictments for misdemeanor; from Bibb superior court— Judge Mathews. June 22, 1916.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 17, 1916.</p>

<p>Certiorari; from Pulton superior court — Judge Pendleton. May 18, 1916.</p>

<p>Indictment for misdemeanor; from Miller superior court — Judge Worrill. April 29, 1916.</p>

<p>Accusation of .larceny from house; from city court of Sanders-ville — Judge Jordan. June 1, 1916.</p>

<p>Accusation of sale of liquor; from city court of Hall county— Judge Wheeler. July 3, 1916.</p>

<p>Accusation of cheating and swindling; from city court of Albany —Judge Clayton Jones. July 14, 1916.</p>

<p>1. The judgment of the trial court on the motion for a new trial will not be reversed by this court because of alleged newly discovered evidence merely cumulative and impeaching in character.</p> <p>2. The verdict is supported by the evidence."</p>

<p>Indictment for larceny; from Wayne superior court — Judge Highsmith. June 18, 1916.</p>

<p>Indictment for misdemeanor; from Cobb superior court — Judge Patterson. July 28, 1916.</p>

<p>Indictment for keeping gaming-house; from Glynn superior court — Judge Highsmith. August 2, 1916.</p>

<p>Indictment for murder; from Colquitt superior court — Judge Thomas. June 26, 1916.</p>

<p>Indictment for sale of liquor; from Emanuel superior court-judge Hardeman. August 25, 1916.</p>

<p>Appeal; from Miller superior court — Judge Worrill. March 1, 1916.</p>

<p>Indictment for murder — conviction of involuntary manslaughter in the commission of an unlawful act; from Polk superior court —Judge Bartlett. May 30, 1916.</p>

<p>The evidencie authorized the verdict of assault with intent to murder; the giving of instructions to the jury on the law relating to the offense of shooting at another was harmless; the law as to fears of a reasonable man, as a defense, was not applicable to the case, and the court did not err in refusing to charge the jury thereon, and did not err in refusing to charge on the theory of innocence as requested. If there were slight inaccuracies in the charge, they do not require a reversal of the judgment denying a new trial.</p>

<p>1. Failure to charge the jury on the law of circumstantial evidence was error requiring a new trial, the conviction of the accused being dependent entirely upon such evidence.</p> <p>2. On the trial of one charged with larceny, his recent unexplained possession of the stolen goods is a circumstance to be considered by the jury, but does not raise a presumption of law that he is guilty of the theft.</p>

<p>The grant or refusal of bail to the accused, after conviction and after the filing of a motion for a new trial, which was pending, was a matter within the discretion of the judge of the trial court; and. his refusal of bail was not an abuse of discretion.</p>

<p>There was no abuse of discretion in refusing bail to the accused.</p>

<p>Indictment for sale of liquor; from Decatur superior court— Judge Cox. July 3, 1916.</p>

<p>Indictment for murder; from Irwin superior court — Judge George. July 3, 1916.</p>

<p>Indictment for keeping gaming-house; from Glynn superior court ■ — -Judge Highsmith. August 3, 1916.</p>

<p>Indictment for uttering forged checks; from Upson superior court — Judge Searcy. July 12, 1916.</p>

<p>Accusation of misdemeanor; from city court of Uewnan — Judge Po.st. August 18, 1916.</p>

<p>Indictment for misdemeanor; from Glynn superior courtJndge Highsmith. August 2, 1916.</p>

<p>Certiorari; from Fulton, superior court — Judge Pendleton. May-25, 1916.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. March 28, 1916.</p>

<p>Accusation of cheating and swindling; from city court of Eastman — Judge FTeese. August 23, 1916.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. March 28, 1916.</p>

<p>Indictment for cruelty to animal; from Walker superior court-judge Wright. May 33, 1916.</p>

<p>Certiorari; from Pulton superior court — Judge Pendleton. May 18, 1916.</p>

<p>1. A person who has a fixed place of business in a city, where he buys and sells merchandise commonly known as “junk,” is not a peddler and traveling vendor, within the meaning of section 946 of the Civil Code of 1910.</p> <p>2. The provisions of section 946 of the Civil Code apply to the articles enumerated therein and to articles of Uhe character only, notwithstanding the following language in the section: “or of any other kind of merchandise or commodity whatsoever (whether herein enumerated or not).”</p> <p>(a) The commodity known as “junk” is not specially named in section 946 of the Civil Code, nor is it comprehended by the words “or of any other kind of merchandise or commodity whatsoever (whether herein enumerated or not).”</p> <p>3. The defendant was not exempt from the payment of the city tax or x license required of him as a junk-dealer, and his conviction in the recorder’s court was legal and demanded by the evidence; and the judge of the superior court did not err in overruling his petition for certiorari.</p>

<p>Indictment for burglary; from Bibb superior court — Judge Mathews. June 534, 1916.</p>

<p>1. The following charge was excepted to: “If you believe beyond a reasonable doubt in this case that on the date alleged, S. B. Walker, this prosecutor, did deliver to this defendant, Webster Grier, a check signed by Mr. S. B. Walker and made payable to Webster Grier, the defendant, for the purpose of going to the Sparta Savings Bank, in Sparta, Ga., and collecting from that bank the amount of the face of that check, $15, for the purpose of using that money in going to Mr. Chamlee as set forth in this accusation, and paying there a certain mortgage held • by Mr. Chamlee against Webster Grier, the defendant, and having Mr. Chamlee, the owner and holder of that mortgage, to transfer the mortgage to the prosecutor in this ease, Mr. S. B. Walker, and that Webster Grier did accept this check and collected this amount of $15 on this check from Sparta Savings Bank, and did not appropriate it to the payment of this mortgage, as I before explained to you, but instead did wrongfully and fraudulently appropriate the same to his own use and benefit, without the consent of the prosecutor in this case, you would find him guilty.” Under the facts of the ease this charge was not erroneous for any of the reasons assigned.</p> <p>2. Where, under section 192 of the Penal Code, it is sought to charge a violation of a trust, in that the accused failed to apply the property to the use or benefit of the person delivering it, it is not necessary that the indictment should allege the ownership of the property. Norfleet v. State, 9 Ga. App. 853 (72 S. E. 447). It follows that in such a case, where the allegations of the indictment are sustained by the proof, it is not necessary that the ownership of the property should be established by the evidence. Moreover, in this case a fair inference from the evidence shows that the property entrusted to the defendant was owned by the prosecutor, the person who delivered it to the defendant.</p> <p>3. The verdict was authorized by the evidence.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 17, 1916.</p>

<p>1. It was not error to refuse to allow the defendant to prove by the prosecutor, whom he was charged with having shot, and who had testified to his recognition of the defendant as the person who did the shooting (which took place at night), that a person whom he could not recognize, but who was not the defendant, shot him on another occasion, “very much under the same circumstances, near the same locality, in the same town.” Such testimony was not admissible for the purpose of discrediting the prosecutor’s testimony as to his recognition of the defendant, by showing his inability to recognize another person.</p> <p>2. It was not error to allow a witness for the State to testify as to his having seen, on the night of the shooting in question and at the place at which it occurred, a man who had on a coat like that of the defendant, and whom he did not know to be the defendant.</p> <p>.</p> <p>3. Newly discovered evidence, presented for the purpose of discrediting the principal witness for the State by showing that he was convicted of a crime, does not require a new trial.</p> <p>4. The charge of the court was sufficiently full as to the contentions of the accused.</p>

<p>Under the facts of this case, the charge of the court was sufficiently full, in the absence of a timely written request for further and more particular instructions.</p>

<p>Indictment for larceny; from Washington superior court — Judge Kent. June 13, 1916.</p>

<p>Indictment for murder — conviction of voluntary manslaughter; from Coffee superior court — Judge Summerall. February 9, 1916.</p>

<p>A municipal ordinance which prohibits the keeping of whisky, within the limits of the municipality, “for the purpose of offering the same for sale,” is valid. Such an ordinance is not covered by the State prohibition law which makes it a misdemeanor to keep whisky for sale or to offer it for sale. 1</p>

<p>Indictment for larceny; from Wayne superior court — Judge Ilighsmith. June 17, 1916.</p>

<p>Indictment for murder — conviction of manslaughter. Sumter superior court — Judge Littlejohn. July 31, 1916.</p>

<p>Indictment for forgery; from Bibb superior court — Judge Mathews. August 1, 1916.</p>

<p>Accusation of misdemeanor; from city court of Savannah— Judge Rourke presiding. May 13, 1916.</p>

<p>Accusation of misdemeanor; from city court of Savannah.— Judge Rourke. May 13, 1916.</p>

<p>Indictment for assault with, intent to murder — conviction of shooting at another; from Glynn superior court — Judge High-smith. July 16, 1916.</p>

<p>Broyi.es, J. 1. The filing of a bond conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence upon him in the case, or the filing of a proper affidavit in forma pauperis, in lieu, of such a bond, is a condition precedent to obtaining a writ of certiorari in a case where one seeks to review the judgment of a municipal police court. Acts, 1902, p. 105, Park’s Code, § 5191 (a); Acts of 1909, p. 148, Park’s Ann. Code, § 5192; Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817); Johns v. Tifton, 122 Ga. 734 ( 50 S. E. 941); Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142); McDonald v. Ludowici, 3 Ga. App. 654 (60 S. E. 337); Simon v. Savannah, 4 Ga. App. 171 (60 S. E. 1036); Poulos v. Atlanta, 4 Ga. App. 567 (61 S. E. 1128); Scott v. Camilla, 7 Ga. App. 689 (67 S. E. 846); Moon v. Jefferson, 10 Ga. App. 572 (73 S. E. 854); Dixon v. Waynesboro, 10 Ga. App. 801 (74 S. E. 302); Kendricks v. Millen, 16 Ga. App. 273 (85 S. E. 264); Roberts v. Colquitt, 17 Ga. App. 557 (87 S. E. 816); Toliver v. Wrightsville, 17 Ga. App. 345 (86 S. E. 823); Flynn v. East Point, ante, 729 (90 S. E. 372).</p> <p>;a) It logically follows that before the movant can have his petition sanctioned, he must affirmatively show to the court that he has filed either the pauper’s affidavit or a bond conditioned as stated above; and this is not affirmatively shown by merely alleging in the petition that he has filed a bond such as the law requires, or by using words to that effect. Such an allegation is a mere conclusion of law (Toliver v. Wrightsville, supra), and may be, and, as a matter of general knowledge, often is, an erroneous conclusion. The best way to show that a proper bond has been given is to attach to the petition a certified copy of the bond, with a certificate of approval by the proper officer, and allege affirmatively that the bond was given and approved as required by law. However, where this is not done, the petition must set forth all the essential substantive facts which are -necessary to enable the judge of the superior court to intelligently decide whether or not the bond given is really such a bond as is demanded by the statute. In other words, where no certified copy of the bond is attached to the petition, the bond must, in substance at least, be set forth in the petition. It would be manifestly against the spirit of the statute to require the judge of the superior court to accept, as an affirmative showing that the proper bond has been given, the mere statement in the petition to that effect, which, as already stated, is not an allegation of fact, but a mere conclusion of the petitioner. Any other ruling would in many cases entirely defeat the clearly expressed intent of the lawmakers, by allowing a defendant to obtain the writ of certiorari, when in fact he has not complied with one of the essential prerequisites for obtaining it, to wit, the giving of such a bond as the statute requires. In some instances justice might be delayed or entirely defeated by the convicted person thus wrongfully obtaining sanction of the certiorari upon the giving of a fatally defective bond, the sanction carrying with it a supersedeas of all the proceedings in the ease and the release of the defendant from custody.</p> <p>2. In this case no copy of the bond is set forth in the petition or attached thereto as an exhibit; nor does the petition allege that the bond given was conditioned for the personal appearance of the accused to abide the final order, judgment, or sentence upon him in the case, but merely recites that the accused “duly filed with the clerk of said police court a bond approved by said clerk, payable to said municipality, as provided by law in such cases of certiorari, and' said bond was duly aceepted by said clerk of said police court, the same being in an amount and with security acceptable to and approved by the said clerk.” It is, therefore, not shown that this condition precedent to obtaining a writ of certiorari from the judgment of a municipal court was complied with; and, accordingly, the judge of the superior court did not err in refusing to sanction the writ. Any holding in Cannon v. Americus, 11 Ga. App. 95 (74 S. E. 701), which may he contrary to this ruling, is, on review, hereby expressly overruled. Judgment affirmed.</p>

<p>Indictment for murder — conviction of manslaughter; from Mitchell superior court — Judge Cox. April 19, 1916.</p>

<p>1. There was no error in the admission of the evidence set forth in the first ground of the amendment to the motion for a new trial.</p> <p>2. There is no merit in the second and third grounds of the amendment to the motion for a new trial, which complain of the rejection of certain evidence offered- by the' defendant. -</p> <p>3. The court did not err in refusing to give the requested instruction set forth in the fourth ground of the amendment to the motion for a new trial, as this request was sufficiently covered by instructions given.</p> <p>4. The charge upon the law of justifiable homicide was sufficiently full, in the absence of a timely written request for further and more particular instructions upon that subject.</p> <p>5. In view of the counter-showing made by the State, there is no merit in the ground of the motion for a new trial which complains that one of the jurors who passed upon the case was disqualified from so doing.</p> <p>6. There is no merit in the ground of the motion for a new trial in which it is -alleged that the presiding judge was disqualified; for it appears from the counter-showing by the State that the defendant’s counsel knew of this alleged disqualification during the trial, and not only made no motion for a mistrial, but, on the contrary, expressly waived such disqualification.</p> <p>7. Under the particular facts of the case, the court did not err in instructing the jury upon the law of voluntary manslaughter. There was some evidence which authorized a finding that the crime committed was voluntary manslaughter.</p> <p>8. The other instructions complained of contain no material error, when the entire charge is considered.</p>

<p>Action for damages; from municipal court of Atlanta. December 21, 1914.</p> <p>Lynch sued the Southern Express Company for damage to a motorcycle shipped from Atlanta, Georgia, to Middleton, Ohio. The defendant denied the allegations as to damage, and pleaded that the action was barred by the terms of the contract of shipment, the suit not having been filed in the time stipulated in the contract. The express company received the motorcycle on October 10, 1912, and issued to the plaintiff a receipt for it, containing a stipulation that the company should not “be liable in any .suit to recover for the loss, damage, or detention of this shipment unless the same be commenced within one year thereafter.” In February, 1913, the defendant’s agent at Atlanta received the plaintiff’s claim for damages, and replied, saying the matter “shall have immediate attention, and you will be advised at an early date;” and on July 18, 1913, the defendant’s agent wrote to the plaintiff that it had been established that the damage to the machine “'was not done by rough handling, but was done while the machine was in motion,” and that when forwarded it was in a damaged condition, and said: “Under the circumstances we do not feel that we owe you any part of the amount claimed, and respectfully decline to entertain same further.” On June 30, 1914, the plaintiff filed a suit against the express company, which was dismissed for want of prosecution, and of which the present suit is a renewal. On the trial of the case, in the Eulton county section of the • municipal court of Atlanta, the judge directed a verdict for the ■defendant; an oral motion for a new trial was overruled, and on appeal the appellate division of the municipal court affirmed the judgment. The case came to the Court of Appeals, and questions as to the, power of the judge of the municipal court to direct a verdict were certified by- the Court of Appeals to the Supreme Court, which thereupon ruled that in proper eases in the Fulton county section of the municipal court, a judge may direct a verdict.</p>

<p>Taxation of costs; from city court of Eastman — Judge Neese. July 7, 1915.</p>

<p>Accusation of pointing pistol; from city court of Eastman— Judge Eeese. . June 14, 1915.</p>

<p>Complaint; from municipal court of Atlanta. November 2,1916.</p>

<p>Complaint; from municipal court of Atlanta. November 28, 1915.</p>

<p>Action for money liad and received; from municipal court of Atlanta. November 30, 1915.</p>

<p>Action for damages; from city court of Camilla — Judge Bush. March 4, 1916.</p>

<p>Action for damages; from municipal court of Macon — Judge Chambers. March 11, 1916.</p>

<p>Complaint; from municipal court of Atlanta. April 7, 1916.</p>

<p>Action for damages; from Jasper superior court — Judge-Park. February 25, 1916.</p>

<p>The grant of a first new trial where the judge has directed a verdict is within the rule that the first grant of a new trial will not he disturbed by this court unless the judge abused his discretion in granting it and the law and facts demanded the verdict.</p>

<p>Trover; from Jasper superior court — Judge Park. May 26, 1916.</p>

<p>Action on insurance policy; from municipal court of Atlanta. May 20, 1916.</p>

<p>The trial judge did not err in dismissing the motion for a new trial, on account of failure to prosecute the motion.</p>

<p>Certiorari; from Tannin superior court — Judge Patterson. May 26, 1916.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. April 3, 1916.</p>

<p>Action for breach, of warranty; from city court of Albany— Judge Clayton Jones. May 24, 1916.</p>

<p>Action for damages; from city court of Elberton — Judge Grogan. June 24, 1916.</p>

<p>Complaint; from city court of Houston county — Judge Greer presiding. May 29, 1916.</p>

<p>1. A traverse to an officer’s return of service must be filed at the first term after notice of the return, and before pleading to the merits. Where the return of service is made by a deputy sheriff, the sheriff also must be made a party to the traverse.</p> <p>2. A defendant who has been served with process will not be permitted to go behind the judgment by affidavit of illegality on the ground that he has not had his “day in court.”</p> <p>3. The court did not err in refusing to allow the amendment by which it was attempted to make the sheriff a party to the original traverse, the amendment being offered after the first term after-notice, and after pleading to the merits; and no error was committed in dismissing the affidavit of illegality.</p> <p>4. The allegation in the affidavit of illegality, setting forth that deponent “is advised and believes” that the debt upon which the judgment was rendered has been settled in full by his principal, is insufficient. Allegations of payment and settlement should state the facts with particularity.</p>

<p>Certiorari; from Thomas superior court — Judge Thomas. June 12, 1916.</p>

<p>. Conviction of manslaughter; from Mitchell superior court— Judge Thomas. March 11, 1916.</p>

<p>Certiorari; from Jenkins superior court — Judge Henry C. Hammond. July 5, 1916.</p>

<p>Certiorari; from Pulton superior court — Judge Pendleton. July 1, 1916.</p>

<p>1. Where the record conflicts with the bill of exceptions, the record controls.</p> <p>2. Withdrawal of the plea of guilty could not, as a matter of right, be made after the court had orally pronounced sentence on the accused.</p>

<p>Complaint; from city court of Nashville — Judge Christian. .March 13, 1916.</p>