Volume 19 — Georgia Appellate Reports

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

<p>1. The law as to the presumption of innocence was given in charge to the jury; and the court did not err in not giving an instruction, not requested, that no presumption against the accused arises from an accusation or indictment.</p> <p>2. Where the defendant’s counsel, in argument to the jury, stated that in the event of the defendant’s conviction he would be fined and the solicitor-general would receive the money, an instruction by the court, that it was “no concern of the jury who would receive the money in the event the defendant should be convicted,” was not subject to exception on the ground that it impressed upon the jury that he should be convicted.</p> <p>3. The instructions as to the weight to be given to direct and circumstantial evidence were not subject to the exceptions taken.</p> <p>4-6. The instructions as to what constitutes a “place of business” within the meaning of the prohibition law, and as to keeping on hand “liquor” at a place of business, were correct and contained no expression or intimation of opinion that the a'ccused kept on hand at his place of business, or sold, intoxicating liquor.</p> <p>7. The instructions to the jury as to the sale of liquor were not unauthorized by evidence.</p> <p>8. It was proper to admit in evidence the contracts for a telephone in the place alleged to be the place of business of the accused, one signed by him, and the other signed in his name by another person and being a continuance of the former contract.</p> <p>9. The court did not err in allowing a witness to testify that he bought at the defendant’s place “something that looked like whisky.”</p> <p>10. Testimony that the witness thought that the place .of business in question was owned by a named person, not the accused,—that he “so understood it,”—was properly excluded as merely an opinion or conclusion of the witness.</p> <p>11. The admission of testimony as to telephone calls for the accused, received on the telephone at the place of business in question, was not ground for a new trial.</p> <p>12. The court did not err in admitting in evidence whisky bottles and their contents, over the objection that they were obtained by illegal search and seizure, nor on the ground that they were not properly identified.</p> <p>13. The evidence authorized the verdict of guilty.</p>

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

<p>'“The plaintiff may dismiss his case at any time before the verdict is published, if unknown to him.” Peeples v. Root, 48 Ga. 592. “The plaintiff’s right to dismiss can not be exercised after the verdict, or a finding by the judge which is equivalent thereto, has been reached, if he has acquired actual knowledge of the verdict or finding, whether the same has been published or not. Merchants Bank v. Ratals, 7 Ga. 191 [50 Am. D. 394]; Peeples v. Root, 48 Ga. 592; Cherry v. Building and Loan Association, 55 Ga. 19; Meador v. Bank, 56 Ga. 605 (4) ; Brunswick Grocery Co. v. Railroad Co., 106 Ga. 272 [32 S. E. 92, 71 Am. St. R. 249].” Peoples Bank v. Exchange Bank, 119 Ga. 366, 368 (46 S. E. 416). '</p>

<p>Trover; from municipal court of Macon—Judge Chambers. February 16, 1916.</p>

<p>Conviction of manslaughter; from Bibb superior court—Judge Mathews. February 9, 1916.</p>

<p>Action for damages; from city court of Macon—Judge Hodges. April 6, 1916.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. April 17, 1916.</p> <p>The action was on promissory notes of the defendant to the plaintiff for sums amounting to $1,160, principal. The defendant answered, admitting the execution of the notes, but denying liability, and in her plea made the following averments: In April, 1915, prior to the date of the notes sued on (April 38, 1915), A. L. Crim, agent for the plaintiff, approached the defendant and offered to trade to her certain vacant lots in the town of Oakhurst, DeKalb county, Ga., representing to her that the .lots were worth .$3,000, and that he had sold other lots adjoining this property for $700 and $800 per lot, and offering to take in part payment a certain house and lot on Grant street in the city of Atlanta at a cash valuation of $3,000, in which valuation a loan of $1,200 against the Grant street property was assumed by the plaintiff. The defendant relied implicitly on the representations of the plaintiff’s agent, A. L. Crim, as to the value of the property he had sold adjoining the property he offered to sell to her as hereinbefore set forth, at which prices he said he had sold lots adjoining the property offered her, and that the property offered her was of the value of $3,000. There was no way by which'she could ascertain the truth or falsity of the said statements as regards the amount at which the said A. L. Crim said he had sold lots adjoining the property offered her. There was nothing on record that showed that the valuation placed on said lots by him, which brought about the closing of said trade, was not true. The defendant was not conversant with the values of real estate in the town of Oakhurst, and therefore was obliged to rely on the statements of the said Crim as to property valuations in that town. Eelying on his statements as hereinbefore set forth, she traded with him for four vacant lots in the town of Oakhurst, hereinbefore mentioned, upon the following terms: She was to pay for the said property $3,000, the said house and lot on Grant street to be received in part payment of the $3,000, and her notes for $1,200, including the notes sued on, being given to the plaintiff. “Defendant says that since she traded for said vacant lots in DeKalb county that the statements that A. L. Crim made as to value of lots as aforementioned were absolutely untrue, and were made for the purpose of inducing this defendant to trade the property and upon the terms aforementioned.” The house and lot on Grant street and the money already paid the plaintiff by the defendant are the full value of the property purchased by her from the plaintiff; and the defendant says that, the notes sued on having been obtained from her by fraudulent representations of the plaintiff and the agent of the plaintiff as to the market value of said vacant property as aforesaid, the plaintiff should not recover judgment on said notes.</p> <p>The plaintiff demurred and moved to .strike the defendant’s answer, on the following grounds: (1) The facts set forth do not constitute a valid defense. (2) The allegations of fact do not constitute a plea of either total or partial failure of consideration. (3) It does not appear that the sayings of A. L. Grim are binding upon the plaintiff. (4) It does not appear that the defendant was legally justified on acting on the representations of A. L. Crim. (5) The allegations that the notes were obtained by fraudulent representations are demurred to because these allegations state conclusions without giving any facts on which the conclusions are based, and because there are no sufficient allegations showing fraud on the part of the plaintiff or of any one authorized in behalf of the plaintiff. The court sustained the demurrer and struck the plea, and directed a verdict against the defendant for the amount sued for.</p>

<p>Complaint; from municipal court of Atlanta. April 21, 1916.</p>

<p>Blea in abatement and a traverse, with both the sheriff and the deputy sheriff as parties, were necessary, to raise an issue as to the truth of thé deputy sheriff’s return of service; and, the sheriff not being made a party, the traverse was a nullity. Failure to make this objection to the traverse did not cure this defect.</p>

<p>Complaint; from municipal court of Atlanta. April 18, 1916.</p>

<p>Action for damages; from city court of Macon—Judge Hodges. May 5, 1916.</p>

<p>Certiorari; from Fulton superior c'ourt—Judge Bell. March 18, 1916. .</p>

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

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

<p>Whether the minds of the vendor and the vendee met as to the purchase-price of the article sold was purely a question of fact; and,- since there was positive and unequivocal testimony that the. amount sued for was the price agreed upon by the parties at the time of the sale, the finding to that effect by the judge of the municipal court, sitting without the intervention of a jury, can.not be set_ aside by this court.</p>

<p>The court did not err in directing that the fund raised by the garnishee from the sale made under the agreement between himself and the plaintiff in the garnishment be paid to the clerk of the court, to be applied to the plaintiff’s judgment. The court had jurisdiction to direct this disposition of the fund although the garnishee was a receiver appointed by the Federal court and'the property sold came into his hands as such.</p>

<p>Action for damages; from municipal court of Atlanta. June 33, 1916.</p>

<p>Indictment for larceny after trust; from Fulton superior court— Judge B. H. Hill. July 8, 1916.</p>

<p>Indictment for fraudulent insolvency of bank;.from Grady superior court—Judge Cox. August 1916.</p>

<p>Indictment for misdemeanor; from Wilcox superior court-judge George. August 19, 1916.</p> <p>Tbe indictment charged that J. D. McDuffie, having given to Benton Martin Mule Company a paper retaining title to a described mule, to secure a debt of $100, the purchase-price of the mule, did, without the consent of the said company and with intent to defraud them, “sell and dispose of” the mule without payment of the debt and to the loss and damage of the said company in the sum of $100.</p>

<p>Conviction of misdeamonor; from Bartow superior court—Judge Fite. August 12, 1916.</p>

<p>Complaint; from city court of Dawson—Judge Edwards. May 31, 1916.</p>

<p>Accusation of misdemeanor; from city court of Macon—Judge Guerry. June 30, 1916.</p>

<p>Petition for certiorari; from Fulton superior court—Judge Pendleton. November 304 1914.</p>

<p>Writ of error; from municipal court of Macon.</p>

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

<p>Complaint; from city court of Waynesboro—Judge H. C. Hammond presiding. November 30, 1915.</p> <p>The Citizens Bank of Waynesboro sued Gray Quinney on three notes payable to it, as follows: one for $324, dated February 20, 1905, and due February 20, 1906; one for $100, dated February 20, 1905, and due one day after date, and one for $181.87, dated March 10, 1909, and due May 10, 1909. The defendant filed an answer in which he denied indebtedness and further pleaded as follows: (5) The defendant and W. C. Gresham, John F. Humphrey, and B. N., Berrien Jr. were engaged under the corporate name of Disko Company, in running a soda-fountain and cigar business in Waynesboro, Georgia. At the time the said notes for $324 and $100 were taken, February 20, 1905, the said E. N. Berrien Jr., who was cashier of the plaintiff bank and representing it and also managing the money affairs of the said Disko Company, told the defendant and said Humphrey and Gresham that the business owed the bank $424 for overdrafts, and asked that notes therefor be given the same, the arrangement being that when the defend•ant signed the notes a joint note should be given, signed by all, including Berrien, before the notes were to be delivered to the bank, and the defendant signed on that condition only, but the said Berrien did not have the others to sign the said note and did not sign himself; which constituted a fraud on the defendant and rendered the said note void in the hands of the bank, whose cashier, acting for it, took the note on the said condition which' he failed to carry out. At the time the notes sued on were signed, the Disko Company had been dissolved and had ceased doing business. (6) The said two notes dated February 20, 1905, were afterwards, at a date not remembered by defendant, renewed and a note given in their stead and given as a settlement of the notes sued on, and the said renewal note has never been surrendered to defendant and the others. The said note also was to be signed by all four of the parties interested in the said Disko business. Defendant, having confidence in said Berrien, cashier of said bank, and not knowing but that the notes had been destroyed or given to one of his intended comakers, did not inquire further about the surrender of said notes which were thus satisfied by this renewal. (7) As to the note “dated March 10, 1909,” defendant says: The said cashier of said bank, E. N. Berrien Jr., said it would be well for each of the parties to give separate notes for their several proportionate shares of the indebtedness to said bank, which said cashier then said was something over $700, and in pursuance of this plan the defendant gave “the note of February, 1909, for $187.81..” Afterwards the defendant, in company with W. C. Gresham, went to said Berrien and proposed (or Gresham did) that his indebtedness be taken up, but said Berrien said that they need not pay the notes, that he was in possession of the said Disko Company, consisting of an engine, soda-fount, showcase, chairs, and tables, which would be ample to pay to the bank, and he then and there, for the said bank, engaged to convert said property into money and satisfy said note given by defendant. Afterwards said property was so sold by the cashier of said bank, and defendant never heard of said notes and “supposed, as he had a right to do that, it had not been paid.” (8) Defendant further pleads, that the said R. N. Berrien Jr., cashier of the said bank, having said notes in his hands, engaged with the defendant that he would use the property of Disko Company (said company being then out -of business and its property stored and in charge of said Berrien as cashier of said bank for the purpose of selling the same and paying said Disko indebtedness) to pay the indebtedness to said bank; that said property was ample for said purpose; that the soda-fount was a costly one and in good order, worth at least $1,000; that the gasoline engine was worth $150, the showcase not less than $30, and the chairs and tables $15; that the bank, through its cashier, who was acting for it in said sale, received the money therefor, and it was in law bound to apply said money as he had agreed as cashier to do, upon said indebtedness, and that the same had been fully paid; which said payment defendant pleads in satisfaction of said note sued on.</p> <p>When the case came up for trial the plaintiff’s counsel made a motion to strike paragraphs 5, 6, 7, and 8 of the defendant’s answer, because: (1) Taken together they do not constitute a legal defense. (2) The said defense sets up transactions between-the defendant and W. O. Gresham, J. 3?. Humphrey, and R. N. Berrien, doing business as the Disko Company, and the acts complained of were those of R. N. Berrien as a member of the Disko Company and not as cashier of plaintiff’s bank: (3) The plea of renewal is insufficient in law, as there is no allegation that the renewal note was ever paid, or that it was ,ever accepted by plaintiff. (4) The plea of payment is insufficient in that there is no allegation that the said bank ever received the proceeds of the sale of the assets, or that there were not other outstanding claims which took the money arising from the sale thereof. The court sustained the motion to strike, and then directed a verdict for the plaintiff.</p> <p>Brinson <& Hatcher, B. V. Heath, for plaintiff in error, cited: As to cashier’s authority, and ratification: Mott v. Semmes, 24 Ga. 555; Dolvin v. American Harrow Co., 125 Ga. 706; Atlanta Buggy Co. V. Hess Spring Co., 124 Ga. 342-3; Singleton v. Banlc, 113 Ga. 528; Merchants Banlc v. Bawls, 7 Ga. 197; Wood Hydraulic Hose Mining Co. v. King, 45 Ga. 42. As to failure to get tbe additional signatures before delivery: Hansford v. Freeman, 99 Ga 376; Moore v. Farmers Mutual Insurance Association, 107 Ga. 199; Heitmann v. Commercial Bank, 6 Ga. App. 584; Hartman Stock Farm v. Henley, 8 Ga. App. 255. As to novation: Gresham v. Morrow, 40 Ga. 487; Tucker v. Ball, 68 Ga. 814.</p>

<p>Complaint; from city court of Thomasville—Judge W. H. Hammond. December 1, 1915.</p>

<p>The option contract on which this suit was based failed to identify the property which was the subject-matter of the contract; and the court did not err in dismissing the action on demurrer.</p>

<p>Action on contract; from city court of Atlanta—Judge Eeid. February 14, 1916.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 28, 1916.</p>

<p>Action for damages; from the city court of Macon—Judge Hodges. April 8,1916.</p> <p>This action was for damages on account of incorrect measurement, laying off, and marking of land of the plaintiff at a street corner by the city engineer. From the petition it appeared that the plaintiff sold the land before the suit was brought.</p>

<p>Certiorari; from Franklin superior court—Judge Worley. March 28, 1916.</p>

<p>Where the promissory note of a merchant was sent through a bank for collection, and he wrote to the original payee, enclosing a new note for the amount due and requesting the payee to “help him along and let him keep going,” and to send him a check in time to pay the first note, and a check was accordingly sent to him with the statement that it was sent to “take care” of that note, and he deposited the check in bank to his credit, the amount so received constituted a trust fund or special bailment for the purpose specified; and the deposit was not subject to garnishment by other creditors, it not being disputed that the sum standing to the depositor’s credit in the bank was money arising from the deposit of the check.</p>

<p>Complaint; from city court of Yaldosta—Judge Cranford. April 14, 1916.</p>

<p>Action for damages; from municipal court of Macon—Judge Chambers. June 17, 1916.</p>

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

<p>Accusation of misdemeanor; from city court of Floyd county— Judge Eeece. September 14, 1915.</p>

<p>Accusation of sale of liquor; from city court of Sylvania—Judge T. J. Evans. October 1, 1915.</p>

<p>Indictment for burglary; from Floyd superior court—Judge . Wright. February 16, 1916.</p>

<p>Complaintfrom city court of Amerieus—Judge Harper. April 17, 1916.</p>

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

<p>Complaint; from city court of Ilazlehurst—Judge Grant. April 17, 1916.</p>

<p>Appeal; from Chatham superior court—Judge Charlton. April 20, 1916.</p>

<p>Complaint; from city court of Dublin—Judge Hicks. April 10, 1916.</p>

<p>Motion to stay execution; from city court of Statesboro—Judge T. L. Hill presiding. April 12, 1916.</p>

<p>Complaint; from city court of Beidsville—Judge Collins. September 25, 1916.</p>

<p>Where an administrator of an estate deposits funds of the estate in a bank of good standing which subsequently fails, and the funds are thereby lost, he is prima facie liable for tlio same, unless the funds were deposited in the name of the administrator of the particular estate to which the funds belonged; as “John Jones, administrator on the estate of John Doe, deceased,” or words of similar import. Where the fund is deposited in the name of “John Jones, administrator,” the administrator is prima facie individually liable for the loss of the money; and a petition by the heirs at law of the estate, setting up such facts, where the administrator is sued for a recovery of the money lost, is not subject to general demurrer.</p>

<p>Action on insurance policy; irom city court of Savannah-Judge Davis Freeman. March 30, 1916.</p>

<p>Complaint; from city court of Jefferson—Judge Mahaffey. April 3, 1916.</p>

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

<p>The motion for a new-trial was based on the general grounds only, and since there was testimony to support the verdict, this court will not interfere with it.</p>

<p>Indictment for bastardy; from Grady superior court—Judge Cox. July 3, 1916.</p>

<p>An indictment charging a violation of section 18 of the act of 1911 (Acts of 1911, p. 144; Park’s Penal Code, § 594 (h)), in that in a certain county the accused unlawfully hunted without a license, on lands not his own, outside of a specified militia district therein, in which he resided, but which failed to allege in what militia district he hunted, is fatally defective.</p>

<p>1. All the terms of the agreement between the parties appeal", by the terms ' of the written contract, to have been integrated therein; and since by its express terms it warranted nothing "except the title to the property sold, parol contemporaneous representations at variance therewith could not be set up by way of defense.</p> <p>2. A note payable generally “after date,” and not otherwise expressing any time for payment, is payable on demand, and therefore due immediately, and bears interest from date.</p> <p>3. Ordinarily, there can not he a recovery on a promissory note in which a blank for the amount is left in the body of the instrument, though an amount appears in figures in the margin of the paper.</p> <p>(a) However, where a note of this kind which is otherwise an unconditional promise to pay is made the basis of a suit for a specified amount, and the defendant by his plea under oath admits the execution of the instrument, and that the obligation thereof was to pay the exact sum sued for, a judge of the superior court, in the absence of an issuable defense under oath, would be authorized to render judgment as upon an • unconditional contract in writing.</p>

<p>1. There being no evidence that would authorize the jury to find that the cottonseed alleged to have been damaged by reason of failure of the defendant railway company to transport and deliver it'in a reasonable time was damaged to any extent in course of transportation on the defendant’s line, though it was admitted that there was unreasonable delay in transportation thereon, the court did not err in not giving to the jury an instruction (not requested) to the effect that if they determined that the cottonseed became damaged to some extent in the movement of the car on the defendant’s line, the plaintiff should recover the amount of the damage, regardless of whether the plaintiff or. the defendant was negligent in the delay which followed at the point of destination.</p> <p>2. It appearing from the initial carrier’s bill of lading, introduced by the plaintiff, that there were demurrage charges on the shipment when received by the defendant railway company, the court did not err in charging the jury that the defendant had the right to hold the freight for such charges, and not deliver it until payment of the charges or an agreement by the consignee to assume them.</p> <p>3-4. The evidence' authorized the verdict.</p>

<p>Action for damages; from city court of Reidsville—J. Y. Kelley, judge pro hac vice. June 7, 1916.</p>

<p>in attorney holding a client’s claim for collection can not, without special authority from his client, bind the client by an agreement to credit on the claim an amount due by the attorney, or to assume and credit thereon the debt of another to the client’s debtor.</p>

<p>Accusation of larceny; from city court of Carrollton—Judge Beall. May 30, 1916.</p>

<p>Accusation of larceny; from city court of Macon—Judge Mathews presiding. June 12, 1916.</p>

<p>Indictment for perjury; from Worth superior court—Judge Cox. June 3, 1916.</p>

Certiorari; from Irwin superior court—Judge George. May 17, 1916. In November, 1909, J. C. Luke bought a carload of automobiles from the Beo Motor-Car Company, at Lansing, Michigan. When the car was shipped the automobile company obtained from the Lake Shore Bailroad Company, the initial carrier, a bill of lading of the order-notify” type.

<p>Indictment for seduction; from Laurens superior court—Judge Larsen. November 3, 1915.</p>

<p>Complaint; from city court of Americus—Judge Harper. November 30, 1915. ,</p>

<p>Complaint; -from city court of Carrollton—Judge Beall. December 14, 1915.</p>

<p>1. A promissory note payable to the order of the maker and properly indorsed by him is a negotiable instrument.</p> <p>2. Where one signs as maker a note payable to himself, and another signs it as surety only, the maker’s indorsement converts it into a negotiable instrument, and his transfer of the note binds the surety, notwithstanding the absence of an indorsement by the surety.</p> <p>(a) The benefit given to or obtained by the maker or principal on his transfer of the note with his indorsement supplies a consideration sufficient to bind the surety.</p> <p>3. The default judgment rendered in this ease should have been against one of the signers of the note as principal, and against the other as surety; and the judgment of the trial court is therefore affirmed with direction that the judgment be reformed accordingly.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. Feb-, ruary 4,1916.</p>

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

<p>Complaint; from city court of Hazlehurst—Judge Grant. April 18, 1916.</p>

<p>Action for damages; from city court of Polk • county—Judge John K. Davis. April 8, 1916.</p>

<p>Garnishment; from city court of Nashville—Judge Lankford presiding. September 9, 1914.</p>

<p>Complaint; from city court of Yaldosta—Judge Cranford. April 21, 1916.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. May 16, 1916.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. ■ March 25, 1916. '</p> <p>A suit on account, in the municipal court of Atlanta, resulted in a judgment for the defendant. The plaintiff’s oral motion for a new trial was overruled, and, on certiorari, the superior court granted him a new trial. His petition for certiorari contained the usual general grounds and the ground that the evidence demanded a judgment in his favor for the full amount sued for. In his bill of exceptions it is contended that a final judgment in the case should have been rendered in his favor by the judge of the superior court in sustaining the certiorari. The evidence was conflicting as to the liability of the defendant and the correctness of the account.</p>

<p>The evidence is sufficient to support the finding of the presiding judge, who by consent tried the ease without a jury, and no error of law appears.</p>

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

<p>Complaint—appeal; from Baldwin superior court—Judge Park. April 14, 1916.</p> <p>Suit was brought in a justice’s court on a promissory note of the defendant to the plaintiff for $50 principal and for interest and attorney’s fees; and by appeal the case was taken to the superior court, where the trial resulted in a verdict for the defendant. The bill of exceptions complains of the overruling of a demurrer to the defendant’s plea, and of the refusal to grant a new trial. In the plea it was averred, that the note sued on was given, with other notes of the defendant, in payment of the purchase-price of three diamond rings sold to the defendant, one for $126, one for $125, and one for $162; that a part of the consideration of the purchase was a guarantee by the seller that the rings should weigh as follows: two to weigh 3-4 of a karat each, and one to weigh 7-8 of a karat, less 1-16, less 1-32; that these weights were warranted by the plaintiff, and on the faith of this warranty the defendant bought the rings, and, after several payments were made on the account, the remainder of the account was closed by notes, one of which was the note sued on; that the defendant paid on “the said account of said notes” the sum of $281.17; that after the notes were given the stones were weighed, and the two small stones weighed only a half karat each, and the larger stone weighed only three fourths of a karat; that the small stones were actually worth $75 each, and the larger stone was actually worth $104; that if the stones had weighed as much as warranted by the seller, they would have been worth the purchase-price charged, while the difference in weight made a difference of $254 in value; and by reason of said failure and breach of warranty the defendant was damaged more than $150. There was a prayer for recoupment in the sum of $100. The verdict was merely a general verdict for the defendant.</p> <p>The grounds of the demurrer were: (1) The plea does not allege when the purchase was made, or when the notes were given, or when the guaranty was made; it is insufficient without an allegation that the guaranty was made at the time the contract sued on was made. It does not allege that the defendant did not have ail opportunity to inspect the articles purchased, or was prevented from so doing, and it does not allege that there was an offer to rescind, or any complaint or tender back of the articles purchased. (2) The plea shows that there was a complete accord and satisfaction between the parties, and that the notes were given in full settlement of the account, and the defendant is estopped from setting up any defense that he might have had prior to the settlement and' the giving of the notes, and from denying that the amount due at the time of the execution of the notes was equal to the amount of the notes. (3) The plea of recoupment is demurred to because the claim of damage does not arise out of the_ note sued on, but arises out of a separate and distinct contract.</p>

<p>1. The court did not err in excluding testimony as to sayings of the plaintiff’s husband regarding the probable cause of his pains or illness, these sayings not being within the exception to the hearsay rule as declared by the Civil Code (1910), § 5766. They were not a part of the occurrence to which they related, but rather a narrative concerning something that had taken place in the past.</p> <p>2. Where an accident policy insured against “the effects of bodily injuries sustained directly, solely, and exclusively through accidental means,” resulting in the death of the insured, it was necessary, in an action thereon, to show that in the act which preceded the injury alleged to have caused his death something unforeseen, unexpected, or unusual occurred.</p> <p>3. While, in such case, the allegation that the insured met his death “solely and exclusively through' accidental means, to wit, by the accidental straining' of his physical body through the exertion of pulling and pushing a boat from dry land into water, from the result of which straining a blood vessel in the stomach became ruptured and death ensued,” may be sustained by proof of circumstances, as well as by direct evidence, the proved facts in this case, considered in connection with the defensive facts developed upon cross-examination, were not sufficient to make a jury question. Accordingly the court did not err in directing a verdict. Évcms V. Josephine Mills, 119 6a. 448 (46 S. E. 674).</p>

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

<p>1. An amendment by which the payee of promissory notes not transferred in writing was added as plaintiff, suing for the use of the original plaintiffs, was allowable in an action on the notes, brought against the maker by indorsers, who (as appeared from their notice of intent to sue, attached to and made a part of the original petition) were the holders of the notes, on which they alleged the defendant was indebted to them, although it was not alleged that they had paid off the notes,</p> <p>2. The amendment adding the payee of the notes as plaintiff, suing for the use of the original plaintiffs, did not render ineffectual the notice given by the original plaintiffs for the purpose of recovering attorney’s fees.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. May 13, 1916.</p>

<p>The judgment of-this court at the October term, 1915, in the case then pending between the parties in this matter, was a final judgment upon the controlling questions in the affidavit of illegality; and the court did not err in dismissing the affidavit of illegality on motion.</p>

<p>Certiorari; from Monroe superior court—Judge Searcy. May 6, 1916.</p>

<p>The undisputed evidence demanded a finding for the plaintiff in at least the amount recovered. The court therefore did not err in directing the verdict.</p>

<p>Complaint; from city court of Nashville—Judge Lankford. November 30, 1914.</p>

<p>Indictment for sale of liquor; from Tattnall superior, court-judge Sheppard. August 31, 1916.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. September 28, 1916.</p>

<p>Accusation, of gaming; from city court of Madison—Judge Anderson. October 23, 1916.</p>

<p>Accusation of keeping gaming-bouse; from city court of Columbus—Judge Tigner. October 7, 1916.</p>

<p>Indictment for burglary; from Fulton superior court—Judge B. IT. Hill. October 21, 1916.</p>

<p>Indictment for murder—conviction of voluntary manslaughter; from Hall superior court—Judge J. B. Jones. October 9, 1916.</p>

<p>Although the sheep alleged to have been stolen were only temporarily absent from the place from which they were missed, and the evidence against the accused was wholly circumstantial, the circumstances were sufficient to authorize the verdict of guilty.</p>

<p>Certiorari; from Greene superior court—Judge Park. November 4, 1916.</p>

<p>The evidence was sufficient to authorize the conviction of the accused of the offense of keeping on hand intoxicating liquors at his place of business.</p>

Complaint; from city court of Savannah—Judge Davis Freeman. December 10, 1915.

<p>Complaint; from city court of Atlanta—Judge Beid. December 21, 1915.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. February 22, 19Í6.</p>

<p>Complaint; from city court of Blakely-—Judge Sheffield. -February 22, 1916.</p>

<p>Motion to set aside judgment; from city court of Albany— Judge Clayton Jones. March 13, 1916.</p>

<p>1. There was ample evidence to support -the verdict.</p> <p>2. “When personal property is sold, and the seller retains the title as security for his purchase-money, and the. indebtedness matures in installments,, he may proceed to rescind the sale and to recover possession of the property as soon as any of the installments become due and re-' main unpaid.” Scott v. Glover, 7 Ga. App. 182.</p> <p>3 A vendor of personal property holding a note for the purchase-price, in which title is retained in himself, is not estopped from bringing an action of trover for the property by the fact .that he has previously sued out a purchase-money attachment.</p>

<p>1. Where, under the terms of an accident policy, a suit is brought for the entire and irrecoverable loss of the sight of an eye, it is incumbent upon the plaintiff to show that the loss is both entire and irrecoverable.</p> <p>2. Where in such a suit it is shown that the loss is entire, there is no presumption of law that such condition will remain until the contrary is proved.</p> <p>3. Under the facts in this case, the jury should have been allowed to say whether or not a prima facie case of irrecoverable injury had been made by the plaintiff.</p>

<p>Complaint; from city court of Hazlehurst—Gordon Knox, judge pro hae vice. April 17, 1916.</p>

<p>A common-law action against a connecting carrier for loss or damage to freight, where it is expressly alleged that the injury or damage complained of was caused by the negligence of the defendant carrier, is not prohibited by the terms of the act of Congress of June 29, 1906 (34 Stat. 595, c. 3591, § 7, pars. 11, 12), known as the Carmack amendment to the Hepburn act of February 4, 1887 (24 Stat. 386, c. 104, § 20).</p>

<p>Complaint; from city court of Bainbridge—Judge Spooner. April 10, 1916.</p>

<p>Where the payee of a promissory note for the purchase-price of personal property, in which title is reserved in the vendor, takes a new note, and cancels and surrenders the old note, the consideration of the new note being partly a renewal of the old note and partly the sale of additional property, and title to both the original and the additional.. property being reserved therein, these facts constitute such a novation of the first contract as will work a discharge of the original lien, as to an intervening purchaser for value of any part of the original property.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. May 23, 1916.</p> <p>The petition alleged, that when a car of the defendant’s electric-railway, on which the plaintiff was being transported in the city of Savannah, “reached the western side of the Gwinnett-street subway, it was flooded with water, so that it was impossible for the car to pass; whereupon the conductor in charge of the said ear, who personally knew petitioner, said to her, 'Mrs. Nash, you •will have to cross the railroad tracks and take the car on the other side,’ and pointed out to petitioner the place where she should cross said tracks, and the pathway she should follow;” that she then left the street-car and proceeded to-attempt to cross the tracks of the Atlantic Coast Line Eailroad Company at the Gwinnettstreet subway; that on each side of these tracks there had been a barbed-wire fence, fencing in the right of way of that company from the street, but a partial opening had been made through this fence, and through this partial opening she was instructed by the officers of the defendant to pass; that she passed in safety through the fence on the western side of these tracks, and, as she attempted to pass through the partial opening'on the eastern side of the tracks, her foot was caught in one of the loose strands of barbed wire on that side of the tracks, and it threw her to the ground and severely cut her foot and leg and caused other injuries described, by reason of which she was damaged in the sum sued for; that at the time of receiving her injuries she was acting under the express direction and orders of the defendant’s conductor, who she supposed was acting within his rights, and to obey whom was her right and duty; that she did not know of the .dangers she was to encounter, or of the defective, rough, and uneven pathway over which she was to go, or of the hazard of crossing the barbed-wire fence. The petition alleged that the plaintiff’s injuries were due entirely to fault and negligence on the part of the defendant, (1) in not furnishing to her safe and suitable access from one ear to another in completing her trip; (2) in directing her to cross the tracks of the Atlantic Coast Line Railroad Company, when the defendant knew, or in the exercise of ordinary care should have known, that the way was rough and uneven and the pathway obstructed by a barbed-wire fence; (3) in not affording to her the assistance and care due by a carrier to its passenger, to enable her to cross from one car to another, and to cross a rough, uneven, defective, and dangerous pathway in thus moving from one ear to another; and (4) in failing to afford to her the care, diligence, and protection due by a common carrier to its passengers.</p>

Complaint; from city court of Tifton—Judge Eve. June 6, 1916.

<p>Complaint; from city court of Macon—Judge Hodges. May 5, 1916.</p>

<p>Levy and claim; from city court of Sparta—Judge Moore. May 27, 1916.</p>

<p>Garnishment; from city court of Savannah—Judge Davis Freeman. May 15, 1916.</p>

<p>Affidavit of illegality; from- city court of Nashville—Judge Christian. June 5, 1916.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. May 15, 1916.</p>

<p>1. Cottonseed meal is a “commercial fertilizer” and “fertilizer material” within the meaning of the act of the General Assembly, approved August 22, 1911 (Acts 1911, pp. 172, 173; Park’s Ann. Code, §§ 1778 (a), 1778 (b), 1778 (c), 1778 (d), and 1778 (e)).</p> <p>2. The petition set forth a cause of action, and the court erred in dismissing it on general demurrer.</p>

<p>Trover; from city court of Americus—Judge Harper. June 7, 1916.</p>

<p>Action for damages; from city court of Sparta—Judge Moore. July 12, 1916.</p>

<p>Money rule; from city court of Hazlehurst—Judge Bryan. June 30, 1916.</p>

<p>Complaint; from city court of Waycross—Judge McDonald. July 3, 1916.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. July 31, 1916.</p>

<p>Action for damages; from city court of Greensboro—Judge Sibley. July 17, 1916.</p> <p>Paragraph 2 of the decision relates to the following ground of the demurrer to the petition: “The petition shows on its face that when the exhibit attached is construed in connection with the petition, no proper notice such as is required by section 910 was given the governing authority of said city, because (a) the said exhibit shows that plaintiff was endeavoring to effect a compromise, which would not be admissible' in evidence and which would not be sufficient as a notice such as is required by law; (5) the said notice is not addressed to the defendant who is sued, but is addressed to the mayor and councilmen, and such notice rvould not be notice to this defendant such as is required by statute.” The notice referred to is addressed: “To the Mayor and Aider-men of the City of Greensboro, to wit, Honorable F. E. Boswell, mayor, and others. Dear Sir.” It gives the time, place, and extent of the injury complained of, states how it occurred, and that the culvert and sidewalk where the plaintiff fell were “deficiently constructed” in particulars specified, that it was the duty of the city to remedy this condition or provide certain safeguards specified, which were not provided, and that such precautions “would have avoided-this accident;” damages were claimed in a specified sum, afterwards sued for in this action; and the notice concluded as follows: “Please advise us if you are willing to make settlement of this claim or undertake to compromise it without having suit brought.” It is alleged in the petition and admitted in the answer that “the City of Greensboro is a municipal corporation . . duly chartered by an act of the legislature approved July 27, 1904, and made liable to sue or be sued under said corporate name,” that “the governing body of said City of Greensboro is a mayor and aldermen or councilmen, the present mayor being E. E. Boswell, . . and service may be perfected upon-said city through them;” and that the notice referred to was handed to the mayor. On this ground of the demurrer counsel for the plaintiff in error cited: Political Code (Í910), § 910; Acts of 1904, p. 461; • Saunders v. Fitzgerald, 113 Ga. 620; City of Golumlus v. McDaniel, 117 Ga. 823; City of Tallapoosa v. Brock, 138 Ga. 622; Bostwick y. Griffin, 141 Ga. 120; Mayor <&c. of Macon y. String-field, 16 Ga. App. 480; Code, § 5781. Counsel for defendant in error cited: Kennedy v. Savannah, 8 Ga. App. 99; City of Sanders-ville Y. Stanley, 10 Ga. App. 361; Smith y. ETberton, 5 Ga. App. 286; 28 Cyc. 1749B, notes 94, 95, and statutes cited supra.</p>

<p>Action for damages; from city court of Macon—Judge Hodges. February 21, 1916.</p>

<p>Complaint; from city court of Oglethorpe—Judge Greer. March 8, 1916.</p>

<p>Complaint; from city court of Valdosta—Judge Cranford. April 21, 1916.</p>

<p>Garnishment; from city court of Savannah—Judge Davis Freeman. May 20, 1916.</p>

<p>It appearing from the evidence set forth in the petition for certiorari that the verdict complained of included usury, the judge of the superior • court erred in refusing to sanction the certiorari.</p>

<p>Money rule; from city court of Atlanta'—Judge Eeid. June 1, 1916.</p>

<p>Accusation of sale of liquor; from city court of Dublin—Judge Hicks. July 17, 1916.</p>

<p>Indictment for larceny after trust; from Eloyd superior court— Judge Wright. September 25, 1916.</p>

<p>Indictment for murder—conviction of manslaughter; from Eloyd superior court—Judge Wright. October 2, 1916.</p>

<p>Indictment for murder—conviction of manslaughter; from Dawson superior court—Judge J. B. Jones. November 11, 1916.</p>

<p>Indictment for robbery; from Spalding superior court—Judge Searcy. October 21, 1916.</p>

<p>1. In an action against an attorney at law to recover the amount of a claim alleged to have been lost because of his negligence or- misconduct, it is necessary to allege not only that the claim was a valid one, but that the debtor was solvent. In such case the attorney is liable only for the actual injury his client has received, and not for the mere nominal amount involved in the litigation.</p> <p>2. The petition against an attorney for the recovery of actual and punitive damages for negligent advice and conduct in the management of .a case, alleged to have resulted in the loss of the plaintiff’s claim, was properly stricken on demurrer, in the absence of an allegation that the claim was a valid one, and that the debtor was solvent.</p>

<p>Indictment for burglary; from Polk superior court—Judge Bartlett. October 2, 1916.</p>

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

<p>Action for damages; from Laurens superior court—Judge Kent. October 26, 1915.</p>

<p>Action on insurance policy; from city court of Atlanta—Judge Beid. December 15, 1914.</p>

<p>Attachment; from city court of Macon—Judge Mathews. December 22, 1915.</p>

<p>Levy and claim; from city court of Leesburg—Judge Martin. January 17, 1916.</p> <p>The Bank of Southwestern Georgia filed a claim to property levied on under an execution against Robinson, issued on a judgment of the city court of Leesburg in favor of M. J. Stevens; and on the trial of the claim case at the July .term, 1915, of that court the judge, on motion of the claimant’s attorneys, after the introduction of evidence by the plaintiff, passed an order as follows: “On motion of claimant’s attorneys the within claim is hereby withdrawn at the claimant’s cost.” A second claim to the property was interposed on August 14, 1915, by the receiver of the bank; and in that case M. J. Stevens, at the .October term, 1915, of the city court, filed a plea as follows: “And now comes the defendant and prays judgment of the said petition, because he shows, that at the July term, 1915, of said court, there was a cause pending between the same parties on the same cause of action, with the Bank of Southwestern Georgia claimant to the same property, and, said claimant having dismissed or withdrawn his claim and now having filed the present suit in the same court on the same cause of action, without having paid the court costs in said former suit or having filed an affidavit of its inability to do so on account of poverty, the present cause is barred and should be dismissed. . .</p> <p>Wherefore he prays judgment of said petition and that the same be quashed.” The claimant .filed a demurrer on the following grounds: 1. The plea as filed does not set up facts sufficient in law. 2. The plea is not sufficient in law to raise an issue, and is not in form provided by law. 3. A claimant is not required in law to pay the cost in a claim case that has been withdrawn by the claimant, before filing a second claim. 4. A plea in abatement to a claim can not be filed, under the law, where the claimant on his own motion withdraws the claim and files a second claim without payment of the costs of the first claim. 5. The plea does not set out the amount of costs due and to whom payable when the claim was dismissed by claimant, and that the parties to that claim are the same as in the claim to which the plea is filed, and that the property and the issues are the same. The demurrer was overruled, except as to the 5th ground, which later was met by amendments stating the items of costs due, etc. The demurrer was repeated as to the plea as amended, and was overruled; and, there being no traverse to the plea, and it being, agreed that the judge should determine the case on the pleadings, the court passed an order sustaining the plea and dismissing the claim. A motion to set aside this judgment was filed by the claimant at the same term of the court, and was overruled; and the claimant excepted, assigning error on the overruling of the demurrers, and on the judgment sustaining the plea and dismissing the claim, etc.</p>

<p>Complaint; from city court of Oglethorpe—Judge Greer. March 10, 1916.</p>

<p>1. Where an action against a carrier for damage to goods is brought under ■§ 2752 of the Civil Code of 1910, an amendment setting up such a claim as a common-law liability can not be allowed. The effect of such an amendment would be to add a new and distinct cause of action.</p> <p>2. Such a statutory action, under the section named, against the last of several connecting carriers in an interstate shipment of freight, is not prohibited by the act of Congress of June 29, 1906 (34 „Stat. 595, e. 3591, § 7, pars. 11, 12), known as the Carmack amendment to the Hepburn act.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 1, 1916.</p>

<p>Action for damages; from city court of Polk county—Judge John K. Davis. April 8, 1916.</p>

<p>Complaint; from city court of Waycross—Judge McDonald. June 2, 1916.</p>

<p>Application for mandamus.</p>

<p>Complaint; from city court of Tifton—Judge Eve. June 5, 1916.</p>

<p>Action for false arrest; from Dooly superior court—Judge George. October 30, 1915.</p>

<p>1. In an action upon an accident-insurance policy, where it is apparent from the evidence introduced that the death of the insured was the result of external and violent means, and the issue is as to whether it was due to an accident, within the meaning of the policy, or to some cause excepted by the policy, the presumption is in favor of accident, and against the facts bringing the case within any of the exceptions of the policy, such as insanity of the insured, intentional injury inflicted by a third person, lack of due care and diligence, self-inflicted injuries. and suicide. 1 Corpus Juris, 495, § 278; Travelers Insurance Co. v. McConkey, 127 U. S. 661 (8 S. Ct. 1360, 32 L. ed. 308); Butero v. Travelers Insurance Co., 96 Wis. 536 (71 N. W. 811, 65 Am. St. R. 61); Travelers Insurance Go. v. Wyness, 107 Qa. 584, 589, 590 (34 S. E. 113); Newsome v. Travelers Insurance Go., 143 G-a. 785 (85 S. E. 1035); Allen v. Travelers Protective Asso., 163 Iowa, 217 (143 3ST. W. 574, 48 L. R.'A. (N. S.) 600).</p> <p>2. The evidence introduced by the plaintiff, showing that the death of the insured was caused by external and violent means, raised the presumption that the death was also accidental, and, together with the admissions in the answer, was sufficient'to carry the case to the jury; and the court erred in awarding a nonsuit.</p> <p>3. The court did not err in excluding evidence, as complained of in the bill . of exceptions.</p>

<p>Complaint; from Fulton superior court—Judge Ellis. October 9, 1915.</p>

<p>Complaint; from Fulton superior court—Judge Bell. December 10, 1915.</p>

<p>Action for damages; from Fulton superior court—Judge Ellis. September 6, 1915.</p>

<p>Action on contract; from DeKalb superior court—Judge Smith. November 2, 1915.</p>

<p>Complaint; from DeKalb superior court—Judge Smith. September 6, 1915.</p>

<p>Complaint; from Campbell superior court—Judge Smith. August 10, 1915.</p>

Indictment for larceny after trust; from Fulton superior court •—-Judge B. H. Hill. July 29, 1916. Victor E. Innes was tried and convicted on an indictment charging, in four separate counts, the offense of larceny after trust.

<p>Complaint; from Richmond superior court—Judge Hammond. October 21, 1915.</p>

<p>Conviction of manslaughter; from Mitchell superior court— Judge Thomas. May 27, 1916.</p>

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

<p>Action on guaranty; from city court of "Cairo—Judge Willie. January 18, 1916.</p>

<p>1. Insurance policies are prepared and proposed by the insurers; and, where such a contract is capable of being construed in two ways, that interpretation must be placed upon it which is most favorable to the insured. Especially is this true where, as in this case, the construction insisted upon by the company would work a forfeiture of the policy, while the other will preserve the obligations of both the company and the insured.</p> <p>2. The policy involved in this case contains a loan clause wherein the company agrees to loan the insured, at his option, stated amounts of cash, upon the policy as sole security, the company further agreeing that any such “loan may be renewed annually, if interest be paid for one year in advance.” The insured obtained such a loan, and died four months and eight days after its maturity, without having either renewed or repaid it. The company now insists that, under these facts, it is entitled to charge against the loan value of the policy a full year’s interest. Held, that since the policy makes no provision for such a ease, the amount of interest to be charged is controlled by the rules of law applicable to written obligations to pay in general; that is to say, the company is entitled only to the contract rate of interest for the actual time of its forbearance. No more can be charged against the loan value of the policy so as to reduce the amount thereof available for other purposes under the policy; and no more can be charged against the liability of the company, if any, which accrued upon the death of the insured.</p> <p>3. The “automatic” non-forfeiture clause of the policy stipulates that “the company, upon failure of the insured to pay any premium, will charge the premiums as they fall due as loans against the policy until the loan value is consumed.” The insured died four months and eight days after the due date of an annual premium, leaving the premium wholly unpaid and leaving the policy without a sufficient loan value to pay a. full annual premium. The company insisted that under these fácts the “automatic” clause was inoperative to sustain the policy or keep it of force for any length of time, notwithstanding it may have had some small loan value remaining; and that such a construction is •made imperative by a provision of the loan clause requiring the payment in advance of a full annual premium before the insured could obtain a cash loan. Held:</p> <p>(a) The obligation of the company, under the “automatic” clause, to charge the unpaid premiums against-the loan value ol the policy “mi-til the loan value is consumed,” entitled the insured not only to such full years of insurance as the available loan value was sufficient to cover, but also to such fractional part of a year as any remaining loan value then available for such purpose might cover, continuing the policy in full force until its stated loan value should become wholly exhausted.</p> <p>(6) The “automatic” clause, under its own express provisions, could become operative only “upon the failure of the insured to pay any premium.” It can not, therefore, be nullified by ingrafting thereon through a process of construction the contradictory provision of the loan clause that, before obtaining a cash loan, “premiums under this policy shall be paid in full up to the end of the policy year when the loan is obtained.” The last-quoted provision is a limitation upon the loan clause only, applies to cash loans only, and does not affect the charges to be made “as loans” under the provisions of the “automatic” clause.</p> <p>(c) In order, however, for this policy to have boen sustained by its own loan value and the provisions of the “automatic” clause for the period of time in question, it was necessary that the loan value be sufficient to cover the interest as well as the principal debt, both as to the cash loan' obtained under the loan clause and as to- the charges made as loans under the “automatic” clause.</p> <p>i. The grace clause of this policy refers to premiums only, and does not affect the cash loan or the accrual of interest thereon. But it applies with equal force to any premium, whether annual, semiannual, or quarterly, and whether paid in cash under the premium clause or by allowing the company to charge it as a loan under the provisions of the “automatic” clause. The fact of the payment, rather than the method thereof, together with the expiration of the period for which the premium was paid, fixed the date when the grace clause became operative, if it ever became operative under the facts of this case.</p> <p>6. Considering this policy as a whole, its loan value, as fixed in the table of values incorporated in the policy, was, at the time of the death of the insured, sufficient to cover the amount of the loan, and also the amount of the unpaid premiums for that part of the policy year preceding the death of the insured, with interest upon both the loan and the unpaid premiums, and therefore, under the provisions of the “automatic” clause, the policy was in full force at the time of the death of the insured, subject only to such charges.</p> <p>0. The policy provides: “If the insured makes written application within six months after default in payment of premiums, the company will extend the policy as a term policy for its full amount . . as stated in the -table on the third page hereof. ” The insured died within six months after the maturity of the eighth annual premium, without having paid it, and without having made any written or other application in accordance with the above-quoted provision of the policy. Held: .</p> <p>(a) The privilege so extended the insured is not a mere gratuity personal to the insured alone, but it is a property right which on his-death survives to his beneficiary or legal representative, as the case may be.</p> <p>(6) The provisions of the policy relating peculiarly to the continuation of the insurance risk become inapplicable and immaterial when the policy is converted into a death claim by the death of the insured.</p> <p>(o) Upon the death of the insure.d within the period covered by this . clause of the policy (where the extended insurance would have run beyond that period) his legal representative was entitled to hold and sue upon the original policy as a death claim against the company for the full amount of its face value.</p> <p>(d) The insured having died before the expiration of his right to pay up his indebtedness to the company, which would have entitled him to the full benefit of the seven years and four months extended insurance provided by the table, this right also survived to his legal representative; and, where such payment was made by her, or was legally tendered, or where she was excused by law from making such tender, such indebtedness can not operate to defeat or nullify the provisions of the “six months” clause of the policy by shortening the term of extended insurance as fixed by the table.</p> <p>(e) “A formal tender is unnecessary where express declarations are made by the party to whom money is payable that he will not accept it if tendered. The law takes one who makes such a-statement at his word, and does not thereafter require the doing of a vain thing.” And “tender may be made by an agent or friend at the instance of an interested party.”</p> <p>7. The trial judge did not err in overruling the'demurrer to the petition.</p>

<p>Trover; from city court of Bainbridge—Judge Spooner. April 3, 1916.</p>

<p>1. The action being for the recovery .of damages on account of personal • injuries received by the plaintiff while engaged as an employee of the defendant railway company in interstate commerce, there was no presumption of negligence against the defendant; and the court did not err in charging the jury generally that the burden of proof rested upon the plaintiff throughout the case, and in failing to instruct the jury as to when and under what circumstances this burden might be shifted.</p> <p>2. The- charge complained of' in the 9th ground of the motion for a new trial is in exact accord with the ruling in Worlds v. Georgia Railroad Co., 99 Ga. 283 (2) (25 S. E. 646), which was approved in Freeman v. - Savannah Fleetrie Co., 130 Ga. 449, 454 (60 S. E. 1042) ; and .this ground of the motion is therefore without merit. The decision in the case of Southern Railway Co. v. 'Rutledge, 4 Ga. App. 80 (60 S. E. 1011), is not at variance with these rulings or with the ruling now made.</p> <p>3. There is no merit in the objection made in the 10th ground of the motion for a new trial to an excerpt from the charge of the court relating to the doctrine of assumed risks. Washington & Georgetown R. Co., v. McDade, 135 U. 8. 554 (10 Sup. Ct. 1044, 34 L. ed. 235, 241) ; Seaboard Air-Line Railway v. Horton, 233 U. S. 492, 504 (34 Sup. Ct. 635, 58 L. ed. 1062, 1070, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475) ; Middle Ga. &e. Ry. Co. v. Barnett, 104 Ga. 582; 584, 585 (30 S. E. 771); Charleston and Western Carolina Railway Co. v. Sylvester, 17 Ga. App. 85 (86 S. E. 275). In the absence of any request for a fuller charge where a correct charge as to the assumption of risk is given, the failure to instruct precisely as to what would not constitute an assumption of risk by the plaintiff is not reversible error. See, in this connection, Charleston de. Ry, Co. v. Brown, 13 Ga. App. 744, 751 (79 S. E. 932). The charge did not tend to confuse the jury, nor was it subject to the exception that it was calculated to prejudice the plaintiff’s case because argumentative.</p> <p>4. There is no merit in the 11th ground of the motion for a new trial, as the charge complained of did not tend to eliminate or disparage any evidence offered in behalf of the plaintiff.</p> <p>5. There is no merit in the 12th and 13th grounds of the motion for a new trial, assigning error because the court appointed a commission of physicians to make a physical examination of the plaintiff. No abuse of discretion by the trial court appears, and no objection was raised to the personnel of the commission appointed.</p> <p>6. The court did not err in holding that the juror objected to by the plaintiff was not disqualified, and in declining to require him to stand aside.</p> <p>7. The ground of the motion for a new trial that “a new trial is demanded by the general countenance of the case,” etc., need not be considered.</p>

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

<p>Complaint; from city court of Valdosta—Judge Cranford. June 23, 1916.</p> <p>The petition of Forbes against Knight contained in substance the following allegations: At the times hereinafter named the defendant was engaged in the insurance business' and represented the Columbian National Life Insurance Company, as soliciting agent. On August 14, 1914, plaintiff gave to defendant an application to that company for a $5,000 twenty-year K. & C. term policy of insurance on his life, and paid to defendant the first premium thereon, amounting to $66.30. Plaintiff was duly examined by physicians representing the said company and they advised that he was a proper subject for insurance and recommended that he be passed and that the policy applied for be issued. He heard nothing further from the application until about January 10, 1915, when he went to defendant and asked about the policy, and was advised by defendant that the insurance company would not issue the policy applied for until plaintiff got a favorable report from the Penn Mutual Life Insurance Company, to which plaintiff had applied for insurance in June, 1914, and which advised him to wait until a later date to apply for insurance. Plaintiff then applied to the Penn Mutual Life Insurance Company for a policy in the sum of $1,000, which, after an examination by physicians, was issued to him on January 22, 1915. He immediately notified defendant that he had received that policy, and asked him to renew his efforts to secure the policy applied for in the Columbian National Life Insurance Company, and the defendant promised to do so. Plaintiff asked him about the policy frequently, and on February 25, 1915, told defendant that he was going to apply for insurance in another company and that the Columbian National Life Insurance Company need not issue the policy applied for, but, at defendant’s request that he wait until the following Saturday, he waited until March 5, 1915, when, failing to receive the policy, he applied-to the Germania Life Insuranee Company for a $5,000 twenty-year term insurance policy on his life, and it was delivered to him on March 20, 1915. After-wards defendant advised plaintiff that he had a policy for plaintiff, and plaintiff advised him of the issuance of the policy of the Germania Life Insurance Company, and several days later defendant attempted to deliver to plaintiff a $2,500 straight life policy of the Columbian National Life Insurance Company, which plaintiff declined to accept, because it was not such a policy as 'he had applied for, and because the Columbian National Life Insurance Company had failed to issue and tender to plaintiff a policy of insurance within a reasonable time after his application was made. Plaintiff afterwards demanded of defendant the return of the amount of the premium, $66.30, which plaintiff had paid to him, but defendant refused and still refuses to pay this sum or any part of it: By reason of the facts herein set out, defendant is indebted to plaintiff in this sum, besides interest thereon from August 14, 1914. Wherefore plaintiff prays process, etc.</p> <p>The defendant demurred to the petition generally, and on the grounds, that it appeared therefrom that in the transactions alleged the defendant acted as agent of the Columbian National Life Insurance Company, and not in his individual capacity, and the plaintiff knew this fact; and that the liability alleged is a liability of the insurance company and not of the defendant.</p> <p>By an amendment, which was allowed over objections of the defendant, the plaintiff alleged: At the time plaintiff gave defendant the application and paid the premium as alleged in the petition, defendant agreed in his individual capacity, and not as agent of the insurance company, to procure for plaintiff the policy applied for, in consideration of that premium; and, under defendant’s arrangement with the insurance company, defendant was not required to remit the premium or any part of it to the company before the policy was delivered and became effective, and defendant had the premium in his possession when he tendered the $2,500 policy referred to in the petition. The return of the .•amount of this premium was demanded of defendant by plaintiff at the time of declining to accept the policy tendered by defendant. The defendant’s objections to the allowance of the amendment were: that it sets out a new and different cause of action from that set out in the original petition;. that it sets out a cause of action against the defendant, while the original petition sets out a cause of action against the insurance company; that the original petition shows that the defendant was acting as agent, and the amendment shows that he was not so acting, but was acting in his individual capacity; that the original petition is based on an implied assumpsit for money had and received by the insurance company for the benefit of the plaintiff, and the amendment changes the petition so as to cause it to be based on an implied assumpsit for money had and received by the defendant, instead of the insurance company, for the benefit of the plaintiff.</p> <p>The case came to the Court of Appeals on exceptions to the allowance of the amendment, and to the overruling of the demurrer.</p>

<p>1. In tlie absence of any contract whereby factors were bound to hold cotton as instructed by the customer, they were not bound so to hold it, where the customer failed to deposit the margins necessary to hold it after he had been notified to do so.</p> <p>2. Under no view of the evidence in this case was the defendant entitled to prevail; but the evidence, together with the admissions in the defendant’s plea, demanded a verdict in favor of the plaintiff for the full amount sued for. The plaintiff’s motion for a new trial should, therefore, have been sustained.</p>

Forfeiture'of bond; from city court of Carrollton—Judge Beall. June 30, 1916.

<p>1. Where a motion for a new trial contains a ground not approved or certified as true by the trial judge, that ground will not be considered by this court.</p> <p>2. The evidence authorized the verdict and the charge of the court was full and fair.</p>

<p>Indictment for murder—conviction of manslaughter; from Candler superior court—Judge Hardeman. October 5, 19Í6.</p>

<p>Indictment for murder; from Baldwin superior court—Judge ■Park. October 28, 1916.</p>

<p>Conviction of shooting at another; from Dooly superior court— Judge George. January 31, 1916.</p>

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

<p>Complaint; from Forsyth, superior court—Judge H.'C. Hammond presiding. October 18, 1915.-</p>

<p>Action for damages; from Whitfield superior court—Judge Fite. October 22, 1915.</p>

Action for damages, from Floyd superior court—Judge Wright. October 9, 1915. C. W. Camp sued E. B. Bounsaville for $5,000 damages on account of an assault and battery, and obtained a verdict for $1,000.

<p>Action for damages; from Whitfield superior court—Judge Eite. December 14, 1915.</p>

<p>Complaint; from Carroll superior court—Judge E. W. Ereeman. November 3, 1915.</p>

<p>The original deed of conveyance executed by the defendant in 1910 to secure a debt required her to turn over 10 bales of rent cotton each year, and to pay at least one of the notes secured thereby, and provided that in default of a compliance with these stipulations an agreed extension of five years within which to pay the indebtedness should be forfeited. A later deed of conveyance covering the same property and intended to secure not only the original indebtedness but a large increase thereof, while adopting all the terms and conditions of the contract of 1910, expressly provided that the debtor should “pay first” out of her rent notes and all her income and crops whatever sum, not secured by either deed, she might become indebted to the plaintiff on account of supplies furnished for the year 1912; and this stipulation was in direct conflict with the above-mentioned agreement in the contract of 1910, requiring a different disposition, of rent notes, income, etc., and it nowhere appeared that the indebtedness of 1912 had ever been discharged, or that the debtor did not apply in settlement thereof her entire income and all the profits, rent notes, etc., derived from the “old Means place” or from her entire property. The conditions upon which a forfeiture of the time extension allowed by the contract of 1910 could be avoided were made impossible of performance by the express provisions of the contract of 1912, and therefore the debtor could list be held to have forfeited such extension. The trial judge correctly sustained the demurrer on the ground that the action was prematurely brought.</p>

<p>Action for damages; from Butts superior court—Judge Searcy. January 7, 1916.</p>

<p>Complaint; from Wilkinson superior court—Judge Park. December 15, 1915.</p>

<p>The evidence warranted the verdict, and, no harmful error of law appearing, the judge did not err in overruling the motion for a new trial.</p>

<p>Motion to set aside judgment; from Calhoun superior court— Judge Cos. August 21, 1915.</p>

<p>Money rule; from Lowndes superior court—Judge Thomas. August 21, 1915.</p>

<p>Action for damages; from Laurens superior court—Judge Kent. September 11, 1915.</p>

<p>1. Where the entry of service of a rule nisi issued on a petition to foreclose a mortgage on realty purports to be signed by one assuming to act as a deputy sheriff, and an affidavit of illegality is interposed to the levy of the execution issuing upon the rule absolute based upon such service, which alleges that the person purporting to act as a deputy sheriff was not in fact such an officer, and traverses his return, the sheriff and the person making the return as a deputy sheriff must both be made parties to the traverse; and where both are not made parties, there is no such attack upon the return as would justify, under the law, a judgment setting it aside, and on motion such a ground of illegality should be dismissed.</p> <p>(a) The sheriff and the sureties on his official bond are vitally interested in the question raised by a traverse to a return made by one purporting to act-as his deputy, and, in the absence of a proper traverse, to which not only the deputy sheriff making the return but also the sheriff himself is made a party, the return can not be brought into question.</p> <p>2. Where quarterly terms of the superior court in a particular county are provided for by law, and a-rule nisi on a petition to foreclose a mortgage on realty is granted at one term, and the first day "of the next regular succeeding term will occur within less than three months after the grant of the'rule nisi, it should be made returnable to the first- term thereafter for which lawful service can be had, or the next term but one.</p>

<p>Action for damages; from city court of Springfield—Judge Shearouse. December 31, 1915.</p>

<p>Trover; from city court of Tliomasville—Judge W. H. Hammond. April 5, .1916.</p>

<p>Complaint; from city court of Monroe—Judge Stone. May 8, 1916.</p>

<p>Action for damages; from city court of Americus—Judge Harper. April 17, 1916.</p>

<p>Action on contract; from city court of -Macon—Judge Hodges. April 38, 1916.</p> <p>Mrs. M. L. Strong brought suit against Mrs. D. S. Napier, alleging damages in the sum of $800, on account of an alleged breach of contract relating.to a policy of insurance bought by her of the defendant. It appears that Mrs. Napier sold to Mrs. Strong a house and lot in Macon, taking installment notes for the purchase-money and giving bond for title, obligating the seller to execute title upon the payment of the. notes. All the negotiations and transactions involved in the sale, except the execution of the bond for title, were between E. Tris Napier, husband of the defendant, and J. B. Strong, husband of the plaintiff; and when the trade was completed the parties to this case were not present. The bond for title had been prepared and signed by Mrs. Napier three days previously, to wit, on February 25, 1911, and carried by her husband to his office, where the sale was concluded on February 28, 1911. At the time of the sale Mrs. Napier held a fire-insurance policy for $800 on the house in question. The policy on its face covered a period of five years, beginning May 25, 1909, and therefore had been running one and three-quarters years and still had three and one-quarter years to run. In the trade as made by the husbands of the parties it was agreed that the purchaser of the house and lot should also- take over the unexpired term of the insurance policy, by paying the amount of the unearned premium, and should leave the policy in the possession of E. Tris Napier to protect Mrs. Napier as to the purchase-price of the property sold. This was done, and in furtherance of this agreement a loss-payable clause was entered upon the policy. The plaintiff alleged in her petition that in consideration of the sale of the property insured and of the payment by her to -the defendant of the unearned premium on the policy, the defendant agreed as follows: (1) to keep the property insured in the sum of $800 as long as she (the defendant) had an interest in the property; (2) to cause other insurance in that sum to be issued if the existing policy should lapse or be discontinued; and (3) in any event to notify the'purchaser should the property become uninsured.</p> <p>It was shown that nearly three years after this transaction, to wit, on January 27, 1914;, the insurance company cancelled the policy and returned to Mr. E. Tris Napier the unearned portion of the premium, amounting to $1.60, which was retained by him, and that no notice of the cancellation was ever given to the plaintiff. The policy, as actually written, would have expired at the end of four months from the-time it was cancelled; that is, on May 25, 1914-. In January, 1915, the property was destroyed by fire. The plaintiff introduced only one witness, J. B. Strong, her husband and agent. The substance of his testimony was that when he bought the policy from the defendant’s agent, E. Tris Napier, the latter told him that the policy had four and a half years to run, when in fact it had only three and a quarter years to run, and that had the p’olicy remained in force for four and a half years, the property would have been insured at the time of the fire. J. B. Strong further testified as follows: “I talked to Mr. Napier about this insurance after I bought the place and before the fire. I happened to be present after he had sold the last note. He sold it to a sister of his—the only way I know is by him calling her sister; I don’t know her name. I had a conversation with him at that time. I told him that I would like to get the insurance papers, as I had been there once before, and he said he was holding them to make him doubly sure of his money. I told him I wanted to strengthen my insurance, as they were building up all around mo and I was afraid of fire and would like to increase my insurance. He said that he would attend to that. ■ And again I asked him for it, as I had a good profit in the place and wanted to trade, and I called on him and he said ‘Call again, I am busy now.’ And I called later and he wheeled around and struck his fist on the desk, and said ‘I am going to hold you to our first trade.’ And then I asked him if I could get the fire-insurance policy, to have it strengthened, and he said he would look after that.” Whether this latter conversation was prior to the cancellation of the policy, or subsequent, the evidence does not disclose. A motion for non-suit having been refused, evidence was introduced for the defendant; and the jury found for the plaintiff in the amount sued for. The trial judge refused to grant a new trial, and the defendant excepted.</p>

<p>Action on contract; from city court of Newnan—Judge Post. June 16, 1916.</p>

<p>Affidavit of illegality; from city court of Nashville—Judge Christian. June 21, 1915. , .</p>

<p>Certiorari; from Laurens superior court—Judge Kent. June 15,-1916.</p>

<p>The verdict approved by the trial judge was not without evidence to- support it; there was no error in overruling the general demurrer, and the charge of the court correctly stated the rules of law applicable to the issues involved.</p>

<p>1. A defendant can not by demurrer to a petition avail himself of the defense of dual agency on the part of the plaintiff, where it does not appear from the petition that the inconsistent relationship was unknown to him.</p> <p>2. The evidence authorized the verdict, and no error of law was committed.</p>

<p>1. Where partners sue in their firm name, the - partnership need not be proved, unless denied in a verified plea. This was true where the original petition alleged that the plaintiff was a corporation, and the partnership was alleged in an amendment to the petition.</p> <p>2. It was not error for the court to repel as evidence in this case “certain portions of the argument made by the solicitor-general of the Atlanta circuit on August 23 and 25, 1913, at the trial of Leo M. Frank for murder in Fulton superior court.” The rejected matter was so clearly inadmissible that no discussion is necessary to show that the ground of the motion for a new trial based upon its rejection is absolutely ■ without merit.</p> <p>3. The court did not err in excluding the testimony of the witness Pierce, or, in refusing to allow him to answer a certain question propounded to him, the excluded testimony being a conclusion of the witness, and being argumentative in its nature, and irrelevant to the issues in the case.</p> <p>4. It was not error, in the absepce of a timely written request, for the court to fail to charge that “it was the duty of the plaintiff in conducting this investigation into the murder of Mary Phagan to act honestly and-in good faith, and to deal honestly and in good faith with the defendant.” The court did instruct the jury as follows: “If you should find that this contract existed, and to the extent-that it existed that the plaintiffs entered into this work, then the plaintiffs were bound to exercise reasonable diligence in the performance of the work.” Section 3581 of the Civil Code declares that “an agent for hire is bound to exercise, about the business of his principal, that ordinary care, skill, and diligence required of a bailee for hire.” The court substantially charged in the language of this statute, and under the facts of the case this was sufficient! It is of course implied in every contract that both parties thereto should “act honestly and in good faith,” and it is not necessary for the court to charge such an elementary principle of law, unless particularly requested to do so.</p>

<p>Complaint; from Bichmond superior court—Judge Hammond. October 13, 1915.</p>

<p>Complaint; from Eichmond superior court—Judge H. C. Hammond. November 26, 1915.</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. January 16, 1915.</p> <p>This action was against the City of Atlanta and J. Billot jointly. It was dismissed as to the city, on general demurrer, and the plaintiff brought the case to the Court of Appeals on exceptions to that judgment. Certified questions as to the law involved in the case were submitted by this court to the Supreme Court, and the answer of the latter court appears in 146 Ga. 416 (91 S. E. 415). The action was for damages on account of injuries received by the plaintiff on diving into a swimming and bathing place in a public park, where his head struck a post, the top of which was below the surface of the water. In the petition it is alleged: that the park is “a public recreation park near the southern side of the City of Atlanta limits, known as Lakewood;” that at the time mentioned in the petition it was owned and controlled by the city, and the keeper and custodian of the park was the defendant Billot, who was in joint control and custody of the park and the lake therein with the city, and was not an employee or servant of the city; that the defendants were keeping and maintaining a part of the lake as a public swimming and bathing place, and were impliedly and expressly inviting the public to bathe and swim therein, and furnishing bathing suits and places in which to put them on, and that the plaintiff paid to the keeper of the park the usual fees and charges, attired himself in a bathing suit, and, with the knowledge and consent of the person in charge of the bathing place, walked on a platform to that place and dived into the water, where he received the injuries complained of. It is alleged that the defendants were jointly and severally negligent in allowing the post to remain in the water at that place, in holding out that part of the lake as a suitable bathing place, and in failing to put up a sign or give warning as to the danger there.</p>

<p>Indictment for felony; from Dougherty superior court—Judge Cox. August 21, 1916.</p>

<p>The evidence authorized the conviction, both upon the count charging the sale of intoxicating liquors and upon the count charging that the accused kept such liquors on hand at his place of business.</p>

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

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

<p>1. In a prosecution for homicide, where the evidence for the State makes a case of murder, and the evidence for the defendant, including his statement to the court and jury, a case of self-defense, and where neither the evidence nor his statement tends to show that he provoked the difficulty and brought upon himself the necessity to kill the deceased, it is error to charge the jury as follows: “To constitute justifiable homicide, the slayer must not have brought upon himself the necessity to kill the deceased. If a person provoke a difficulty by his own fault and bring upon himself the necessity to kill another person, such killing would not be justifiable homicide. If one provokes a difficulty and makes no effort to decline it, but kills his adversary in the contest, it is not justifiable homicide.”</p> <p>2. The last sentence in the charge quoted in the foregoing headnote, to wit, “if one provokes a difficulty and makes no effort to decline it, but kills his adversary in the contest, it is not justifiable homicide,” considered in connection with the context, is not error, and would not in this case require the grant of a new trial if there were evidence to warrant the whole charge upon this subject, a portion only of which is quoted in the first headnote. In a proper case the sentence here quoted should be qualified by a further statement to the effect that if a person provokes a difficulty and the provocation amounts to no more than a mere trespass, it would not put him in the wrong in resisting or defending himself against a felonious attack on account of such provocation.</p> <p>3. Except as indicated above, the trial was free from error.</p>

<p>Conviction of assault with intent to rape; from Morgan superior court—Judge Park. October 18, 1916.</p>

<p>Indictment for manufacture of liquor; from Spalding superior court—Judge Searcy.</p>

<p>Certiorari; from Fulton superior court'—Judge Bell. October 2, 1916.</p>

<p>Where an indictment for trespass charged that the offense was committed by moving a dwelling-house from described land of a certain person, and the evidence, while showing the removal of a dwelling-house by the accused from land belonging to that person, failed to show that the house was taken from the particular land described in the indictment, the conviction of the accused was not authorized by the evidence.</p>

<p>Indictment for misdemeanor; from city court of Macon—Judge Guerry. October 16, 1916.</p>

<p>Accusation of misdemeanor; from city court of Madison—Judge Anderson. October. 23, 1916.</p>

<p>Conviction of stabbing; from city court of Macon—Judge Guerry. December 6, 1916.</p>

<p>Conviction of manslaughter; from Coffee superior court—Judge Summer all. December 1, 1916.</p>

<p>Accusation of misdemeanor; from city court of Savannah— Judge Bourke. December 15, 1916.</p>

<p>Accusation of sale of liquor; from city court of Newnan—Judge Post. November 29, 1916.</p>

<p>Trover; from city court of. Floyd county—Judge Nunnally. June 16, 1916.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. June 30, 1916.</p>

<p>Levy and claim; from city court of ' Quitman—Judge Long. May 27, 1916.</p>

<p>Complaint; from city court' of Nashville—Judge Christian. June 2, 1916'.</p>

<p>Action for damages; from city court of Louisville—Judge Jordan. July 31, 1916.</p>

<p>Appeal; from Upson superior,court—Judge Searcy. August 5, 1916.</p>

<p>Action for damages; from city court of Eloyd county—Judge Nunnally. September 22, 1916.</p>

<p>1. It is not, as a matter of law, negligence to alight from a moving train at or near a station at which it is the duty of the railroad company to bring the train to a stop, unless it appears that the danger attending the attempt to alight is so great as to be obvious to any person of common prudence and ordinary intelligence. The facts alleged in the petition in this case do not take it out of the general rule that negligence is a question for the jury. Accordingly, the court did not err in overruling the demurrer to the petition.</p> <p>2. While the plaintiff may not have been negligent as a matter of law in attempting to alight from a moving train, yet, under the evidence, negligence on the part of the railway company was not the proximate cause of his injury, and its motion for a new trial should have been granted.</p>

<p>Certiorari; from Cherokee superior court—Judge Patterson. September 29, 1916.</p>

<p>Certiorari; from Fayette superior court—Judge Searcy. October 19, 1916.</p>

<p>Certiorari; from Greene superior court—Judge Park. November 4, 1916.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. March 10, 1916.</p>

<p>1. The court did not err in oven-uling the motion to dismiss the petition.</p> <p>2. The first ground of the amendment to the motion for a new trial is not referred to in the brief of counsel for the plaintiff in error, and is therefore treated as abandoned.</p> <p>3. The court did not err in excluding the testimony set out in the 2d ground of the amendment to the motion for a new trial, there being no plea of “no partnership.”</p> <p>4. The refusal of the court to repel the evidence set out in the 3d, 4th, 5th, and 6th grounds of the amendment to the motion for a new trial was not erroneous. Although the several witnesses were not shown to have been expert real-estate men, their evidence was admissible for what it was worth, on the subject of the rental value of the store in question, with and without a “glass front,” notwithstanding they mentioned no particular kind of glass front.</p> <p>5. The assignment of error based upon the court’s refusal of a written request to give certain instructions to the jury can not be considered, as it is not alleged that the request was presented to the court before the jury had retired to consider their-verdict. Civil Code (1910), § 6084.</p> <p>6. Under the facts of the case, including the amount of the verdict, even if the court, in the absence of a timely written request, erred in failing to charge section 4398 of the Civil Code (as to the duty of an injured person to lessen damages), the error was harmless.</p> <p>7. The verdict was supported by the evidence.</p>

<p>Action for damages; from city court of Floyd county—Judge Nunnally. July 19, 1916.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. June 22, 1916. ■</p>

<p>Trover; from city court of Hall county—Judge Wheeler. July 7. 1916.</p>

<p>Action on contract; from city court of Greenville—Judge Eevill. July 20, 1916.</p>

<p>Affidavit of illegality; from city court of Baxley—Judge Sellers. November 27, 1916.</p>

<p>Complaint; from city court of Cartersville—Judge Moon. July 10, 1916.</p>

<p>■ Trover; from city court of Dublin.—Judge Hicks. June 15, 1916.</p>

<p>Complaint; from city court of Tifton—Judge Eve. May 26, 1916.</p>

<p>Certiorari; from Floyd superior court—Judge Wright. June 27, 1916.</p> <p>The Devon Manufacturing Company sued in a justice’s court for $30.99, on an account from which it appeared that this sum was a balance due on the price of “1 Devon’s 10c A punch asst. No. 8, $40.00.” Liability was denied by the defendant on the ground that the account was for “a lottery or gambling device.” . At the trial on appeal in the justice’s court the defendant was introduced as a witness for the plaintiff, and from his testimony it appeared that the property described in the account was sold to him on a written order signed by him (which was introduced in evidence), directing the plaintiff to ship to him “one assortment' No. 8, at $40.00,” consisting of “8 watches, 92 pieces of jewelry and cutlery, and 400 packages of chewing gum.” The order contained stipulations as to the return of unsold goods, offered for sale “as per printed directions” for sixty days from date of invoice, and the payment of 80 per cent, of the gross receipts, “which is 8c for each sale.” It concluded as follows: “You agree to place in center of tray an extra watch, for which no charge is made; this watch to be used as per printed directions or returned by me with the unsold goods. No salesman has authority to collect money or goods or make settlement of this account. It is understood that I have no agreement with you [except ?] as herein stated.” (The bracketed word “except” in the preceding sentence does not appear in the contract as copied in the record, but appears in the brief of counsel, in what purports to be a quotation from the contract.) In the writing referred to it was stated that the signer’s “line of business” was “lunch counter.” It did not appear what were the “printed directions” referred to. The defendant testified: “The account sued on was contracted for a device as follows: You pay a dime and punch a hole in a board that pushes out a number. With each payment of ten cents you get a package of chewing gum. There is one grand prize—a watch. The person drawing the-number that corresponds to the number on the watch gets the watch, in addition to the gum and the other prizes that he may draw, but you do not necessarily get a prize with every purchase of a draw. The gum, exclusive of any prize, is not worth five cents per package. Most of the prizes are of small value. Very few of them are worth as much as ten cents each. I bought the board under the terms of the written contract shown me. I have not paid the plaintiff anything on said board. I sold some of the articles through the process explained, and collected for the same, but have never remitted to the plaintiff for the same, otherwise than . . the check which was returned to me.” “I sent them a check for $20.80, and they returned the check to me, stating that I owed them more and they would not accept the cheek in full settlement. I do not consider that I owe the plaintiff anything.” A letter was introduced in which the defendant said to the plaintiff: “I have sold from the board received by me your goods to the amount of $26.00. Under our contraet-I am entitled to 20% on goods sold. Therefore, deducting the 20%, amounting to $5.20, from the amount of the sales, leaves $20.80, for which sum I am sending you check in full settlement of my account. I am also expressing back to you the board with the unsold goods as per contract.” There was no other evidence than the written order and this letter and the defendant’s testimony as a witness for the plaintiff. The trial resulted in a verdict and judgment against the defendant for $20.80; which, in a petition for certiorari, he alleged to be contrary to law and the evidence. The certiorari was overruled by the judge of the superior court, and error is assigned on this judgment.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 23, 1916.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. June 16, 1916.</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. May 30, 1916*</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. July 7, 1916.</p>

<p>Certiorari; from Fayette superior court—Judge Searcy. August 12, 1916.</p>

<p>Certiorari; from Emanuel superior court—Judge Hardeman. August 2, 1916.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. September 29, 1916.</p>

<p>Certiorari; from Gordon superior court—Judge Fite. September 1, 1916.</p>

<p>Certiorari; from Fulton, superior court—Judge Bell. October 10, 1916.</p>

<p>Complaint; from city court of Cartersville—Judge Moon. May 1, 1916.</p>

<p>Certiorari; from Floyd superior court—Judge Wright. July 6, 1916.</p> <p>Freight charges at the rate of 56 cents a hundred pounds, instead of the correct rate of 66 cents fixed by schedule filed with the interstate-commerce commission, were collected from the consignee by the Central of Georgia Railway Company on goods routed and shipped from Clarksburg, West Virginia, to Rome, Georgia, on a through bill of lading, over the Baltimore & Ohio Railroad, the Queen and Crescent Line, and the Central of Georgia Railway. Suit against the consignee for the difference in amount between these rates was brought in a justice’s court by the Central of Georgia Railway Company, and the trial of the case on appeal in that court resulted in a verdict in favor of the defendant, which, by petition for certiorari, the plaintiff complained of as contrary to law and the evidence. The judge of the superior court overruled the certiorari, and the plaintiff excepted. The facts stated above were shown at the trial, and from undisputed evidence it appeared that before the goods were shipped, a freight agent of the plaintiff requested the defendant to have them shipped over the route mentioned above, stating that the rate for shipment over that route would be 56 cents a hundred pounds. It was testified that the goods could have been shipped for that rate over another route of about the same mileage. The plaintiff’s agent stated that in giving the incorrect rate he acted in good faith, thinking it was the correct rate.</p>

<p>Certiorari; from Miller superior court—Judge Worrill. June 17, 1916.</p>

<p>Complaint; from city court of LaGrange—Judge Harwell. June •15, 1916.</p>

<p>Complaint; from city court of Cairo—Judge Willie. October 17, 1916.</p> <p>The action was on a promissory note in which the consideration recited was “value received.” The defendant’s answer, which the court refused to strike on general demurrer, admitted the execution of the note, but denied liability thereon, and proceeded as follows : “Defendant, for further answer, says that the note sued on is without any consideration whatever and is totally void. Eor further answer the defendant says, that for some time prior to the execution of the note-sued on the defendant had been buying cottonseed for plaintiff, and plaintiff claimed that defendant had not shipped all the seed bought, when in fact plaintiff knew that it had received all the seed purchased by defendant for it; the note sued on was given for said alleged shortage; and defendant shows that he was not indebted to plaintiff in any sum whatsoever, and had delivered to plaintiff all the cottonseed purchased by defendant for plaintiff, and said note is wholly without consideration and totally void.”</p>

<p>Complaint; from city court of Nashville—Judge Christian. October 16, 1916.</p>

<p>Complaint; from Whitfield superior court—Judge Fite. November 27, 1916.</p>

Affidavit of illegality; from city court of LaGrange—Judge Harwell. June 6, 1916. On February 22, 1913, Ward-Truitt Company filed suit on account in the city court of LaGrange against J. H. McClendon. The sheriff of that court, on March 2, 1913, made an entry that he had served the defendant personally with a copy of the said suit and process. The case was marked in default, and on March 20, 1913, the court rendered judgment against the defendant.

<p>Action fox damages; from Fulton superior court—Judge Bell. October 7, 1916.</p>

<p>Appeal; from Berrien superior court—Judge Thomas. July • 31, 1916.</p> <p>• From the record it appears that the rule nisi on the motion for a new trial was not signed by the trial judge; and for this reason 'counsel for the defendant in error moved to dismiss the writ of error.</p>

<p>Certiorari; from Screven superior court—Judge Hardeman. July 3, 1916.</p>

<p>The verdict, although not without evidence to support it, was not demanded by the evidence; and therefore the. discretion of the trial judge in granting a first new trial will not be interfered with, even if the specific -ground set out in his order was not a sufficient ground- for a new trial.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. July 18, 1916.</p>

<p>There was evidence from which the jury were authorized to find that the killing of the plaintiff’s dog by the train of the railway company was wanton and malicious, and the verdict for damages was warranted.</p>

<p>The marriage of a woman after receiving an injury in a railroad wreck does not divest her of the right to recover damages for the total or partial loss of her earning capacity. In such case the right of action, accruing to the woman before marriage, is complete in her, and after marriage the husband has no right of action for the diminished or destroyed capacity of the wife to labor and to earn money. Although the injury may be permanent in character, the right to sue arises immediately on the infliction of the injury, and remains in the person having the right of action at that time.</p> <p>The assignments of error do not warrant judicial interference with the verdict in this case.</p>

<p>Certiorari; from Pickens superior court—Judge Patterson. September 27, 1916.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. October 4, 1916.</p> <p>The petition as amended alleged, in substance, that the plaintiff boarded a car of the defendant’s electric railway in the city of Savannah, and paid her fare as a passenger, with the intention of being transported to Duffy and Ott streets, and remained on the car until it reached these streets; that on nearing the south side of Duffy street the car stopped, on signal, but the stop was made four or five feet from the crossing sidewalk; that in alighting she took the hand-hold of the car with her left hand „ and stepped down, and, in so doing, stepped upon a large cobblestone about seven inches in diameter, which was directly opposite the car step, about four or five feet from the crossing sidewalk, with the result that she was thrown flat into the street, and received bodily injuries described; that this cobblestone came from the cross sidewalk at Duffy street, and that between the tracks at this point the pavement had been loose for some time. ■ It was alleged that the injuries described were due entirely to the negligence of the defendant as follows: (1) The defendant, a common carrier; obliged to render extraordinary care in the selection of a suitable alighting place for its passengers, did not in this particular select a reasonably safe place for the plaintiff to alight, in that its agents stopped the car four or five feet short of the crossing sidewalk, and did not stop the car in a safe place for the plaintiff to alight: (2) The said obstruction in the street was known, or should have been known, to the agents and employees of the defendant; and these agents and employees—the crew of the ear—did not warn the plaintiff against this dangerous obstruction. (3) The employees in charge of the car were negligent in that they stopped the car four or five feet short of the proper stopping place; the proper stopping place being at the sidewalk of the cross street, if that place is safe, or at any other safe place that the agents of the defendant should select.</p>

<p>Appeal; from Hart superior court—Judge Worley. May 15, 1916.</p>

<p>Complaint; from city court of Atlanta—Judge Beid. May 3, 1916.</p>

<p>Complaint; from city court of Cairo—Judge Willie. July 20, 1916.</p>

<p>The court did not err in refusing to allow the defendants to introduce evidence in support of their pleas, or in thereafter directing a verdict in favor of the plaintiff for the full amount sued for.</p>

<p>Money rule; from city court of Savannah—Judge Freeman. September 7, 1916.</p>

<p>Complaint; from city court of Dawson—Judge Edwards. August 06, 1916.</p>

<p>Complaint; from city court of Bainbridge—Judge Spooner. September 05, 1916.</p>

<p>Complaint; from city court of Atlanta—Judge -Reid. September 30, 1916.</p> <p>The bill of exceptions assigns error on the striking of the defendants’ plea and on the judgment thereafter rendered against them for the amount sued for. The ground of the motion to dismiss the writ of error is that “the errors assigned are insufficient to raise an issue to be determined by this court, in that it appears that a verdict was rendered in said case in favor of the defendant in error, and that nowhere in said bill of exceptions is error assigned upon the rendition of said verdict.”</p>

<p>Complaint; from city court of Statesboro—Judge T. L. Hill presiding. September 6, 1916.</p>

<p>Trover; from city court of Nashville—Judge Christian. October 9, 1916.</p> <p>The defendant pleaded that under the facts stated above, the plaintiff was estopped from bringing this action; and pleaded fur-, ther that the action should abate because of non-pajunent of accrued costs before it was filed. It was contended also that as the ' property in question came into the hands of the defendant as a constable, and he acted under legal process, he was not subject to an action of trover.</p>

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

<p>Action for damages; from city court of Richmond county— Judge Black. June 21, 1916.</p>

<p>Action for damages; from city court of Zebulon—Judge Dupree. June 30, 1916.</p>

<p>Certiorari; from Fayette superior court—Judge Searcy. August 12, 1916.</p>

<p>Certiorari; from Jefferson superior court—Judge Hardeman. July 31, 1916.</p>

<p>Where the word “administrator” alone is added to the name of the defendant in a suit in a justice’s court, and he files an answer denying any indebtedness, and pleads a set-off, alleging that the plaintiff is due the estate of a named person, the court may treat the suit as an action against the administrator of that estate; and the allowance of an amendment offered by the plaintiff, inserting the word “as” before the word “administrator,” after the name of the defendant, will not be ground for1 reversal, notwithstanding the plaintiff’s omission to mention the estate of which the defendant is administrator; and a judgment binding the estate may be rendered in the action.</p>

<p>Certiorari; from Troup superior court—Judge E. W. Freeman. August 19, 1916.</p>

<p>1. Under the plaintiff’s allegations he had á cause of action against the deputy sheriff and the surety on the official bond of that officer, on account of the officer’s failure to use due care and diligence as to the mule he had levied on, belonging to the plaintiff, which was in the officer’s custody under the levy when it broke its neck by running against a wire fence in the field in which the officer had placed it. The- court did not err in overruling the demurrer to the petition.</p> <p>2. (a) The defendants were not entitled to complain that the verdict against them was for a sum lower than the valuation placed upon the mule by the testimony.</p> <p>(6) Jurors are not required to accept as correct the uncontradicted opinion.or estimate of a witness as to the value of property, and may by their verdict place a lower value upon the property.</p>

<p>1. A municipal corporation is liable for negligent conduct of a county chain-gang in placing an obstruction upon a sidewalk of the municipality without protecting it by barrier, rope, notice, or other warning, where the chain-gang is engaged in the performance of a duty of the municipality, at the direction and with the knowledge and consent, and under the express authorization of the municipality.</p> <p>2. Where the charge given to the jury covers in general terms the law applicable to the contentions of the parties, more specific instructions, if desired, should be made the subject of a timely written request.</p> <p>3. The improper allowance of an amendment to a petition can not properly be made a ground of a motion for new trial.</p> <p>4. The evidence to which objection was made was properly admitted, under the pleadings in this case; the verdict is supported by the evidence, and there was no error in overruling the motion for a new trial.</p>

<p>Certiorari; from Hart, superior court—Judge Worley. August 31, 1916.</p>

<p>Certiorari; from Eulton superior court—Judge Bell. October 11, 1916.</p>

<p>■ 1. The plaintiff’s petition sets forth a cause of action, and the court erred in dismissing it on demurrer. Southern By. Go. v. Wood, 114 Ga. 159, 161 (39 S. E. 922); Central of Georgia By. Co. v. Gortatowsky, 123 Ga. 366 (51 S. E. 469).</p> <p>2. The suit is by a passenger against a railroad company, the alleged cause of action being the tortious and continuous failure to provide for the plaintiff’s comfort while a passenger, the journey commencing at a point within this State and terminating at a point without this State. Held: The county in which the transportation and the alleged injuries commenced is not a wrong venue for the action. Civil Code -of 1910, § 2798; Southern By. Co. v. O’Brien, 112 Ga. 127 (37 S. E. 161) ; Central of Georgia By. Co. v. Dorsey, 116 Ga. 719 (42 S. E. 1024) ; Atlantic Coast Line B. Co. v. Poioell, 127 Ga. 805 (56 S. E. 1006, 9 L. R. A. (N. S.) 769, 9 Ann. Cas. 553) ; Owens v. Nichols, 139 Ga. 475 (77 S. E. 635); Friedman v. Seaboard Air-Line By., 124 Ga. 472 (52 S. E. 763).</p> <p>3. Where a petition sets forth matter which it is not legally necessary to plead, but which is nevertheless pertinent to the alleged cause of action and which would upon the trial be proper matter for proof, such matter is not subject.to demurrer based upon the ground that it is irrelevant. What is germane can not be irrelevant, even though it may not be essential to plead it. The trial court therefore erred in sustaining the several grounds of demurrer not in accord herewith. Beese v. Beese, 89 Ga. 645 (15 S. E. 846) ; S. C. d Ga. B. Co. v. Augusta Southrn B. Co., 111. Ga. 420 _ (36 S. E. 593); Wilder v. Wilder, 138 Ga. 573 (75 S. E. 654).</p> <p>4. Where the ticket agent of a railroad company, while acting within the ' apparent scope of his authority, negotiates with a prospective passenger for transportation and for sleeping-car berths on one of the company’s trains regularly' affording such service and comforts to the public, the passenger may rely upon the agent’s apparent authority, and is not required to communicate with the principal and verify the agent’s actual authority. The petition in this case having alleged such a transaction between passenger and agent, it was not subject to demurrer on the ground that it-was not made to appear that the agent’s acts were in fact within the scope of his authority. Civil Code of 1910, § 3595; Milledgeville Water Co. v. Edwards, 121 Ga. 555 (49 S. E. 621); Central of Georgia By. Co. v. Gortatowshy, supra.</p> <p>5. The other grounds of the demurrer are without merit.</p>

<p>There was evidence from which the jury could legitimately infer that one of the plaintiff’s dogs was killed and the other injured by the wanton and malicious conduct of the engineer in charge of the railway train, and the verdict for damages was therefore not unauthorized.</p>

<p>Oil the material questions involved in this case the evidence was not in dispute, and the evidence introduced, with all reasonable deductions or inferences therefrom, demanded a verdict for the defendant; accordingly the court did not err in so directing.</p>

<p>Action for damages; from city court of Hall county—Judge Wheeler. October 27, 1916.</p>

<p>Certiorari; from Morgan superior court—Judge Park. November 6, 1916.</p>

<p>Certiorari; from Fulton superior' court—Judge Bell. October 18, 1916.</p> <p>In the municipal court, of Atlanta an amendment converting a trover suit for the recovery of certain motors into a suit on an open account for a balance alleged to be due on the purchase-price of the property in question was allowed on the trial, over the objection of the defendant, and judgment was rendered against him for the amount sued for. This judgment and the allowance of the amendment were complained of by petition for certiorari. In the answer to the certiorari it was stated that the trial judge construed the act creating the municipal court of Atlanta as giving the plaintiff “a right to change his cause of action, provided he adhered to matters growing out of the same contract.” The act referred to provides as follows: See. 37. (c) “The trial judge shall, at any time, in the furtherance of justice, upon such terms as may be just, permit any claim, suit, process, proceeding, pleading, or record to be amended, in form or in substance, or material supplemental matter to be set forth in an amended or supplemental oral claim or pleading. The judge, at every stage of the proceeding, must disregard any error or defect in the proceeding which does hot affect the substantial rights of the parties, and amendments changing the cause of action, or presenting a new cause of action, arising out of the same transaction or subject-matter, shall be allowed, providing, however, for time to the opposite party, where, in the discretion of the court, it is deemed necessary to meet the new matter claimed by the amendment.” Acts 1913, p. 164.</p>

<p>Complaint—appeal; from Whitfield, superior court—Judge Fite. November 27, 1916.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. October 6, 1916.</p>

<p>1. On the trial of an issue formed by objections of adult children of a decedent to a return of appraisers, setting apart a year’s support to the widow, the burden of proof is on the objectors.</p> <p>2. The exceptions to the charge of the court are without merit. The verdict is authorized by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Action for damages; from Habersham superior court—Judge' Jones. November 18, 1916.</p>

<p>Action for slander; from Warren superior court—Judge Walker. January 21, 1916.</p>

<p>Action for damages; from Cobb superior court—Judge Patterson. April 15, 1916.</p>

<p>Action for damages; from Cobb superior court—Judge Patterson. April 27, 1916.</p>

<p>1. The act of the General Assembly of Georgia, approved August 4, 1914, providing for a commission form of government for the City of Rome, is mandatory in requiring, for the abolition of an existing municipal office, a recommendation of the first commissioner, and that all votes taken thereon shall .be by “aye” or “noj and shall so appear on the minutes of the commission; and where the minutes not only fail to show such a recommendation, but also fail to set forth the “aye” and “no” vote as prescribed, parol evidence of such recommendation and vote is not admissible.</p> <p>2. The evidence did not require a finding by the jury that the plaintiff had acquiesced in the attempted abolition of his office.</p>

Complaint; from city court of Americus—Judge Harper. January 29, 1916.

<p>Complaint; from city court of Savannah—Judge Ereeman. April 24, 1916.</p>

<p>Levy and claim; from city court of LaGrange—Judge Harwell. June 15, 1916.</p>

<p>Complaint; from city court of Sandersville—Judge Eawlings. August 18, 1916.</p>

<p>Complaint; from city court of Eastman—Judge Neese. August 23, 1916.</p>

<p>Action 'on contract; from city court of Floyd county—Judge John K. Davis presiding. June 21, 1916.</p>

<p>Complaint; from city court of Albany—Judge Jones. August Í1, 1916.</p>

<p>Where a suit was filed, returnable to the quarterly term of a city court, and during the term at which a verdict thereon was rendered a motion for a new trial was made, and the order of the judge set a day for its hearing in vacation, and provided that if the motion should not then be heard, it should be heard at such time in vacation as counsel might agree upon, and, upon failure to agree, then at such time and place as the presiding judge might fix on the application of either party, of which time and place the opposite party should have at least five days’ notice; and that if, for any reason, the motion should not be heard and determined before the beginning of the next term of the court, then it should stand on the docket until heard and' determined at that term or thereafter; and where, without fault of the movant, it was not heard at the date "fixed in vacation, nor at the next succeeding quarterly term of the court, the motion thereupon went over, by-operation of law, to the following quarterly term, and was not subject to be called up without notice at an intervening monthly term, and then dismissed on the -grounds that no brief of evidence had been filed and there was no appearance for the movant.</p>

<p>1. Ordinarily a policy of insurance upon the life of a married man, where no person is named therein as the beneficiary, is not payable to his wife, but is payable to the executor or administrator of his estate. Where, however, the provisions of the policy can be so construed as to raise a fair inference that it was the intention of the parties to the contract that the amount due under the policy upon the death of the insured should be paid to the wife, she has a right of action against the company, upon its refusal to pay her the amount due at his death.</p> <p>2. The court erred in dismissing the action, on general demurrer.</p>

Trover; from city court of Macon—Judge Guerry. October 3, 1916.

<p>Accusation of larceny from house; from city court of Newnan—■ Judge Post. December 5, 1916.</p>

<p>Accusation of misdemeanor; from city court of Tifton—Judge Eve. 'November 4, 1916.</p>

<p>Accusation of larceny; from city court of Carrollton—Judge Beall. October 20, 1916.</p>

<p>' Accusation of gaming; from city court of Macon—Judge Guerry. December 30, 1916.</p>

<p>1. Where on the trial of a criminal case the evidence fails to show a confession of guilt by the accused, it is error to charge the jury on the law of confessions.</p> <p>2. The assignments of error on other instructions of the court are, so far as insisted upon in the brief of counsel, without merit.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. November 21, 1916.</p>

<p>Accusation of larceny from person; from city court of Dublin— Judge Plynt. December 16, 1916.</p> <p>The accusation charged that the accused “did . . unlawfully, wrongfully, fraudulently, privately, and without the consent of” Prank Butler, take from the person of the said Butler certain money (described), with intent to steal the same, contrary to the laws of this State, etc. The accused was convicted and sentenced, and on the same day moved to set aside the verdict and judgment, contending that the accusation was -fatally defective because it failed to charge that the taking was “without the knowledge” of the person from whom the money was taken. The motion was overruled, and he excepted.</p>

<p>1. On. the trial of a person indicted, for the commission of a felony other than one of those enumerated in § 1062 of the Penal Code of 1910, it is the duty of the court to inform the jury of so much of the provisions of that section as relate to their power, in the event of conviction, to recommend that the accused be sentenced as for a misdemeanor, and that such recommendation is effectual to reduce the penalty only when approved by the trial court.</p> <p>2. Where such omission occurs in the general charge given the jury, it is the right and duty of the court to recall the jury after they have retired to consider their, verdict, and to supply the omitted instructions.</p> <p>3. The charge of the court in the ease at bar was not erroneous for any of the reasons assigned, and the objections taken as to the admission of evidence are without merit. The verdict is not without evidence to sustain it, and the trial court did not err in overruling the motion for a new trial.</p>

<p>Indictment for sale of liquor; from Pike superior court—Judge Searcy. December 26, 1916.</p>

<p>Indictment for misdemeanor; from Muscogee superior court— Judge Munro. December 28, 1916.</p>

<p>Indictment for assault witb intent to murder; from Coffee superior court—Judge Summerall. December 2, 1916.</p>

<p>Indictment for .abandonment of child; from Bartow superior court—Judge Tarver. January 10, 1917.</p>

<p>Indictment for arson; from Bulloch superior court—Judge Hardeman. December 28, 1916.</p>

<p>Indictment for larceny of hog; from Bryan superior court— Judge Sheppard. December 18, 1916.</p>

<p>Indictment for larceny of hog; from Bryan superior court— Judge Sheppard. December 18, 1916.</p>

<p>Certiorari; from Pulton superior court—Judge Bell. January 17, 1917.</p>

<p>1. The evidence, although wholly circumstantial, was sufficient to warrant the conviction of the defendant of the offense of simple larceny.</p> <p>2. The charge of the court was not, for the reasons assigned, erroneous.</p>

<p>Indictment for sale of liquor; from Wayne superior court— Judge Highsmith. December 30, 1916.</p>

<p>Accusation of sale of liquor; from city court of Nashville—• Judge Christian. January 20, 1917.</p>

<p>Accusation of misdemeanor; from city .court of Eastman—Judge Griffin. January 30, 1917.</p>

<p>Accusation of larceny; from city court of Nashville—Judge . Christian. January 20, 1917.</p>

<p>Accusation of larceny; from city court of Jesup—Judge Clark. January 16, 1917.</p>

<p>Indictment for larceny; from Bibb superior court—Judge High-smith presiding. February 8, 1917.</p>

<p>Trover; from city court of Jefferson—Judge Mehaffey. August ’ 23, 1916.</p>

<p>Dispossessory warrant; from city court of Floyd county—Judge Nunnally. September 13, 1916.</p>

<p>Certiorari; from Liberty superior court—Judge Sheppard. November 4, 1916:</p>

<p>1. A written contract of conveyance of a right of way to a railroad company, duly executed and delivered by an owner of land, can not be varied by oral testimony to the effect that he executed and delivered the contract upon agreement by the agent of the railroad company that the company would so construct its railroad as not to interfere with the use of his land, on either side of the right of way, for pasturage purposes.</p> <p>2. The plaintiff’s evidence did not establish a cause of action as pleaded, and the court properly granted a nonsuit.</p>

<p>Certiorari; from Worth superior court—Judge Cox. May 27, 1916.</p>

<p>Action for damages; from Campbell superior court—Judge Smith. August 9, 1916.</p>

<p>1. Under the statute law of Georgia a wife can not recover of a husband, with whom she is living in lawful wedlock, for a tort resulting from his negligent operation of an automobile in which they were riding at the time of the injury.</p> <p>2. The court erred in overruling the general demurrer to the plaintiff’s petition.</p>

<p>Certiorari; from Walker superior court—Judge Wright. January 23, 1917.</p>

<p>Forfeiture of recognizance; from city court of Carrollton—• Judge Beall. June 24, 1916.</p> <p>On the ground that the assignments of error were too vague and indefinite, the defendant in error moved to dismiss the writ of error. The bill of exceptions states that there was an oral motion to strike the defendant’s answer, for want of issues of fact to be determined by a jury, and that a certain amendment to the answer was then offered by the defendant and was not allowed, but the court ordered that it be filed and become a part of the record in the case; and error is assigned as follows: “To the disallowance of said amendment defendant excepted, now excepts, and assigns the same as error. Whereupon the judge of the said court then and there sustained the motion to strike the answer, and entered up judgment against your defendant in the said ease, to which rulings and entering up judgment your defendant excepted, now excepts, and assigns the same as error.”</p>

<p>Complaint; from city court of Quitman—Judge Long. July 10, 1916:</p>

<p>Complaint; from city court of Floyd county—Judge Nunnally. August 4,' 1916.</p>

<p>Complaint; from Haralson superior court—Judge Bartlett. October 6, 1916.</p>

<p>Complaint; from city court of Elberton—W. D. Tutt, judge pro hac vice. October 28, 1916.</p>

<p>Money rule; from Hall superior court—Judge J. B. Jones. July 29, 1916.</p> <p>The exceptions were to a judgment rendered on July 29, 1916. The date of the judge’s certificate to the bill of exceptions was November 14, 1916. His signature to the certificate was preceded by a note as follows: “This bill of exceptions was presented to me during the recess of a trial on August 26th, 1916. Not having time to read the exceptions at that time, I told counsel for plaintiff in error to make a memorandum of its having been presented that day, take the bill of exceptions, and that I would take it up later, and that I would consider it presented that date. I have been busy holding courts since out of the county, except Saturdays that I would hold motion courts in Gainesville, during which time I have been busy. I have never called for the bill of exceptions from the counsel for plaintiff in error. It was given to me this day to have this certificate made.”</p>

<p>Complaint; from city court of Albany—Judge Clayton Jones. November 16, 1916.</p>

<p>Foreclosure .of lien; from Evans superior court—Judge Sheppard. May 31, 1916.</p>

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

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

<p>Complaint; from Dooly superior court—Judge George. July. 5, 1916.</p>

<p>1. Where suit was brought in a justice’s court, and, after judgment for the plaintiff, he, being dissatisfied with the amount thereof, entered an appeal to a jury in that court, the subsequent entry of an appeal to the superior court by the defendant did not serve to remove the case from the justice’s court, or to divest it of its jurisdiction, even though both appeals were entered within the time allowed by law for entering such appeals.</p> <p>2. The evidence authorized the verdict and judgment in the justice’s court, and accordingly the court did not err in overruling the certiorari.</p>

<p>Eviction; from Evans superior court—Judge Sheppard. March 35, 1916.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. October 16, 1916.</p>

<p>. Action for damages; from Baldwin superior court—Judge Park. January 11, 1916.</p> <p>C. E. Denbam and others, by their next friend, filed suit against the Texas Company and A. S. Denham, alleging the following facts: Plaintiffs are- the minoy children of A. S. Denham and Patty N. Denham. The Texas Company is á corporation nonresident of this State, and A. S. Denham is, and was at the time of the-injury complained of, the company’s agent in charge of-its office in the county of the suit. On June 10, 1915, Mrs. Patty N. Denham, the mother of the plaintiffs, at the invitation of said A. S. Denham, agent of the Texas Company, and with the knowledge and assent of the Texas Company, occupied a seat and was riding in an automobile then being used .by the Texas Company in the conduct of its business in said county. The said automobile was being then operated by A. S. Denham in the performance of his duties as the agent of said Texas Company. While the plaintiffs’ mother was so riding she was thrown from the automobile and killed, as a result of the negligence of A. S. Denham, her husband, in causing said automobile to collide with another vehicle. The specific negligence alleged was: the operation of the automobile at a high and dangerous rate of speed, in -violation of a valid municipal ordinance of the City of Milledgeville, and in violation .of the rules of the road, and in violation of the law of the State; the failure to cheek the speed of the automobile on approaching a street crossing in the City of Milledgeville, and the failure to sound a horn or whistle or to give any warning in approaching the said street crossing. Mrs. Patty N. Denham, at the time of her death, was capable of earning $60 per month, she was thirty-four years of age and had a reasonable expectancy of thirty-five years of life, and the full value of her life was $7,500. The petitioners are her only heirs at law. By amendment it was alleged that the car furnished by the Texas Company was defective, in that its brakes were out of order and would not operate, and could not be applied to stop the car when it was in motion; that the failure to have the car equipped with a proper brake was negligence and contributed to the injury complained of, and that A. S. Denham, the father of the plaintiffs, refused to sue for the death of his said wife; and the prayer for judgment against him was stricken.</p> <p>The Texas Company demurred to the petition, on the following grounds: (1) The allegations of the petition set out no cause of action against the defendant; (2) the petition shows on its face that the injury and death of the plaintiffs’ mother was attributable to the negligence of their father, at whose invitation their mother was riding at the time; (3) the petition shows on its face that the father of the plaintiffs was living at the time the suit was filed; that the fight of action for the homicide of the wife and mother was in the husband and father, and not in the children; and that during the lifetime of the father no right of action for the homicide of the mother exists in the children. The court sustained the demurrer and dismissed the petition.</p>

<p>1. Tlie fact that one riding as a passenger on a railroad-train actually purchased from an agent of the carrier, before boarding the train, a ticket entitling him to transportation thereon, does not relieve him of tlie.obligation to surrender the ticket to the conductor on demand; and if he is unable, through no fault of the carrier, to produce and deliver. the ticket to the conductor after he has been given reasonable opportunity for so doing, he must, in order to entitle him to remain upon the train, offer to pay his fare.</p> <p>2. Where a passenger claiming to have misplaced his ticket has been given a reasonable opportunity to find it and surrender it to the conductor, and fails to do so and makes no offer to pay the cash fare, he may lawfully be expelled from the train. '</p> <p>3. Where, for the sole purpose of expelling the passenger, on his failure either to produce and surrender his ticket or to offer a cash fare, steps are taken to stop the train, or it is brought to a full stop between stations and at a point at which it is not scheduled to stop, he can not, after expulsion, demand the right to re-enter the train.</p> <p>4. Although it may be lawful to expel the passenger, special circumstances as to the manner or the time or place of the ejection may render it wrongful. In this case the evidence for the plaintiff clearly . disclosed that his expulsion was lawful, and he sustained no injury on account of the manner, time, or place of his expulsion. The nonsuit was properly awarded.</p>

<p>Affidavit of illegality; from city court of Atlanta—Judge Reid. August 23, 1916.</p>

<p>Action on contract; from Fulton superior court—Judge Smith presiding. July 28,- 1916.</p>

<p>Action on insurance policy; from city court of Hall county— Judge Wheeler. November 20, 1916.</p>

<p>Attachment; from Bryan superior court—Judge Sheppard. November 8, 1916.</p>

<p>■ Trover; from Catoosa superior court—Judge Fite. August 11, 1916.</p>

<p>Action on contract; from city court of Sandersville—Judge Jor^ dan. July 25, 1916.</p>

<p>Trover; from Calhoun superior court—Judge Cox. June 6, 1916.</p>

<p>Action for damages; from city court of Macon—Judge Guerry. October 11, 1916.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. December 11, 1916.</p>

Action for damages; from Whitfield superior court—Judge Fite. April 5, 1916. Brookshier sued Williams in separate counts for malicious prosecution, false arrest, false imprisonment, and malicious abuse of process. The action was based on a prosecution begun by the swearing out of á warrant by Williams, charging Brookshier with the offense of larceny after trust of 12 gallons of sorghum.

<p>Action for damages; from DeKalb superior court—Judge Smith. January 21> 1916.</p>

<p>1. In order for a mother to recover, under the provisions of section 4424 of the Civil Code of 1910, for the negligent homicide of her minor son, it must appear both that at the time of the homicide she was dependent upon the child and that the child contributed substantially to her support. The degree of dependence may be either total or partial, and the contribution by the child may be either in part or in full support of the mother.</p> <p>2. In such a ease the mother may recover notwithstanding the father of the child be in life and in such a state of health as to enable him to perform labor. The right of action in favor of the mother is created by'the fact of contribution and dependence, and not by the legal obligation to contribute to her support. The contribution may be either in labor or in money, or both.</p> <p>3. If the father, the mother, and the minor son reside together and are mutually dependent upon the labor of the family for support, the minor son, who, by his labor or its proceeds, aids in the support of the family, is to be considered as contributing substantially to the support of the mother.</p> <p>4. In a suit against a railway company for the negligent homicide of the plaintiff’s son it is necessary that the cause of action be plainly and distinctly set out, and the plaintiff can not recover on account of acts of negligence not alleged in the petition. •.</p> <p>5. In such a suit, if it be shown by evidence that the injury on account of which the suit was brought was caused by the running of an engine or ears of the defendant, the presumption arises that the company or its agents were guilty of the acts of negligence alleged in the petition.</p> <p>6. A verdict for $4,000, returned four years after the negligent homicide of plaintiff’s son, who at the time of his death was fourteen years of age, and who contributed substantially to the support of the mother, is not excessive.</p> <p>7. The evidence in the present record warranted the verdict, and the exceptions to the charge of the court are without substantial merit. The court did not err in overruling the motion for a new trial.</p>

<p>1. Each ground of a motion for a new trial should be complete within itself, or rendered so by exhibits attached thereto. Where the admission oí evidence is complained of it must affirmatively appear that specific objections were made thereto at the time it was offered, and the evidence itself must be set out literally or in substance.</p> <p>2. Tax returns as contained in the tax-receiver’s digest, while in the nature of admissions, are not conclusive as to the value of the property returned; and when such returns are introduced as evidence to show contradictory statements of the value of property by the person making the returns, he should be allowed to show in rebuttal the circumstances under which the returns were made; the weight of the testimony, under all the facts, to be determined by the jury. “</p> <p>3. Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted.</p> <p>4. Where a municipality, by changing the grade of a street, makes it necessary for an owner of property abutting thereon to incur expenses in adjusting the building on the property to the new level of the street, it is proper to admit in evidence the cost of such work, not as an independent item of special damage, but as a circumstance to throw light upon the general question as to the diminution of market value.</p> <p>5. Where checks are given in payment for material necessary for certain work, and the cost'of the work must be shown, the checks, when properly identified, are admissible as a part of the evidence to show the cost of the work.</p> <p>6. What is customary or usual for property owners to do in the construction of their buildings in one part of a city is not material or relevant evidence in determining the duty of a property owner in a different part of the city, as to the adjustment of his building to the new level of the street, caused by grading.</p> <p>7. When considered in connection with the entire charge, there is no error in the excerpts therefrom, complained of in the motion for new trial.</p>

<p>Complaint; from city court of Dawson—Judge Edwards. August 36, 1916.</p>

<p>Complaint; from city court of Cairo—Judge Willie. July 20, 1916.</p>

<p>Money rule; from city court of Thomasville—Judge W. H. Hammond. September 30, 1916.</p> <p>The motion to dismiss the writ of error was on the following grounds: (1) “As to the plaintiff in error, Thomasville Live Stock Company, the only exception taken, to the final judgment is that it is erroneous in that the judgment of the Thomasville Live Stock Company, under which sale was made, being on notes secured by mortgage recorded prior to the judgment of Burney, was entitled to the fund in preference to Burney’s judgment. This is not a sufficient assignment of error to the ■ judgment, although error is formally assigned thereon, so far as the Thomasville Live Stock Company is concerned, there being no written pleadings filed by said Thomasville Live Stock Company; and plaintiff.in error has no right to carry this ease to the Court of Appeals, no written pleadings having been filed by' it, making it a party thereto; nor is there any order allowing Thomasville Live Stock Company to adopt the sheriff’s answer, and nowhere is it shown, that they adopted his answer as their own, and the sheriff is the only party entitled to carry the same to this court. (2) Because no motion for a new trial was ever made.”</p>

<p>Complaint; from city court of Macon—Judge' Guerry. September 26, 1916.</p>

<p>Action on bond; from city conrt of Statesboro—Judge Proctor. October 12, 1916.</p>

<p>Trover; from city court of Macon—Judge G-uerry. November 20, 1916.</p>

<p>Complaint; from Bryan superior court—Judge Sheppard. August 31, 1916.</p>

<p>Money rule; from city court of Albany—Judge Clayton Jones. November 16, 1916.</p>

<p>Complaint; from Warren superior court—Judge Walker. May 20, 1916.</p>

<p>Complaint; from Gordon superior court—Judge Fite. August 31, 1916.</p>

<p>Complaint; from Dade superior court—Judge Fite. March 22, 1916.</p>

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. December 19, 1916.</p> <p>The petition as amended alleges, that the plaintiff was employed by the defendant company as timekeeper and keeper of stores at the work performed by the company on a certain warehouse which was being constructed. The defendant was constructing the concrete floor of the warehouse and had complete charge of the same. On September 4, 1916, the plaintiff, in the performance of his duties, was going from the defendant’s office into a compartment in the northwestern section of the building, on the concrete floor constructed by and in the charge of the defendant, over the path or way usually traversed by the employees of the defendant, when he stepped upon a'forty-penny nail sticking through a piece of board lying with its point upward on the concrete floor, and received injuries described. The nail was negligently and carelessly left on the floor by the defendant in a place where the plaintiff was required to go in the performance of his duties. The plaintiff was not warned by the defendant that the nail was on the floor. A piece of paper about four inches wide and five inches long had blown up against the nail and board, so that, coming upon it from the direction from which the plaintiff came, he could not see the nail or board, but it was apparent from the other side. He was free from fault, he was where he had a right to be, he was in the performance of the duties of the defendant at the place of work provided for him by the defendant, he did not know the nail was sticking up on the floor, and he did not have equal means with the defendant of knowing .this fact, and could not by the exercise of ordinary care have known of it. The defendant was charged by law with furnishing him with a safe place of work, and, if there were dangers, of warning him what such dangers were. The defendant left the nail, or caused it to be left, on the floor, and by the exercise of ordinary care could have discovered it. A reasonable inspection of the premises would have disclosed the nail, but the defendant' did not make an- inspection of the premises to learn of dangers to the employees. The defendant was negligent, (1) in leaving the nail on the floor in such manner that it would injure the plaintiff or his fellow laborers, (2) in not causing the nail to be removed from the floor so as to keep the plaintiff.and his fellow laborers from being injured, (3) in not inspecting the premises so as to discover that the nail was so exposed on the floor, and (4) in not warning the plaintiff that the nail was on the floor and dangerous to him in going over the floor in the discharge of his duties. Each of these acts of negligence concurred in causing the injuries complained of.</p> <p>The defendant demurred to the petition on the ground that no cause of action was set forth, and by special demurrer made the contentions, among others, that the petition did not affirmatively allege facts showing why the plaintiff did not have equal means with the defendant of knowing the facts referred to; and that the petition did not allege why the premises should be inspected or what employee failed in the duty of inspection. The court sustained the general demurrer, as well as these special grounds, and dismissed the petition.</p>

<p>Eviction; from Taliaferro superior court—Judge Walker. February 28, 1916.</p>

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

<p>Complaint; from city court of Floyd county—Judge Nunnally. July 25, 1916.</p>

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

<p>Certiorari; from Fulton superior court—Judge Bell. October 16, 1916.</p>

<p>Complaint; from Whitfield superior court—Judge Fite. November 37, 1916.</p>

<p>Complaint; from Fulton superior court—Judge Ellis. December 23, 19Í5.</p> <p>Lee Kinney sued the Georgian Company on a contract, a. copy of which is as follows: “Agreement entered into this seventh day of February, 1911, between the Georgian Company, party of the first part, and Lee Kinney, party of the second part: It is proposed to publish on definite dates, to be fixed hereafter, but not later than July first, 1911, in the-daily Atlanta Georgian , and News, what shall be known as the triple tabloid supplements, to consist of one or more pages, to be published once a week for three consecutive weeks. It is understood that the party of the second part shall give the necessary time and attention and assume all expenses incident to the securing of the contracts for advertising to be published in said triple tabloid supplements; each contract to cover a minimum space of two inches single column to each advertiser, with a maximum space of one page; the rates to be as follows: $3.00 per inch for each insertion; $180.00 per page each insertion; size of page to be fifteen inches deep, four columns wide. It is agreed that a list of persons or concerns to be solicited for such advertising shall first be submitted to and accepted by the party of the first part, and the party of the first part has the right to refuse any contracts brought in by the party of the second part, and can not be bound by same unless such contracts are accepted by a duly authorized agent of the party of the first part. It is further agreed by the party of the first part that of the total gross receipts of money received for such advertising the party of the second part shall be entitled to fifty per cent, of the same; and it is further agreed that all checks received in payment of such advertising shall be made payable to the party of the first part.” The plaintiff alleged, that he proceeded “to secure contracts for advertising in accordance with said contract made with defendant, and the defendant accepted the same to the total amount of-$14,777; that under said contract it was the duty of defendant to collect the total amount of advertising from those who contracted for same and had their advertisements published; that he did not know the amount which had been actually collected upon said contracts, but alleged that it exceeded the sum of $7,000, and that a reasonable time had been allowed the defendant to collect the said sum. He asked for interest thereon at seven per cent, per anmrm, and prayed for recovery in the amount of $7,388.50, besides interest, the said principal amount being one half of the total amount of' the contracts accepted.</p> <p>The defendant filed lengthy pleas, admitting the making of the contract; that the plaintiff had secured and turned in to the Georgian Company advertising contracts to the amount of $14,777, and that of said amount $8,383 had been collected by defendant; and, by way of counter-claim, the defendant alleged that it had "been damaged by the wrongful acts of certain solicitors employed by the plaintiff to secure advertising, and asked for judgment against the plaintiff in the sum of $10,000. The plaintiff amended his petition, by adding thereto copies of three different kinds of contracts which his solicitors secured from three different classes of" advertisers. On each of these contracts was printed the following: “Conditions or representations not expressed on the original and duplicate are not holding.” Defendant admitted in an amended plea that the copies of these contracts were correct. The plaintiff filed general and special demurrers to the plea, and upon the hearing thereof practically all the grounds of the demurrer .were .sustained and the plea was stricken. Ten days were given the defendant in which to amend. The defendant redrafted his plea and filed the redrafted plea as an amendment to the original. The plaintiff renewed the demurrers originally filed, and added others, and upon a hearing thereon the court sustained the general demurrer to the counter-claim of the defendant, and sustained certain other grounds of the demurrer. After the filing of his amended plea the defendant, on July 2, 1915, filed a bill of exceptions pendente lite to the order sustaining the demurrer to the original plea, and on November 2, 1915, a bill of exceptions to the order on the demurrer to the amended plea. On the trial of the case the plaintiff, as stated in the main bill of exceptions, “introduced evidence to sustain the several allegations in his petition.” No evidence was introduced by the defendant. The judge directed a verdict in favor of the plaintiff for $4,140, principal (being one half of he amount collected), and for interest amounting to $746. The defendant excepted, and the plaintiff filed a cross-bill of exceptions.</p>

<p>Indictment for seduction; from Jeff Davis superior court—Judge Highsmith. November 28, 1916.</p>

<p>Indictment for burglary; from Emanuel superior court—Judge Hardeman. January 3, 1917.</p>

<p>Indictment for larceny from house; from Marion superior court —-Judge Munro. December 16, 1916.</p>

<p>Conviction of assault and battery; from Jeff Davis superior court—Judge Highsmith. .December 37, 1916.</p>

<p>Conviction of shooting at another; from Floyd superior court—Judge Wright. February 17, 1917.</p>

<p>Accusation of carrying concealed weapon; from city court of Leesburg—Judge Martin. January 17, 1917.</p>

<p>Indictment for assault and battery; from McIntosh superior court—-Judge Sheppard. January 23,. 1917.</p>

<p>Indictment for misdemeanor; from Jeff Davis superior court— Judge Highsmith. December 27, 1916.</p>

<p>Petition for certiorari; from Fayette superior court—Judge Searcy. February 1, 1917.</p>

<p>Petition for certiorari; from Fayette superior court—Judge Searcy. February 1, 1917.</p>

<p>Petition for certiorari; from Fayette superior court—Judge Searcy. February 1, 1917.</p>

<p>' Accusation' of misdemeanor; from city court of Greenville— Judge Kevill. March 2, 1917.</p>

<p>Accusation of misdemeanor; from city court of Bainbridge— Judge Spooner. February 27, 1917.</p>

<p>Indictment for assault witb intent to murder; from Floyd superior court—Judge Wright. March 7, 1917.</p>

<p>Indictment for sale of liquor; from Tattnall superior court-judge Sheppard. February 10, 1917.</p>

<p>Accusation of carrying pistol without license; from city court of Tifton—Judge Price. March 3, 1917.</p>

<p>Indictment for murder—conviction of manslaughter; from Clarke superior court—Judge Brand. November 27, 1916.</p>

<p>Indictment for' larceny; from city court of Americus—Judge Harper. October 23, 1916.</p>

<p>Accusation of misdemeanor; from city court of Tifton—Judge Price. March 5, 1917.</p>

<p>1. Section 513 of tlie Penal Code (1910), which provides a penalty for wrecking or attempting to wreck “a railroad train, locomotive, car, coach, or vehicle of any kind, when used or run on any railroad-track for the purpose of travel or transportation," includes cars of a street-railroad operated by electric power, as well as cars of a railroad oper- . ated by steam power.</p> <p>2. On the trial of one charged with the offense of wrecking a street-car by the use of dynamite, it was competent to prove the fact of injury to a passenger thereon. The nature and character of the injury was relevant for the purpose of illustrating the character of the explosive used.</p> <p>3. Upon the trial of a criminal case the presiding judge may ask of a witness under examination any proper question in a proper manner. If the question be pertinent, but the response disclose irrelevant and immaterial testimony, counsel should move the court. to exclude the answer.</p> <p>4. A statement of an officer to one accused of crime, to tlie effect that it would be better for him to tell the truth about the case, does not necessarily, as a matter of law, render inadmissible as evidence a confession of guilt, made in the circumstances disclosed by the present record. With reference to confession evidence, what the law altogether abhors is the testimonial untrustworthiness of the confession. If the inducement is sufficient by possibility to elicit an untrue confession of guilt, then the confession.is to be rejected; otherwise it is to be admitted under proper instructions from the court.</p> <p>5. The evidence was sufficient to warrant the verdict of guilty, and the court did not err- in overruling the motion for new trial.</p>

<p>]. Section 513 of the Penal Code of 1910 may be violated by wrecking or attempting to wreck a street-car or coach when used for the purpose of travel or transportation on any -railroad-track, where the motive power is supplied by electricity.</p> <p>2. Where, without objection on the part of the defendant, the trial judge sets aside a juror because of facts elicited by questions propounded by the court, the defendant is estopped from complaining of the verdict on the ground .that the court erred in setting aside the juror.</p> <p>3. On .the trial of one indicted under section 513 of the Penal Code, testimony of passengers on the car alleged to have been wrecked by the use of dynamite, as to injuries resulting to them from an explosion which affected the car, .was admissible to aid in determining whether the purpose of the defendant was to wreck the cal', or only to obstruct or injure the track, and also to throw light upon the issue whether the ear was wrecked by the use of dynamite or otherwise.</p> <p>4. There was no error in admitting testimony that on the night of the alleged wrecking of the street-car, three sticks of dynamite were found at another point on the track of the same railroad company, the defendant having admitted that he placed it at that point, and it being clearly inferable from the evidence that it -was placed there in pursuance of a general scheme or plan by the defendant to wreck the cars of the street-railroad company.</p> <p>5. Evidence as to admissions of guilt involving the defendant, made by a coconspirator after the termination of the conspiracy, was admissible, where it appeared that they were made in the presence of the defendant himself and were then freely and voluntarily declared by the defendant to be true.</p> <p>6. When considered in the light of the entire charge of the court, there was no error in the charge relative to confessions; and the instruction that the jury must look to the “evidence,” to ascertain if the confession was freely and voluntarily made, did not prevent consideration of the defendant’s statement to the jury t'o the contrary, where the court fully and properly instructed the jury as to the weight and value they might accord to the defendant’s statement.</p> <p>7. The evidence amply authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.</p>

<p>1. The act of 1915 (Acts.of 1915, Extraordinary Session, p. 101) made it a penal offense for one to have in his possession prohibited liquors in bottles or receptacles of a capacity of less than one quart, or to have less than a quart of such liquors in more than one receptacle or bottle.</p> <p>2. The evidence was wholly circumstantial and was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.</p>

<p>Complaint; from city court of Cartersville—Judge Moon. July 27, 1916.</p>

<p>Foreclosure of lieu; from Habersham superior court—Judge J. B. Jones. January 31, 1916.</p>

<p>Action for damages; from city court of Savannah—Judge Freeman. June 20, 1916.</p>

<p>Levy and claim; from city court of Tifton—Judge Eve. November 6, 1917.</p>

<p>Appeal; from Terrell superior court—Judge .Worrill. November 25, 1916.</p>

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

<p>. Levy and claim; from Carroll superior court—Judge Freeman. June 8, 1916.</p>

<p>Action for damages; from Fayette superior court—Judge Searcy. August 12, 1916.</p>

<p>Action for damages; from Muscogee superior court—Judge Gilbert. June 20, 1916.</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton. February 8, 1916. '</p>

<p>Levy and claim; from Twiggs superior court—Judge Kent. February 3, 1-916.</p>

<p>Complaint; from municipal court of Atlanta. July 13, 1916.</p>

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

<p>Action for damages; from Jefferson superior court—Judge Thomas presiding. February 8, 1916.</p>

<p>Action for damages; from Chatham superior court—Judge Charlton. January 27, 1916.</p>

<p>Under tbe evidence submitted in tins ease, it was a question for tlie jury whether the insurer had absolutely refused to pay the loss under the policy of fire insurance, or had made a bona fide attempt to adjust it.</p>

<p>Complaint; from Taliaferro superior court—Judge Walker. October 18, 1916.</p>

<p>Complaint; from Evans superior court—Judge Sheppard. April 28, 1916.</p>

<p>Complaint; from Murray superior court—Judge Fite. August 23, 1916.</p>

<p>1. The statutory requirements as to notice of intention to bring suit, and of the term of the court to which suit will be brought, in order to recover attorney’s fees provided for in a promissory note, in addition to the principal and interest (Civil Code of 1910, § 4252), were complied with in the notice served upon the defendant in this case, notwithstanding the omission of the word “suit” from the statement that “we will institute-on same in the superior court Stewart county, returnable to April term, 1915.”</p> <p>2. It appearing that the writ of error was sued out for delay only, damages are awarded against the plaintiff in error, in accordance with the statute (Civil Code of 1910, § 6213).</p>

<p>Motion to open default; from Crisp superior court—Judge George. February 21, 1916.</p>

<p>Action on bond; from Wilcox superior court—Judge George. August 22, 1916.</p>

<p>Motion for discharge in trover; from Dooly superior court— Judge George. August 31, 1916.</p>

<p>Complaint; from Laurens superior court—Judge Kent. May 29, 1916.</p> <p>James A. Thomas sued Boseoe C. Hogan and Uriah G-. B. Hogan for $350 and interest,- alleged to be due under a written contract by which they agreed to pay him that sum to obtain a loan of $3,500 for them on certain land. He alleged that he obtained the loan and placed it at their disposal, but that they refused to accept it. The defendants, in their answer, denied the material allegations of the petition. On the trial the judge, at the conclusion of the evidence, directed a verdict for the plaintiff. The defendants brought the case to this court on exceptions to the refusal of their motion for a new trial, in which they alleged that the verdict was contrary to evidence and without evidence to support it, and that the directing of a verdict for the plaintiff was error, because the contract sued on was without consideration, unilateral, and without mutual obligation, and because the money was not tendered to or refused by the defendants, and it was not shown that the plaintiff secured the money to close the loan with, and further, because there was a question of fact as to who was to get the land released from the old loan when the contract was made.</p> <p>The contract introduced in evidence by the plaintiff was as follows :</p> <p>“Dublin, Ga., January 2d, 1915.</p> <p>“To James A. Thomas: We hereby constitute you our agent, and request and authorize you as such to negotiate for us a loan of thirty-five hundred dollars, on five years time, with interest at 7 per cent, per annum, payable . . . annually, at such place as you may name; said loan to be evidenced by our note, of the form used by you, and said note and loan to be secured by a deed with power of sale to secure debt, of the form used by you, to real estate owned by us, consisting of 300 acres of land in the 18th district of Laurens county, Georgia, more particularly described in our application of even date. In consideration of the procurement of said loan by you or by any other party or parties to whom you may transfer this contract, we hereby agree: First: To pay as commission ten per cent, of loan granted us, . . . dollars, to be deducted from the proceeds thereof. Second: To furnish a full and complete abstract, showing perfect title- to lands described in my application for said loan, and to save you harmless from loss by reason of your guarantee that said abstract is full and complete. Third: To accept said loan if negotiated for us, and to pay interest thereon from the day the money is placed at our disposal, subject to completion and delivery by us of notes and deed of approved form, which shall be a first lien upon the property described in our said application. Fourth: To pay the fees for recording, other incidental expenses, and all expenses incurred in perfection of our title.</p> <p>“If for any cause we . . . unable or unwilling to carry out the provision of this contract after said loan shall have been' procured for us, or our title should be pronounced defective by competent counsel employed to review said abstract, then we agree to pay you, or transferees, interest on the money from the date of procurement of loan, and said commission.</p> <p>“We have made, constituted, and appointed, and by these presents do make, constitute, and appoint said James A. Thomas our true and lawful attorney in fact to obtain for us said loan, and we hereby authorize .... to receive for us the whole or any part thereof, check, draft, or in cash, either for the payment of any prior lien or claim against the property described in our. said application, or for our further use or benefit. And we further authorize the said James A. Thomas to pay off any and all liens or claims of whatsoever kind and character against the property described in our said application, paying the amounts thereof directly to the legal holders of the same respectively, and to take out in our name insurance on the buildings described in said application, to the amount of-.</p> <p>“Witness our hands and seals, this second day of January, 1916.</p> <p>[Signfed] Eoscoe C. Hogan (L. S.)</p> <p>[Signed[ Uriah G. B. Hogan (L. S.).”</p> <p>The plaintiff testified as follows: He performed his part of said contract. He took the application, made abstract, submitted it to his companjr. They accepted the application, $3,500, and sent him all the loan papers to be signed by the defendants, and authority to draw on them for the money. The only reason the loan was not closed was the fact that there was a prior lien on this land in the application and other lands, made by D. G. Hughes, for $30,000, and defendants were unable to get this land in their application released from the old loan. He did not have the money in his hands, nor did he see the money sent to close this loan with, but Howard M. Smith, of Macon, Georgia, informed him that this loan had been accepted, and that the money was then ready to close it with when the title was straight. He knew of the old loan of $-10,000 when and before he took the contract sued on. He had a talk with defendants, Mr. Finn, and Mr. Williams about getting the land in this application released from the big loan, and it was the understanding that they were to have this done, and it was not the contract or agreement that plaintiff was to do this. “From the time the loan was accepted until it was called off, interest to the amount of $16.30 had accrued, and I had this to pay. I did all I could to close the loan, and it was no fault of mine that it was not closed, and I admit it was not the fault of defendants, but it was tin account of the prior loan on this and other land that they could not get released.” Plaintiff was ready to give draft or cash to Finn or defendants to close the loan the day it was called off.</p> <p>E. C. Hogan, one of the defendants, testified: He was the one who made the contract with Mr. Thomas to get the loan. He told Mr. Thomas that they owed Mr. Finn money on this land and wanted the loan to pay him with; also told Mr. Thomas about the Hughes loan, and told him if he and Mr. Finn and Mr. Williams could get it in shape, he wanted Mr. Thomas to get the loan, but that if he, Thomas, Finn, and Williams could not get this land out of the old loan, defendants did not want to pay anything on the land or loan; and Mr. Thomas said he had seen Finn and Williams, and that the old loan could be arranged and this land released; and on these terms and with this understanding he gave Thomas the contract. Thomas has never offered them the money, and defendants have not refused to' take the money. They wanted it then and still want it, but it was the distinct understanding that the defendants were not the ones to get the old loan released from the land in quesion, and Thomas, Finn, and Williams all knew this.</p> <p>G. H. Williams testified: Thomas and Finn came to him about getting the land released from the old loan, and he told them he thought he could do so, and would try, and he did what he could to get it released, but it was just after the war broke out, and loan companies would not disturb anything at that time. He, Finn, and Thomas all did all they could to get the land released, but failed. He had assumed the payment of the old loan, and the .money Thomas was trying to get was not to go to the loan company, but was to go to Finn. Thomas and Finn both knew about the old loan before the contract sued on was made.</p>

<p>Foreclosure of mortgage; from Laureus superior court—Judge Kent. June 1, 1916.</p>

<p>Action for damages; from city court of Griffin—Judge Flynt. December 7, 1916.</p>

<p>Complaint; from Twiggs superior court—Judge Kent. August 1, 1916.</p>

<p>Levy and claim; from Hart superior court—Judge Meadow. January 4, 1916.</p>

<p>1. Suit for damages was brought and process issued against the “City of ' College Park,” alleged to be a municipal corporation. The charter of the city, referred to in the petition and process, provides that “said city is hereby incorporated under the name and style of College Park,” but further provides that “said municipal government shall be styled the ‘mayor and council’ of the city of College Park, and by that name are made a body corporate; and as'such . . may sue and be sued.” Acts of 1895, p. 251 (§§ 2, 3). The suit being therefore a nullity ab initio (White v. Forsyth, 136 Ga. 634 (71 S. E. 1073), the demurrer raising the point that the defendant corporation was not sued in the name designated in its charter as the name in which it shall be sued, and that “the action, not being brought in the true corporate name of the defendant, can not be maintained in law,” was properly sustained, notwithstanding the demurrer was not interposed until after appearance and pleading; and the court did not err in refusing to allow a proposed amendment to the void suit. See, in this connection, Boon v. Jachson, 98 Ga. 490 (25 S. E.. 578) ; Town of Dexter v. Gay', 115 Ga. 765. (42 S. E. 94); Augusta Southern RaiUcay Go. v. Tennille, 119 Ga. 804 (47 S. E.-179); Toion of East Rome v. City of Rome, 129 Ga. 290 (58 S. E. 854) ; Gelders v. Fitzgerald, 135 Ga. 400 (69 S. E. 569); White v. Forsyth, supra.</p> <p>2. Jn view of the repeated and uniform adjudications by the Supreme Court on the question involved, some of which have been recently made, this court does not feel that it should invite the attention of the Supreme Court to the question and ask that these decisions be reviewed, and either modified, set aside, or reaffirmed.</p>

<p>Trover; from municipal court of Atlanta. July 5, 1916.</p>

<p>Complaint; from municipal court of Macon—Judge Chambers. July 21, 1916.</p>

<p>Attachment; from municipal court of Macon—Judge Chambers. July 24, 1916.</p>

<p>Action on policy; from municipal court of Macon—Judge Chambers. July 20, 1916.</p>

<p>Complaint; from municipal court of Macon—Judge' Chambers. August 19, 1916.</p>

<p>Complaint; from municipal court of Atlanta, May 19, 1916. Lamar Hill, for plaintiff in error.</p>

<p>Complaint; from municipal court of Macon—Judge Chambers. July 29, 1916.</p>

<p>Affidavit of illegality; from municipal court of Atlanta. January 22, 1916.</p>