Volume 2 — Georgia Appellate Reports

<p>1. Before a reviewing court is authorized to pass upon the constitutionality of an act of the General Assembly, it must appear that the question was made or presented in the court below and was passed upon by the trial judge; also the alleged repugnancy of the statute to some portion of the constitution must be specifically asserted.</p> <p>(a) An allegation of the repugnancy of a statute to the constitution is not sufficiently specific, unless the clause or paragraph of the constitution claimed to be violated is set out.</p> <p>•(6) No constitutional question is properly presented in this ease. • •</p> <p>2. An indictment is sufficient which states the offense in the terms or language of the statute, or so plainly' that the nature of the offense charged may be easily understood by the jury'.</p> <p>3. By the Penal Code, § 1039, a definite punishment is prescribed for “every crime declared to be a misdemeanor.” The effect of this section is not merely confined to the misdemeanors enumerated in the code, but has a prospective force.</p> <p>4. A place where futures are bought and sold on margins is a gaming-house.</p> <p>(а) This is true although “the contracts are telegraphed out of the State,” if the actual wagering or the settlement of the wagers take place in this State.</p> <p>(б) The Boykin act (Acts 1906, p. 95) has withdrawn from the business of dealing in futures on margins whatever legislative sanction there was to he implied from the fact that by the tax act of the State a license tax had been imposed upon “bucket shops.”</p> <p>(e) An assertion, although made in each transaction, by the customers of an office where futures are bought and sold, that actual delivery is contemplated and understood in all cases, will not prevent the keeper of the office from being guilty of maintaining a gaming-house, if as a matter of fact the customers, throughout a continued course, of dealings, do not make, tender, or accept actual delivery, but, through the proprietor of the office, settle their winnings and losses in money. The actual facts of the case must override the contradictory alleged contemplation of the parties.</p> <p>C. Wliere an indictment contains two counts, and the defendant lias teen found guilty on both counts, and only one sentence has been imposed, and the evidence authorizes the conviction, errors assigned relating to one count only are immaterial. In this ease the evidence authorized the verdict on both counts. The trial having been entirely free from error as to the count in the indictment charging the maintenance of a gaming-house, this court will not pass upon alleged errors in the instructions of the court to the jury in relation to the count charging a violation of the Boykin act, commonly known as the “anti-bucket shop law.”</p>

<p>1. Neither a policeman nor any Other arresting officer has any authority, without a warrant, either upon suspicion or information, that another is carrying a concealed weapon, to arrest the latter and search his person for the purpose of ascertaining whether or not such person is in fact violating the law prohibiting carrying concealed weapons. Even if the person arrested was so violating the law, the offense was not, in legal contemplation, committed in the presence of the officer, and' such an arrest, search, and seizure are unauthorized by law, and are, within the meaning of the constitution, unreasonable.</p> <p>2. As a general rule the law requires a warrant in order to render an arrest legal, whether it be made by a policeman or by any other public officer. There are three exceptions to« this rule: where an offense is committed in the officer’s presence; where the offender is endeavoring to escape; and where, from other cause, there is likely to be a failure of justice, for want of an officer to issue a warrant.</p> <p>3. Evidence of guilt, which the defendant, either directly or indirectly, is compelled to disclose by an unlawful search and seizure of his person under an illegal arrest, is not admissible i . a criminal prosecution against the person thus illegally arrested.</p>

<p>Action for damages, from Appling superior court — Judge Par-leer. December 21, 1906.</p>

<p>1. In the charge of assault with intent to rape, the credit to be attached to the testimony of the injured female is a matter wholly for the jury. •If such witness is credible to the jury, corroboration of her testimony is unnecessary.</p> <p>•2. It is not error, in a ease of assault with intent to rape, to refuse to charge that the accused should not be convicted upon the testimony of the woman alone, unless she made some outcry or told of the injury promptly, or her clothing was torn or disarranged, or her person showed signs of violence, or there were other circumstances which tend to corroborate her story. The particular circumstances which may tend to corroborate a witness, and the number of such circumstances necessary to produce that result, are wholly matters for the jury; and the jury may believe the witness without corroboration.</p> <p>3. On the trial of an indictment for assault with intent to rape, where the evidence is such that the jury may be authorized to find that the assault was committed by the .accused with the intention of gaining the woman’s consent to have sexual intercourse with him, without any intent to overpower lief will and commit the crime of rape, it is error to refuse to give in charge the law of assault; or assault and battery, as the indictment may authorize.</p> <p>4. In charging upon the prisoner’s statement, a trial judge can employ no better language than that embodied in the Renal Code, § 1010. Omission to instruct the jury that they may believe the defendant’s statement in preference to the sworn testimony is reversible error.</p>

<p>1. The damages recoverable under the provisions of the constitution of •of 1877 are for substantial injury to private property, real damage affecting the market value, and not speculative or imaginary damage affecting only the natural beauties of the property.</p> <p>2. Claims against counties must be presented by written demand to the proper county authorities within 12 months after such claims accrue 'or become payable, or the same are barred, unless held by minors or ■•persons laboring under disabilities. Where it appeared from the evidence that the above requirement had not been complied with, a verdict against the county was unauthorized.</p>

<p>Complaint, from city court of Atlanta — Judge Beid. January 28, 1907.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. .January 7, 1907.</p>

<p>1. Where a party has been induced to enter into a contract by a willful fraud on the part of the other party, calculated to deceive and which does deceive, the defrauded party may set up the fraud in his defense to an action on the contract.</p> <p>"2. In a suit on a promissory note against the maker thereof, the defense was that the maker had been induced to sign the same by a misrepresentation of a material fact, made wilfully to deceive him by the holder thereof. Held, that it was error to exclude the testimony in proof of this defense and to direct a verdict for the plaintiff.</p>

<p>Complaint, from pity court of Tbomasville — Judge Hansell. February 8, 1907.</p>

<p>Trespass, from city court of Atlanta' — Judge Eeid. October 27,,-1906.</p>

<p>'Motion for damages for bringing up case for delay.</p>

<p>1. The proper officer to record on the execution docket of a county court entries on executions issued from that court is the judge of the court. The sheriff has no authority to make such record. Therefore, where the sheriff recorded on the execution docket of the county court from which the execution issued an entry made by him as sheriff on the execution, there was no such compliance with the law as would prevent the dormancy of the judgment upon which the execution was based.</p> <p>2. When the record on the execution docket of an entry on an execution is made by the proper officer, he should date such record as of the date when made.</p> <p>.'3. The entry as it appears on the execution should .be recorded on the docket, and a substantial compliance with this requirement is necessary.</p>

<p>1. In the absence of charter limitations, contractual obligations, rule of the railroad commission, or statutory enactment to the contrary, a railway company may exercise its discretion in removing a side-track or spur at which it has been accustomed to receive and deliver freights, as a common carrier.</p> <p>2. As a common carrier a railway company owes to the public the duty of giving reasonable notice of the intention to abandon such a sidetrack, if the result of such ■ removal is to leave no facilities for the-receipt or delivery of such goods as it has been accustomed to receive- and deliver there. From a breach of this duty a cause of action will arise in favor of one who, in response to the implicit invitation of the-carrier to bring goods to that place for shipment, has so located his. goods, intended for shipment, that, by the removal of the track and the discontinuance of shipping facilities without notice, he has been specially damaged.</p> <p>3. What is reasonable notice in such cases is a question of fact for the-jury; and, in determining it, the exigencies, both of the public, so far as its members are likely to be interested as shippers, and of the carrier, in the light of its private rights and public obligations, should be considered.</p> <p>4. The damage recoverable by a particular prospective shipper, who, liav: ing arranged his property for shipment, is disappointed by the unexpected removal of the facilities, is so much of his loss sustained by reason of such removal as he would not have sustained if reasonable-notice of the intention to remove had been given by the carrier.</p>

<p>Complaint, from city court of Elberton — Judge Proffitt. December 12, 1906.</p>

Certiorari, from Gwinnett superior court — Judge Brand. September 4, 1906. Gresham, having been arrested on a bastardy warrant, made the following contract: “The State vs. Joseph Gresham. Warrant for Bastardy. Miss L. D. Hewatt, Pros.

<p>Complaint, from city court of Athens — Judge Cobb. June 29, 1906.</p> <p>The plaintiff’s traveling salesman induced the defendant to buy a piano, but the salesman did not have the authority to make a binding contract of sale. He took, however, a written instrument, signed by the defendant, reciting that the plaintiff had agreed to sell him a described piano for a given sum, to be paid at named dates in the future; the condition being annexed that the title should remain in the seller until paid for. It was expressly recited, however, that the contract was subject to the approval of the plaintiff The piano was already in the defendant’s custody, having been previously left with him on trial. The salesman carried the contract at once to the plaintiff’s office, and turned it over to the manager in charge, who stated that it was satisfactory; that the company would accept it. The contract was then delivered to the bookkeeper, who entered it on the books. Afterwards, on the same day, the defendant by telephone told the plaintiff’s manager, at its office, that he had decided to cancel the order. The manager replied that he had already placed the contract on the books, and that he could not accept a cancellation. No written approval or acceptance of the contract was shown. The defendant tendered back.the piano, refusing to recognize the contract. The plaintiff sued on the contract. The piano was worth more than $50. The trial judge directed a verdict for the defendant, and the plaintiff excepted.</p>

<p>1. The act of an engineer in blowing a whistle in compliance with the mandate of the statute in approaching a public crossing is not negligence, unless the whistle be blown in such manner as ■ to produce an unnecessary and unusual noise. Neither is the blowing of the whistle by the engineer for the purpose of preventing stock from getting on the track in front of a running train, where there is apparent danger that the stock will get on the track unless so frightened away, negligence, unless the blowing be done in an unusual and unnecessary manner. There was no evidence in this ease to support the verdict against the railway company, and the presumption of negligence was clearly rebutted by the positive and uncontroverted testimony.</p> <p>2. To render a railroad company responsible in damages for killing a horse, the evidence, or some reasonable inference deducible therefrom, must show that the death of the horse resulted from the injuries received. The evidence and circumstances in this ease failed to show that the death of the horse in April was the result of the injuries received in December before, but did clearly show that such death was caused by some disease disconnected with those injuries.</p>

<p>Action for damages, from city court of Polk county — Judge Irwin. December 17, 1906.</p>

<p>Certiorari, from Pike superior court — Judge Reagan. October 12, 190G.</p>

<p>Complaint, from Mitchell' superior court — Judge Spence. November 29, 1906.</p>

<p>Complaint, from city court of Nashville — Judge Peeples. August 15, 1906.</p>

<p>Complaint from city court of Nashville — Judge Peeples. October 6, 1906.</p>

<p>Conviction of manslaughter, from Pulaski superior court— Judge Parker. December 29, 1906.</p>

<p>Accusation of carrying concealed weapon, from city court of Vienna — Judge Henderson. February 23, 1907.</p>

<p>Action on bond, from city court pf Macon — ’Judge Hodges. June 12, 1906.</p>

<p>1. Judgment against a partnership binds not only the firm property, but, when that is exhausted, it binds the individual assets of the partners served. A judgment need not be rendered against the individual members of a partnership in order to bind individual assets. “A judgment ■against a copartnership binds not only the partnership property, but also the individual property of each member of the same who has been served with the process; but it does not bind, and execution issuing thereon can not be levied on, the individual property of one not served.” Ells v. Bone, 71 Ga. 469.</p> <p>■2. A partner’s separate property is bound alike.by all judgments against him, whether they be judgments against him as an individual or judgments against him as a partner. As to the proceeds of partnership property, an equity among the partners themselves requires that this property be applied'first to the payment of partnership debts, and it works in such a way as to give debts against the partnership a preference over debts against a partner, in respect to that partner’s interest in the partnership effects. Hoskins v. Johnson, 24 Ga. 630.</p> <p>.'3. Service on a partner is service on the firm. Notice to a partner is notice to the firm.</p>

<p>Complaint from city court of Macon — -Judge Hodges. September 8, 1906.</p>

<p>1. An appeal is a de novo investigation, and should not he dismissed because of the absence of either party to the cause. The action may be; dismissed for such absence and failure to prosecute the case on the part-of the plaintiff, but the appeal can not he dismissed for that reason.</p> <p>2. Consequently, where judgment in favor of the defendant had been rendered by a justice of the peace, and the case had been appealed to the¡ superior court, it was error, for non-appearance of the plaintiff, to dismiss the appeal, order an affirmance of the judgment in favor of the defendant, and enter judgment for costs against the plaintiff.</p>

<p>1. Where an attachment is returned to a court which the papers show-on their face does not have jurisdiction thereof, that court should refuse to entertain jurisdiction, and may order the proceedings transferred and returned to the proper court.</p> <p>2. Where a contract of sale contemplates transportation to the purchaser through the medium of a common carrier, ordinarily delivery of the goods to the carrier and acceptance from it of its standard bill of lading is delivery to the purchaser.</p>

<p>Distress warrant, from Marion superior court — Judge Little.’December 15, 1906.</p>

<p>Accusation of selling liquor, from city court of Monticello— Judge Clements presiding. March 12, 1907.</p>

<p>,1. In no trial should the scope of the court’s instructions to the jury be more limited or more extensive than the range of the relevant evidence properly submitted therein. The charge of the court should be pertinent and applicable to the issues presented by the evidence, and it is error to charge the jury upon a theory which is not sustained by evidence.</p> <p>2. Where one of tlie issues was whether there was no contract, or a certain definite contract, charges applicable to the nature of a contract which had not been shown to exist were properly refused.</p> <p>3. A contract will be construed as made for a legal, rather than for an illegal purpose; and the more especially when such contract is attacked by a party thereto who has been benefited thereby.</p> <p>4. “ Courts hold themselves bound to the observance of rules of extreme caution, when invoked to declare a transaction void on grounds of public policy; and prejudice to the public interest must clearly appear before a court will be warranted in pronouncing the transaction void on this account. It is not to be lightly inferred from facts and circumstances of doubtful import and meaning, or which may admit of different construction, one consistent with and the other opposed to unquestioned policy.” Smith v. DuBose, 78 Ga. 415, 3 S. E. 314,- 6 Am. St. Rep. 260.</p> <p>3. “Where the government offers contracts for public works to the lowest bidder, the public is deeply interested in free competition in the bidding; and as a general rule any agreements among contractors to suppress the bidding, and thereby to acquire the contract from tlie government at a higher figure than could otherwise be obtained if the competition was left untrammeled, are held to be illegal.” 15 Am. & Eng. Enc. Law (2d ed.), 953.</p> <p><8. “‘A joint proposal, the result of honest co-operation, though it might prevent the rivalry of the parties, and thus lessen competition, is not an act forbidden by public policy. . . . The public may obtain at least the benefit of the joint responsibility and of the joint ability to do.the service.’” “In all contracts secured in such a manner, the •courts should never hesitate to protect parties in their agreements with •each other and compel them to comply with the terms thereof.” Hoffman v. McMullen, 83 Fed. 377, 28 C. C. A. 183, 45 L. R. A. 410. “Tlie rule rendering illegal contracts suppressing competition in the letting •of public constructions does not render illegal bona fide partnership .agreements for bidding for such contracts, or other bona fide arrangements between prospective bidders, whereby a bid for the entire contract is put in and the parties to the agreement are each to do a part of the work; the object of the parties not being- to suppress competition.” 15 Am. & Eng. Enc. Law (2d ed.), 953.</p> <p>7. The judgment refusing a new trial is not, for any reason assigned, erroneous.</p>

<p>Accusation of vagrancy, from city court of Douglas — Judge .Eoan. May 3, 1907.</p>

<p>Certiorari, from Wilkes superior court — Judge Holden. May 10, 3 900.</p>

<p>1. A verdict of guilty, dependent upon an uncorroborated confession, should be set aside upon motion for new trial.</p> <p>2. While, in the absence of a request to charge upon that subject, a trial court is not generally required to instruct the.jury upon the subject of confessions, or as to their force and effect, still, where the case of the Rtate is entirely dependent upon a confession in order to authorize a conviction, the jury should be given appropriate instructions with reference to the care with which such confessions should be considered, and they should be informed that a conviction is not authorized unless such confession be corroborated.</p>

<p>Trover, from city court of Blakely — Judge Jordan. October 16,. 1906.'</p>

<p>The gist of tlie offense under the Penal Code, § 671, is the fraudulent sale or disposition of mortgaged personal property, and loss thereby sustained by the mortgagee. The statute requires proof of both elements of the offense. Loss, in its legal sense, was not shown, where the only evidence on the subject was the general statement by the prosecutor that he had lost “a good deal of valuable time, and had to employ a lawyer to foreclose the mortgage,” without stating the value of such time, or the amount paid or promised the lawyer for his services.</p>

<p>1. Evidence obtained by illegal seizure and search of the defendant’s person, by which he is compelled to criminate himself, being inadmissible against a defendant accused of crime, the burden devolves upon the State to show that evidence obtained by search was procured after a legal arrest. Proof that the arrest was legal is not made by the statement of a witness that the arrest was made under a warrant. The conclusion of a witness that a given paper is a warrant under which an arrest may legally be made is not proper proof that such a paper is in fact a warrant by virtue of which a legal arrest1 has been made, so as to authorize the admission of evidence obtained by means of an arrest under such paper or alleged warrant.</p> <p>2. Where a juror, properly rejected by either party to a cause, serves without the knowledge or consent of such party and his counsel, and, unknown to such party or his counsel, participates in the finding and rendering of a verdict in the case, a new trial should be granted on the motion of such party.</p>

<p>Accusation of gaming, from city court of Jeffersonville — Judge Clements presiding. March 26, 1907.</p>

<p>'There was no evidence in this case to authorize a charge upon the subject of manslaughter or a conviction for that offense.</p>

<p>The essential requisites in the offense of cheating and swindling by false-representations are: (a) That the representations were made; (6) that they were knowingly and designedly false; (e) that they were-made with intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing fact or past event; (/) that the party to whom the false statements were made, relying on their truth, was thereby induced to part with his property. It is incumbent upon the State to prove all of these elements of the offense, and if any one is lacking in the proof the offense is not made out.</p> <p>Applying the facts proved to the above legal requirements, the verdict in this ease was without evidence to support it, the conviction of the accused vas contrary to law, and the trial court should have granted him a new trial.</p>

<p>Accusation of cheating and swindling, from city court of Americus—Judge Crisp. April 15, 1907.</p>

<p>Certiorari, from Early superior court — Judge Worrill. April 12, 1907.</p> <p>The plaintiff in error was convicted before the mayor, presiding in the police court of the City of Blakely, for a violation of the following municipal ordinance: “If any person shall have in his possession in said city any intoxicating liquors for the purpose of unlawful sale or giving away thereof, on conviction thereof such person shall be punished as prescribed in section 17 of the city ordinances. In prosecutions for the violation of this or•dinance, one half the fine shall be paid to the informer.” By section 17 of the city ordinances all persons convicted thereunder are to be punished according to section 13'of the city charter (Acts 1900, p. 223), which prescribes that the officer presiding in the police court shall have the authority to punish persons convicted therein, of violating the city ordinances, by fine not exceeding $100, by imprisonment in the jail of Early county, or such other place as the city council may provide for a prison, for a term not exceeding 100 days, either or both, and to.coerce the payment of fines by imprisonment. Labor in the chain-gang or on the streets, not exceeding 100 days, may be allowed as alternative to fine or imprisonment. Sentence may be cumulative. Upon the trial the accused moved a discharge on the'ground that there was no sufficient charter authority for the passage of the ordinance under which he was being tried. The mayor denied the motion, and to this one of the exceptions is taken. The evidence was conflicting; but the mayor adjudged the defendant guilty and imposed, a fine of $50, with the alternative of 50 days work on the streets of the city. The defendant sought certiorari, which was denied by the judge of the superior court.</p> <p>Among the grounds for certiorari it is contended that the judgment and sentence of the police court is void, because sec. 13 of the city charter is in violation of article 1, § 1, par. 2 (the due process of law clause), of the State constitution, “because it provides for a penalty of *3 1-3 months’ servitude in the chain-gang or on the streets of Blakely, without providing for the due process of law in the trial of offenders; the process allowed petitioner consisting of a warrant sworn out before the mayor, on which he was put upon trial, without a copy of the accusation charging him with a crime, and without a trial by jury, and with nothing more on the record than the name of the arresting officer, the names of the witnesses for the prosecution, the offense charged, and (after the trial) the judgment and sentence of the court.” A paragraph of the petition for certiorari also asserts: “Your petitioner avers that he has been denied the equal protection of the laws, contrary to ánd in violation of the fourteenth amendment of the constitution of the United States (Civil Code, § 6030) which says that ro State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ in that he was convicted of a crime whose punishment was more severe than the average punishment of misdemeanors in the State courts of our State, yet he was not furnished with an accusation of the crime, nor allowed a trial by a jury; and this deprivation of your petitioner’s constitutional rights he'assigns as error.” It appears that the accused did not appeal to the city council, but sought certiorari directly from the mayor’s decision. Section 14 of the city charter provides: “Any person convicted in the police court may obtain certiorari directly from the decision of the officer presiding in said court under the same rules as certiorari is obtained from the decision of county judges in criminal cases, or he may waive his right to apply for certiorari, and may, within four days from the rendition of the decision in the police court, enter an appeal to the city council, who shall hear the case anew, and their decision shall be final. There shall be no certiorari from the decision of the council.” In the petition for certiorari the applicant seeks to make the point that this provision of the charter is contrary to section 4634 of the Civil Code, which provides that certiorari can be had to correct errors in any inferior judicature, and is therefore unconstitutional, as being a special law in contravention of a general law.</p>

<p>Action for damage;, from city court of Forsyth — Judge Clark. January 19, 1901.</p>

<p>Appeal, from Rabun superior court — Judge Kimsey. December 11, 1906.</p>

<p>Certiorari, from Gwinnett superior court — Judge Brand. September 6, 1906.</p>

<p>There is no abuse, of discretion in refusing a continuance upon the ground' of the absence of a party to a cause, where it is not made to appear-that such party is at ihe time of the trial unable to be present.</p>

<p>A county is not liable to the county treasurer for commissions upon a fund which he never handled, and which was raised by private donation and ' deposited with the ordinary, with the conditions imposed that the ordinary should personally disburse it in buying a lot and in paying other expenses in the erection of a public building for the county, and that he should not pay it into the county treasury.</p>

<p>1. Communications which would otherwise be slanderous are protected as privileged, if made in good faith by the injured person in the prosecution of an inquiry regarding a crime which he believes to have been committed upon his property, and for the purpose of detecting the criminal or bringing him to punishment.</p> <p>2. A petition may be amplified by amendment. Such an amendment, voluntarily made, may cure errors previously committed by tbe court in the amending party’s favor as to the original sufficiency of the pleadings.</p> <p>3. A partial plea of justification will not entitle the defendant in a slander suit to open and conclude.</p>

<p>Appeal, from Worth superior court — Judge Spence. December 13, 1906.</p>

<p>Certiorari, from Quitman superior court — Judge Worrill. March 14, 1907.</p>

<p>If the answer to the certiorari in a criminal ease does not verify the fact. that there has been a conviction, or final judgment, neither the superior-court nor this court can pass upon the errors assigned in the petition.</p>

<p>Indictment for adultery and fornication, from Worth superior court — Judge Spence. April 24, 1907.</p>

<p>The accusation in this case does not allege facts constituting a criminal offense, and the demurrer thereto should have been sustained.</p>

<p>No error of law was committed, and the evidence fully warranted the-verdict.</p>

<p>Indictment for car-breaking, from Richmond superior court— Judge Hammond. March 30, 1907.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. November 24, 1906. •</p>

<p>1. Possessory warrant is the proper remedy to recover possession of personal property where such possession has been obtained by fraud, violence, seduction, or other like means.</p> <p>2. The undisputed evidence in this case clearly showing that the personal property was obtained by none of the means inhibited by the statute, but by consent, the judgment of the court sustaining the certiorari and making a final disposition of the case was without errou</p>

<p>1. The following assignment of error did not sufficiently comply with the requirements of the Civil Code, § 5527: “On the trial of said case the following order was granted, to wit: ‘On motion of plaintiff’s counsel, the foregoing answer is dismissed in open court, October 31. 190G. Frank L. Little, Judge City Court of Sparta’ — which said order so granted on verbal motion of plaintiff’s counsel was error.” An assignment of error must not only plainly specify the decision complained rx, but must point out the error in such decision.</p> <p>2. In suits for unliquidated damages, notwithstanding the absence of plea or answer, the plaintiff shall be required to prove the amount of damages.</p> <p>3. In a suit to recover damages for the breach of a contract by which the defendant agreed to rent to the plaintiff a farm for one year for a stipulated sum to be paid as rental, the measure of damages for not •admitting the plaintiff into possession at» the beginning of the term i; the difference between the' rent to be paid and the actual rental valux of the premises at the time of the breach.</p> <p>■4. In this case it was error to allow as damages the difference' in the stipulated rent and the gross value of the products of the farm for the year of the lea'se, without any deduction for cost of production.</p>

<p>No material error of law was committed, and the theory of the evidence-adopted by the jury in finding the verdict is not unwarranted, and is. in entire accord with substantial justice.</p>

<p>A sale of "personal property to secure a debt, where the property remains in the possession of the vendor, is inoperative and void as against third persons, unless it is reduced to writing, in which event it will be good as to third persons when recorded, or, • when not recorded, as to subsequent purchasers or creditors who have actual notice of such sale. When such sale is not in writing, the personal property must be delivered into the possessipn of the vendee as security for the payment of the debt, to be valid.</p>

<p>Complaint, from the city court of Nashville- — -Judge Peeples. October 6, 1906.</p>

<p>Complaint, from city court of Quitman- — - Judge Bennet. September 3, 1906.</p> <p>The suit was by G-. W. Bell against Foss Bros., a firm composed of C. C. Foss and R. J. Foss, and against J. L. Massey, on a promissory note made by the defendants and payable to the plaintiff. The ■only defense filed was by C. C. Foss. lie denied that he signed or delivered the note, or authorized any one to do so for him, and alleged that at the time it was made he was in the ginnery business with his brother, R. J. Foss, but that it was not made in the transaction of their partnership business or in any way connected therewith, and that R. J. Foss was not authorized to sign the partnership name to it. There was conflict in the evidence as to the consideration of the note; the evidence for the plaintiff being that the note was given to him for borrowed money to pay the debts of Foss Bros., and the evidence of C. C. Foss being that the money was borrowed by R. J. Foss for the individual use of R. J. Foss in the purchase of a mule. A verdict was rendered against all the -defendants, and C. C. Foss filed a motion for a new trial on the .statutory grounds, which was granted by the trial judge.</p>

<p>Complaint, from city court of Valdosta — Judge Smith. November 15, 1906.</p>

<p>Complaint, from city court of Cordele — -Judge Strozier. February 2, 1907.</p>

<p>Garnishment, from Butts superior court — C. L. Redman, judge pro hac vice. February 27, 1907.</p>

<p>Complaint, from city court of Blakely — Judge Jordan. March 21, 1907.</p>

<p>Conviction of manslaughter, from Bibb superior court — Judge Felton. March 7, 1907.</p> <p>Joe and Monk Curtis were indicted for the murder of John New-some, and were found guilty of voluntary manslaughter. They excepted to the refusal of a new trial. The parties met in an alley by Newsome’s house, where the difficulty occurred, on an afternoon in August. A quarrel with cursing ensued, and Newsome was shot twice. There was testimony that both the Curtises had been drinking, and one of them had foully cursed Newsome’s wife, or another woman in his house. Other facts indicated by the evidence will appear from a reading of some of the instructions of the judge to the jury, hereafter set forth. The motion for new trial, in addition to the general grounds, assigned error, because:</p> <p>1. The court admitted in evidence, over objection, a dying declaration of Newsome, written from his dictation by an attending surgeon, and signed with his mark, at the hospital to which he had been carried. lie lived 39 or 40 hours after he was shot. The surgeon advised him that he would die, and asked him if he wanted to make a dying statement. He was rational and had good sense. The statement was: “My name is John Newsome. I live in East Macon. Joe and Monk Curtis shot me. I was not drunk. Shot me for nothing. Joe and Monk Curtis were both drunk. My dying statement.” This, after being written, was read over to Newsome before he signed it. The grounds of objection were, that such ’statement, to be admissible, must have been made in the article of death, and the declarant must think he is going to die; and that this declaration expressed an opinion as to the guilt or innocence of the defendants.</p> <p>2. The court charged the jury the law of dying declarations; the ground of error being that the proof did not show that the declarant was in the article of death, or that he believed he was going to die.</p> <p>3. 4. The court charged the law of express and implied malice; the movants contending that no deliberate intent to take human life was ]3roved, and such charge therefore being unauthorized and prejudicial.</p> <p>5. The court charged the law of voluntary manslaughter; the movants contending that no voluntary manslaughter was proved.</p> <p>6. The court charged: “Now, the distinction betAveen voluntary manslaughter and justifiable homicide or homicide in self-defense lies here. Homicide in self-defense is committed upon one who manifestly intends or endeavors by violence or surprise to commit a felony upon one’s person. A felony is an offense punish able by confinement in the penitentiary. A felony upon one’s person would be an assault with intent to murder one; an assault Avith a deadly weapon, or with a weapon which in the mind of the person assaulted would be of that character as would be reasonably likely to produce the death of the person assaulted; and if, under the fear engendered from the assault thus made, the person really believed that his life Avas in danger in consequence of the assault tiras made upon him, which he deems is under such circumstances as to reasonably justify the apprehension that his life or limb is in serious danger, likely either to result in serious danger to his body or in the taking of his life, and under those circumstances where the assault is made with violence of that character or by surprise, and under the influence of the fear thus aroused he shoots or cuts •and kills, that is a homicide in self-defense.” The movants contend that this charge required the jury to believe that Newsome was endeavoring to commit a felony upon them, before they would be justified in taking his life; whereas a man may take the life of another in self-defense under a mere assault and battery, if he believes his life is in danger.</p> <p>7. The court charged: “Now if j'ou believe the truth of the case to be this, that these defendants being brothers; and I charge }rou that if they were brothers that each had the same right to defend the other as they would have to defend themselves, because two brothers occupy that relation towards each other .that they would each have the same right to defend the brother that one would have to defend himself. If you believe the truth of this case is that these two men, or either of them, were out in front of the place where Newsome lived, cursing either the wife of Newsome or some woman in that house, and that Newsome told him to go on off and to go away, remonstrated with them; and that one or the other of them drew a weapon, if you believe J oe Curtis drew a weapon and made an assault with that weapon by presenting it at Newsome in such a manner as caused Newsome to believe that he was about to be shot by Joe Curtis with that pistol, and that in order to protect himself he secured a paling or railing from a fence near by, with a view of warding off and defending himself against an assault which he believed Curtis was endeavoring to make upon him with a pistol, and, after securing that paling with a view of protecting himself, Curtis shot him with a pistol, giving him a wound from which he died, and that Newsome did not seek to commit any serious personal injury of any character either upon Joe or Monk Curtis until after Joe Curtis had made an assault upon him with a pistol under the circumstances which showed an intention upon the part of Joe Curtis to shoot Newsome with that pistol, you would be authorized to find the defendant Joe Curtis guilty of the crime of murder; and if thereafter, after J oe Curtis, if you believe that fact is established by the testimony to be true that Joe Curtis did, under the circumstances just narrated, shoot New-some with the pistol, intending to kill him; and if thereafter, while Newsome was not endeavoring to commit any assault further upon Joe Curtis or upon Monk Curtis, and that Monk Curtis seized the pistol and himself fired upon Newsome, inflicting a wound upon his person from which he died, you would be authorized to find the defendant Monk Curtis guilty of the offense of murder.” The grounds of error are, that there was no evidence that Newsome remonstrated with the defendants to leave his home; that the charge was argumentative; and that it did not give the defendants the benefit of their right of self-defense, and presented the State’s case too strongly.</p> <p>8. The court charged: “Now, if you believe the truth of the case is that the evidence does not show the guilt of the defendants or defendant of the offense of murder, but do believe the evidence shows the guilt of both of them, or either of them guilty, of the offense of voluntary manslaughter, or if you believe the evidence shows the guilt of both of them of the offense of voluntary manslaughter, you would be authorized to find a verdict of guilty as to cither or both, as you may reach a conclusion as to their guilt. In that connection I charge you this: that if you believe the truth of the case is that these two defendants and Newsome, or Newsome in connection with Wilson, were having a fight there because of the fact that the defendants had been cursing one of the women in the bawdy house there, and while they were thus engaged in a fight, Wilson and Newsome on. one side, or Newsome alone on one side, and the Curtis boys on the other, that Newsome drew a paling, and that the Curtises having a pistol or knife, and in pursuance of that mutual fight, all actuated by' a desire to fight and a willingness to -fight, that they were armed and equipped with the weapons they could quickly get, a pistol or a knife or an axe or a fence-railing, and while in a general fight between the parties at that time shots were fired in that mutual fight in which Newsome was killed, you would be authorized to find, as to the party doing the killing, such party guilty of the offense of voluntary manslaughter; and if only one of them fired the shot, but the other was present aiding and abetting him in the difficulty, even-though not himself actually discharging the pistol, but engaged in the fight, being present aiding and abetting him in the difficulty in which the pistol was used, and one of the Curtis boys fired the shot while the other was'present aiding and abetting him in the fight, but rendering him such assistance as he could in the fight,, the one not actually firing the shot -would be guilty as principal in the second degree, and you would be authorized to find as to such person the same verdict as you would against the principal, if they were all mutually engaged in a fight there together at the time, armed and fighting with such weapons as they had and secured.” The movants contend that there was no evidence of mutual combatfor which reason error is assigned on this charge.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. April 9, 1907.</p>

<p>1. The law of involuntary manslaughter, as applicable to the evidence, was fully and properly presented to the jury by the charge of the court.</p> <p>2. A request to charge the jury that it is their duty,-where threats, if proved, are susceptible of two constructions, to give the defendant the benefit of the innocent construction, was properly refused. The absence of the word “equally” renders the request one not proper to be granted.</p> <p>3. To instruct the jury that threats (in any ease) “are of very little importance as evidence in guiding the jury” would he a violation of the Civil Code, §4334. The jury, and not the judge, must weigh the evidence.</p> <p>4. Extracts from a charge, upon which error- is assigned, must be considered and construed in connection with the charge taken as a whole. It is impossible for a trial judge to repeat, in every connection, all of the principles involved in the case. Nor is he required to indulge in such repetition. Where the statements upon different legal propositions are carefully distinguished and cautiously contrasted with each other, and so clearly that they can neither mislead nor confuse, the ordinary intelligence of the jury can safely be relied upon to render frequent repetition of the same principle of law unnecessary and useless.</p> <p>5-6. The judgment of the trial court, refusing a new trial, is not, for any reason assigned, erroneous.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. October 4, 1906.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. October 2, 1906. ■ .</p> <p>Mrs. Tommey filed a petition in the recorder’s court of Atlanta, alleging that she was the owner and in possession of a certain lot in that city; that along the east side of the lot was an alley, which was an appurtenance to it, and which had been open and used continuously and uninterruptedly by her and her predecessors in title and possession for more than 20 years, and that the right to use the alley as a means of ingress and egress had been fully recognized and undisputed for more than 20 years, that the defendant, Terrell, had deprived her of the use of nearly half of the alley, and had prevented her from using the alley as a way of ingress and egress by constructing a gate and fence across it; and that the fence and gate so constructed across the alley were a private nuisance;' and she prayed for an order requiring the defendant to abate the same. The evidence was conflicting, but there was much testimony, both documentary and oral, in support of the plaintiff’s contentions. The recorder entered a-judgment finding that the alley in question “is appurtenant to the property of the plaintiff,” and “that she had the right to use the same for the entire length of her lot on the east side,” and “that the fence and gate erected across said alley by W. H. Terrell, the defendant, is a nuisance, and that said. Terrell is hereby required to abate the same within 10 days after this date by removing said fence and gate and leaving said alley open and unobstructed.” To this .judgment, the defendant, by his petition for certiorari, excepted on the ground that it was without evidence to support it. The judgment of the superior -court, overruling the certiorari, is assigned as error.</p>

<p>Complaint, from city court of Jefferson — Judge Stark. October 11, 1906.</p>

<p>Complaint, from city court of Jefferson — Judge Stark. October. 11, 1906.</p>

<p>Certiorari from Irwin superior court — Judge Martin. September 15, 1906.</p>

<p>Distraint, from city court of Abbeville—Judge Nicholson. February 15, 1907.</p>

<p>Motion to reinstate, from city court of Brunswick — Judge Gale. March 15, 1907.</p>

<p>1. The exclusion of evidence offered to rebut the presumption of malice, in a trial for murder, is not cause for a new trial, where the defendant is only convicted of voluntary manslaughter.</p> <p>2. That a witness may have made a different statement as to alleged dying declarations, on the examination by the court into their admissibility, from that thereafter made by him in the hearing of the jury, is not ground for excluding his evidence as to such declarations. The injunction that dying declarations are to be received with great caution is directed more especially to the jury than to the judge. The judge, in passing upon the admissibility of dying declarations, determines only whether a prflna facie case is presented, conceding the testimony to be true. He does not pass upon the credibility of the witness delivering the testimony. If a witness' makes different statements in any respect material to the proof of dying declarations, the jury may discredit him, but the trial judge can not for that reason withhold his testimony from the jury.</p> <p>3. The ability to distinguish between right and wrong in relation to a. particular act about to be committed is the general test of criminal responsibility in this State. The only exception ' so far recognized, as to one who has reason sufficient to distinguish between right0 and wrong as to the act about to be committed, is where such act is connected with a peculiar delusion under which the prisoner is laboring, and where, in consequence of such delusion and without criminal intent, the will is overmastered. Intermittent insanity, caused by physical weakness or nervous disorders, is no excuse or justification for crime, unless it appears that at the time of the act committed the defendant was incapable of adjudging the quality of the act and of knowing whether it was right or wrong.</p> <p>4. Where evidence as to the insanity of a defendant is introduced under the general plea of not guilty, in a criminal case, it is the duty of the trial judge to instruct the jury upon the subject of insanity as a defense. In the absence of evidence that the defendant acted under the influence of an overmastering delusion, there was no error in the charge complained of in this case. If fuller instructions were desired, they should have been requested in writing.</p> <p>5. The conduct of the judge towards witnesses will not be controlled, except for such abuse of his authority as would manifestly tend to shape or unduly influence the finding of the jury. The refusal of a trial judge to allow a question to be answered by a witness can not be reviewed, unless it appears that the answer expected to such question was stated at the time of the ruling complained of.</p> <p>6. While testimony that one of the defendant’s witnesses, or her husband, had unlawfully sold whiskey should have been repelled upon the objection offered, that such testimony was irrelevant and immaterial, still the error in admitting this testimony is not sufficiently grave to warrant a new trial.</p> <p>7. The remaining assignments of error are without merit.</p>

<p>Complaint, from city court of Dawson — Judge Park presiding. February 27, 1907.</p>

<p>Foreclosure of lien, from city court of Douglas — Judge Roan. March 19, 1907.</p>

<p>Affidavit of illegality, from city court of Quitman — Judge Shipp presiding. March. 11, 1907.</p>

<p>1. Delivery of a warehouse receipt is constructive delivery of the articles which it represents; but constructive delivery will not suffice if actual delivery at the time of the sale is impossible.</p> <p>2. The delivery of a warehouse receipt implies a guaranty on the part of the seller that the articles represented by the receipt are in existence and in the custody of the bailee therein specified; and for a breach of this implied warranty the purchaser, on failure of actual delivery, may recover the purchase-price paid by him, or proceed against the warehouseman, at his option. The right of action against the warehouseman is not exclusive of the purchaser’s remedy against the vendor, should the purchaser elect to rescind the contract of purchase for the reason that delivery was impossible at the time of his purchase.</p>

<p>Accusation of misdemeanor, from city court of Kichmond county- — Judge Eve. February 18, 1907.</p>

<p>Complaint, from city court of Macon — Judge Hodges. September 29, 1906.</p>

<p>Appeal from Early superior court — Judge Reagan presiding. December 5, 1906.</p>

<p>1. A stock subscription is a transaction between the subscriber and the corporation, and the obligation of one can only be sustained by the corresponding obligation of the other. If both are not bound, neither is bound. Therefore a subscription which is not binding upon the corporation until a stipulated amount has been secured and accepted by the corporation is also not binding upon the subscriber; and until these conditions have been fully accomplished and the subscription has ripened into a binding contract, any party may withdraw therefrom without the consent of the others. - The subscriber may withdraw his subscription, and the corporation may refuse to accept.</p> <p>2. As to a tentative contract between the subscribers to the formation of a proposed corporation and a third person, conditioned that it shall not become binding until a certain sum is subscribed, one who has signed as a subscriber may withdraw his subscription, without the consent of such third person, at any time before the sum named has been subscribed.</p>

<p>Action for damages, from city court of Vienna — Judge Henderson. February 18, 1907.</p>

<p>Action for damages, from city court of Valdosta — Judge Han-sell presiding. January 30, 1907.</p>

<p>Appeal, from Fulton superior court — Judge Pendleton. February 3, 1907.</p>

<p>Action for damages, from city court of Waycross — Judge Myers. March 23, -1907.</p>

<p>Action for damages, from city court of Polk county — Judge Irwin. March 25, 1907.</p> <p>The error assigned in this case is the overruling of a general ■and special demurrer to the plaintiff’s petition. -The petition, in substance, alleges: (1) The jurisdiction of the court over the person of the defendant. (2) That defendant has damaged plaintiff in the sum of ten thousand dollars. (3) That “petitioner is the wife of one Charles E. Helms, who was, on the 2,4th day of October, 1905, killed while engaged at his work as what is known as oiler, at the plant of defendant, where the defendant is engaged in the manufacture of cement, in said county.” (4) That “her--said husband was at work at said cement plant, and the only .duty he had to perform under his contract of employment was to oil the machinery, which he was doing at the time he was killed.” (5) That “it was not her husband’s duty »to watch and keep in repair, or to adjust any of the said machinery, or to examine the same at. - -any time, or to observe or inspect it and note any misconstruction or disarrangement thereof; that he was incompetent to do so;, which was known to the said defendant.” (6) That “among-the - machinery of the defendant at said plant there is what is known: as ‘Tube Mill’ number four, which is constructed.and connected with and operated by a line of iron shafting, which rests .upon a cement wall and extends from an electric dynamo or motor, near said cement -wall, across said wall to a cog wheel that is attached to the large drum or tube, in which the cement material is in some manner treated; that on top of said cement wall where the said shafting rests, there is a boxing or journal in which said shaft •revolves; and on top of this boxing or journal are two places or small holes 'made to admit oil therein, and that this particular place and piece of machinery was being oiled by petitioner’s husband at the time of his death.” (7) That “there is an iron cuff or collar that is made in two pieces, that is fastened together on each of two sides of said-shafting by bolts and set-screws. The said cuff or collar is made with a trench or groove in the outer circular edge thereof, evidently for the purpose of permitting the said cuff or collar to be fastened together and around said shafting by means of two iron bolts, and at the same time prevent said bolts and also the set-screw (which holds the cuff or collar in place) from protruding beyond the outer surface of the said cuff or collar, and, upon being properly constructed, would present a smooth and regular surface.” (8) That‘“the set-screw was an iron or steel screw that went through the edge of the cuff or collar and into a slot or notch in said shafting to hold the- said cuff or collar in its proper place. That if the said screw had been properly made, of the right size and length, it would have served its purpose perfectly, and the head of it would have been below the outer surface of the said cuff and down in the trench or groove in the said cuff. Said cuff was placed on said shaft just flush with the edge;' of the said cement wall on the side next to the dynamo, and this was the side of the wall from which plaintiff’s husband had to approach the said oiling places to oil the said piece of machinery.” (9) That “the said bolts holding the said cuff together were extended so far at each end as to be dangerous; for the reason that if any part of the clothing of ordinary kind worn by petitioner’s husband happened to come into contact with the cuff while the machinery was in motion, the rapid revolving shaft would cause the ends of said bolts to catch the clothing.” (10) That “the head of said set-screw protruded quite away-beyond the edge of the said cuff, and that said shaft while in operation made about two hundred revolutions to the- minute.” . (11) That “it was her husbandys duty to oil said machinery "when it was “in motion; and that while lie was so doing on the date aforesaid, the head of the said setscrew and the ends of the said bolts in the said cuff or collar came in contact with his clothing, and the shaft, being operated by electricity, was rapidly revolving as aforesaid, and caught up his clothing which he had on, and held him by this means and forced his body around as the shaft revolved, and struck his head and other parts of his body against the said cement wall and 'other parts of said machinery, and in this manner caused his death.” (13) That “it was negligence on the part of the defendant to have constructed said machinery as aforesaid, and in permitting it to so remain.”" (13) That “said machinery could have-been made perfectly safe: by an expenditure of not more than ten dollars — by placing guardrails along the outside of said cement wall, just a few inches beyond the said cuff or collar, which would have prevented any injury or danger to petitioner’s husband while in the discharge of his duty as oiler, and to others in going around said shaft and cuff. Petitioner alleges that the failure on the part of the said defendant to so place such guard-rails was negligence.” (14) The age and earning capacity of petitioner’s deceased husband is alleged.</p> <p>To the original petition the defendant demurred on the following grounds: No cause of action is set forth; no liability against, defendant is shown; no negligence rendering defendant liable is shown; it appears that the alleged injury was caused by the negligence of the deceased; it does not appear that the deceased could not have avoided the injury by exercise of proper care; it appears that the deceased had equal means with the master of observing the danger; there is no allegation that the master knew of the danger, or that the servant did not know of the danger or had not equal means with the master of knowing the danger. It also demurred specially to paragraphs 9 and 13 of the petition, “because it is not alleged that the construction of the machinery therein mentioned is not like that used in other plants of like nature and engaged in the same business, the defendant not being bound to furnish any certain particular contrivance. It also specially demurred to paragraph 10, in that it was not specific as to the distance the set-screw protruded. • The plaintiff thereupon filed the following amendment, adding at the close - of paragraph 7 the words: “It was the duty of the defendant so to construct its machinery as to make its operation attended with no unusual danger to the said husband of the plaintiff, Charles E. Helms, -while performing his duties in connection therewith. This was not done as defendant was bound to do, but, instead of the said cuif being properly put together, around the shaft in the manner it was made and intended should be, it was unskilfully and carelessly done; for the reason that one of the iron or steel bolts that held the two pieces of the- collar together was too long, and protruded beyond the outer surface of the collar from three eighths to one half inch; that plaintiff’s husband had only been at work at the said- place in the capacity of oiler but a few days; and the said machinery being in motion night and day, he had no opportunity of knowing its improper manner of construction; and that he had no notice given him of it, and, not being a skilled mechanic, did not know Tow it should be constructed; that plaintiff’s said husband could not by ordinary diligence have discovered the defect and danger; that the defendant had a mechanic whose duty it was to' see that the machinery was properly constructed, and it was not plaintiff’s husband’s duty; besides, it ivas the duty of the defendant to properly construct and keep in repair all its machinery, and to keep it in a reasonably safe condition; that defendant knew or ought to have known of the defective condition of the said machinery above described.” To the amended petition the demurrer was renewed, the following additional grounds being added; As to the statement in paragraph 5, that deceased “was incompetent to do so, which was known to the said defendant,” on the ground that tho allegation is a mere conclusion of the pleader and states no facts on which said allegation is based; as to paragraph 2, on the same ground; as to the amendment to paragraph 7, on the ground that it is confused, mixed, and not clear in meaning; as to the statement in this amendment that “it was the duty of the defendant so to construct its machinery as to make its operation attended with no unusual danger to the deceased,^ because it states a mero conclusion, with no facts upon which to predicate it; also as to that portion of the original petition which states that deceased had . been at work as an oiler but a few days, on the ground that the. number of days is not definitely stated; also as to the statement in the amendment, “that plaintiff’s said husband could not by ordinary diligence have discovered the defect and danger,” because it states a mere conclusion of the pleader; and as to the statement ■ “that defendant knew or ought to have known of the defective condition,” on the same ground. There' were-other grounds', but all of them are of substantially the same hature as these above set out. Upon the amendment being made; the court struck paragraph 13 ■of the petition and overruled the demurrer; and the defendant ex■cepts to this judgment. It also complains that the court erred in allowing the amendment!</p>

<p>Complaint, from city court of Cartersville — Judge Eoute. April 4, 1907. , '</p> <p>Shedden sued Stiles upon a promissory note for $500. The note was signed by Stiles, payable to himself or order, and indorsed by himself and George T. Hodgson, both the indorsements being in blank. It also bore the indorsement, “Eor collection account of English-American Loan and Trust Co., Eoby Eobinson, Cashier.-' The defendant’s answer admitted the execution of the note and that the same was transferred by indorsement to Shedden. He set up, in. defense, that the note was an accommodation paper, wholly without consideration.; that it was obtained by Hodgson for Shed-den at Shedden’®. instance and- request, with the sole view that ¡Shedden might use ic as collateral; that these facts were fully known to Shedden at the time he took the note; that he paid nothing for it; that Shedden, recognizing this to he the fact, had never, prior to the bringing of the suit, presented the note for payment or claimed that Stiles owed him anything on it, though nearly ten .years had elapsed in the meantime; that the note had long since served its purpose and would have been cancelled and returned, but for the fact that the parties thereto were under the impression that it had been destroyed. The defendant therefore alleged that he was not indebted to Shedden on the note; and that the latter was not a bona fide holder of the same for value. Upon this plea the defendant claimed the right to open and conclude. The court ■overruled this demand and allowed this privilege to the plaintiff. This ruling is the basis of one of the exceptions taken in the record.</p> <p>The oral evidence was conflicting; that of the defendant tended to show that Shedden was the general agent and Hodgson the local agent of the Mutual Life Insurance Co.; that Hodgson borrowed money from Shedden, and Shedden borrowed in New York; that Hodgson, in addition to certain notes which he put up as collateral for the loan made by Shedden to him, as an accommodation to Shedden executed his notes in blank to the sum of $100,000, and turned them over to Shedden in order that the latter might borrow money on thepi; and that at Shedden’s instance he also, for the same purpose, obtained notes from his friends, getting them from Stiles, his partner, from Mure, his brother-in-law, Hodgson, his nephew, and Nicholson, his office boy; and the note in suit was of this number. When business connection between Hodgson and Shedden closed, all of these notes, except the one in suit, were returned by Shedden; by oversight the one in suit was not returned. Shfedden, as a witness in his own behalf, denied all this and said that he had bought this note from Hodgson and had paid him $500 for it. A large amount of letters and other documentary evidence was introduced by the defendant, tending strongly to support his plea. We mention this fact because exception is taken to a charge of the court tending to eliminate this evidence from consideration by the jury. The jury returned a verdict for the plaintiff.</p> <p>In the motion for a new trial the plaintiff in error assigned error upon the following instructions of the court to the jury: (1) '“The plaintiff contends, that he bought’ this note from one George lT. Hodgson, and that he paid value for it according to its terms; in other words, that the note was discounted to him and that he took it up, paying value for it; that it was not a mere accommodation to him at all; that he did not receive it that way, and did not use it that way. You look to the evidence, gentlemen, and see what the plaintiff contends, and examine the note, which will be before you, and see if there is any evidence that it was used by the plaintiff at all; and I charge you that as this is a negotiable paper, if he had used it it would have been necessary for'him to have made an indorsement upon the note.” (2) “I charge you that every transferor of a negotiable instrument, whether by indorsement ■or delivery, warrants (unless otherwise agreed by the parties) that he is the lawful holder and has a right to sell, that the instrument is genuine, and that he has no knowledge of any facts that prove the instrument worthless, either by insolvency of the maker, payment, or otherwise.” (3) “I charge you that the title of the holder of a note can not be inquired into, unless it is necessary for the protection of the defendant, or to let in the defense which he seeks to'make. I charge you that an indorsement or’assignment of any bill, bond, or note, when' the same is sued on by the indorsee, heed not be proved, unless denied on oath.” (4) “I •charge you, gentlemen, that the main question for you in this ease is this: Did the plaintiff pay Hodgson a valuable consideration for this note? And in determining this you will’look to all the •evidence as it comes to you from.- the witnesses, and the evidence presented by interrogatories.” (5) “This being a negotiable instrument, if th'is plaintiff came into possession of it for a valuable •consideration, before it was due, and without any notice of any dishonor, he would be entitled to recover. I charge you that in support of the defendant’s contention he must show, by a preponderance •of the evidence, that Shedden did not pay Hodgson a consideration for the paper.” Other portions of the charge are excepted to, but ■as this court finds no error in them, it is not deemed necessary to' ■set them out here.</p> <p>Another ground of the motion for a new trial complains that the ■court excluded from the jury. the. answer of the witness Hodgson, as iollows: “This note most assuredly has served the purpose for which it was given, and it should have been returned to me when I made demand upon Mr. Shedden for the return of all my collateral notes; at which time most, and, as I thought, all of them had been returned; and this one was included in my demand for their return.” Other exceptions taken to rulings upon .evidence are not-considered material, There is in the motion also a ground of newly-discovered evidence; but as the affidavit as to the diligence used by client and counsel to discover this evidence before the trial is not sufficient (for it states the fact of such diligence as a mere matter-of conclusion, without giving any facts upon which the conclusion is based), this court does hot consider it.</p>

<p>Certiorari, from Banks superior court — Judge Brand. March term, 1907.</p>

<p>Appeal, from Putnam superior court — Judge Lewis. March 18, 1907.</p>

<p>Complaint, from city' court of Griffin — Judge Iiammond. March 20, 1907.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. November 27, 1906.</p>

<p>Action on bond, from city court of Savannah — Judge Norwood. January 12, 1907.</p>

<p>When a summons of garnishment has been served upon the defendant in an action for damages, and when, in compromise of such an action, an agreement is made by the defendant thus garnished to settle the plaintiff’s claims for injuries- alleged, the proceeds of such agreement or the sum agreed to be paid is subject to garnishment issued in behalf of a creditor of the plaintiff in the suit for damages. While liability on.the tort is not garnishable, the amount agreed to be paid in settlement thereof is subject to garnishment. He who disregards a summons of garnishment does so at his peril.</p> <p>Powell, J., dissenting. Liabilities for torts are not subject to garnishment until liquidated by judgment or otherwise. The burden is on the plaintiff to show, upon traverse, tliat funds have come into the garnishee’s hands, prior to the service of the summons of garnishment or pending the same, subject to the proceedings. This is not done by showing that the defendant claimed a cause of action for tort against the garnishee, and that without admitting liability the garnishee, after-service of summons, bought peace by paying to the defendant a sum of money in cash or in a negotiable instrument which the defendant immediately negotiated to a third person; It not appearing that there was any other agreement liquidating the defendant’s demand against the garnishee.</p>

<p>Certiorari, from Catoosa superior court — Judge rite. August 9, 1906. ‘</p>

<p>Certiorari, from Cobb superior court — Judge Gober. October term, 1906.</p>

<p>Complaint, from city court of Floyd county — Judge Hamilton^ December 13, 190C.</p>

<p>Action for damages, from city court of LaGrange — Judge Harwell. October 6, 1906.</p>

<p>Action for damages, from city court of Macon — Judge Hodges, March 2, 1907.</p>

<p>Complaint, from city court of Statesboro — Judge Brannen. December 18, 1906.</p>

<p>1. Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.</p> <p>’2. A conspiracy is the combining of two or more persons for the purpose of doing something unlawful, oppressive, or immoral, as a means or an end. The allegation and proof of conspiracy is important to the action only because it will enable the plaintiff to recover his damages in case the conspiracy can he proved, not only from the actual participants engaged in committing the injury, but also from those defendants who conspired to accomplish it, although neither present nor participating. An averment that the acts alleged were clone in pursuance of a conspiracy does not change the nature of the action, hut it may he pleaded and proved as aggravating the wrong of which the plaintiff complains, and to enable him to recover against all the conspirators as joint tortfeasors, or (in case no conspiracy he shown) that the plaintiff may still recover against such of the defendants as may be guilty of the tort.</p> <p>.3. In an action on the case for conspiracy the allegation with reference to the combination, conspiring, and concert of action are mere matters of inducement leading up to the relation of the acts from which conspiracy may he .inferred. To show conspiracy it is not necessary to prove that the parties met together or entered into any specific or formal agree-, ment, or that by words or writing they formulated their unlawful objects. Proof that two or more persons, either positively or tacitly, come to an understanding that they will accomplish an unlawful design, or a lawful design unlawfully, is sufficient.</p> <p>■4. Possession of realty is presumed to be lawful until the contrary appears; and where possession is alleged, that such possession is lawful is such a conclusion as can properly he pleaded.</p> <p>■5. In neither petition nor answer is an exhaustive statement of the exact evidence upon which a party will rely in the establishment of his contentions required. On the contrary, so far as matters of inducement and other minor matters are concerned, a clear, brief statement of immaterial matters-(the briefer the better) is to be commended.</p> <p>‘6. There was no error in overruling the demurrer.</p>

<p>1. A city may by reasonable ordinance limit the amount of space in the street which may be occupied by material assembled for the erection of a building on an abutting lot. A violation of such' an ordinance is, as against a member of the public using the street for ordinary travel and injured by reason of such violation, per se wrongful and negligent; and the court may so instruct the jury.</p> <p>2. Pedestrians have the right to use the entire highway, and are not confined to the sidewalks alone. If a pedestrian leaves the sidewalk and enters upon the portion of the highway devoted primarily to vehicles, the surroundings may require of him the exercise of a greater amount of care and caution for his own protection than if he-had remained upon the sidewalk; but the question of his negligence under the circumstances is one for the jury.</p> <p>3. There being evidence justifying a finding that the defendant was negligent, that the plaintiff was injured as the proximate result thereof, and that the plaintiff was not guilty of such contributory negligence as to defeat a recovery, the verdict in the latter’s favor is sustained.</p>

<p>Complaint from Newton superior court — Judge Roan. November 17, 1906.</p> <p>Stone shipped 24 hales of cotton to Garrett & Russell, cotton factors at Augusta, Georgia. From time to time he drew drafts on Garrett & Russell against this cotton. These drafts were cashed by Garrett & Russell, and Stone admitted ¿receiving the money thereon. The drafts were all introduced in evidence, and showed that the total amount advanced exceeded the proceeds for which the cotton was sold, by the sum sued for. Suit was brought for this amount in the county court, and appealed to the superior court. The defense was that the plaintiffs had been instructed by the defendant to hold the cotton until’ lie ordered them to sell it, and that they disregarded his instructions and sold it when the market was down. Plis letters to the plaintiff, put in evidence, showed that he directed them to sell the cotton and apply the proceeds to the payment of the drafts. This the plaintiffs did in the usual course of trade, and, after applying the proceeds to the payment of the defendant’s drafts, there was left the balance represented by the suit. The jury found a verdict for the full amount with interest. A motion for a new trial was made by the defendant on the general grounds, and -was overruled.</p>

<p>Action for damages, from city court of Dublin — Judge Clements presiding. March 7, 1907.</p>

<p>Certiorari, from Dougherty superior court — Judge Spence. April 9, 1906.</p>

<p>Certiorari, from Dougherty superior court — Judge Spence. April 9, 1906.</p>

<p>Appeal, from Gwinnett superior court — Judge Beagan presiding. December 13, 1906.</p>

<p>Complaint, from city court of Dawson — Judge Raines. October 17, 1906.</p>

<p>Action for damages, from city court of Americus — Judge Crisp. March 5, 1907.</p>

<p>Foreclosure of lien, from city court of Statesboro — Judge Brannon. February 12, 1907.</p>

<p>Certiorari, from Liberty superior court — Judge Seabrook. April 18, 1907.</p>

<p>Accusation- of illegal sale of liquor, from city court of Eastman —-Judge Clements. May 4, 1907.</p>

<p>1. The evidence justified the verdict.</p> <p>2. The instructions complained of, when taken in connection with the context, do not present any grounds of material or reversible error.</p>

<p>The facts alleged in .the accusation -and proved did not constitute the offense of cheating and swindling; and the verdict should have heen set aside and a new trial granted on the general grounds.</p>

<p>Accusation of illegal sale of liquor, from city court of Americus — Judge Crisp. April 13, 1907.</p>

<p>Accusation of vagrancy, from city court of Americus — Judge Crisp. May 13, 1907.</p>

<p>Accusation of keeping lewd house, from city court of Mount Yernon — Judge Geiger. April 1C, 1907.</p>

<p>Accusation of violating Sabbath, from city court of Floyd county — Judge Hamilton. May 8, 1907.</p>

<p>1. This case is controlled by prior decisions of the Supreme Court, which, in the opinion of this court, are based upon sound reason. No sufficient cause appears for certifying the point involved, to the Supreme Court, •or for asking that court to review and overrule its previous decision Upon the subject.</p> <p>2. Exceptions which go merely to the form of the indictment or accusation, if not taken before joinder of issue, are considered to be waived. They can not be reached by a motion in arrest of judgment.</p>

<p>Indictment for burglary, from Chatham superior court — Judge Cann. May 3, 1907.</p>

<p>Indictment for assault witli intent to murder, from Dodge superior court — Judge Martin. May 21, 1907.</p>

<p>Indictment for pointing gun, etc., from Douglas superior court —Judge Edwards. April 2, 1907.</p>

<p>Indictment for keeping gaming-house, from Chatham superior court — Judge Seabrook presiding. May 11, 1907.</p>

<p>1. The law of the preponderance of evidence is not applicable in criminal cases; and where in a particular ease there is testimony in behalf of the State and the defendant, and the issue to be determined depends upon the weight which the jury may give to the conflicting evidence, it is error to charge said law.</p> <p>2. The only appropriate charge in a criminal case on the subject of the weight of evidence is the fundamental principle that the State is required to prove the guilt of the accused beyond a reasonable doubt.</p> <p>3. The law of positive and negative testimony was not applicable to the facts of this case, and a charge thereon was calculated to confuse and mislead the jury, and was especially en-oneous without an instruction that in weighing the testimony of witnesses the jury should also consider and pass upon their credibility.</p> <p>4. The evidence indicating the guilt of the defendant is weak and not entirely satisfactory; but there is some slight evidence to support the verdict and we can not hold that the court erred in the exercise of its discretion in refusing to grant a new trial.</p> <p>5. There is no law by which the State can maintain a cross-bill of exceptions in a criminal case; and in such a case, there being no provision of law for taxing the cost against the State, the cost will be taxed, under the Civil Code, §§5512, 5591, against the solicitor bringing the cross-bill.</p>

<p>Indictment for illegal sale of liquor, from Henry superior court —Judge Beagan. May 13, 1907.</p>

<p>Accusation of illegal sale of liquor, from city court of Sylvester— Judge Park. May 28, 1907.</p>

<p>Accusations of carrying concealed weapon, and of pointing pistol, from city court of Sylvester — Judge Park. May 28, 1907.</p>

<p>Indictment for assault with intent to murder, from Wilcox superior court — Judge Whipple presiding. May 4, 1907.</p>

<p>Accusation of larceny from house, from city court of Sylvester— Judge Park. May 28, 1907.</p>

<p>1. Where it appears, without contradiction, in the evidence, that the offense alleged to have been committed, if committed at all, occurred within two years prior to the filing of the accusation, an instruction that the State only has to prove that the transaction “happened two years prior to the date alleged in the accusation” was a harmless error.</p> <p>2. Rules of evidence, especially addressed to the’ discretion of the court, are not appropriate subject-matter of instructions to the jury, but those given the jury in this ease could not by any possibility be harmful to the plaintiff in error.</p> <p>3. Where the jury has been properly and fully 'instructed with reference to the statement of the defendant, it is not necessary, in the absence of a written request, to contrast the statement with the evidence or to give in charge to the jury any theory dependent upon the statement alone. Nor is it error to instruct the jury to take the testimony and the law as given in charge and apply it to the testimony and decide whether or not they believe the defendant did commit the offense alleged against him.</p> <p>4. The verdict is authorized by the evidence, and being approved by the trial judge, it will not be set aside for slight errors which could neither have induced nor have contributed to the finding of the jury.</p>

<p>Conviction of manslaughter, from Coweta superior court— Judge Freeman. May 30, 1907;</p>

<p>Indictment for car-breaking, from Bibb superior court — Judge Felton. June 13, 1907.</p>

<p>A verdict of voluntary manslaughter will not be sustained as against the exception that the same is without evidence to support it, when the testimony of the witness and the statement of the defendant present only the issue whether the defendant was guilty of murder or was justifiable.</p>

<p>Accusation of illegal sale of liquor, from city court of Sylvester —Judge Park. May 29, 1907.</p>

<p>Accusation of illegal sale of liquor, from city court of Abbeville —Judge Nicholson. May 25, 1907.</p>

<p>Certiorari, from Morgan superior court — Judge Lewis. June 3, 1907.</p>

<p>1. While it is necessary, in order to sustain a verdict of guilty of assault with intent to murder, that the evidence should show such a case that if death had ensued from the assault the defendant would be guilty of murder, yet it is error for the court to instruct the jury that if the defendant made an assault with a weapon likely to produce death under such circumstances as would have made him guilty of murder had death ensued, he would be guilty of the offense of assault with intent to murder. Smith v. State, 52 Ga. 88; Napper v. State, 123 Ga. 571, 51 S. E. 592, and cit.; Adams v. State, 125 Ga. 11, 53 S. E. 804; Shockley v. State, 125 Ga. 778, 54 S. E. 692; Duncan v. State, 1 Ga. App. 118, 58 S. E. 248, and cit.</p> <p>2. It is error to charge the jury, in a case where the defendant has cut the prosecutor with a knife, that the defendant would be guilty of the statutory offense of stabbing if the cutting was done under such circumstances as that it would have been voluntary manslaughter if death had ensued.</p>

<p>Accusation of cheating, etc., from city court of Americus — Judge Crisp. January 17, 1907.</p>

<p>Complaint, from city court of Americus — Judge Crisp. March 5, 1907.</p>

<p>Complaint, from Paulding superior court — Judge Edwards. February 21, 1907.</p>

<p>Garnishment, from city court of Macon — Judge Hodges. April 1, 1907.</p>

<p>Complaint, from city court of Dublin — Judge Burch. February 28, 1907.</p>

<p>1. Offenses of the same nature may be joined in one indictment in separate counts.</p> <p>2. The offense of “keeping and maintaining a lewd house” and the offense of “keeping a common, ill-governed, and disorderly house” may be joined in the same indictment in different counts.</p> <p>3. A count in the indictment, charging that the defendants “did keep and maintain a common, ill-governed, and disorderly house to the encouragement of idleness, drinking, and other misbehavior,” is sufficiently specific, and is not demurrable because it does not definitely set out the acts constituting the “other misbehavior.”</p> <p>4. The law does not favor convictions based upon confessions, and least of all upon implied confessions.</p> <p>5. Before testimony tending to show an inference of guilt is admitted to the jury as an implied confession arising from silence when an incriminating statement is made, it should affirmatively appear that such statement was addressed to the defendant, or that he was physically near enough to hear and understand the statement, and that, at the time and place when and where made, it required from him an answer or denial.</p> <p>6. The verbal statement of the witness alleged to have been made in presence of the defendants did not measure up to the requirements of the law necessary to show an implied confession by silence or acquiescence, and it was error to admit such statement in evidence.</p> <p>7. “Reputation of a house being kept and maintained as a lewd house is admissible evidence.” Such evidence alone, wholly uncorroborated, is not sufficient to establish the offense of keeping and maintaining a lewd house.</p> <p>8. The evidence in this' case as to the general reputation of the house for lewdness was fully met by proof of the good character of the only two inmates of the house, and the further fact that for fifteen years no act or circumstance indicating lewdness or immorality was shown. in connection with said house.</p>

<p>Indictment for assault with intent to murder, from Floyd superior court — Judge Wright. May 24, 1907.</p>

<p>Certiorari, from Liberty superior court — Judge Seabrook. May 22, 1907.</p>

<p>Indictment for larceny after trust, from Chatham superior court —Judge Cann. May 8, 1907.</p>

<p>Indictment for receiving stolen goods, from Chatham superior court — Judge Seabrook presiding. June 8, 1907.</p>

<p>1. This case is controlled by repeated rulings of the Supreme Court, that’ the law embraced in the Penal Code, §73, does not qualify or limit the law of justifiable homicide as contained in §§70, 71, and that instructions as to these two separate branches of the law of justifiable-homicide should not be so given as to confuse the one with the other,, or tend to perplex the jury in making appropriate application of the-law to the facts.</p> <p>2. In no view of the evidence or th.e statement of the accused was the-law of justifiable homicide as laid down in the Penal Code, §73, applicable to this case, and the court erred in giving in charge that section.</p> <p>3. In a homicide ease where the evidence and the statement of the accused present only the conflicting theories of murder or justifiable-homicide, it is error for the court to give in charge the law of voluntary manslaughter, and a verdict against the accused for that offense should be set aside.</p> <p>4. Thfe other assignments of error are without merit.</p>

<p>Indictment for keeping lewd house, from Chatham superior court — Judge Cann. May 28, 1907.</p>

<p>Conviction of manslaughter, from Screven superior court— Judge Eawlings. May 27, 1907.</p>

<p>1. The act of August 17, 1903 (Acts 1903, p. 92), regulating sales of stocks of goods in bulk, being in derogation of the common law, is to be strictly construed.’ A sale by one partner of his interest in a mercantile business to his associates is not within the purview of the act.</p> <p>2. ' The evidence demanded a verdict finding the property not subject.</p>

<p>1. As a general principle, statutes of limitation are subject to no exceptions, unless such exceptions be expressed.</p> <p>(a) Notwithstanding this general • rule, the courts will imply judicial exceptions from “invincible necessity,” where it is legally impossible for the plaintiff to sue within the time limited.</p> <p><&) The absence or the removal of the defendant from the State is a statutory, and not a judicial exception.</p> <p>(c) The limitation statute of March 16, 1869, wherein all causes of action which accrued prior to June 1, 1865, were required to ,be sued prior to January 1, 1870, contained no exception saving from its operation suits against defendants who had removed beyond the limits of the State, and no such exception can be implied as to actions falling within its terms.</p>

<p>1. Any justice of the peace within the county where the debtor may reside, or where his property may be found, can issue a distress warrant for rent; and unless the amount claimed exceeds one hundred dollars, such justice has jurisdiction to try the issue made by a counter-affidavit, whether the defendant resides in his district or the property be found in his district or not, provided the county be that of the defendant’s residence.</p> <p>2. An executor, administrator, guardian, or trustee can sue out a distress warrant in his individual capacity, and terms indicating a representative capacity, if used, may be treated and disregarded as surplusage.</p>

<p>Complaint, from city court of Floyd county — Judge Hamilton. November 16, 1906.</p>

<p>Certiorari, from Pike superior court — Judge Reagan. October 12, 1906.</p>

<p>1. The judge of the superior court is -without jurisdiction to render a final judgment on a certiorari, where there is no question of law which must finally govern the case, but only issues of fact are involved.</p> <p>2. Where the judge of the superior court is of the opinion that the verdict against plaintiff in certiorari is without evidence to support it, the proper judgment is to sustain the certiorari and remand the case for a new trial.</p>

<p>1. Where personal property of A is delivered into the possession of B under a promise to be returned on a certain named contingency, and B refuses to return the property to A on the happening of said contingency, A has an election of remedies. He can sue in trover, or he can waive the tort and bring an action ex contractu on account for the value of the property.</p> <p>2. There was no error in overruling the certiorari.</p>

<p>Certiorari, from Richmond superior court — Judge Hammond. February 2, 1907.</p>

<p>Accusation of unlawful sale of crop, from city court of Wrightsville — Judge Faircloth. May 20, 1907.</p>

<p>Action for damages, from Habersham superior court — Judge Ivimsey. January 30, 1907.</p>

<p>Conviction of manslaughter, from Clayton superior court— Judge Roan. May 24, 1907.</p>

<p>Accusation of carrying concealed weapon, from city court of Sjdvester — Judge Park. June 12, 1907.</p>

<p>The evidence submitted authorized the charge made by the court upon the subject of voluntary manslaughter, and the verdict of the jury, finding the defendant guilty of that offense. The case is controlled upon the facts, as to part of the evidence, by the decision in Gann v. State, 30 Ga. 67. The verdict was not a compromise; but the evidence presenting three theories as the truth of the case, the right and duty of selection upon the jury was propertly exercised by them.</p>

<p>Indictment for arson, from Campbell superior court — Judge Roan. May 20, 1907.</p>

<p>Indictment for -larceny, from Worth superior court — Judge Spence. June 8, 1907.</p>

<p>Complaint,’ from city court of Atlanta — Judge Reid. March 10, 1906.</p>

<p>1. (a) A common carrier is responsible for the proper treatment of its passengers, and is bound to protect them from insult as well as from physical injury. Where the insult ■ is offered by one of the carrier’s servants, the duty of protection is even stronger and more binding than where the offending party is a fellow-passenger; and for humiliation or wounded feelings, caused by such insult, a passenger is entitled to recover.</p> <p>{&) It is immaterial whether the insult .is caused by malice or is the result of negligence on the part of the carrier’s servant. Injury caused by omission to protect is none the less actionable than that caused by commission.</p> <p>2. (a) In enforcing Renal Code, §527, requiring the separation of races, the conductor is still the agent and servant of the corporation, and the liability of the corporation for his acts as such is not diminished by the delegation of police power. The police power is granted to better-enable the corporation to discharge its duty of protecting its passengers, but the burden of exercising extraordinary diligence in the protection of the passenger is not lightened. (By Hill, C. J., and Powell, J.: If an honest mistake be made after extraordinary diligence has been exercised, the carrier would not be liable.)</p> <p>(&) Good faith unaccompanied by freedom from fault (that degree of freedom from fault recognized by law as applicable between carrier and passenger) is no excuse for an insult offered by a servant of the carrier to a passenger who suffers injury; the good faith of the transaction can only be considered in mitigation of the damages.</p> <p>3. (a) To call a white man a negro or to intimate that a white man is. of African descent, under certain circumstances, may be an insult* and, dependent upon th’e circumstances, may be actionable.</p> <p>(6) An insult does not necessarily consist in the use of language imputing a crime. It more generally consists in the use of language affecting the social status and personal feelings or the business relations of the person insulted.</p> <p>(c) The courts can take judicial notice of social status and of the superiority and inferiority of races, without affecting the civil rights of the citizen. An existent fact, which is per se the subject neither of legislation nor of adjudication, can be judicially known and recognized as a. fact.</p>

<p>1. A verdict will not be set aside for an error in the admission of evidence, when the same result should have been reached had such evidence been repelled.</p> <p>'2. An intimation of opinion by a trial judge, that an issuable fact has been proved, requires the grant of a new trial.</p> <p>3. The decision of the Supreme Court in Central Ry. Co. v. JLtigusta Brokerage Co., 122 Ca. 646, is controlling as to the principles therein announced, and is the final law of this case. The charge of the trial judge, in several portions, being in conflict therewith, a new trial necessarily results.</p>

<p>Action for damages, from Turner superior court — Judge Spence. October 22, 1906.</p>

<p>Attachment, from city court of Savannah — ’Judge Norwood. January 25, 1907.</p>

<p>1. Fraud in the promisor, without injury to the promisee, is not sufficient to invalidate a contract, and constitutes no defense.</p> <p>2. A debtor who gives his note to a creditor for a valid subsisting debt, induced to do so by certain statements of the creditor, can not set up, as a defense to said note, that such statements were false and fraudulent, without also alleging and proving injury and damage.</p> <p>3. “An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be-actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.”</p> <p>4. Parol evidence being inadmissible to'add to, take from, or vary a written, contract,' an answer to a suit on a promissory note, that the payee at the time the note was executed verbally promised to take less than the face of the note in payment thereof, constituted no defense.</p> <p>5. The pleas having been properly stricken, except as to attorney’s fees, there was no error in directing a verdict for the plaintiffs for principal and interest of the note, and submitting the issue relating to attorney’s, fees to the jury. The verdict on this issue was fully supported by the-evidence.</p>

<p>Action on guardian’s bond, from city court of Floyd county— Judge Hamilton. February 20, 1907.</p>

<p>Certiorari, from Jasper superior court — Judge Lewis. March. 29, 1907.</p>

<p>Indictment for gaming, from Ben Hill superior court — Judge Whipple. May 20, 1907.</p>

<p>Appeal, from Fulton superior court — Judge Pendleton. December 21, 1906.</p>

<p>1. The situation which the garnishing plaintiff occupies in respect to the garnishee can be no better than that which the defendant himself occupies in respect to the garnishee. If the defendant himself, suing the garnishee, could not get a judgment against him, the garnishing plaintiff can not get a judgment against the garnishee. The creditor may stand in his debtor’s shoes by means of garnishment, but he gains no additional privileges.</p> <p>2. The act of 1901 (Acts 1901, p. 55), creating a lien on all future indebtedness of the garnishee to the defendant accruing up to the date of the answer, was only intended to keep garnishees from evading the law. For the reasons stated in the first headnote, it is not intended to- restrain the right of parties to contract.</p> <p>3. Consequently, in a case where it appeared by the undisputed evidence, that, under a contract operative more than a year before an attachment was sued out, the defendant, sold sewing machines for the garnishee, and that the contract relations were that the defendant used his own horse and wagon, paid his own taxes and expenses, and deducted his commissions before remitting the weekly balances, not being indebted or responsible to the garnishee for any proceeds of the sale except the portion due by the contract, the garnishee was not at any time indebted to such debtor, and was not subject to process of garnishment. Consequently, where a judgment was rendered against such garnishee and exception was taken thereto by certiorari, to dismiss such certiorari was error.</p>

<p>1. The test of the sufficiency of a petition to resist a general demurrer is the ability of the defendant to admit all that is alleged therein and yet escape liability altogether. A general demurrer to the petition should not be sustained and the suit dismissed because the plaintiff would not be entitled to recover all he asks, if the petition sots up a good cause of action as to any portion of his demand. Judged by this rule, there was no error in overruling the demurrer to the petition as a whole.</p> <p>2. The special demurrers were properly overruled.</p> <p>3. A demurrer addressed to a particular paragraph of the pleadings is not necessarily, for that reason, a special demurrer. “A general demurrer enp.bles the party to assail substantial imperfections in the pleadings of the opposite side, without particularizing any of them in his demurrer; a special demurrer goes to the structure merely, and not to the substance, and obliges the party demurring to lay his finger on the very point.” Martin v. Bartow Iron Works, 35 Ga. 323.</p> <p>4. “Demurrer, being a critic, must itself be free from imperfections.”</p>

<p>1. Though the plaintiff, in a suit which had been properly removed from the State to the Federal court having concurrent jurisdiction of the cause of action in which suit was founded, voluntarily dismissed his case in the United. States court, it was nevertheless his right to bring another suit on the same cause of action in the State court at any time within the statute of limitations applicable to such action. This is true notwithstanding the damages in the second suit were laid in an amount which would prevent another removal to the Federal court.</p> <p>2. A cause of action dismissed in the United States court may be renewed in the State court without payment of the costs accrued in the Federal court. Civil Code, § 5043, imposing a penalty upon those who non-suit or dismiss tlieir eases, is not applicable to cases in the United States court. The words, “the plaintiff may recommence his suit,” refer to a suit between the identical parties that were involved in a former controversy in a court of the State of Georgia.</p> <p>- S. Where with apparent full knowledge of the existence of a ditch in a public road, and- without any emergency requiring it to be crossed, one endeavors to pass such an excavation, he will be treated as having voluntaily assumed all the usual risks incident to the attempt.</p> <p>4. Where it is clear from the allegations of the petition that the plaintiff’s injuries might have been avoided by the exercise of ordinary care on his part, a proper demurrer to the petition should not be overruled.</p> <p>5. Misfeasance is the improper doing of an act which the agent might lawfully do. Where an agent fails to use reasonable care or diligence in the performance of a duty, he will be personally responsible to a third person who is injured. His liability in such cases is put upon the ground that he is a wrong-doer and as such responsible.</p> <p>6. The railway company and its section-boss may be jointly. sued for damages resulting from the negligent and improper discharge of his duties by such boss. The boss as a wrong-doer is personally responsible to the party injured by his misfeasance resulting from failure to use reasonable care and diligence in the performance of his duty, and the company is responsible for the misfeasance ¡of its agent.</p> <p>7. The section-boss and a railway company can be jointly sued when the sole ground of the liability of the railroad company is the act of the section-boss alone.</p>

<p>Certiorari, from Chatham superior court — Judge Carm. February 15, 1906.</p>

<p>While upon the hearing of a motion for new trial (where the sole ground of the motion complains that a member of the jury which convicted the accused was related by affinity to the prosecutor within the prohibited degrees, and upon the hearing affidavits are introduced supporting and disputing this ground) the trial judge is the trior of the facts in controversy, and this court will not control his decision as to the credibility of the witnesses, still, where all the evidence adduced upon the subject of relationship showed the juror to be related to the prosecutor within the ninth degree, a new trial should have been granted.</p>

<p>Action for damages, from city court of Polk county — Judge Irwin. May 19, 1906.</p>

<p>There is no liability for damages accruing from an injury received on a public highway and occasioned by the fright of an animal attached to a vehicle, where such injury is occasioned by the running of a railroad train in the usual course of its business, and where no unusual or unnecessary noises attend the locomotion of such engine and cars. No higher duty in this respect is imposed on railroads operated for the carriage of freight by private corporations than is incident to railroads generally.</p>

Actions for damages, from city court of Carrollton — Judge Jiodnett. March 30, 1907. Eor the homicide of Eoy Dale, his father and mother brought separate suits against 'the Mandeville Mills. The allegations of both petitions, so far 'as material to the questions here made, are identical.

<p>Accusation of misdemeanor, from city court of Monticello. Judge Thurman. June 17, 1907.</p>

<p>Indictment for fornication, from Stephens superior court— Judge Kimsey. June 7, 1907.</p> <p>Corrie Murray was convicted under an indictment charging her with having committed fornication with Will Price. She excepted to the, overruling of her motion for a new triál, alleging that the verdict was without evidence to support it. The only testimony introduced, to prove the alleged offense, was that of John Stephens, who testified as follows: “On December 26, 1906, I went to Corrie Murray’s father’s (George Murray’s) here in Toccoa, . . about sun up. No one was up. I married Cor-Tie’s sister, and went there to get Corrie’s mother, Mrs. Murray, to go and wait on my wife, who was sick. Mrs. Murray got up and opened the door for me, and began to make a fire. She had slept in the front room, her husband being away from home, I went in and sat down in front of the fireplace, with my back towards the door leading into the adjoining room. In a few minutes Corrie Murray came in. I do not know what room she came from, or where she came from. She came up from behind me. She had on only a thin guaze, thrown over her shoulders. In a few minutes Will Price came in, sat down, and I noticed that he was fastening his shoes as if he was just finishing dressing. He came up from my rear, but I do not know where he came from. There were three rooms in the house, — the one occupied by Mrs. Murray, which I was sitting in, .the cook-room, and the room in the rear, from the direction of which both Corrie Murray and Will Price came. I didn’t see either of them come out of the room, because my back was turned. They did not come out of the cook-room, and there was no other place for them to have come from, except from the rear bedroom. Neither Corrie Murray nor Will Price have ever been married. Will Price lives here in Toccoa. I saw no one there except Mrs. Murray, Will Price, and Corrie Murray, and some children. The house was pretty full of children.”</p> <p>Cynthia Hanie testified, that she and her sister Corrie (the accused) slept in the same bed, in the back room of their mother’s house, in the night “about last Christmas,” when Will Price was there; that he was visiting Corrie that night, but did not and could not come into the room in which she and Corrie slept; that while Corrie was in the room the only door of the room was fastened; that their mother slept in the front room, and Will slept with the children in the middle room; that Corrie, in going to the back room, to go to bed, passed directly through the room in which Will afterwards slept, and did not leave the back room until she heard John Stephens knocking the next morning, and then she went at once into her mother’s room without stopping. The statement of the accused was to the same effect. Witnesses’ for the State testified that the general character of Cynthia Hanie was bad, and they would not believe her on oath.</p>

<p>Indictment for selling liquor, from Stephens superior court— Judge Kimsey. June 10, 1907.</p>

<p>Indictment for burglary, from Walker superior court — Judge Wright. June 10, 1907.</p>

<p>The verdict was fully authorized by the evidence, and no error of law was committed.</p>

<p>1. Parol evidence is not admissible as proof of title to real estate, and it was error to refuse to repel the statements of witnesses as to tha ownership of land, when such evidence was properly objected to.</p> <p>2. The time, place, and circumstances of the act are all relevant for the purpose of disproving malice.</p>

<p>1. To instruct a jury in a case where tlie defendant is charged with carrying a concealed pistol, and where his defense is that he had no pistol at all, that “if the pistol was carried so exposed 'to view that it could readily he seen and recognized as a pistol, . ,: he carried it, in legal contemplation, in an open manner; if he carried it concealed, but for a moment, the offense of carrying a concealed weapon is complete,” is, in the absence of any instruction to the jury that they must determine from the evidence whether the defendant actually had a pistol or not, such an intimation of opinion, that he had a pistol, as practically eliminates his defense, and demands the grant of a new trial.</p> <p>2. To instruct the jury that a witness sought to be impeached may be sustained by proof of general good character is erroneous, in the absence of any evidence as to his good character. The law should fit the facts.</p>

<p>Accusation of larceny, from city court of Ashburn — Judge Hawkins. May 26, 1907.</p>

<p>Accusation of larceny, from city court of Sylvania — Judge Boy-kin. June 10, 1907.</p> <p>Ledbetter was indicted by the grand jury of Screven county for a misdemeanor. The indictment was transferred from the superior court of Screven county to the city court of Sylvania, in rvhich the defendant filed a plea in abatement, alleging, in substance, that the indictment was delivered into court from the grand jury by one Gilbert, who was not the bailiff of the grand jury, and who was not a sworn officer of the court, and was without authority of law to hand the indictment into the court.; and that the delivery of the indictment into court by him was not in the presence of rho grand jury, but was made privately, after the grand jury had taken a recess for the day. The State filed a traverse to this plea, and the issue thus raised was, by consent, tried by the judge without a jury. The evidence introduced'by the defendant in support of the allegations of his plea was substantially as follows: Two witnesses testified, that they were in the office of the clerk of the superior court on the day the indictment was found; that one Gilbert, an assistant to the solicitor-general, came into the office from the direction of the grand-jury room, and handed to the clerk a batch of indictments, including the one in question; and that at this time the grand jury was not in session. There is no direct evidence in the record as to the source from which Gilbert got the indictment. The evidence on the part of the State showed that the clerk of the superior court had a deputy, named Potter, who habitually performed the functions of clerk, frequently receiving the indictments returned into court by the grand jury, and doing other routine work under the supervision of the clerk. He had not taken the oath of office. He testified that after indictments had been delivered into court by the grand jury, he often turned them over to the assistant solicitor-general, for the purpose of having bench warrants issued on them. The regular bailiff of the grand jury testified that he never delivered any indictments to Gilbert, but always turned them over to the clerk or his deputy. The theory of the State, under this testimony, was that the indictment against the defendant had been returned into court by the regular bailiff of the grand jury, and delivered by him to the clerk or to the clerk’s de facto deputy, and had then come into the possession of the assistant solicitor-general. After hearing the -evidence the trial judge overruled the plea; and his decision is assigned as error.</p>

<p>Accusation of misdemeanor, from city court of Sylvania —Judge Boykin. June 10, 1907.</p>

<p>Certiorari, from Baldwin superior court — Judge Lewis. June 8, 1907.</p>

<p>Accusation of assault and battery, from city court of Cairo— Judge Singletary. July 1, 1907.</p>

<p>Indictment for assault with intent to murder, from Early superior court. Judge Worrill. May 28, 1907.</p>

<p>A conviction for larceny can not be sustained when all the circumstances are inconsistent with the existence of an animus furandi.</p>

<p>In tie absence of evidence to the contrary, it may be inferred that a. liquor called for and delivered and paid for as whisky is whisky, and therefore an intoxicating liquor. »</p>

<p>Action on bond, from city court of Dublin — Judge Burch. January 14, 1907.</p>

<p>The evidence is legally insufficient to justify the conviction.</p>

<p>Accusation of gaming, from city court of Ashburn — Judge Hawkins. March 25, 1907.</p>

<p>Certiorari, from Ben Hill superior court — Judge Whipple. July 13, 1907.</p> <p>The defendant was indicted by the grand jury of Ben Hill county, for illegally selling liquor. The case was transferred, for trial, to the city court of Fitzgerald. The defendant filed a plea in abatement, which alleged, among other things, that the- indictment against him was void, because: (1) The jury commissioners, appointed to select the grand jury which found the indictment against him, did not, before entering upon their duties, subscribe the oath required by the Penal Code, §814; and (2), under the act creating the Cordele circuit, only the judge of the superior court of Ben Hill county was authorized to draw the grand jurors for the spring term, 1907, of that court. The evidence disclosed that the ordinary administered the prescribed oath, to the jury commissioners before they entered upon their duties, but that the oath was not subscribed by them until two or three-days later. As to whethér or not the subscription of tire oath took place before or after the final selection of the grand jury, there was some conflict; but there was evidence from which the court could find against the defendant as to that point; for two of the jury commissioners testified that “none of the names of the persons who were finally selected as grand jurors and whose names-were put in the grand-jury box had been selected prior to the time that the oath of jury commissioners' was subscribed to by the jury commissioners, the work done prior to that time being the work of going-over the tax-digest for the purpose of getting the names of all the poll-tax payers of the county, from which the names of the grand jury were to be selected.” After hearing the evidence, the judge directed a verdict against the plea in abatement; but the assignment of error is sufficient only to raise the same question as if the jury had found the verdict without the direction. See Dickenson v. Stults, 120 Ga. 632 (48 S. E. 173). The case went to trial on the merits, and the defendant was convicted. He carried the case to the superior court by certiorari; and the decision of the judge, on the return of the writ, being adverse to him, he assigns this decision as error.</p>

<p>. In a prosecution for cheating and swindling through the making of false ' representations as to the ownership of property, an allegation in the indictment that the defendant knew that the representations made by him were false is a -material allegation, and must be supported by the proof. As to this element of the charge in the present ease, the testimony, which was circumstantial only, was too inconclusive to justify a conviction.</p>

<p>The confession not being plenary, and not being connected with the specific act which was the basis of the criminal offense charged, the conviction of the defendant was not authorized by the evidence.</p>

<p>That the foreman of a grand jury did not sign the entry of true hill on. an indictment is no ground for a motion in arrest of judgment.</p>

<p>1. A prosecution under the Penal Code, § G80, will not lie for the protection of the landlord as to any indebtedness other than advances necessary to make the crop.</p> <p>2. The conviction is not justified by the evidence.</p>

<p>.Accusation of misdemeanor, from city court of Carrollton— Judge Hodnett. August 30, 1907</p>

<p>Accusation of enticing farm laborer, from city court of Ashburn —Judge Hawkins. May 25, 1907.</p>

<p>Accusation of assault and battery, from city court of Sylvester— Judge Park. June 6, 1907.</p>

<p>Accusation of riot, from city court of Waynesboro — Judge' Johnston. June 17, 1907.</p>

<p>Indictment for hog-stealing, from Appling superior court— Judge Thomas presiding. July 11, 1907.</p>

<p>Accusation of hog-stealing, from Appling .superior court— Judge Thomas presiding. July 11, 1907.</p>

<p>Accusation of cheating and swindling, from city court of Baxley — Judge Thomas. August 21, 1907.</p> <p>From the evidence it appeared, that Baker, on December 22, 1906, contracted with the Beach Lumber Company, to begin work' for it on the 27th day of the same month as wagoner, and to contimie the work for one year, or until he had repaid to the company $20 received from it by him under the contract, the company agreeing to pay him $1.50 a day for. the work. He did not begin work and did not repay the money or any part of it. The accusation is dated May 28, 1907. In his motion for a new trial, Baker contended that the verdict was contrary to law and to the evidence, because it appeared that the time in which the labor was to be performed had not expired when the accusation was preferred; that sufficient time was left to him to earn the money obtained on the contract.</p>

Complaint, from city court of Macon — Judge Hodges. September 8, 1906. S. Siesel, surviving partner of the firm of S. Siesel & Company, sued Thomas & McCafferty on four promissory notes, which he alleged were executed and delivered by the defendants to S. Siesel & Company for a valuable consideration on September 9, 1892 (the date recited therein).

<p>Garnishment, from city court of Atlanta — Judge Reid. April 15,1907.</p> <p>On February 4, 1904, Carrie E. Medlock instituted suit against the Atlanta News Publishing Company, on account of the mali-n cious publication of a libelous article concerning her. Ancillary to this action she sued out garnishment and caused summons to-be served on the Maddox-Eucke-r Banking Company. On February G, 1904, the defendant, for the purpose of dissolving the garnishment, filed a statutory bond, with the National Surety Company of New York as surety. The section of the Civil Code (§4718) under which this bond was given is as follows: “In any case when garnishment has been issued, the .defendant may dissolve such garnishment upon filing in the clerk’s office of the court, or with the justice of the peace, where suit is pending or judgment, was obtained, a bond with good security, payable to the plaintiff, conditioned for the payment of the judgment that shall be rendered on said garnishment. The plaintiff may enter up judgment upon such bond against the principal and securities, as judgment may be entered against securities upon appeal, whenever said plaintiff shall obtain the judgment of the court against the property or funds against wjiich garnishment was issued.” On May 2, 1904, the garnishee answered, admitting sufficient assets. No-traverse was filed to this answer. On February 18, 1907, the Atlanta News Publishing Company was adjudged bankrupt and a. trustee appointed. On March 27, 1907, the original action came up for trial. The defendant offered an amendment to its plea,‘ alleging its bankruptcy and praying an abatement of the suit (alleging as a basis therefor that the effect of the adjudication in bankruptcy was to end its corporate existence), and also praying a stay -of the suit. On motion of the plaintiff this plea was stricken and disallowed. _ The case proceeded to trial, and a verdict was rendered in favor of the plaintiff for $1,000. After the verdict and judgment against the defendant, the plaintiff moved the court for a judgment against the fund so admitted by the MaddoxRucker Banking Company, and also for a judgment against the defendants, the Atlanta News Publishing Company, as principal, and the National Surety Company of New York, as security on the said dissolving bond, for the sum of $1,000 and costs. To the-rendition of judgment against them, or either of them, the Atlanta News Publishing Company, as principal, and the National Surety Company of New York, as security on the dissolving bond, objected on the following grounds: “(1) Because, the defendant being in bankruptcy, the court was without authority of law to try and render judgment in the case against the Atlanta News Publishing Company; for which reason the verdict and judgment against the defendant was null and void, and hence no judgment could be rendered against the bond, or the surety thereon, given for the dissolution of the garnishment. (2) Because the adjudication of the defendant, the Atlanta News Publishing Company, as a bankrupt, within four months of the verdict and judgment against it in the main case, rendered the bond to dissolve the garnishment null and void under the bankruptcy law, and hence no judgment could be entered thereon. (3) Because, the defendant being in bankruptcy, no legal judgment could be entered against the fund in the hands of the .garnishee, and hence no judgment could be entered against the defendant and the security on the bond to dissolve the garnishment. (4) Because, the defendant being in bankruptcy, no legal judgment could be rendered against the funds in hands of garnishee, had the same been paid in court, without creating á preference in favor of plaintiff against all other creditors of defendant, as against said fund, in violation of the bankruptcy law; and hence no judgment could be entered against defendant and the security on the dissolution bond, the only obligation therein being to answer .such judgment as might be rendered on the garnishment. (5) Because, in order to render judgment on the dissolution bond, the same would have to be entered against both the defendant, as principal, and the security; in order to do which a second judgment, based on the judgment in the main case, would have to be entered against the defendant, which, the defendant being in bankruptcy, the court could not legally do, as this would be in violation of the bankrupt law; and, without judgment against the principal in the bond, no judgment could be entered against the security thereon. (6) Because in Georgia no lien is created in favor of the plaintiff by service of simple garnishment issued upon a pending, ordinary, common-law action; and without lien, the defendant being in bankruptcy, no judgment could be entered against the funds in the hands of garnishee to the exclusion of other creditors of the defendant; and hence no judgment could be entered on the bond dissolving the .garnishment.”</p> <p>Bach and all of these objections the court overruled, and allowed the plaintiff to take an order adjudging the funds in the hands of Maddox-Bucker Banking Company, as garnishee, subject to the garnishment in the plaintiff’s favor; and also entered judgment in favor of the plaintiff against the Atlanta News Publishing Company, as principal, and the National Surety Company of New York, as security on the dissolving bond, for $1,000 and costs. To the judgment rendered upon the bond the Atlanta News Publishing Company and the National Surety Company both except; and this is the only exception taken in the record. '</p>

<p>Certiorari, from Marion superior court — Judge Little. April 23, 1907.</p>

Appeal, from Baldwin superior court — Judge Lewis. January 16, 1907. Isabella Hendrix died, leaving a will. So far as they are material to this controversy, the provisions of the will are substantially as follows: Her husband, H. E. Hendrix, is appointed executor and trustee; and in both capacities he is relieved from accountability to any court for his conduct. To the said trustee is devised all the testator’s property, real, personal, and mixed.

<p>Rule, from city court of Washington — Judge Hardeman. April 29, 1907.</p>

<p>Indictment for burglary, from Terrell superior court — Judge Worrill. July 6, 1907.</p> <p>Ed Jenkins was convicted of burglary. He excepted to the refusal of a new trial. The motion for a new trial was on the general grounds, that the verdict was contrary to law, evidence, etc. From the evidence it appeared, that the dwelling-house of the prosecutor was broken and entered and two pairs of his pants were etolen from it between the time he left it in the morning and the time of his return in the afternoon of the same day; and that the pants were found, the next morning, at the house of Polly Jenkins, the wife of the accused. The prosecutor testified, that when he left his house on the day of the burglary and before the crime was committed, Ed Jenkins was at work in a field, about 150 yards from the house, and knew that he was going to town. A woman testified, that she was working in the field that day,. while Ed Jenkins was there, and that he left the field, and she did not know where he was or what became of him. In the night of the same day, he was seen at the house of his wife, who had shortly before moved away from the place at which he was working, and was not living with him. The prosecutor testified, that Ed Jenkins came to his house the next morning, “about light,” from the house of Ed’s wife, where, Ed said, he went to carry her some clothes. The witness said to Ed. “Somebody has broke in my house and stole my clothes;” and Ed said, “They have?” That was all he said. The prosecutor saw a shoe-track, that morning, at the window where the house had been entered. He testified: “I saw shoe signs there, about a number-nine shoe. It was a big shce-track. The track was just like Ed Jenkins’ track. I know ii was the same shoe he had on that made the track where the house was broken open, because it didn’t have any heel on-it. The tracks were right at the window where he went in; there was a little step there at the window and he put his foot on the step, and the ground was kinder soft there and he made a plain track. I didn’t see any track there but his.” He loft Ed Jenkins lying on the porch, asleep, that morning, and went to the house of Jenkins’ wife, a distance of about six miles, and, after finding the pants there, was returning, to get a warrant, and when he was about a mile and a half from her house, he met Jenkins running towards the house. The prosecutor returned with an officer, and got the pants. He testified: “Ed Jenkins was at home at the time, I reckon. . . Ed Jenkins said he didn’t know nothing about it. . He had seen the pants in my house. About a week before my house was broken open, Ed Jenkins tried to buy one pair of those pants from Mr. Joe McLendon, but he didn’t buy them and I bought them.” It does not appear that any explanation as to the j)ants found at the house of the defendant’s wife was made by either of them. He made no statement to the jury and offered no testimony but that of a witness who testified: “I saw Ed Jenkins pull that shoe off his foot a few minutes ago. Defendant had the shoe on his foot when he came into'the court-reom, and it looks like it is about a number eleven.”</p>

<p>Conviction of shooting at another, from Worth superior court— Judge Spence. July 1, 1907.</p>

<p>1. Where a warrant was placed in the hands of lui officer of the law for execution, and subsequently the person against whom the warrant issued voluntarily appeared for commitment trial -before the magistrate who issued it, the officer having it in his possession also being present, and the magistrate thereupon continued the case and allowed the defendant to go at large on his personal recognizance, such voluntary appearance of the defendant was tantamount to an arrest, and such disposition of the case by the magistrate constituted satisfaction of the warrant, and it became functus officio, and any subsequent arrest thereunder was illegal.</p> <p>2. To authorize the rearrest of a defendant for the same offense, when he has been lawfully allowed his liberty on his personal bond for his appearance. on a certain named day to stand his preliminary trial, a forfeiture of his bond must be duly declared and another warrant for said offense be thereupon issued.</p> <p>3. The only evidence incriminating the defendant having been obtained by an unlawful search and seizure of his person while he was in custody under an illegal arrest, his conviction was unlawful, and the verdict must be set aside.</p>

<p>1. Tlie particular facts which constitute exceptions to the bar of the statute of limitations need not be minutely alleged in the bill of indictment. It is sufficient if any of the exceptions stated in tlie Penal Code, §30, be stated in the language' therein employed. As to such exceptions the State is only required to show a prima facie case, as this is not matter essential to the actual guilt or innocence of the accused.</p> <p>2. Where an offense is alleged to have been unknown, the State need only show that it was unknown to the prosecutor, in order to make prima facie proof of that allegation. Being a matter .of defense, the defendant may rebut such proof by proving that the transaction alleged in the indictment as a violation of the law was known, and the general notoriety may be sufficient proof to establish the fact that it was not unknown.</p> <p>3. The verdict of the jury was amply supported by the evidence, and no reason appears why a new trial should be granted.</p>

<p>1. To authorize a conviction of a violation of the labor-contract act of 1903 (Acts of 1903, p. 90), the evidence must show an intent to defraud on the part of the accused, and loss on the part of the person alleged-to have been cheated and swindled.</p> <p>2. Testimony on the part of a witness that a certain payment was an advance is not competent evidence of that fact. It is the province of the jury to determine, from the facts in connection with the payment, the state of the employee’s account with his employer, and whether the payment made was an advance, or part' payment of an indebtedness for labor, due by the employer to his servant.</p>

<p>1. In a criminal case, where the guilt or innocence of the defendant is; wholly dependent upon circumstantial evidence, the jury should be instructed, without request, that his guilt must be sliown to the exclusion of every other reasonable hypothesis.</p> <p>2. The controlling issue in a case must not only be submitted to the jury with such appropriate instructions as will call their attention to the-existence of such issue, but the charge of the court must further contain such clear, apt, and definite exposition of the specific principles-of law applicable to the case as will enable the jury to deal with the-real issue in the case and to properly decide it. And this is true-whether a specific request be made or not.</p> <p>3. Where there is only one defense on which a party relies, failure to instruct the jury as to this defense so specifically that the jury will not-only be required to pass upon it, but will be able to do so intelligently, under pertinent rules of law and evidence, practically withdraws that defense, and is, in effect, tantamount to directing a verdict.</p>

<p>Accusation of selling liquor, from Early superior court—Judge Worrill. July 27, 1907.</p>

<p>Certiorari, from Ben Hill superior court — Judge Whipple. August 22, 1907.</p>

<p>Action for damages, from city court of Sylvester — Judge Park. July 7, 1906.</p>

<p>Trover, from city court of Ashburn — J. A. Comer, judge pro hac vice. April 19, 1907.</p>

<p>1. There is no material variance between the allegata and the probata, and the allegations of the indictment were sufficiently proved as laid.</p> <p>2. The court fully, fairly, and clearly submitted to the jury the issues, and the law applicable thereto. The exceptions to portions of the charge are without merit.</p> <p>3. A new trial is granted solely because the trial court violated the spirit of section 4334 of the Civil Code.</p>

<p>1. A plea of not guilty, by one accused of crime, is an express contention on bis part antagonistic to every fact necessary to be proved by the State in order to establish his guilt; and unless the accused admits one or more of the facts which it devolves upon the State to prove, such fact must be established by evidence. To assume that an important fact in the case on trial has been admitted, and to so instruct the jury when no such admission has been made, is reversible error.</p> <p>2. Venue is a jurisdictional fact which must be established to the satisfaction of the jury beyond a reasonable doubt. If there be uncertainty in the evidence which the jury can not make certain, an acquittal must result.</p> <p>3. When the intention of the accused can only be derived from circumstances, the jury should be instructed substantially in the terms of §984 of the Penal Code, that if the circumstances from which a guilty intent could be inferred are equally consistent with an innocent inten-’’ tion or an intention different from that charged against the accused, he should be acquitted.</p>

<p>Certiorari, from Ben Hill superior court — Judge Whipple. July 25, 1907.</p> <p>Mrs. Cole was tried and convicted of the offense of battery, in the city court of Fitzgerald. She presented a petition for certiorari to the judge of the superior court, who refused sanction; and she brings error. The testimony was that Mrs. Cole came up to the prosecutor, J. F. Greek, in the cotton factory at Fitzgerald, said to him, “You have got to quit whipping my boy,” thrust her hand up toward his face, and, according to the statement of the prosecutor, actually touched his face, though it did not hurt him. Several witnesses testified that she did not touch him and merely pointed her hand up toward his face, but the verdict of the jury necessarily concluded the issue in favor of the theory that there was a slight touching. The defendant’s statement was as follows: “Joe Greek had been whipping my boy. He is all the time picking at him and on one occasion made him drunk. He had just been beating him and made him cry, and as soon as I saw him I walked up to where he was talking and told him he must not whip my boy again and shook my hand in his face. I did not hit him at all.” The defendant also attempted to prove by witnesses that the prosecutor had slapped and hit her son, a small child, just before the rencounter occurred; that while the assault did not occur in her immediate presence, the boy ran away crying to her and that she quickly came and assaulted the prosecutor in the manner specified above. The court repelled the evidence; and error is assigned to this ruling. The two following requests to charge, which were refused by the court, thereby furnishing the basis of another assignment of error, present the theory of the l&w_-asserted by counsel for plaintiff in error, to wit: “A parent may not only commit a reasonable battery to protect his or her child, but any treatment of the child by another, which if meted out to the parent would justify the parent to commit a battery, would, if meted out to the child, justify the parent in committing the same kind of battery upon the one from whom the treatment flows,” and “It is not the law that a parent may commit a battery only in defense of a child. He or she ma3r be provoked by a battery on his or her child, and if the jury believe the battery committed by him or her in consequence of the provocation is reasonable and justified, he or she may be acquitted by the jury, and it is for the jury to decide whether he or she is justified.” A chain-gang sentence of four months, with alternative of $40 fine, was imposed</p>

<p>Indictment for misdemeanor, from Terrell • superior court— Judge Worrill. July 27, 1907.</p>

<p>Habeas corpus, from city court of Dalton — Judge Longley. August 23, 1907.</p> <p>Collum was convicted in the police court of Dalton for keeping a dog in violation of the “dog ordinance” of that city. He took habeas corpus against the marshal of the city, and was released on the ground that the ordinance is void; and the city brings error. The ordinance (omitting immaterial parts) is as follows: “It shall be unlawful to keep, maintain, or allow kept on one’s premises, within the City of Dalton, any dog not tagged as hereinafter set out. The clerk is hereby directed to prepare suitable', metal tags for sale for those desirous of keeping dogs within the City of Dalton. Tags to be placed on male dogs shall be sold at one dollar each, and tags to be placed on female dogs shall be sold at five dollars each. . . Such tags, when attached to the neck of said animal, shall protect said animal from being killed during the year within which same is sold, except as hereinafter provided. The police force is hereby required to kill all dogs, male or female, found within the limits of the City of Dalton, after the first day of June, 1907, which are not protected by a proper tag, as hereinbefore set out, and they are further required to kill all dangerous, vicious, and mad dogs found within the limits of said city, whether they shall be tagged or not; and nothing herein contained shall be construed to prevent the killing of such vicious, dangerous, and mád dogs. The owner of any dog found within the limits of Dalton after the first day of June, 1907, and not bearing the tag herein provided for, shall be guilty of a violation of this ordinance; and the word 'owner/ as herein used, shall he construed to mean any person having such dogs in charge, or allowing the same kept on any premises owned or occupied by him.” Violations are to be punished in accordance with the penal ordinance of-the city.</p> <p>It is alleged, in the petition for habeas corpus, that the ordinance is void because it is a tax ordinance, and by the city charter (§§44, 78) 1'cense fees and taxes can be enforced only by execution. Also that it is void “because it imposes a license fee or tax of one dollar on male dogs, and a license fee or tax of five dollars each on female dogs, and therefore violates the constitutional provision that ‘all taxation shall be uniform on the same class of subjects;’” especially in the light of §4 of the Political Code, which says that “the masculine gender shall include the feminine and neuter.” Also that it is void because of lack of authority in the charter of Dalton to regulate any dogs except such as are “straying at large within the corporate limits,” while the ordinance attempts to make illegal the keeping of dogs on the citizens’ own premises. In this connection the ordinance -is alleged to be “an oppressive and tyrannical usurpation of power and an illegal invasion of the rights of a citizen and resident of said city.” It is further alleged, that' “if said ordinance is claimed to he- a police regulation to promote the peace, health, or good order of the city,'it is wholly impotent, void,' and illegal as such, being inconsistent with the laws of Georgia, and, instead of being a police protection, is just the opposite, its effect being to turn loose upon the streets of said city, under the protection of a license, every vicious dog in the city, whose owner buys' a tag for said dog, and puts the same on, said tag having on them ‘Licensed Dog,’ and is no protection to the children or women or others on the public street against mad or. vicious dogs, as a muzzle would be.” For these reasons it is averred that the restraint under the conviction under the ordinance .is “wholly illegal, void, senseless, tyrannical, oppressive, and malicious.”</p>

<p>Complaint, from city court of Eastman — Judge Thomas presiding. April 9, 1907.</p> <p>Akerman & Akerman brought suit against the Dublin & Southwestern Railway Company on an account as follows: “To service in the case of Southern Railway Company v. Mayor & Council of Eastman et al. in the Circuit Court of the United States for the Southern District of Georgia, $100.00.” The defendant demurred, (1) because no party plaintiff is named, it not appearing that Akerman & Akerman are either a partnership or a corporation; .(2) because it appears from the account that defendant is being sued for services in a case to which it does not appear to have been a party. The plaintiff amended, alleging that Akerman & Akerman are a partnership. The demurrer was overruled. Upon the trial the following testimony was introduced by the plaintiff: Judge Clements testified, that.in June, 1905, the Southern Kailway Company filed a petition in the United States Court against the Mayor & Council of Eastman; and he was representing that defendant. The suit involved the right to a certain strip of land on which the Southern Kailway Company was about to lay a sidetrack, and which the city, it seems, was about to give'to the "Dublin & Southwestern Kailway Company for terminal "or similar purposes. (The exact nature of this suit is immaterial to this case, except to the extent that the city and the Dublin & Southwestern Ky. Co. had a mutuality of interest.) The answers of the city had been prepared and filed. This witness further testified: “I met Judge Koberts, who had been to Dublin, and he came to me and told me that .Col. J. M. .Stubbs, who was general counsel for the Dublin & Southwestern, had told him and requested him to see me and get the Akermans in the ease. Judge Koberts and myself were local counsel for the Dublin & Southwestern. I went to Macon in three or four days afterwards, and when I got up there I spoke to Mr. Alex Akerman, the older member of the firm, and told him of the message I had received from Col. Stubbs through Judge Koberts. We discussed the case and he told me what he would charge to go into the case. . . Mr. Akerman told me he would charge $100 to go into the ease. Before the case was called Col. Stubbs and Mr. Kentz both appeared in the Federal building in Macon, and Mr. Kentz again spoke to me about the employment of Mr. Akerman, or rather he and Col. Stubbs discussed it with me; they were both in the court-room after the case had been started and during a pprtion of the trial. I told Mr. Kentz what Mr. Akerman said about the fee, and he directed me to employ him for the railroad company, and that the company would pay Mr. Akerman. I immediately did that, and Mr. Akerman went into the case, and Mr. Kentz was in there while the ease was being tried and saw Mr. Akerman participating in ' the case. Before the suit of the Mayor and Council of Eastman had been disposed of, an amendment was offered by the Southern, asking that the Dublin & Southwestern be made a party also.” Judge Eoberts testified that Col. Stubbs, the general counsel for the railway company, asked him to tell Judge Clements to employ Akerman & Akerman to represent the railway compands interests in the matter, on account of the special skillfulness of that firm in matters of procedure in the Federal courts. As to Mr. Eentz, who was referred to in the testimony, Judge Eoberts testified, “I think Mr. Eentz was 'president of the Dublin & Southwestern as it then existed; he was supervisor and superintendent of the extension of the road to this place. . . I think Mr. Eentz was the only president the road ever had up until the time it was sold out.” Judge James Bishop, who represented the Southern Eailway in the suit, testified to the successful fight made by Akerman & Akerman to prevent the Dublin & Southwestern Eailway Company from being joined by amendment as party defendant to the suit pending against the City of Eastman. It further appeared, from the testimony of directors of the railway company and others, that Mr. Eentz had referred to this fee at meetings of directors and' had said that he would see to its being paid, but that he wanted to hold Akerman & Akerman off and see if he could not get them down on the price. Messrs. Akerman presented their bill to the City of Eastman, and, after the city had declined to pay it, on the ground that the railway company alone was liable, this suit was brought. The defendant introduced no testimony.</p>

<p>Action on bond, from city conrt of Baxley — Judge Thomas, April 13, 1907.</p>

<p>Action for damages, from Fayette superior court — Judge Reagan. April 29, 1907.</p>

<p>Complaint, from city court of Dawson — Judge Edwards. April 23, 1907.</p>

<p>Trover, from city court of Miller county — Judge Bush. May 25, 1907.</p>

<p>To a suit filed in and addressed to a city court, with prayer to that court for process, there was attached process, tested in the name of the judge of that court and requiring the defendant to be and appear “at the next superior court” to be held on the date named by law for the next regu: lar term of the city court. Held, that the process was not void, and was amendable by allowing the clerk to strike the words “superior court,” where they appeared therein, and to insert the words “city court” in lieu thereof.</p>

<p>The ccmrt erred in refusing to allow the amendment offered by the plaintiff and in dismissing the action.</p>

<p>1. A judgment overruling a demurrer can not properly be made a ground of a motion for a new trial.</p> <p>2. The failure of the court to charge a proposition of law which is not applicable to any defense set up in defendant’s plea is not, in the ab: senee of a written request so to charge, reversible error, although there may be some slight evidence tending to support such a theory of the case.</p> <p>3. The evidence warranted the verdict.</p>

<p>Complaint, from city court of Abbeville — Judge Nicholson. April 8, 1907.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. March 20, 1907.</p>

<p>Distraint, from city court of Monroe — Judge Arnold. April 13, 1907.</p> <p>The motion for a new trial, the refusal of which is assigned as error, is on the grounds, that the verdict is contrary to law, evidence, etc., and that the court erred in charging as follows: “I charge you that a fact testified to by one positive witness is to be believed in preference to one who swears that he did not see or know of its having transpired. That is, if a witness swears that he saw a man drawing a bucket of water out there at the well, that would be positive evidence, and is to be believed in preference to one or many witnesses who might have had the same opportunity of seeing it, but swear they did not. Their testimony would be negative, and entitled to less weight and consideration than one swearing positively that a certain thing did transpire.” It is alleged that this instruction was erroneous because it did not embrace an instruction that the jury, in weighing the testimony of the witnesses, should consider and pass upon the question of their credibility, — as to whether the witnesses were of equal credibility.</p>

<p>Complaint, from city court of Atlanta — Judge Eeid. March 9, 1907.</p>

<p>1; The evidence on the only material point in the case was conflicting, and we have more than once held that in such a case this court can not interfere with the finding of the jury upon the facts. . '</p> <p>2. There was no error in giving in charge to the jury the .exceptions to the statute of frauds, contained in the Civil Code, §2694, the defendant having pleaded the 7th paragraph of §2693 in defense, and there being ^ evidence to authorize such a charge. The charge on this subject, considered as -a whole, is a fair presentation of the principles applicable to the evidence. If there was error in presentísg the 3d exception to the ■ jury, the error was harmless to the plaintiff in error.</p> <p>3.. There being evidence in behalf of the plaintiff that he delivered the exact quantity of goods bought, and no dispute as to the quality or price of the goods, it was no error to charge the jury that if they believed the testimony for the plaintiff, the defendant would have no right to reject, the goods, nor any • reason for inspection. Acceptance follows necessarily on the impossibility of rejecting the goods contracted to be bought, ' when the goods delivered are in every respect the exact articles purchased.</p> <p>4. The assignments of error contained in the first, second, fifth, seventh, eighth and ninth grounds of the motion for new trial, are not, for any of the reasons assigned, erroneous.</p> <p>5. The court having more than once instructed the jury that plaintiff’s right to recover was dependent upon his compliance with his contract and acceptance of the goods by the buyer, the charge complained of in the fourth ground of the motion was not erroneous and could not be understood by the jury as relieving the plaintiff from compliance with his contract. Even if there had been ambiguity in the charge complained of in the fourth ground, it was relieved by the instruction of which complaint is made in the sixth ground.</p> <p>6. There is no merit in the seventh ground of the motion for new trial. One can not complain if the court charges the jury in accordance with his own suggestion, although such charge must necessarily be qualified, in order that the jury may be legally instructed.</p> <p>7. The charge complained of in the tenth ground of the motipn was given in compliance with an oral request, and could well have been declined if presented in writing, because the principle involved had already been fully covered in the general charge. If more specific instructions were desired, they should have been requested in writing.</p>

Action pn insurance policies, from city court of Macon — Judge Hodges. March 29, 1907. Todd sued the German American Insurance Company of New York on two policies of insurance for the sum of $2,000 each. The court, at the conclusion of the plaintiff’s testimony, awarded a nonsuit, and the plaintiff brings error. We shall report only so much of the evidence as is necessary to the understanding of the points decided.

<p>1. Questions of negligence are peculiarly within the province of the jury; and this court will not disturb a finding of its existence, when such an inference is warranted by any phase of the evidence.</p> <p>2. In an action for a homicide, in determining whether the verdiet is, excessive or not, the question will not be decided by reference to the deceased’s expectancy according to the mortality and annuity tables alone. A verdiet will not be set aside as excessive when it is not so large as to justify the belief that it is the result of bias or gross mistake.</p> <p>3. The judge may properly instruct the jury, in explanation of the use of the mortality and annuity tables, that “if, under the evidence, the expectancy would be greater or less than that of the average man, or the .earning capacity would increase or decrease, the cash value of the life should be increased or decreased accordingly,” when there is evidence that the person, the value of whose life is in question, was a young man of good health and habits, and was filling satisfactorily a responsible position.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. March 18, 1907.</p> <p>Bell instituted his action in the city court of Atlanta against the New Orleans & Northeastern Railroad Company, alleging that the defendant had an office and an agent in the county in which the court is located. A deputy sheriff made the following return: “Served the defendant New Orleans and North Eastern Railroad Company, a corporation, by serving Ray Knight, its commercial agent, by leaving a copy oí the within writ and process with him in person at the office and place of doing business of said corporation in Fulton County, Georgia. This January 30th, 1906.” At the first term the defendant filed the following defense: “The defendant prays leave to appear specially for the purpose herein, set forth, and for no other purpose, and hereby traverses the- return of service made by J. T. Jones, Deprdy Sheriff, upon the summons and process issued in said cause, and moves the court to make said Jones a party hereto, and to set aside'the said return of service, for the reason that said return is untrue in fact; and defendant moves the court to disregard said return, for the reason that it is insufficient in law, and to dismiss said cause, and hereby prays the judgment of the court whether it should be compelled to appear therein or plead to the petition filed therein, for the reason that it has not been served with process therein, and has not acknowledged, and does not acknowledge service therein, nor waive due service of process upon it, on the following grounds, to wit: “(1) The city court of Atlanta has no jurisdiction over the person of defendant, for the reason that it is a non-resident corporation and is not doing business in the county of Fulton and State of Georgia, and has no place nor office in said county for transacting the usual and ordinary business of said corporation, and no officer or agent of said corporation is located in said county. (2) The person mentioned in said deputy sheriff’s return of service in said cause,- to wit, ‘Ray Knight,’ is not such an officer or agent of said corporation as is subject to service or process in suits against said corporation- in order to bind said corporation thereby, nor has he any power or authority to acknowledge service of process so as to make said acknowledgment binding upon said corporation, nor to waive such process. Said Knight was employed by the defendant, at the time of the alleged service of said process, for the sole purpose of diverting freight to such railroads leading out of Atlanta, Georgia, as had running connection with the defendant’s line at Meridian, in the State of Mississippi; he had no authority to sell tickets, or to make contracts or rates for the transportation of freight or passengers over the defendant’s road, nor to collect money due defendant for such transportation of freight or passengers. In order to enable said Knight to serve defendant in said employment of thus diverting freights over defendant’s line, it supplied him at its own expense with a desk room in the Equitable Building, in the second floor of said building, in Atlanta, Ga., which room was occupied in part by the employees of the Philadelphia, & Reading Railway and in part by another person, who was not connected in any way with, nor employed by either defendant’s road or' the Philadelphia & Reading Railway. This room was of small size and had only one door, leading out into the hall of said building, and on said door was printed the following wprds and notice, to wit: N. O. & N. E. R. R., A. & V. Ry., V. S. & P. Ry., Office Commercial Agent. Philadelphia & Reading Railway, Office Traveling Freight Agent, John J. Lynch.’ The letters and- initials aforesaid, preceding the words, 'Office Commercial Agent,’ were intended to refer to three different railroads by which said Knight was employed for the purpose hereinbefore set forth, viz. the New Orleans & Northeastern Railroad, the Alabama & Yicksburg Railway, and the Yicksburg, Shreveport & Pacific Railway.- Said Knight’s employment and line of work for the said three railroads necessitated his traveling about the territory adjacent to Atlanta most of the time, and hence he was out of his said office or room in the Equitable Building and away from the city of Atlanta from four to five days in every week. In fact he merely kept his desk in said room as a place for his mail to be sent and a place to write letters while in Atlanta and his said desk room in said room was paid for in part by each of the said three railroads by which he was employed as aforesaid.”</p> <p>By order the- deputy sheriff was made party to the traverse and acknowledged service. The plaintiff filed his motion to strike the plea to the jurisdiction and the traverse and exceptions to service filed by defendant in said case, on the following grounds: because the same is not sworn to; because said traverse is insufficient in law; because it appears from said traverse or plea to the jurisdiction that the defendant did have an agent in said county and a place of business; it is immaterial that the office was small, and that it had but one door to it, and that other companies had the right to use it; it is immaterial that the defendant’s agent also represented other companies; it is immaterial that said agent was limited in authority; it is not material that said agent was fre-quently out of the office. By way of amendment the plaintiff also filed the following: “Plaintiff moves to strike the defendant’s plea to the jurisdiction, on the following grounds: Said defendant company has filed a general demurrer to plaintiff’s cause of action, and in so doing has thereby pleaded to the merits of plaintiff’s cause of action. The demurrer, under our code pleadings, must be filed at the first term, and must be disposed of before •either the plea or answer, and, in being disposed of, is an admission and waiver of the court’s jurisdiction. Defendant has pleaded to the merits of plaintiff’s cause of action, and in so doing waives the right to plead to the jurisdiction of the court. Defendant has pleaded to the merits, and thereby invokes protection of the court in its defense, and hence can not deny the court’s authority to enforce the right of the plaintiff (on the ground that the defendant is not within the jurisdiction of the court) or to judge the liability of the defendant company. Said plea to the jurisdiction is not sufficient, because it is not set up therein what court in this' State has jurisdiction of said defendant company. Said plea to the jurisdiction does not show on its face jurisdiction in another •court. Wherefore plaintiff prays that the said plea be stricken. Plaintiff demurs to the defendant’s traverse and says that the saméis not sufficient, for the following reasons: The prayer in the traverse does not set up the fact that the sheriff has been notified that he is to be made, or of his having been made, a party defendant in the traverse. There has not been, such service on the sheriff, appearing upon the face of the traverse and the entries thereon, as to make the sheriff a party defendant to the traverse, in that it is not shown. The foregoing defects appear on the face of the traverse. Wherefore plaintiff prays that said traverse be stricken.”</p> <p>The court upon hearing these motions overruled them, and the plaintiff excepted pendente lite. From additional record which we have required the clerk of the lower court to send up, it appears that at the first term the defendant filed a demurrer to the plaintiff’s action, but this demurrer is prefaced with the following limitation and protestation: “On the first day of the term to which the above stated cause is returnable comes the New Orleans & Northeastern Eailroad, the defendant therein, and without waiving or acknowledging service of process, or the jurisdiction of the court therein, hut insisting upon the want of jurisdiction, and the want of legal service of process, set up in a special appearance-plea this day filed therein, defendant demurs to said petition as follows.”</p> <p>By consent, the judge, acting- as trior, without the intervention, of a jury, heard evidence, which was substantially in accord with the facts alleged in the defendant’s special plea in abatement; and he sustained the plea and dismissed the action. In the bill of exceptions sued out by the plaintiff, error is duly assigned upon the exceptions taken pendente lite. To the final judgment finding in favor of the plea, exception is taken, but the assignment of error is general, being in the following language: “to which ruling the plaintiff in error excepted, and now excepts and assigns the same as error.” The defendant in error filed in this court a motion to dismiss the bil-1 of exceptions, on the ground that the assignments of error are not specific.</p>

<p>Complaint, from city court of Eastman — Judge Clements. May 4. 1907.</p>

<p>Accusation of larceny from house, from city court of Sylvester — Judge Park. June 12, 1907.</p>

<p>Certiorari, from Morgan superior court — Judge Lewis. April 29, 1907.</p>

<p>1. Upon the trial of one charged in the same indictment with murder and assault with intent to murder, where there is no evidence of a mutual intent to fight, neither the law of voluntary manslaughter nor that of assault and battery is necessarily involved. The law of voluntary manslaughter is, however, applicable to evidence showing the homicide to have been committed under that sudden, violent impulse of passion supposed to be irresistible, and justly aroused, either by an assault or other equivalent circumstances.</p> <p>2. The deliberate intent to kill must be shown before a conviction of assault to murder is authorized. The nature of the instrument used in making the assault, the manner of its use, and the nature of the wounds inflicted, as well as the brutality and duration of the assault, are each and . all circumstances from which an intent to kill may be inferred,</p> <p>3. The evidence as to the circumstances of the assault, being uncontradicted and suggesting no reasonable hypothesis save that the assault was made with intent to kill (either maliciously or in self-defense), a charge upon the subject of assault and battery would have been error.</p> <p>4. Every phase of the law of justifiable homicide and self-defense having been fairly and lucidly presented to the jury, and the evidence fully authorizing the verdict rendered against the defendant, there was no error in the judgment refusing a new trial.</p>

<p>Indictment for manslaughter, from Worth superior court — Judge Spence. June 20, 1907.</p>

<p>Complaint, from city court of Atlanta- — Judge Reid. April 1, 1907.</p>

<p>1. Wlien tlie trial court has dismissed an action upon both special and general demurrers, and this court finds that the special demurrer has been properly sustained, but that the petition sets out a cause of action, the judgment will be affirmed, with such direction as the discretion of this court may see fit to impose in the interests of justice.</p> <p>2. Every public-service company owes to sucli members of the general public as have occasion to transact with it the business it is accustomed to perform the duty of affording them safe and decent access to the office or other place where such transactions are to be had. It must see that those members of th% public who come to the usual and appointed place to deal with it are accorded respectful treatment. A breach of this duty, whereby injury results to a person lawfully and properly attempting to deal with it, is actionable.</p> <p>(a) A telegraph company is a public-service corporation.</p> <p>(i>) If a person enters a telegraph office with the intention of delivering a message for transmission, and, without provocation, the agent in charge of the office orders him out, and insults and humiliates him by abusive language, a cause of action against the telegraph company arises in favor of such person.</p> <p>3. While mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts merely negligent, yet such damages may be recovered in those eases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings.</p>