Volume 20 — Georgia Appellate Reports

Appeal; from Stewart superior court-—Judge Littlejohn. October SO, 1915.

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

<p>Indictment for burglary; from Wayne superior court—Judge Highsmith. November 9, 1916.</p>

<p>Complaint; from city court of Bainbridge—Judge Spooner, September 26, 1916.</p>

<p>Action for damages; from Mitchell superior court—I. J. Hofmayer, judge pro hac vice. April 19, 1916.</p>

<p>Action for damages; from Wheeler superior court-—Judge Graham. June 3, 1916.'</p>

<p>Action on breach of contract; from city court of Atlanta—Judge Reid. June 22, 1916.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. August 35, 1916.</p>

<p>Action against stockholder; from city court of Cairo—Judge Willie. July 19, 1916.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. August 1, 1916.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. August 35, 1916.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. October 20, 1916.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. October 30, 1916.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. October 20, 1916.</p>

<p>Trover; from city court of Yaldosta—Judge Cranford. November 10, 1916.</p>

<p>Trover; from city court of Blakely—Judge Sheffield. October 20, 1916.</p>

<p>Money rule'; from city court of Tifton—Judge Eve. November 21, 1916.</p>

<p>The charge of the court having, as a whole, properly submitted to the. jury the controlling issues, involved, under correct principles of law, the inaccuracy and immateriality which might exist in the portions excepted to can not work a reversal, where it appears that the jury could not reasonably have been misled thereby.</p>

<p>Action on bond; from city court of Thomasville—Judge W. H. Hammond. September 30, 1916.</p>

<p>Money rule; from Berrien superior court—Judge Thomas. September 26, 1916.</p>

<p>Indictment for fraudulent insolvency of bank; from Grady superior court—Judge Cox. August 21, 1916.</p>

<p>Indictment for burglary; from Fulton superior court—Judge Hill. August 15, 1915.</p>

<p>Indictment for taking possession of land under forged conveyance, etc.; from Cobb superior court—Judge Patterson. December 37, 1916.</p>

<p>Indictment for taking possession of land under forged conveyance,, etc .; from Cobb superior court—Judge Patterson. August 23, 1916.</p>

<p>Indictment for assault with intent to rape; from Dougherty superior court—Judge Cox. December 29, 1916.</p>

<p>Indictment for cheating and swindling; from Cobb superior court—Judge Patterson. December 27, 1916.</p>

<p>Indictment for burglary, etc.; from Wayne superior court— Judge Highsmith. December 9, 1916.</p>

Indictment for cheating and swindling; from city court of Quit-man—Judge Long. December 18, 1916.

<p>The provisions of the statute of limitations applicable to an indictment for voluntary manslaughter will not bar a conviction of that offense under an indictment for murder; there being no statutory limitation as to indictments for murder.</p>

<p>Indictment for throwing a missile into a passenger-car of a railroad; from Fulton superior court—Judge Hill. January 27, 1917.</p>

<p>Accusation of misdemeanor; from city court of Carrollton— Judge Beall. February 1, 1917.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews.' January 30, 1917.</p>

<p>- Accusation of cruelty to animal; from city court of Eastman— Judge Griffin. January 31, 1917.</p>

<p>Indictment for misdemeanor; from Bibb superior court—Judge Highsmith presiding. February 22, 1917.</p>

<p>Accusation of misdemeanor; from city court of Leesburg— Judge Martin. February 10, 1917.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. October 20, 1916.</p>

<p>Indictment for robbery; from Bleckley superior court—Judge Graham. February 21, 1916.</p>

Complaint; from city court of Macon.—Judge Guerry. September 18, 1916. Suit on three promissory notes payable to B. S. Walker Jr., one of which was for $180, was brought against the maker, E. W. Campbell, by the executrix of the payee.

<p>Action on bond; from Tattnall superior court—Judge Sheppard. May 20, 1916:</p>

<p>Complaint; from Paulding superior court—Judge Bartlett. January 15, 1916.</p>

<p>Complaint; from Houston superior court—Judge Mathews. June 23, 1916.</p>

<p>Trover; from Warren superior court—Judge Walker. October 4, 1916.</p>

<p>Complaint; from Elbert superior court—Judge Worley. March 13, 1916.</p>

<p>Affidavit of illegality; from. Douglas superior court—Judge Bartlett. March 24, 1916.</p>

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

<p>Complaint; from Jasper superior court—Judge Park. June 10, 1916.</p>

<p>Suit to revive dormant judgment; from Miller superior court— Judge Worrill. July 17, 1916.</p>

<p>Complaint; from Turner superior court—Judge Cox. February 7. 1916.</p>

<p>In a money-rule proceeding it is within the sound legal discretion of the trial judge to allow a traverse to the answer to be filed at the second term and after the trial of the case has actually begun; and his discretion will not be controlled unless manifestly abused.</p>

<p>Complaint; from Colquitt superior court—Judge Thomas. July 17, 1916.</p>

<p>’ Petition to set aside judgment; from Camden superior court— Judge Highsmith. August 7, 1916.</p>

<p>1. Where judgment is entered against the principal and the surety on a bail-bond given by the plaintiff in a suit in trover, the' surety is not a necessary party plaintiff to a writ of error taken thereto.</p> <p>2. Where in such a suit no process is attached to the petition or served on the defendant, and the defendant causes the dismissal of the suit on that ground, the court is without jurisdiction to enter up judgment against the plaintiff and the surety on the bond, for the value of the property sued for.</p>

<p>1. Under the facts there was no error in refusing to dismiss the plaintiff’s petition, which was filed in the city court of Zebulon, although the original petition was addressed, “To the City Court of Pike county.”</p> <p>(a) “All claims arising ex contractu between the same parties may be joined in the same action.”</p> <p>2. The judge did not abuse his discretion in refusing to open the default.</p>

<p>■ Complaint; from Warren superior court—Judge Walker. January 22,1916.</p>

Complaint; from Gwinnett superior court—Judge Brand. June 30, 1916.

<p>Exceptions to auditor’s report; from Banks superior court— Judge Brand. July 6, 1916.</p>

<p>Complaint; from Hall superior court—Judge J. B. Jones. July SI, 1916.</p> <p>Suit was brought by the Farriers & Merchants Bank on a promissory note payable to “the order of myself” and signed and indorsed “W. W. Sloan;” the petition alleging that the plaintiff was the legal holder of the note, and that it had not been paid. In his plea the defendant admitted the execution of the note, that the copy attached to the petition was correct, and that the plaintiff was the legal holder of the note, but denied that the plaintiff was a hona fide purchaser, for value, of the note before it became due, and denied all indebtedness thereon. The defendant further pleaded as follows:</p> <p>“1. That J. T. Terrell and T. J. Sandridge came to defendant’s home and stated that they wanted to sell defendant a city lot in Atlanta, Georgia; that defendant told said Terrell and said Sandridge that he did not .care to buy any property in Atlanta, and that he would not buy such property without first examining the same. Sandridge and Terrell stated to defendant that all they wanted was for him to sign an agreement to go to Atlanta to examine the property, and that they (the said Sandridge and Terrell) would carry him to Atlanta, and that if he liked the property they could close the trade. Hnder these circumstances and by virtue of these representations, which were false and fraudulent, this defendant signed the note. Defendant would not have signed said note except for the fraud and deception which was thus practiced upon him, and he is not liable for said note.</p> <p>“2. Defendant shows that the purported note sued upon represents the purchase price of a certain lot which said Terrell and Sandridge was to sell him in Atlanta, Georgia, and that said note has totally failed of consideration; that said Sandridge and Terrell represented to defendant that the said lot was located within three miles of the Union car-shed in the city of Atlanta, and was located within the incorporated limits of the city, and that a con- . tract was already let for the building of a street-car liné that wduld run in front of said lot and was to be finished by January 1, 1915, and that the property was worth the price asked; whereas in truth and in fact said lot is not located within the incorporated limits of the city of Atlanta, but is outside of said city limits, a distance of more than six miles from said Union station, according to defendant’s information, in a sparsely settled section, and the property surrounding the same is not improved, and the lot is located in an old field and having very little value for a resident lot, and for the uses intended [he] would hot build upon it. Defendant farther shows therefore that said note has failed entirely of consideration.</p> <p>“'3. Defendant further shows that said Farmers & Merchants Bank took said note with notice of the defense which this defendant had against the same, with notice that said note was obtained through fraud and deception practiced upon this defendant. Defendant further shows that said Farmers & Merchants Bank is not an innocent purchaser for value before due, but took the same subject to all the equities existing between the defendant and the original taker of said notes.”</p> <p>At the trial term, on motion of the plaintiff’s attorney, the court struck the plea and directed a verdict for the plaintiff. To this the defendant excepted.</p>

<p>This ease being controlled by the ruling in Sloan v. Farmers & Merchants Bank, ante, 123 (92 S. E. 893), there was no error on the part of the trial judge in striking the original plea and refusing to allow the proposed amendments to it, or in directing a verdict for the plaintiff and entering up judgment thereon.</p>

<p>Exceptions to auditor’s report; from Habersham superior court— Judge J. B. Jones. August 15, 1916.</p>

<p>No estoppel to recover compensation for services or for articles furnished resulted from a judgment rendered in a former suit of the same plaintiff, brought for the purpose of obtaining an injunction against interference with land conveyed to the plaintiff in consideration of the same services and articles, where the defense to the suit was an answer and cross-petition attacking the deed as void and praying that it be set aside, on the ground that the grantor was mentally incompetent to make it, and where the judgment set aside the' deed on that ground; no question as to the plaintiff’s ■ right to compensation for the services or for the articles mentioned being adjudicated or being within the scope of the pleadings in that suit.</p>

<p>1. Grounds of a motion for a new trial which complain of the refusal of the court to allow a witness to answer a certain question must of themselves disclose the expected answer, and that the judge was informed ' of it.</p> <p>2. The court did not err in directing a verdict in favor of the defendant, as the evidence, with all reasonable inferences and deductions therefrom, demanded such a finding.</p>

<p>Foreclosure of lien; from Catoosa superior court—Judge Fite. August- 8, 1916.</p>

<p>Trover; from Monroe superior court—Judge Searcy. February 8,. 1916.</p>

<p>1. The general rule that a plaintiff can not recover an amount larger than he is suing for, as shown by his pleadings, is applicable in trover proceedings.</p> <p>2. In a trover suit, where there is no specific “ad damnum clause in the' conclusion of the declaration,” and the prayer is that process issue, requiring the defendant “to be and appear at the next term of said court to answer this complaint,” the amount of damages asked for will be construed to be the alleged value of the property sued for.</p>

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

<p>Foreclosure of mortgage; from Coffee superior court—Judge Summerall. February 18, 1916.</p>

<p>On the trial of an action to recover money deposited by a lessee with a lessor in lieu of a bond for the faithful' performance of the lessee’s obligation to pay rent monthly in advance during the term of the contract, a nonsuit was properly awarded, where the evidence failed to sustain the allegation of the plaintiff’s petition as to compliance with this part of the contract.</p>

<p>Trover; from Fulton superior court—Judge Ellis. May 8, 1916.</p>

<p>Complaint; from Fulton superior court—Judge Ellis. June 28, 1916.</p>

<p>Complaint; from DeNalb superior Court—Judge Smith. May 29, 1916.</p>

<p>Complaint; from Toombs superior court—Judge Hardeman. April 10, 1916.</p>

<p>The action being for the price of whisky labels and whisky cartons, which the plaintiff, a company of another State, engaged in the business of selling whisky, sold to the defendants, its agents located in this State, and it appearing, from uncontradicted evidence, that the contract for the purchase o.f these articles was made in this State, and that their price was a part of the consideration for the sale of whisky therein, and that they were to be used for the single purpose of promoting the sale of whisky therein, in violation of the law of the State, the plaintiff was not entitled to recover.</p>

<p>Accusation of sale of liquor, etc.; from- city court of Richmond county—Judge Black. September 2, 1916.</p>

<p>Petition for certiorari; from Sumter superior-court—-Judge Lit-' tlejohn. June 81,1916.</p>

<p>1. Disqualification to render judgment on a motion for a new trial in a criminal case does not result from the judge’s use of language condemnatory of the accused, when imposing sentence.</p> <p>2. The objection that, the instruction to the jury, that they “must be satisfied of the guilt of the defendants beyond a reasonable doubt,” excluded from consideration the question whether one of the defendants might be guilty and the other innocent, is without merit, in view of other instructions given.</p> <p>3. It was not reversible error to use the word “absolutely,” in the instruction that “where a witness has been successfully impeached—where his unworthiness of credit has been absolutely established,” the jury should disregard his entire testimony unless corroborated.</p> <p>4. A new trial is required because of an intimation of the judge’s opinion as to the facts, in his instruction to the jury that “if the instrument used in the manner in which it was used on this occasion was a weapon likely to produce death, then the law, from the use of such a weapon in such manner, would imply malice.”</p> <p>5. The instructions of the court on the subject of conspiracy are not subject to the exceptions t'aken.</p> <p>6. Prejudicial remarks of the court in the presence and hearing of the jury are not ground for a new trial, unless a motion to declare a mistrial on that ground has been made and refused.</p> <p>7. The charge of the court was subject to the objection that, after stating the defendant’s contentions and instructing the jury that he insisted that the cutting and shooting were justifiable, the judge erred in failing to charge that if the jury found that the cutting and shooting were in self-defense and justifiable, they would be authorized to acquit the defendant.</p>

<p>Conviction of manslaughter; from Barrow superior court— Judge Brand. November 15, 1916.</p>

<p>Petition, for certiorari; from Laurens superior court—Judge Kent. December 27, 1916.</p>

<p>Accusation of larceny; from city court of Savannah—Judge Rourke-. January 9, 1917.</p>

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

<p>Indictment for assault with intent to murder; from Pike superior court—Judge Searcy. January 13, 1917.</p>

<p>Indictment for murder-—conviction of manslaughter; from Floyd superior court—Judge Wright. February 17, 1917.</p>

<p>Certiorari; from Miller superior court—Judge Worrill. January 22, 1917.</p>

<p>Indictment for misdemeanor; from city court of Valdosta— Judge Cranford. February 9, 1917.</p> <p>The indictment charged the accused with maintaining and keeping a lewd house, in that he put a nained woman into the house under an executory contract of sale, with the intention on his part that she should maintain and keep it as a lewd house, and that she did maintain and keep it as a lewd house. From the' evidence at the trial it appeared that the defendant made an executory contract for the sale of the house to the woman named, giving her a bond for title to the property, under which she went into possession of the house; that she was a lewd woman, and lived in this house with other lewd women and maintained it as a lewd house; that it was in what was known as "the restricted district” of the city of Valdosta, and that “there are nothing but negro houses and lewd houses in that section of the city;” that at the time the contract was made the woman was living across the street from this house and conducting a lewd house; that the defendant resided and was engaged in business in another part of the city and spent most of his time on a farm near the city, and was once seen at this house during its construction; that the house, in the opinion of witnesses, did not cost more than $4,000; and the price named in the contract of sale to the worn an was $10,000, payable in monthly installments of $100 each.</p>

<p>1. Inculpatory statements not met by denial or answer when made in the presence and hearing of the accused at the time he was arrested and charged with the crime in question were admissible as evidence.</p> <p>2. Where, on the trial of one charged with breaking and entering a railroad-car and stealing from it certain bottles of vermuth and whisky, the question, “What per cent, of alcohol does it contain?-” was asked of a witness by counsel for the accused, for the purpose of showing that “vermuth is not a very good drink, and a negro never would drink it,” and the witness answered, “I don’t know,” the court did not err in ruling out this testimony.</p> <p>3. The exceptions to the instructions of the court as to unexplained possession of stolen goods are without merit; and the evidence authorized instructions based on the theory that the accused broke and entered the car or was present aiding and abetting the breaking and entering.</p> <p>4. No constitutional question was raised by the grounds of the motion for a new trial based on the contention that the court was without jurisdiction to try one charged with breaking and entering a car and stealing whisky, where the shipment was an interstate shipment; and even if any question is presented by these grounds, they are without merit.</p> <p>5. There is no merit in the contention that, under the prohibition law in operation when the liquors were stolen (June, 1916), they were not property and were without value, and could not be the subject of larceny. There was proof as to the value of the liquors, which were legally in the possession of a carrier for interstate transportation when stolen. And “value,” as the word is used in prosecutions of this kind, does not necessarily mean money value or market value.</p>

<p>Indictment for murder—conviction of manslaughter; from Putnam superior court-—Judge Park. January 22, 1917.</p>

<p>Accusation of gaming; from city court of Leesburg. Judge Martin, February 23, 1917.</p>

<p>Indictment for sale of mortgaged property; from city court of Polk county—Judge John K. Davis. February 5, 1917.</p>

<p>Indictment for murder—conviction of manslaughter; from Bichmond superior court—Judge Henry 0. Hammond. March 10, 1917.</p>

<p>Indictment for misdemeanor; from Floyd superior court— Judge Wright. March 7, 1917.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. February 27, 1917.</p>

<p>Accusation, of sale of liquor; from city court of Carrollton-— Judge Beall. March 5, 1917.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. February 27, 1917. ■ '</p>

<p>Certiorari; from Putnam superior court—Judge Park. March 19, 1917.</p>

<p>There was no fatal variance between the allegations and the proof as to the color 'of the hog. in question, where the description in the indictment was: “one black barrow hog, with white feet and white spots in face,” and the testimony as to the stolen hog tended to show it had some small white spots on its body, in addition to the white spots in its face and white feet as alleged, and that the general color of its body was black.</p>

<p>1. Refusal to grant a continuance on account of the absence of a witness was not an abuse of discretion, where it appeared that the witness was not in this State and had not been subpoenaed, and it did not appear ■ that the witness was a permanent resident of this State or would ever again come into the State, although the party requesting the continuance stated that he thought he could “get the witness.”</p> <p>2. ' Exceptions on the ground that the judge failed “to charge the jury ■the law with reference to the burden of proof in connection with his ■ 'charge on the presumption of innocence” are without merit, full instructions being given on the presumption of innocence and on their duty to acquit if they should have a reasonable doubt' of the guilt of the accused.</p> <p>3. Eailure to charge as to the duty of a jury in considering conflicting testimony of .different witnesses did not entitle the accused to a new trial, there being no request for a charge on that subject, and the only testimony in the case being that of a single witness for the State.</p>

<p>Petition for certiorari; from Grady superior court—■ Judge Worrill presiding. March 8, 1917.</p>

<p>Indictment for murder—conviction of- manslaughter from Bleckley superior court—Judge Graham. March 12, 1917.</p>

<p>Indictment for seduction; from Chatham superior court—Judge Meldrim. April 2, 1917.</p>

<p>The rule that proof of general good character of a witness is admissible to sustain him where an attempt has been made to impeach him by proof that he has made previous contradictory statements as to matters relevant to his testimony and to the case (Penal Code of 1910, § 1052; Civil Code, § 5881) does not apply where the only attempt to show such previous statements of the witness is by the statement of the defendant on the trial Of a criminal ease. The court in this ease erred in admitting testimony to show the good character of the witness for the State.</p>

<p>Accusation of sale of liquor; from city court of Sparta—Judge Moore. February 14, 1917.</p>

<p>Accusation of sale of liquor; from city court of Wrightsville— Judge Blount. February 14, 1917.</p>

<p>Accusation of carrying pistol without license; from city court óf Albany—Judge Clayton Jones. April 10, 1917.</p>

<p>Accusation of gaming; from city court of Floyd county;—Judge Nunnally. April 5, 1917.</p>

<p>Indictment for robbery; from Crisp superior court—Judge Crum. March 31, 1917.</p>

<p>1. Where, the father of an unborn child deserts the mother, and, after the birth of the child, persists in the abandonment, leaving the child in a dependent condition, conviction of the offense defined in section 116 of the Penal Code of 1910 is proper. Bull v. State, 80 Ga. 704 (6 S. E. 178); Moore V. State, 1 Ga. App. 502 (2) (57 S. E. 1016).</p> <p>2. If the father wilfully and voluntarily abandoned the mother before the birth of his child, and continued the abandonment after 'the birth of the child, leaving it dependent on the mother or others, the offense ,was complete. Daniels v. State, 8 Ga. App. 469 (2) (69 S. E. 588).</p> <p>3. The evidence authorized the conviction of the accused, and the court did not err in overruling the motion for a new trial, based on the general grounds only.</p>

<p>Indictment for seduction; from Tattnall superior court—Judge Sheppard. March 20, 1917.</p>

<p>Indictment for larceny of hog; from Talbot superior court—• Judge Howard. April 14, 1917.</p>

<p>Action for damages; from city court of Millen—Judge Proctor presiding. May 30, 1916.</p>

<p>Conviction of larceny from house; from Chatham superior court —Judge Meldrim. April 2, 1917.</p>

Complaint—appeal; from Cobb superior court—Judge Patterson. July 31, 1916. G. M. Bansom and E. J. Carr were sued in a justice’s court on their joint promissory note dated January 7, 1913, and due twelve months after date.

<p>Action for damages; from city court of Savannah—Judge Freeman. October 3, 1916.</p> <p>From the petition it appears, that Thirty-third street and Thirty-fourth street in the city of Savannah are crossed at right angles by the right of way of -the defendant railroad company, on which are three parallel lines of tracks, with paths and private ways on and between them along the right of way, which for more than twenty years have been„used by pedestrians; that this part of the city is thickly settled, and a-great number of people use the paths on the right of way and the path crossing at Thirty-fourth street, where there is a'regularly established path across the right of way; "and these facts were and are known to the railroad company, its agents and. employees;” that the plaiiitiff, in going to her work, went upon the right of way at Thirty-third street, and, as she was walking southwardly towards Thirty-fourth street, in the path between the middle and the westerly track, a freight-train-going north on the middle track passed on her left, making considerable noise and attracting her attention so that an approaching shuttle train back of her on the westernmost track did not attract her attention and she did not look behind; that in order to avoid the freight-train she stepped upon the -westernmost track, on cross-ties east of the easternmost rail, and walked down the track in this manner towards Thirty-fourth street, and as she turned to cross the track at Thirty-fourth street she was struck by the shuttle train and injured in a manner described. It is alleged, that the train that struck her was without a fireman to keep watch for pedestrians on the right of way so used as a path; that the engineer of the train did not ring any bell or blow any whistle; that if the fireman had been on the engine he could have seen the plaintiff when she got upon the track and as she was walking down the track, which was for a period of three or four minutes; that he would have had ample opportunity to stop the train and avoid striking her, for she was in plain view of any one looking from the left side of the engine; and that it was the duty of the defendant to have a fireman on this train; that the defendant had no watchman on the train or the tracks to look out for pedestrians. It is alleged that the plaintiff’s injuries were occasioned by the negligence of the defendant: (a) in failing to have a fireman on the engine, who could have maintained a lookout on the left side for pedestrians in the position of the plaintiff; (6) in not anticipating pedestrians on the tracks at the place mentioned and the place where the plaintiff was; (c) in not anticipating the presence of pedestrians on the track where the plaintiff was and in failing to ring a bell, blow a whistle, or sound a warning as the train approached; (d) in not keeping a watchman stationed at that place to warn pedestrians of the approach of trains, the defendant being bound in law to anticipate the presence of pedestrians at that place; (e) and in the failure of the engineer to stop the engine and thereby avoid striking the plaintiff.</p> <p>The defendant demurred generally and specially, and, to meet the special ground of demurrer stated in the foregoing decision, the allegation that the facts stated as to the use of the right of. way by pedestrians were known to the railroad company, “its agents and employees,” was amended by adding: “that is, the agents and employees of the railroad company in charge of the operation of said shuttle train, and all of the agents and employees of said company having charge of the roadbed and right of way of said company at this place, and all of the said agents and employees of said railroad company having charge of the operation of trains of said company over said right of way. The names of these agents and employees this plaintiff does not know.”</p> <p>■ P. W. Meldrim, for plaintiff in error. D. 8. Atkinson, contra.</p>

<p>Action on contract; from Baldwin superior court—Judge Park. November 15, 1916.</p>

<p>Action for damages; from city court of Floyd county—Judge Nunnally. October 17, 1916.</p>

<p>Action for damages; from DeKalb superior court—Judge Smith. January 22, 1916.</p>

<p>Action for damages; from Crisp superior court—Judge George. August 14, 1916.</p>

<p>Action on contract; from Talbot superior court—Judge Munro. December 23, 1916.</p>

<p>Action for damages; from Floyd superior court—Judge Wright. January 10, 1917.</p>

<p>The fire-insurance company having, in its answer to the summons of garnishment, admitted indebtedness to the defendant as an individual, and not as head of a family, and no traverse being filed, the court erred in holding that the fund in question, which was the amount due on a policy issued to the defendant in his own name, was not subject to the garnishment; although the insured property had been set apart as an exemption for the benefit of the defendant’s family.</p>

<p>Certiorari; from Fuiton superior court—Judge Pendleton. December 19, 1916.</p> <p>The plea as amended alleged, in substance, that the defendant, after having taken a course of instruction in pharmacy, believing that he was attending a certain medical college, “a chartered institution authorized by law, and recognized in the medical and pharmaceutical profession in this State and other States, and the medical boards established by law, to be first class, and that its. diplomas would be given recognition without further examination of the graduates receiving the same,” was informed that he was ready to graduate and would be given a diploma on payment of $50 (the amount of the note sued on), and he made this note to the plaintiff; that afterwards" he made inquiries for the purpose of preparing himself for location in other States, and discovered that several months before the issuance of the diploma the said college had ceased to exist, having become insolvent and gone out of business; that it was not recognized and had no standing in law or in the medical 'or pharmaceutical profession, and the diploma was without value to him in any sum; and for these reasons the consideration for the note had failed and it was without consideration.</p>

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

<p>It was error to strike the plea as to the defendant’s offer to return to the plaintiff the unsold goods shipped to the defendant under the contract attached to the petition.</p>

<p>Motion to set aside judgment; from city court of Ashburn— Judge Tipton. December 4, 1916.</p>

<p>1. Refusal to direct a verdict is never ground for reversal. Green v. Scurry, 134 Ga. 482 (2) (68 S. E. 77); Roper 'Wholesale Grocery Óo. v. Pavér, S Ga. App. 178 (68 S. E. 883).</p> <p>.2. Where an assignment of error is made as to the admission of evidence, and it is not made to appear'that any objection to the evidence was urged on the trial, the exception raises no question for determination by this court. Oity of Rome V. McWilliams, 145 Ga. 191 (2) (88 S. E. 931); Ponder V. State, 18 Ga. App. 727 (90 S. E. 376).</p> <p>3. The exclusion of a certain letter, written after the death of the insured by T. T. Denham, recording secretary of subordinate council No. 8, to the general secretary of the National Council of the Junior Order of United American Mechanics, was not error. No conclusion of the writer, stated in a letter written after the death of the insured, could affect the rights of the beneficiary.- Moreover the letter attempts to make an explanation of the actions of the financial secretary of the. subordinate council, and this evidently is hearsay.</p> <p>4. The court did not err in excluding from the consideration of the jury the by-laws Nos. 58 and 59 of the National Council.</p> <p>5. Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, demands a particular verdict, the court may direct the jury to find for the party entitled thereto.</p>

<p>The provision in the contract between the plaintiffs and the defendants, under which lumber was shipped to third persons on orders from the plaintiffs, that “all shipments are made subject to inspection at destination, unless specifically specified to the contrary, and with the understanding that report as rendered by consignee shall be accepted as original evidence of such inspection,” did not render such reports exclusive evidence, or conclusive as to the matter to which they related.</p>

<p>Trover; from Haralson superior court—Judge Bartlett. April 10, 1916.</p>

<p>Complaint; from Haralson superior court—Judge Bartlett. April 10, 1916.</p> <p>1. The 8th ground of the motion for a new trial relates to testimony of the defendant that on December 31, 1911, he paid his taxes to the tax-collector of Cobb county, and registered in that county. This testimony was admitted over the objection that it related to a time subsequent to the commencement of the suit. There was other evidence to the same effect, to which, so far as appears, no objection was made.</p> <p>2. The 9th ground was as follows: “Because the court committed error, as movant contends, on the trial of said case, in admitting the following evidence of M. Y. Ruff (the defendant) to the jury trying the case, over the objection of movant’s counsel, made at the time the same was offered: ‘If I had not received it (referring to letter defendant received from Mr. Neufville on July 15, 1911, with reference to moving back to Cobb county), I would have moved back in August, the latter part of August.’ Movant objected to said evidence at the time the same was offered, on the ground that it was not proper for a witness to testify as to what he would have done, which objection was overruled by the court. The court ruled on this point that he would let it go in that his intention was to move back in August. At the time said evidence was offered . . movant objected to the same on the grounds that the same was irrelevant and immaterial, and a self-serving declaration after the suit was filed and the issues formed.”</p> <p>The 13th ground was to the effect that the court erred in admitting testimony of the defendant that he and his wife and daughter were members of a church in Cobb county, and did not bring their “church letters or relationship of Cobb county to Haralson county,” and that he did not bring his demit from the Masonie lodge of which he was a member in Cobb county to the Bremen lodge in Haralson county, or his card from the Odd-Fellows lodge in Cobb county of which he was a member, when he came to Bremen. This testimony was admitted over the objection that it was “irrelevant and immaterial and not competent.”</p>

<p>Complaint; from Muscogee superior court—T. T. Miller, Judge pro hae vice. August 14, 1916.</p>

<p>Exceptions to auditor’s report; from Upson superior .court— Judge Searcy. August 14, 1916.</p>

<p>1. The Civil Code, § 3578, declares, in effect, that the implication of authority to collect, which exists on the part of an agent who produces the evidence of debt, does not arise where the debtor fails to require the production of such obligation; but this provision of law does not preclude the debtor from otherwise establishing such express or implied authority, nor from showing the subsequent'ratification of the act by the creditor as principal.</p> <p>2. The principle of law which requires that in order for an unauthorized act to be capable of ratification, the one who performed the act must have purported to act in the name of and on behalf of the principal, can not be invoked by the plaintiff in this case, under the facts disclosed by the record.</p> <p>3. Where, before the maturity of a promissory note, an unauthorized agent, purporting to act in the name of the payee, collects for the latter the entire amount owing on the note, and the creditor, with full knowledge of the transaction, accepts a portion of the proceeds and consents that the person making the collection may use the remainder for a few days, the creditor will be held to have ratified the collection in toto.</p>

<p>1. No harmful error was committed in admitting in evidence the cancellation entered on the plaintiff’s life-insurance policy, since in his petition he alleged that it was canceled, and other evidence, admitted without objection, showed that it had been canceled for non-payment of premiums and of interest on a loan.</p> <p>2. Under the uncontradicted evidence the plaintiff was not entitled to recover from the insurance company the .premiums paid by him on the policy. The fact that in the course of negotiations between him and the insurance company for a second .loan, to include payment of the past-due premiums and interest' on the previous loan and reinstate the policy (which by its terms had lapsed for non-payment of premium and interest), the State agents of the insurance company stated in a letter to him that the policy had been “reinstated” can not avail him, this statement being qualified by the context, in which it was said that this was “subject to payment of premium,” which was never paid, and that they would advise him to “execute loan papers and forward” the papers to them by first mail. Under the terms of the policy the insurance company acted within its rights in refusing to make the- loan.</p>

<p>A motion to reinstate a case dismissed in vacation by the plaintiff’s attor-, ney should be made before the expiration of the next term of the court, and when made after that term it stands, as to excuses for delay, upon the same footing as an extraordinary motion for a new trial. No sufficient excuse for such delay appearing in this case, the court did not err in overruling the motion to reinstate the case.</p>

<p>Trover) from Gordon superior court—Judge .Fite. May 33, 1916.</p>

<p>Foreclosure of mortgage; from city court of Zabulón.—Judge Dupree'. January 5, 1916. •</p>

<p>Complaint; from Catoosa superior court—Judge Fite. December 20, 1916.</p> <p>The petition, alleged that the defendant was indebted to the plaintiff in the sum of' $450, by reason of the following contract: that the defendant contracted with the plaintiff, a real-estate dealer, to sell the defendant’s farm, and agreed to pay him $500, and the plaintiff obtained a purchaser for the farm, and that aftef the sale the defendant desired the plaintiff to knock off some from the $500, and the plaintiff agreed to take $450 as his commission, which 'the defendant" agreed to pay. It was alleged that the defendant failed and refused to perform either of these contracts.</p>

<p>Complaint; from Irwin superior court—Judge Gectrgeu December 16, 1916.</p>

<p>Complaint; from city court of Macon—Judge Mathews presiding.' February 2, 1917.</p>

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

<p>1. The plaintiff’s petition set forth his cause of action in orderly and distinct paragraphs, numbered consecutively, and contained the necessary allegations of fact, including the acts of negligence, upon which he relied for recovery. The.defendant’s answer, “Now comes the defendant and denies that it has damaged the plaintiff in the sum of $15,000 as alleged in said petition,” amounted to no answer, and placed upon the plaintiff no burden not already resting upon him under the law. Hence, exceptions to the charge of the court, upon the ground that the court invaded the province of the jury in the instructions upon the law of negligence, are without merit.</p> <p>2. The evidence warranted the verdict. The further grounds of the motion for new trial are without merit.</p>

<p>Action for' damages; from city court of Yaldosta—Judge Cranford. October 20, 1916.</p>

<p>Action for damages; from city court of . Greenville—Judge Eevill. November 11, 1916.</p>

<p>Action for slander; from city court of Monroe—Judge Stone. September 20, 1916;</p>

<p>Action for damages, etc.; from city court of Douglas—Judge Bryan. November 20, 1916.</p> <p>The petition of the Downing Company alleged that the Pearson Banking Company, a corporation, had injured and damaged plaintiff in the sum of $235, by reason of the following facts: that on May 3, 1909, a draft for $235, purporting to have been drawn by the Douglas Naval Stores Company, by E. E. Fisher, upon the petitioner as drawee, was cashed by the defendant bank and transferred to the 'defendant by Fisher; that attached to the draft were what purported to be two bills of lading issued by the Atlanta, Birmingham & Atlantic Railroad Company, one for thirty barrels of rosin, and the other for twenty casks of spirits of turpentine; that the defendant bank indorsed the draft, and in due time it was presented to petitioner, and by petitioner paid; that the two bills of lading attached to the draft were forged and altered, and that petitioner paid the draft in ignorance of this fact; that there was nothing upon the bills of lading or the draft to indicate or suggest the forgery or to put petitioner upon notice thereof, but, on the contrary, they appeared on their face to be regular, and the supposed fact of regularity was completely evidenced to petitioner by the fact that the defendant, a reputable banking company, had duly indorsed the draft to which the bills were attached; that petitioner, after payment of the draft, waited a reasonable length of time for delivery to it of the naval stores specified in the bills of lading, and promptly, on June 1, 1910, on learning that the bills of lading were forgeries, notified the defendant of the forgery and demanded the return of the money paid on the draft; that petitioner paid the draft without consideration, and that, by reason of the negligence of the defendant bank, it was misled into believing that the bills of lading were genuine. The petition further alleged that the defendant bank was negligent in failing to require identification of the person presenting the draft, and in failing to use any diligence in endeavoring to ascertain whether there was such a concern as the Douglas Naval Stores Company, and whether Fisher had authority to draw the draft in the name of the said concein; that reasonable diligence on the part of the defendant bank would have disclosed the fraud in the purported bills of lading and in the draft, and would have shown that Fisher had no right to sign the draft in the name of the Douglas Naval Stores Company, that there was no such concern as the Douglas Naval Stores Company at that time in Coffee county, Georgia, and that the bills of lading were forgeries. The tenth paragraph of the petition is as follows: “Petitioner relied wholly upon the bills of lading attached to said draft for the value of said draft, and said draft would not have been paid at all except for said bill's of lading attached.” The suit is for the recovery of money paid under mistake of fact as to the genuineness of the bills of lading, for recovery of money improperly had and received by the defendant bank, and for negligence on the part of the bank in receiving, discounting, and sending forward under its indorsement the draft to which the forged bills of lading were attached. The petition was held bad, on general demurrer, and the Downing Company excepted.</p>

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

<p>Action for damages; from McIntosh superior court—Judge Sheppard. August 31, 1916.</p>

<p>Action for damages; from Melntosb superior court—Judge Sheppard. August 31, 1916.</p>

<p>1. The section of the code which provides that “where any suit is instituted or defended by a corporation, the- opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation” (Civil Code, § 5858, subsection 3) did not apply to testimony of the plaintiff in a suit against a railway company, as to a conversation or transaction with a conductor employed by it, who subsequently died, where the defendant had introduced testimony of another employee, who was present at the time of the conversation or transaction, and who testified as to what occurred, although the employee who testified was ' not actually engaged in the furtherance of the defendant’s business at the time of the occurrence in question.</p> <p>2. The evidence authorized the verdict.</p>

<p>Action for damages; from Catoosa superior court—Judge Fite. January 11, 1916.</p>

<p>Action for damages; from Troup superior court—Judge Freeman. December 31, 1916.</p>

<p>1. “Where a petition setting out a cause of action has been filed and followed up by the issuance of process and service, the time of the commencement of the suit is the date of its filing. But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending. The filing of the petition without more does not operate to commence a suit; nor has the judge in such a ease authority, at or after the return term, to order a new process to issue.”</p> <p>2. A suit by a widow to recover for the negligent homicide of her husband must be brought within two years from the accrual of the right of action.</p> <p>3. The court did not err in sustaining the demurrer and dismissing the petition.</p>

<p>Action for damages; from Monroe superior court—Judge Searcy. June 10, 1916.</p>

<p>Action for damages; from Ben Hill superior court—Judge George. April 13, 1916.</p>

<p>Action for damages; from Webster superior court—Judge Littlejohn.. April 5, 1916.</p>

<p>Appeal; from Dougherty superior court—Judge Cox. September 9,1916.</p>

<p>Certiorari; from Wbeeler superior court—Judge Graham. September 9, 1916.</p>

<p>Action on contract; from Fulton superior court—Judge Fibs. January 27, 1916.</p>

<p>Action on contract; from Laurens superior court—Judge Kent. May 29, 1916.</p>

<p>Action for damages; from DeKalb superior court—Judge Smith-. May 27, 1916.</p>

<p>Where the election of a county officer was contested under sections 121 to 123, inclusive, of the Political Code (1910), and the evidence which was taken before a justice of the peace of the county, together with all the papers filed in the contest, was duly transmitted to the judge of the superior court of the circuit in which the contest arose, the decision by the latter therein is final, and the writ of certiorari will not lie to review the same. Consequently, the judge of the superior court succeeding the judge by whom the contest was decided did not err in dismissing the certiorari by which it was sought to review the decision of his predecessor in office. He did, however, after sanctioning the certiorari, err in reviewing, reversing, and declaring void the judgment of his predecessor.</p>

<p>Petition for certiorari; from Monroe superior court—Judge Searcy. February 5, 1917.</p>

<p>Petition ior certiorari; from Laurens superior court—Judge Kent. February 21, 1917.</p> <p>By demurrer to the charge against the accused in tbe recorder’s court it was contended that the ordinance on which the charge was based is void and unconstitutional, because: (1) "it abridges, curtails, and affects the liberty of this defendant without due process of law, and is violative of section 1, paragraph 3, of the constitution of the State of Georgia;” and (2) "it undertakes to prosecute persons of bad character or reputation, which bad character or reputation must be proved to make out said case; and to prove said bad character or reputation will be putting in evidence the character of the defendant, which is violative of the general law of the State of Georgia providing that character or reputation of any one can not be inquired into unless first put in evidence by the defendant; and therefore is violative of section 1, paragraph 3, of the constitution of the State.”</p> <p>W. A. Dampier, for plaintiff in error.</p>

<p>1. When the competency of a witness depends upon the determination of a question of fact, the decision of the judge as to his competency will not generally be disturbed, if there is any evidence to authorize such a finding.</p> <p>2. If it is found by any one calculation authorized by law and evidence, whether it be one adopted by the jury or not, that the verdict can he sustained, this court will not control the discretion of the presiding judge in overruling the motion for a new trial.</p>

<p>In a proceeding to foreclose a mortgage on personalty, the fact that a dismissal of the counter-affidavit was caused by the plaintiff, on the ground that the bond given by the defendant and his surety did not meet the statutory requirements, does not preclude the plaintiff from - maintaining an action on the bond as a common-law contract, where the defendant has obtained a substantial benefit under the bond by receiving and withholding the property involved.</p>

<p>■ Trover; from Sumter superior court—Judge Littlejohn. June 17, 1916.</p>

<p>Complaint; from Dooly superior court—Judge George. July 10, 1916.</p> <p>The action was on certain promissory notes of the defendant to the plaintiff. The defendant pleaded failure of consideration and illegality of consideration; that the consideration was that the plaintiff was to put on sale for the defendant what was known as “The Bernard Manufacturing Company’s Trade Booster Methods,” the scheme being that the plaintiff would advertise the defendant’s retail drug business in the city of Vienna, Georgia, by the formation of clubs, the putting on of different kinds of contests, the giving of prizes to the successful contestants, the prizes to be furnished by the plaintiff, and the plaintiff to do all the work with the exception that the defendant was to handle the votes and distribute them among the contestants; that the plaintiff was to send-one of its men experienced in such business to start the sale and put on the different contests, but never did so; that no sale was put on, no club organized on the part of the plaintiff, and no bond was executed by the plaintiff to the defendant, as stipulated in the contract; that the defendant’s sales did not increase by reason of anything done by the plaintiff, and the defendant was not benefited by the contract; and that the scheme referred to was a lottery gift-enterprise scheme or device for the purpose of drawing customers, and therefore was illegal and immoral. The defendant alleged also that the plaintiff sent to the defendant a piano and some silverware, to be used as prizes, and that, the plaintiff failing to comply with the contract, the defendant tendered this property back to the plaintiff.</p> <p>The written agreement which was the basis of the notes sued on was as follows: “Vienna, Ga., June 11, 1914, Bernard Mfg. Co. Gentlemen; On your approval of this order, deliver to me at your earliest convenience, f. o. b. factory or distributing point, the piano, silverware, and advertising matter described on this and reverse side, in payment of which I hereby hand you my six notes, payable to your order, aggregating $400.00. If order is not approved and shipped by you-, the notes are to be cancelled and returned to me. Clause 2: My last twelve months sales were $18,000.00; my next twelve months sales to be $22,000.00; and that if .01 9/11 per cent, of my gross sales does not amount to four hundred dollars ($400.00) for the" next'twelve months, you will pay me the deficiency in cash, and to send,your bond for $400.00 to cover this agreement with me. To make the last above clause binding upon you I agree to make the shipment promptly, carry out the contest plan, promptly meet all obligations entered into under this agreement, keep the piano well displayed in my store, issue piano votes for each cent purchased, and every sixty days of this contest to report to you my gross sales, and promptly furnish you with all the information you request to enable you to assist in pursuing the contest. In consideration of the special methods set forth in your copyrighted plan, and the special terms and agreements herein, this order can not be countermanded.” This part of the writing was followed by an order, signed by the defendant, for one book, “The Bernard Manufacturing Company’s Trade-Booster Methods,” instructions for newspaper advertising, posters, display-card signs, certificates for “piano votes,” a piano, silverware, watches, etc. The plan as stated in the defendant’s testimony was, that the plaintiff was to write to 150 persons, whose names were furnished by the defendant, to induce them to form clubs of ten, who would, make cash purchases at the defendant’s place of business and receive from the- defendant vote coupons, representing the amounts of their purchases, which could be voted for contestants for prizes furnished by the plaintiff, and the lady receiving .the highest number of votes was to receive the piano as a prize: As to the contract and the- plea of illegality of consideration the court, charged the jury as follows: “I instruct you that the contract referred to and set out in this writing, the agreement between the parties, does not disclose an illegal and void contract, as a gift enterprise or lottery scheme, and that part of the plea is withdrawn from your consideration.” In the motion for a new trial it is alleged that the court erred in giving this instruction; in admitting in evidence an agreement of employment between the plaintiff and its salesman who conducted the transaction with the defendant; in not charging the law of rescission, and in charging the jury as follows: "It is insisted by the defendant that no bond was sent for the sum of $400, as provided by clause 2 of this contract. I charge you that you will not consider that complaint or contention, because, under the construction given the contract by the court, the bond is not required to be sent to the defendant himself.”</p>

<p>The law of this ease was settled by the decision of the Supreme Court on the former writ of error (144 Ga. 485, 87 S. E. 385), when it was held that the demurrers to the plaintiff’s petition “should have been sustained except as to Joe Higdon, the partner signing the name of the [defendant] firm as accommodation indorsers,” and the judgment of the court below, overruling the demurrers, was affirmed as to him, with direction that the petition be dismissed except as to him. Under that decision it was error for the court below thereafter to dismiss the plaintiff’s petition on the motion of Joe Higdon, on the ground that the plaintiff, by amendment on the former trial, had stricken him from the suit so far as his individual liability was concerned, and had elected to proceed against him ' and the other individual defendant solely on their joint and several liability as copartners.</p>

Action for damages; from Pulton superior court—Judge Bell. October 4, 1915. The petition alleges that the defendant has injured and damaged the plaintiff in the sum of $2,000, by reason of the following facts: (3) Plaintiff is the mother of Henry Grady Clark, a minor, and is his sole surviving parent.

<p>Garnishment; from Fulton superior court—Judge Ellis. September 18, 1916.</p>

<p>Complaint; from Baldwin superior court—Judge H. C. Hammond presiding. January 8, 1917.</p> <p>The action was on a promissory note of the defendant to Mrs. M. L. Stephens, the plaintiff, for $1,620, besides interest and attorney’s fees. The defendant pleaded that except as to a sum which he tendered by his plea, he had paid the note by delivering to the plaintiff certain notes of G. S. Sumner for $1,466, which the plaintiff accepted in payment. The additional plea referred to in the foregoing decision was as follows: Defendant says that the notes of G. S'. Sumner heretofore referred to in his answer were indorsed by defendant, and that on the 18th day of March, 1914, since the filing of this suit, the plaintiff filed in the superior court of Worth county, Georgia, suit against this defendant and the said G. S. Sumner upon a certain promissory note in the sum of $533, which was one of the notes referred to in his answer as having been accepted by the plaintiff as part payment of the note sued on, and at the October term, 1914, of'Worth superior court a verdict and judgment were entered up against the said G. S. Sumner in said case, and against this defendant as security, for principal, interest, attorney’s fees, and costs. Defendant avers further, that on the 17th day of September, 1914, after this suit was filed, the said Mrs. M. L. Stephens filed in Worth superior court a suit against the said Sumner and this defendant on two promissory notes, the aggregate principal sum of which was $1,007.64, which notes are more fully described in said petition, and that the notes therein sued on are the identical notes delivered by this defendant ..to the said Mrs. Stephens as part payment of defendant’s note which i.s sued on in this court. Defendant avers that he was indorser on these two notes sued on in Worth superior court, and that the said Mrs. Stephens has obtained judgments thereon or is seeking to obtain the same against the said Sumner and this defendant in that court. Defendant has filed no defense thereto, and the time in which such defense is required by law to be filed has passed, and if the said Mrs. Stephens is allowed to maintain this suit and judgment is rendered for her, and this plea and defense is not allowed, she will be recovering twice on the same cause of action against this defendant. Defendant avers that the superior court of Worth county in which the suits referred to are pending is a court of competent jurisdiction to render judgments therein against this defendant.</p>

<p>Action on insurance policy; from city court of Atlanta—Judge Eeid. May >13, 1916.</p> <p>The action was on a policy which insured against death by accident. The defendant pleaded that under the terms of the policy the insurance did not cover suicide, and that the insured committed suicide within the meaning of the policy. The agreement as to the facts included the following statement: “The insured, on November 19, 1914, discharged into his face and head a shotgun, and thus inflicted wounds which caused his -death shortly thereafter. At the time he shot himself he was insane. There was no element of accident in the act, in that, had the insured been sane at the time, the act would have been intentional and not accidental. The insured did not appreciate the moral consequences of the act of self-destruction. He did appreciate the physical eon-sequence of such act.” The policy provides as follows: “The iEtna Life Insurance Company, of Hartford, Conn, (hereinafter called the Company), in consideration of the agreements and statements in the schedule of warranties hereinafter contained, which statements the insured makes on the acceptance of this policy and warrants to be true, and which are made a part hereof, and of the premium of twelve dollars, does hereby insure under 'preferred’ classification, and subject to all the provisions and conditions herein contained or endorsed hereon, the person described in the aforementioned schedule for a period of twelve months, from twelve o’clock noon (standard tjme) of the date this contract is dated, against the effect of bodily injury, provided affirmative proof shall be furnished the Company, within the limit of time hereinafter set forth, that such injury was caused solely and directly by external, violent, and accidental means, and was not in consequence of nor contributed to by intoxication, altercation, or any bodily or mental disease or infirmity of the insured, as follows, to wit: Part 1. If any of the following disabilities shall result solely from such injury within ninety days from the date of accident, the Company will pay in lieu of any other indemnity: For loss of life [a stated sum]. . . In witness whereof the iEtna Life Insurance Company, of Hartford, Conn., has caused these presents to be signed by its president and secretary,” etc. The bill of exceptions states that “a provision and agreement . . as follows, 'This insurance shall not cover suicide, sane or insane,’ . . is embraced in the following stipulations and conditions endorsed upon the original policy and following the face of the policy and preceding the 'schedule of warranties’ in the policy as copied in the original petition, to wit: 'This policy is issued to and accepted by the insured subject to the following provisions and agreements;’” which are set out and which include the provision as to suicide, quoted above. The “schedule of warranties,” referred to above, contains the following language: “Schedule of warranties made by Mr. "W. J. Campbell (hereinafter called the insured). The issuance of this policy is based upon the following statement of facts, all of which I hereby warrant to be true and complete. I agree that any statements made by me to the agent or solicitor of this insurance shall not bind the company unless written hereon. . . I hereby agree that the application heretofore made by me and the warranties contained herein, together with the premium paid by me, shall be the basis of this contract, which I accept subject to all of the conditions and provisions contained herein or indorsed hereon, which I understand can not be altered or changed by any agent of the Company.” The policy was issued in 1904 and was continued from year to year.</p> <p>It was contended on the part of the plaintiff that “the provision, ‘This insurance shall not cover suicide, sane or insane/ did not become a part of the policy, so as to operate as an exception to or limitation of the risk insured;” that under section 2471 of the Civil Code of 1910, in order for such a provision to become a part of the policy, it must be contained in the face of the policy; that the language used in the face of this policy is not sufficient for that purpose; that if this provision was a part of the policy, the death of the insured “did not occur within the meaning thereof, it not being shown that at the time of death the insane assured intended to take his own life;” that the burden of showing this was upon the insurance company. These contentions and others are elaborated in the briefs of counsel.</p>

<p>Complaint; from city court of Dawson—Judge Edwards. December 16, 1916.</p>

<p>Complaint for damages; from city court of Savannah—Judge Freeman. August 9, 1916.</p>

<p>Action for damages—appeal; from Henry superior.court—Judge Searcy. October 17, 1916.</p>

<p>A heavy two-wheeled truck used for moving freight in a depot was not so attractive as a- plaything for children and so dangerous in its nature as to come within the rule of the “turn-table cases,” and the railway company was not liable for leaving it accessible to a child who was in the habit of playing at the depot and who was injured.by it.</p>

<p>Action for damages; from McIntosh superior court—Judge Sheppard. March 25, 1916.</p>

Action for damages; from Evans superior court—Judge Sheppard. June 1, 1916. The plaintiff, a rural mail-carrier, was accustomed to carry his mail on a motorcycle over a private road running through the defendant’s land. The defendant, without notice or warning to him, stretched a wire fence across the private roadway, and the plaintiff ran into the fence and was injured. He claimed damages in the sum of $2,000, and the jury returned a verdict in his favor in the sum of $5.

<p>Action for damages; from Murray superior court—Judge Fite. February 16, 1916.</p>

<p>No cause.of action against the municipality appears from the petition, by which a recovery was sought for damage from fire, alleged to have been caused by negligence of its ministerial agents in cutting off the water supply from waterworks maintained and operated by it.</p>

<p>Petition for letters of administration—appeal; from Haralson superior court—Judge Bartlett. May 23, 1916.</p>

<p>Action for damages; from Troup superior court—Judge Freeman. . February 11, 1916.</p>

<p>Action for damages; from Fayette superior court—Judge Searcy. March 20, 1916.</p> <p>The defendant demurred on the grounds: that no cause of action is set forth; that it appears that the injury was due to a mere transitory detail of the work in which the plaintiff was engaged; that it affirmatively appears that there was no negligence chargeable to the defendant of which the plaintiff can complain; that the petition shows that the plaintiff and the other section-hands were engaged at the time of the injury in a private work for their personal benefit and outside the scope of their work for the defendant; that it affirmatively appears that the alleged injury was due to an assumed risk and to a cause the existence of which the plaintiff had better opportunity to observe than did the defendant. Each specification of negligence was demurred to specially. The court sustained each of the grounds of the demurrer and dismissed the action.</p>

<p>Action for breach of bond for’ title; from Tift superior court— Judge Kent presiding. July 7, 1916.</p>

<p>Petition for administration—appeal; from Campbell superior court—Judge Smith. March 4, 1916.</p>

<p>Action for breach of contract; from Richmond superior court— Judge Henry C. Hammond. July 15, 1916.</p>

<p>1-2. Since the act of 1910, amended by act of 1913, as to automobiles and conveyances of like character (in which motorcycles are held to be included) makes it unlawful to operate them on public roads, streets etc., without compliance with the provisions of that law, among which is a requirement that the machine shall be registered with the secretary of State and a registration fee paid, a person riding on an unregistered motorcycle along a public street when struck by á car of a street-railway company at a crossing is to be regarded as a trespasser, and is not entitled to recover from the company for negligence which is not wilful or wanton.</p> <p>3-4. Under the evidence in this case, there was no wilfulness or wantonness on the part of the defendant in the injury to the plaintiff, who was riding on an unregistered motorcycle; and the court did not err in awarding a nonsuit.</p>

Action on contract; from Fulton superior court—Judge Pendleton. December 5, 1916. Haden demurred on the following grounds: (1) No cause of action against him is set forth in the petition. (3) He was not a party to the contract between the plaintiff and the defendant corporation. (3) It is not alleged that he received or retained any ■of the money from thé salé of the land. (4) It is not alleged that a tender was made to him.

<p>Action for damages; from Baldwin superior court—Judge Henry C. Hammond presiding. January 9, 1917.</p>

<p>o Appeal; from Bulloch superior court—Judge Hardeman. December 27, 1916. ' ‘</p>

<p>Certiorari; from DeKalb superior court—Judge Smith. January 29, 1917.</p>

<p>1. “When a transaction partakes of the nature both of a tort and a contract, the party complaining may waive the one and rely solely upon the other.” Civil Code (1910), § 4407.</p> <p>2. When a person has two or more conflicting and inconsistent remedies for the same wrong, his election and actual prosecution' of the one to a favorable or an adverse decision is a bar to the. others.</p> <p>3. In the ease of conflicting and inconsistent remedies, the remedies are not concurrent, and where a choice between them is once made, with knowledge of all the facts, the right to follow the other is forever gone.</p> <p>4. Owing to the nature of the relation between‘a physician and a patient, the latter, in the case of malpractice by the. former, ordinarily has a choice of remedies, and may sue the physician either in contract or in tort. If he elects to sue in tort, and actually commences and prosecutes his action to a final adverse decision, his right to sue as for a breach of the contract, or a breach of the duty imposed by law, by reason of the defendant’s calling and the relation between the parties, is lost. And .this is true although at the time of the commencement of the action for the tort it was barred by the statute of limitations. The election to sue in tort and the prosecution of such suit to final 'judgment relates back to’ the original transaction out of which the action arose, and constitutes an irrevocable election between remedies as they then existed on the part of the patient.</p>

<p>Attachment; from city court of Macon—Judge Guerry. September 1, 1916.</p>

<p>1. The motion to dismiss the bill of exceptions is without merit.</p> <p>2. The contract of insurance sued upon, having been breached in material particulars by the plaintiff, is void and unenforceable.</p> <p>3. The promise of an adjusting agent to pay the loss under an insurance contract breached by 'the insured is not binding on the insurance company, where the agent is without authority to waive the stipulations of the policy.</p>

<p>Where a judgment of a court of general jurisdiction, rendered in a ease in which the court had jurisdiction of the parties and of the subject-matter of the litigation, is in part an adjudication upon a' matter • which was not included in the pleadings, but which by consent was irregularly presented for determination in the case, that part of the judgment is not subject to collateral attack as being absolutely void, if by amendment of the pleading the irregularity could have been cured.</p>

<p>While the presumptions are in favor of the validity of verdicts, and they are to have a reasonable intendment, so as not to be avoided save from necessity, and while in any case the test of certainty is whether the verdict can be made certain by what it contains or by the record, still the judgment entered thereon must follow the true meaning and ’ intent of the finding; and where the judgment fails to do this, and it is not possible to frame a judgment in accordance both with the true intent of the verdict and with the issues made by the pleadings, the verdict must be set aside and a new trial ordered.</p>

<p>1. It is within the sound legal discretion of the trial judge to allow a traverse to the answer to a money rule to be filed at the second term, and his discretion will not be controlled unless manifestly abused.</p> <p>2. If error of the judge in charging the jury was of such a character that it could be, and was, corrected in the final order disposing of the motion for a new trial, it could not injure the plaintiff in error.</p>

<p>Money rule; from Jeff Davis superior court—Judge Highsmith. March 35, 1916.</p>

<p>Complaint; from city court of Dublin—Judge Flynt. December 11, 1916.</p>

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

<p>Distress warrant; from city court of Statesboro—Judge Proctor. November 4, 1916.</p>

<p>1. There is no merit in the general grounds of the motion for a new trial, as the evidence sufficiently supports the verdict.</p> <p>2. The court did not err in admitting in evidence the records of the defendant company, showing that the particular locomotive alleged to have caused the destruction of the plaintiff’s property at the time stated in the petition was the same engine that set out similar fires in the same locality on subsequent occasions, extending over a number of months, and in allowing testimony as to such subsequent fires-.</p> <p>(a) The evidence was admissible to rebut testimony that the locomotive in question was equipped with a sound standard spark-arrester, sufficient to preclude the possibility that it originated the fire for which damages were sought.</p> <p>(b) It being shown that a continuous series of subsequent fires were communicated or caused by the engine that produced the fire complained of, evidence as to such fires was not too remote because of the absence of proof that the condition of the locomotive or its machinery and attachments had remained the same in all particulars throughout the entire period. The relevancy of the more remote- fires may have been slight, but the testimony was admissible in the absence of anything to even suggest that the condition of the machinery had altered since the date of ,the fire complained of, especially' in view of the testimony for the defendant that a standard spark-arrester was then attached to the locomotive, and of the direct testimony of another witness that on that particular occasion the engine, though alleged to have been thus equipped, was seen to emit sparks and did actually set out fire near the plaintiff’s property. This testimony, taken together, tended to indicate that at least the condition of the spark-arrester remained unchanged throughout the entire period, since the engine emitted sparks during the whole time.</p> <p>o. There is nothing in the record to indicate that the verdict was influenced by bias or prejudice; and since there was testimony to support the verdict, it can not be considered to be excessive.</p> <p>4. In the absence of any timely written request? there is no merit in the grounds of the motion for a new trial complaining that the court failed to give in charge rules for estimating the plaintiff’s damages, and failed to present to the jury a particular -contention of the defendant.</p>

<p>Action for damages; from Wilkes superior court—Judge Walker. August 14, 1916.</p>

<p>There was sufficient evidence to authorize the verdict; and the special grounds of the motion for a new trial are not in proper form for consideration.</p>

<p>Under the allegations in the petition _ as amended, it is clear that the injury resulted from failure on the part of the plaintiff to exercise ordinary care; and, notwithstanding the antecedent negligence of the railway company, no recovery could be based upon the facts alleged. The court therefore erred in overruling the general demurrer.</p>

Action for deceit; from DeKalb superior court—Judge Smith. August 29, 1916. The defendant in error moved to dismiss the writ of error, on the ground that the judgment against the plaintiff in error (the defendant in the court below) had been fully discharged while the writ of error was pending.

Appeal; from Burke superior court—Judge Henry C. Hammond. October 3, 1916. Mrs. M. E. Lester died intestate in the early part of 1914. Her entire estate consisted of a tract of land in Burke county, Georgia. S. H. Lester was appointed administrator of the estate, and, as such, collected and held rents of the estate for the years 1914 and 1915.

<p>Action for damages; from city court of Savannah—Judge Davis Freeman. December 12, 1916.</p>

<p>Certiorari; from Muscogee superior court—Judge Munro. December 30, 1916.</p>

<p>Certiorari; from Gilmer superior court—Judge Patterson. December 5, 1916.</p>

<p>Action for damages; from Baldwin superior court—Judge Henry C. Hammond presiding. January 10, 1917.</p>

<p>Appeal; from Carroll superior court—Judge R. W. Freeman. December 28, 1916.</p>

<p>Action for damages; from city court of Jefferson—Judge Mahaffey. December 12, 1916.</p>

<p>Action for damages; from Whitfield superior court—Judge Fite. December 16, 1915.</p>

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

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

<p>Action for damages; from city court of Waynesboro—Judge W. H. Davis. January 6, 1917.</p>

<p>Action for damages; from Lanrens superior court—Judge Kent. January 33, 1917.</p>

<p>Action for damages; from city court of Floyd county—Judge Nunnally. January 30, 1917.</p>

<p>Action for damages; from Wilcox superior court—Judge Crum. February 23, 1917.</p> <p>The demurrer was on the grounds: (1) The petition sets forth no cause of action. (2) Taking the allegations of fact contained in said petition as true, no valid judgment could be rendered in this court against this defendant. (3-4)- The petition is not addressed to any court, and no process returnable to this court is . prayed for.</p>

<p>Certiorari; from Bleckley superior court—Judge Graham. January 12, 1911. ,</p>

<p>Certiorari; from Richmond superior court—Judge Henry C. Hammond. February 12, 1917.</p>

<p>Attachment; from city court of 'Atlanta—Judge Reid. December 1, .1915.</p> <p>Edison brought suit by attachment against the Dundee Woolen Mills, a non-resident; the suit being No. 24,301 in the city court of Atlanta, November term, 1912. The indebtedness claimed of the defendant was $250. The attachment was levied • on' certain cloth of the defendant, and the defendant gave a replevy bond in the sum of $500 and took possession of the goods. On November 21, 1912, Edison filed his declaration in attachment, alleging, that he was employed by the defendant under a written contract by the terms of which he was to receive $30 per week, payable each Saturday night, and an additional 25 cents on each suit of clothes sold by him; that the employment was to begin on September 11, 1912, and terminate on September 11, 1913; that the defendant had violated the terms of the contract, and had refused to allow the plaintiff, who was at all times ready, able, and willing to perform his contract, to enter upon his duties thereunder; that under the contract he would have earned, from September 14, 1912, to October 12, 1912, the sum of $150 as salary, besides a commission of 25 cents on every $18 suit sold during that period; and that by the defendant’s breach of its contract the plaintiff was damaged in the sum of $250 during the period from September 14 to October 12, 1912. The defendant, on January 7, 1913, filed a general answer substantially denying all the allegations of the declaration except the making of the contract of employment.</p> <p>On January 30, 1914, Edison brought a second suit by attachment against the defendant (Suit No. 25,947 in the city court of Atlanta), claiming an indebtedness of $1,200, and this second attachment was levied, January 31, 1914, on merchandise belonging to the defendant. On February 2, 1914, the defendant gave a replevy bond in the sum of $2,400, and took possession of the property seized under the attachment. On February 26, 1914, the plaintiff filed his declaration in the second attachment suit, again alleging the making of the contract on September 7, 1912, referred to in the first suit; and further: that the plaintiff’s compensation thereunder was to be $30 per week, payable each Saturday night, and a commission of 25 cents on each $18 suit sold; that the said employment was to begin on September 11, 1912, and terminate on September 11, 1913; that the defendant refused to allow the plaintiff to enter upon his duties as manager under the contract; that he was at all times ready, willing, and able to fulfil his obligations under the contract; that he was unable to obtain other employment of any kind prior to October 14, 1912; that after October 14, 1912, and up to September 11, 1913, he would have earned, under the contract, $1,440 as -a salary, but he was able to earn only $640 during said period, thereby incurring a loss of $780 besides his commission upon each suit sold by him during that time; and that the defendant had, by the said unlawful breach of contract, damaged him in the sum of $1,200. On April 11, 1914, the defendant filed its answer, generally denying the allegations of the declaration.</p> <p>. On June 15, 1914, the plaintiff offered an amendment to his declaration in the first suit, alleging that since the filing of the attachment the life of the contract sued on had terminated, and setting up in substance the facts alleged in his declaration in the second attachment suit, and praying for a recovery of his whole loss arising out of the breach of the contract. The amendment was allowed over objection, and on June 19, 1914, the defendant filed exceptions pendente lite, averring that the plaintiff had offered an amendment, which came on to be heard at the May term, 1914; that the defendant objected to the allowance of 'the said amendment, on the grounds, that it introduced a new and distinct cause of action; that it incorporated and included the identical cause of action which is included in the second attachment sued out by the plaintiff against the defendant, to which the defendant had duly answered, and which second attachment suit was then pending in the city court of Atlanta; and that the second attachment was sued out and levied after the period covered by the contract had expired. These exceptions pendente lite were duly certified by the presiding judge, and were entered of record. On July 13, 1914, the defendant filed another pleading in the first suit, and alleged, that on January 3.0, 1914, the plaintiff sued out his second attachment and made affidavit that the defendant was indebted to him in the sum of $1,200; that this attachment was duly levied on the defendant’s stock of merchandise, and duly returned to the city court of Atlanta; that the defendant gave a replevy bond on February 3, 1914; that on February 26, 1914, the plaintiff filed his declaration therein; that on April 11, 1914, the defendant filed its answer thereto; and that the said second attachment case is between the same parties and for the same cause of action alleged by the plaintiff in his amendment to the first attachment suit; and the defendant pleaded the second attachment suit in abatement of so much of the first attachment suit and cause of action as was set out and alleged in the amendment. This plea in abatement was duly verified. This plea stood of record and undisposed of on .September 9, 1914, when the first attachment- case came on for trial on its merits. The plaintiff, by proper amendment, withdrew its amendment of June 15, 1914. The amendment thus withdrawn was the amendment alleging that,’ since the filing of the first attachment, the life of the contract had terminated, and asking fdr a recovery for the whole damages by reason of the breach of the contract of employment, substantially as claimed in the declaration filed in the second suit. Upon- the trial of the first suit the plaintiff amended his declaration by adding a second count which was in all respects the same as the original declaration, except that the added count alleged that the plaintiff was discharged without legal justification after he' had entered upon his duties under the contract of employment. The defendant amended its answer, and averred, in substance, that the plaintiff was incompetent and was discharged on that account; and that the contract was by its terms to be governed and construed by the laws of the State of Illinois.</p> <p>The plaintiff obtained a verdict against the defendant for $180 and costs of suit. The defendant made a motion for a new trial, which was overruled; and the judgment of the trial court was affirmed by the Court of Appeals. The judgment was paid by the defendant. On December 1, 1915, the second suit came on for trial, and plaintiff amended the declaration therein by adding a second count in substance and effect the same as the-second count added to the declaration in the first attachment case; and further amended, alleging, that the verdict and judgment in the first suit established and adjudicated the plaintiff’s right of recovery under his contract; that the first suit covered a period of time only from September 14, 1912, to October 12, 1912, and that the claim set up in the second suit was for the time from October 12, 19.12, to September 12, 1913, the end of the contract. The defendant offered a special plea, by which it pleaded, in bar and abatement of the second suit and cause of action, the filing of the first attachment proceeding, the prayers, verdict, judgment, motion for "a new trial, affirmance, and payment of the judgment therein. In this plea it is alleged that “plaintiff has elected to sue immediately for his damages, for a breach of the same contract as that now alleged and declared upon,” and that said first attachment suit was a bar to the plaintiff’s suit and right of action in the present case. For further plea in bar, the defendant alleged that the contract, by its terms, was to be governed by the law of Illinois, and that under the law of Illinois but one suit could be maintained for the breach of a contract of employment; the doctrine of constructive service not being recognized in that State. The plaintiff objected to the allowance of this special plea, upon the ground that it set forth no legal defense in bar of his suit. The plea was allowed over this objection. Exceptions pendente lite to the order allowing it were duly certified and filed. Thereupon the plaintiff offered further amendment to his declaration, as follows: “That plaintiff, by amendment filed and allowed in said case No. 24,301, set up his claim for the same items as are sought to be recovered in this case; that to the allowance of such amendment the defendant then and there objected on the ground that it introduced a new and distinct cause of action, that it came too late, that it incorporated and included the identical cause of action which is included in a second attachment suit (this suit) now pending in this honorable court; and, upon the court’s overruling such objections and allowing the amendment, the defendant then had certified and filed its exceptions pendente lite to the allowance. The defendant also filed a plea, therein averring that, as amended, the suit should be abated and dismissed because such amendment introduced the same cause of action as that embraced in a suit that was then pending (to wit, this case), setting up such cause of action, and by and between the same parties hereto, which suit had not been disposed of. Thereupon the plaintiff herein and therein, to meet these objections of and positions taken by the defendant, withdrew, by proper amendment, the amendment setting up such additional items as are sued for in the ease at bar, and said case No. 24,301 was then tried as originally brought, and for only the items claimed in the original petition filed therein. By reason whereof plaintiff alleges that defendant is estopped herein to contend or insist that the suit at bar is not maintainable because of said suit No. 24,301 and the pleadings, or verdict and judgment therein, or any or all thereof.” The court refused to allow this amendment, and the refusal was duly excepted to pendente lite.</p> <p>By agreement of counsel the defendant’s special plea in bar was submitted to the court on condition that if the plea should be sustained the plaintiff would not be required to produce any evidence on the merits of his ease. After the introduction of evidence on the special plea the court directed a verdict in favor of the plea, and judgment was thereupon rendered against the plaintiff for costs only. Thereupon the plaintiff made a motion for a new trial, which was overruled, and he brought the case to the Court of Appeals, excepting to the allowance of the defendants’ plea in bar, to the disallowance of the plaintiff’s plea of estoppel, to the verdict directed by the court, sustaining the plea in bar to- plaintiff’s suit, to the overruling of the plaintiff’s motion for a new trial, and to the judgment entered upon the verdict so directed by the court on the special plea in bar. The Court of Appeals dismissed the writ of error, with this statement: “The bill of exceptions in this case relates only-to interlocutory matters, and there was no final judgment. The writ of error was therefore premature, and this court has no jurisdiction to entertain it. Direction is given, however, that the copy of the bill of exceptions, of file in the office of the clerk of the city court of Atlanta, may operate as exceptions pendente lite.” The remittitur from the Court of Appeals was duly made the judgment of the lower court, and the copy bill of exceptions was duly certified as exceptions pendente lite; and on September 15, 1916, the judge of the city court of Atlanta rendered a final judgment in favor of the defendant, upon the verdict returned by direction of the court, sustaining the defendant’s special plea in bar. Whereupon the plaintiff sued out the present bill of exceptions. The defendant objected to the court’s signing and entering the final judgment of September 15, 1916, and contended that the court was without jurisdiction, power, or authority to render any judgment, because of the facts appearing of record, to wit: A verdict was returned in favor of the defendant, on its special plea in bar, on December 1, 1915, and a judgment for costs was entered upon the same date. No direct bill of exceptions to the judgment of the court in directing the verdict was taken, but a motion for a new trial was duly filed, and on January 8, 1916, was overruled. A bill of exceptions to the Court of Appeals was presented to, and certified by, the trial .judge more than thirty days from the verdict in the case. It did not contain the motion for a new trial or the judgment overruling the motion, nor did it specify such motion or judgment as a part of the record, although it was recited that such motion was made and overruled; and the order overruling the motion was excepted to and assigned as error. ' The 'defendant invoked the ruling of the court on the effect of its judgment overruling the motion for new trial on January 8, 1916, and contended that this judgment was final in the case. The court disregarded the contentions of the defendant, and entered the judgment hereinbefore stated. The defendant presents its contentions by cross-bill of exceptions.</p>

<p>Motion to amend judgment; from city court of Americas—■ Judge Harper. October 7, 1916..</p>

<p>Action for damages; from Floyd superior court—Judge Wright. January 12, 1917.</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. January 13, 1917.</p>

<p>Certiorari; from Richmond superior court—Judge Henry C. Hammond. January 37, 1917.</p>

<p>Indictment for murder—petition for change of venue; from Irwin superior court—-Judge Crum. April 35, 1917.</p>

<p>Complaint; from city court of Cairo—Judge Willie. May 19, 1916.</p>

<p>Action on guaranty; from city court of Atlanta—Judge Keid. June 24, 1916.</p>

<p>Action on. insurance policy; from city court of Hall county—■ Judge Wheeler. October 34, 1916.</p>

<p>Foreclosure of lien; from Houston superior court—Judge Mathews. June 23, 1916.</p>

<p>Trover; from Gwinnett superior court—Judge Brand. August 17, 1916.</p>

<p>Complaint; from Gilmer superior court—Judge Patterson. June 28, 1916.</p>

<p>Attachment; from Milton superior court—-Judge Patterson. October 30, 1916.</p> <p>In the original petition it is-alleged, that “defendant is indebted to petitioner in the sum of $139, together with interest from the 36th day of November, 1913, at 7 per cent., because of the following facts:” On that day the defendant offered for sale at auction, through an auctioneer, a certain horse. He authorized and directed the auctioneer to announce and guarantee to bidders that the horse was gentle and not afraid of automobiles, and was a good work' horse, and could be worked to plow, wagon, or- buggy. Under this recommendation and guaranty • the plaintiff hid on the' horse and it was knocked down to him for $139; and afterwards on the same day, when he went to the defendant to pay the bid, he asked the defendant fully in reference to the horse, the defendant guaranteed the horse in equally as strong terms as set out above, and told him that it was a good work horse, was biddable, would work anywhere, was easily controlled, was not afraid of automobiles, and was well worth $139; whereupon he paid the defendant $139. Had it not been for the personal guarantee and recommendation that the defendant gave the horse, he would not have bought it and paid his money. The plaintiff knew nothing of the horse or its qualities, and relied entirely upon the defendant’s recommendation and guaranty. The defendant did know and should have known all about the horse. The horse, as the plaintiff afterwards discovered, was not a good work horse, would not work satisfactorily to anything, was stubborn and obstinate, was afraid of automobiles, and was entirely worthless and without any value to the plaintiff. The plaintiff, ascertaining the worthlessness of the horse, took it to the defendant and tendered it back, and asked the defendant to make good his guaranty and return the plaintiff’s money. The plaintiff left the horse in the defendant’s possession and has since had no control over it and .nothing to do with it. The defendant failed and refused and still fails and refuses to pay the plaintiff his money. “Wherefore petitioner prays judgment for said money so paid by him to the said [defendant] as allowed by law.” On exceptions by the defendant to the overruling of a motion for a new trial, the Supreme Court held, among other things, that this “petition, properly construed, shows the action to be one for deceit to recover an amount paid as the purchase-price of a horse in pursuance of a contract of purchase induced by actual fraud upon the part of the vendor.” .144 Ga. 700.</p> <p>On a subsequent trial the court, at the close of the evidence, allowed the plaintiff to amend the petition as follows: “Said defendant agreed and contracted with plaintiff, at the.time he paid his bid, that if the horse was not as he recommended and guaranteed in every particular, that it was his horse and he would pay back plaintiff his money, and that he was not selling the horse unless he was a good work horse and a good family horse and all right in every way, and upon this statement plaintiff turned over to defendant his money and his check, and the defendant received the same and still has plaintiff’s money, and plaintiff is entitled to recover the same as money of plaintiff had and received by the defendant.” The defendant demurred, on the grounds, (1) that the amendment “adds a new cause of action, and adds an action ex contractu to a suit for tort;” and (2) that the amendment “is not in the form of a new count, but is added to the count in tort.” Error is assigned on the overruling of the demurrer and on the refusal of a motion for a new trial.</p>

<p>1. Where a ten-payment endowment policy of life insurance is issued, and it is provided therein that it- is to, be as of a certain date in the future, and an agreement is made for term insurance to run from the date of the entry thereof on the policy to the time when the regular ten-payment policy begins, and a note is given for the amount of the premium due at the time named in the policy for the ten-year insurance to begin, in order to make the policy effective the note must be. paid when due, or the time of payment extended by proper authority, (a) If the time of payment is extended, the note must be paid within the extended period. (6) Propositions made by the insurance company to extend the time of payment of the note, or of the premium, must be accepted by the insured, before they will be binding on the company.</p> <p>2. There was no error harmful to the defendant in excluding from the evidence the letter of the State manager of the insurance company to the insured, dated December 16, 1914. Nor was there error in admitting certain testimony objected to as a whole, where a part of it was admissible and other parts were covered by evidence previously admitted without objection.</p>

<p>1. The petition as amended was not subject to general demurrer or to any of the special demurrers interposed.</p> <p>2. Under a proper construction of the contract 'of insurance, an actual delivery of the policy of insurance was not stipulated for, and it was not necessary for the plaintiff to allege or prove an actual delivery.</p> <p>3. Under a proper construction of the contract of insurance, there is no requirement that the insured, at the time of the approval of his application and of the issuance of a policy of insurance thereon, and at the time of the delivery of the policy, shall be in the same condition of health that he was in when he signed the application. The only requirement as to health is that tlie applicant fo'r insurance shall be_in the same condition of health when the payment of the first premium on the policy is made that he was in when he made the application.</p> <p>. 4. Under the facts of the case, if the policy of insurance was not delivered, within the meaning of the law, to the applicant or his agent, on June 16, 1911, when the insurance company .approved the application, issued the policy, and placed it in the mails at its home office in Springfield, Massachusetts, addressed to its agent at Savannah, Georgia, to be ultimately delivered to the applicant by another of its agents at Thomasville, Georgia, it was certainly so delivered when, during the lifetime of the insured, it reached the hands of the company’s agent at Thomasville, Georgia; the first, premium on the policy having previously been paid on the date on which the application was made, and nothing remaining to be done by the insured before he was entitled to the possession of the policy.</p> <p>5. It is not shown that any Material error occurred upon the trial, and the evidence authorized the verdict.</p>

<p>Action on insurance policy; from city court of Nashville—Judge Christian. January 8, 1917.</p>

<p>1. The instruction to the jury that the plaintiff charged that the defendant company was negligent because “it had no headlight” on its electric-car, where the plaintiff’s petition alleged that the headlight on the car was not lighted, and there was testimony that there was no light on the car, was not a material error. It could not have misled the jury; and it was authorized by testimony, admitted without objection, which tended to show the absence of any light (including a headlight).</p> <p>-2. There was no error in instructing the jury, by way of illustration, is the effect that if the plaintiff was otherwise entitled to recover, and it appeared that one third of the negligence which produced the injury was attributable to her, and the remaining two thirds was' attributable to the defendant, the amount of the plaintiff’s recovery should be diminished by one third. Where the negligence of the plaintiff equals or exceeds that of the defendant, there can be no recovery; but if the negligence of- the plaintiff is less than that of the defendant, and the plaintiff is otherwise entitled, under the pleadings and the testimony, to recover against the defendant, the total amount of damages in dollars and cents should .be diminished in proportion to the amount of default attributable to the plaintiff.</p> <p>3. The remaining grounds of the motion for a new trial are without substantial merit.</p>

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

<p>Money rule; from city court of Macon—Judge Guerry. September 30, 1916.</p>

<p>Complaint; from Evans superior court—Judge Sheppard. October 9, 1916.</p>

<p>Money rule; from Morgan superior court—Judge Park, March 10, 1916.</p>

<p>Money rule; from Macon superior court—Judge Littlejohn. June 38, 1916.</p>

<p>1. “Mere notice by a third party of his claim that an article purchased infringes, a patent owned by him is not of itself an eviction of the purchaser, so as to show a breach of the seller’s implied warranty of a right to use.”</p> <p>2. “The current profits of a going manufacturing concern are, as a general rule, too uncertain to form the basis of an award of damages for breach of contract affecting the operation of the plant.”</p> <p>3. No error is committed in admitting evidence offered and objected to as a whole, where parts of it are clearly admissible.</p> <p>4. Where the charge correctly submits to the jury all the issues in a cáse, if any fuller charge is desired it should be invoked by a timely written request.</p> <p>5. While a plea of total failure of consideration includes a plea of partial failure of consideration, yet when, as in this case, the jury are not given any data from which they could reduce the full amount of the. contract price, a charge' on partial failure of consideration would be unauthorized.</p>

<p>Foreclosure of lien; from Fulton superior court—Judge Pendleton. April 15, 1916.</p>

<p>The action was based on a contract governed by the laws of New York. Under the pleadings, the agreed statement of facts, and certain decisions of courts of that State which were introduced in evidence, the judge, sitting by consent without the intervention of a jury, did not err in rendering judgment in favor of the defendant.</p>

<p>Garnishment; from city court of Monroe—Judge Stone. December 7, 1916.</p>

<p>Complaint; from city court of Quitman—Judge Long. January 20, 1917.</p>

<p>Complaint; from Miller superior court—Judge Worrill. January 10, 1917.</p>

<p>Complaint; from city court of Bainbridge—Judge Spooner. January 11, 1917.</p>

<p>Foreclosure of lien; from Jones superior court—Judge Park. January 15, 1917.</p> <p>The following is the agreed statement of facts in the case: "Thomas G-. Smith, the defendant, owns a tract of land described in the original petition in this case, and on or about February 24, 1915, entered into a contract with Shaw Brothers Company, under which contract said Shaw Brothers Company erected a brick store building on said premises at and for the sum of $5,200. Shaw Brothers Company completed the building according to the contract, plan, and specifications, and was paid by Smith the full contract price, without requiring from the contractor an affidavit as to the payment of all bills for labor and material, or producing any waiver in writing as to the liens of laborers or materialmen. On March 11, 1915, Shaw Brothers Company made a contract with the plaintiff, L. C. Bicks, under which the plaintiff agreed to cover the roof of said building and put up four conductor downspouts, for the sum of $400. This work was undertaken by the plaintiff and finished on April 15, 1915, according to the contract, plans, and specifications. The plaintiff furnished material of the value of $315, in complying with and completing his said contract, and furnished labor in doing the work, of the value of $85. When the work on the roof was begun the plaintiff spent the first day on the works, starting the workmen off and directing the manner in which the work should be done, but did no actual manual labor himself. All of the actual manual labor on the job was done by persons employed by the plaintiff. On July 9, 1915, the plaintiff recorded in the office of the clerk of the superior court of 'Jones county his claim of lien as a contractor, upon the property described in the original petition, to the amount of $400, the sum for which he was to do said work on said building; the land described in the original petition being located in Jones county, Georgia. A copy of said recorded lien is hereto attached, marked exhibit ‘A’ and made a part hereof. The plaintiff sued the said Shaw Brothers Company on said contract” and on July 24, 1915, at eleven o’clock a. m., the plaintiff obtained a judgment against the said Shaw Brothers Company for said sum of $400, in the municipal court, City of Macon, which said court has jurisdiction of the subject-matter and of the person of said Shaw Brothers Company. At about five o’clock p. m. on the said 24th day of July, 1915, the said Shaw Brothers Company filed its voluntary petition for adjudication in bankruptcy in the district court of the United States for the western division of the southern district of Georgia, said court having jurisdiction of the person of said Shaw Brothers Company and of the bankruptcy proceedings. On February 19, 1916, the said Shaw Brothers Company was granted its discharge in said bankruptcy proceedings. The plaintiff in this proceeding was scheduled and had actual knowledge of the proceeding. The plaintiff has not been paid anything on said contract, and there is now dne him the said sum of $400 plus interest.”</p>

<p>Complaint; from city court of Carrollton—Judge Beall. January 19, 1917.</p>

<p>Foreclosure of lien; from Fulton superior court—Judge Bell. January 27, 1917.</p>

<p>Affidavit of illegality; from city court of Bainbridge—Judge Spooner. February 12, 1917.</p>

<p>Complaint; from city court of Tifton—Judge Price. February 13, 1917.</p>

<p>Complaint; from city court of Bainbridge—W. Y. Custer, judge pro hac vice. January 10, 1917.</p>

<p>Action on bond; from city court of Atlanta—Judge Reid. Jan-nary 6, 1917.</p>

<p>Complaint; from Colquitt superior court—Judge Thomas. May 8, 1916.</p>

<p>1. On the issue as to whether instructions of the plaintiff were violated by the defendant, by lending $3,000 received by him as the plaintiff’s agent, the equivalent of a finding that he did violate her instructions was made by the finding of the auditor that at the time this money came into the defendant’s hands, he “knew that it was the wish and desire of his principal,” the plaintiff, that “the said sum should be then and there paid over to” a named person in payment of her note held by that person, and that' the defendant “loaned the said money as hereinbefore set forth and without the knowledge and consent of his principal.” There was sufficient evidence to authorize this finding.</p> <p>2. The motion to recommit the ease to the auditor, in order that a specific finding might be made by him on the issue as to whether the plaintiff ratified the loan in question, should have been granted, although a finding on this issue might be inferred from his finding of an amount due the plaintiff' by the defendant. The judgment is therefore reversed, with direction that the case be recommitted to the auditor in order that a specific finding may be made on this issue.</p>

<p>Forfeiture; from Chatham superior court—Judge Charlton. April 10, 1916.</p>

<p>Action on insurance policy; from Biehmond superior court— Judge H. 0. Hammond. December 16, 1916.</p> <p>The original petition was as follows:</p> <p>“State of Georgia, Biehmond county. In the superior court of said county.</p> <p>“The petition of Southern States Phosphate & Fertilizer Company, a corporation, shows that the Northwestern National Insurance Company is indebted to it in the sum of two thousand ($2,000) dollars, besides interest, arising on the following state of facts:</p> <p>“1. The defendant insurance company is a corporation organized under the laws of the State of Wisconsin, and having an agency and place of doing business in the city of Augusta, in said county.</p> <p>“2. Petitioner shows that the defendant company made in writing a policy of fire insurance to Luke & Fleming, a partnership doing the business of cotton factors in the city of Augusta; that said policy bears the number of 506, and is dated September 26, 1915, and stipulates that in consideration of an annual premium of forty-two ($42) dollars, the said Luke & Fleming are thereby insured until the 25th day of September, 1916, to the amount of two thousand ($2,000) dollars, against direct loss or damage by fire to cotton in bales while contained in the rear of the one-story metal-roof building situated on the east side of Eighth street, No. 116, in the city of Augusta, Georgia, and known as Block No. 1.</p> <p>“3. Petitioner alleges that on October 20, 1915, and while the aforesaid policy of fire insurance was in full force and effect, the defendant company, by its authorized agents at Augusta, Ga., to wit, Timberlake & Eve, with the authority and consent of the defendant company so to do, executed and delivered a written certificate of fire insurance upon said policy to the- said Luke & Fleming, the insured as aforesaid, said certificate of insurance being in words and figures as follows, to wit: ‘No. 506. Certificate of Fire Insurance. $2,000. Augusta, Ga., Oct. 26, 1915. This certifies that Luke and Fleming have with Northwestern National Ins. Co. under Policy No. 506 entry- to the amount of two thousand dollars on cotton in bales, while contained in the rear of the one-story brick metal-roof building situated on the east side of Eighth street, No. 116, in Augusta, Ga., and known as Block No. 1, sheet No. 16, terminating 25th day of September, 1916, at noon. Loss, if any, in conformity with the conditions of said policy, to be adjusted with-and payable to assured or order only on presentation of and surrender of this certificate. Not valid until countersigned by the authorized agent at Augusta, Georgia. Countersigned at Augusta, Ga., this 26th day of October, 1915. Timberlake and Eve, General "Insurance Agents, Augusta, 6a. (Signed) Timberlake & Eve, Agents. (Endorsed on back, 'Luke & Fleming*.)*</p> <p>“4. Petitioner alleges that at and before the time the aforesaid certificate of insurance was issued, it was the universal practice of fire-insurance companies in Augusta, Georgia, including the defendant company, writing policies of fire insurance for cotton factors upon cotton held or stored in said city of Augusta by them, to issue to the insured, at their request, upon valid and subsisting policies of fire insurance, certificates of insurance in substance substantially like that certificate set out in paragraph 3 hereof, the purpose and intent of both insurer and insured in issuing and accepting such certificates of insurance being that such certificate of insurance should stand for and in lieu of the policy upon which it was issued, and might be pledged, transferred, and assigned by indorsement and delivery. -It was furthermore the universal practice with respect to such certificates of insurance that no valid or subsisting policy of insurance upon which a certificate of -insurance was issued and outstanding would be accepted for cancellation, or cancelled by the insurance company issuing the same, nor settlement thereof made with or for the insured therein, without the surrender to the insurance company of the outstanding certificate of insurance by or for the legal holder thereof; which said customs became and were a part of the certificate of insurance issued by said defendant .company to said Luke & Fleming with a full knowledge of said customs.</p> <p>“S. Petitioner alleges that on the 26th day of October, 1915, the said Luke & Fleming assigned and transferred, by their written endorsement, and delivered the aforesaid certificate of fire insurance to it as collateral security, for an indebtedness of said Luke & Fleming to petitioner amounting to twenty thousand ($20,000) dollars.</p> <p>“6. Petitioner shows that on March 22, 1916, there was contained and stored in the premises described in said certificate of fire insurance six hundred' and ninety-six (696) bales of cotton, insured by the defendant company by its fire-insurance policy aforesaid against loss or damage by fire to the amount of two thousand ($2,000) dollars.</p> <p>“7. That all of said cotton was totally destroyed by fire on the 22d day of March, 1916, and wa§ then of the value of forty-one thousand, eight hundred ninety-four and 93/100 ($41,894.93) dollars.</p> <p>“8. Petitioner avers that at the time of the destruction by fire of the cotton aforesaid, and while petitioner was the legal holder of said certificate of fire insurance as collateral security as aforesaid, the said Luke & Fleming were indebted to it in a sum in excess of two thousand ($2,000) dollars upon the original indebtedness, which said certificate of insurance was transferred to it to secure, and that the indebtedness of said Luke & Fleming to petitioner, upon said original debt is still, at the time of bringing this suit, in excess of said sum of two thousand ($2,000) dollars.</p> <p>“9. Petitioner shows that due notice of said loss, with proofs of the same in accordance with the requirements of the aforesaid policy of fire insurance, were duly furnished to said defendant company on May 9th, 1916, by said Luke & Fleming on behalf of petitioner.</p> <p>“10. Petitioner shows that on the 22d day of August, 1916, it gave written notice to the defendant company that it then was the legal holder of said certificate of insurance, and that it was entitled to be paid the amount stipulated in said policy of fire insurance, to wit: the sum of two thousand ($2,000) dollars, and accordingly demanded payment by the defendant company to it of said sum.</p> <p>“11. Petitioner avers that the original policy of fire insurance issued by the defendant company as aforesaid to the said Luke & Fleming is not in its possession, custody, or control, but that the same was, by the mutual mistake of the said Luke .& Fleming, who had and held the same, and Timberlake & Eve, defendant’s agents, delivered to Timberlake & Eve, at Augusta, Ga., the agents of the defendant insurance company, without the knowledge or'consent of petitioners, and while the aforesaid certificate of fire insurance was outstanding and in their lawful custody acquired by them and then being held by them in the manner and form hereinbefore alleged.</p> <p>“12. That it is, for the reasons set out in the foregoing paragraph, not in the power of petitioner to attach a copy of said original policy of fire insurance to this its petition, nor to make accurate extracts therefrom wherever pertinent to this petition.</p> <p>“13. ■ Petitioner shows that the defendant company was bound by the terms of said policy to pay to petitioner, as the legal holder of said certificate of insurance issued thereupon, the amount of said loss within sixty (60) days thereafter, and although sixty (60) days had elapsed said defendant has not paid the same, nor any part thereof, and still owes the same, to wit, the sum of two thousand ($2,000) dollars, and therefore petitioner brings this action.</p> <p>“Wherefore, petitioner prays: First, that the defendant company be required to produce the original policy 'of fire insurance issued by it to said Luke & Fleming, upon which said certificate of fire insurance was issued as aforesaid, and have the same in court subject to petitioner’s inspection and use. Petitioner prays further that process may issue directed to the defendant company, requiring it to be and appear at the superior court of said county to be held on the third Monday in September, 1916, to answer your petitioner’s complaint.”</p> <p>The amendment to the petition added merely, in an exhibit, a copy of the face of the policy of fire insurance, “including all stipulations thereof embraced in that part of said policy which precedes the signature of the company’s officers by whom said policy was executed.”</p>

<p>1. Where an. execution is levied upon property in the City of Savannah for its proportionate part of the cost of the paving of a street upon which it abuts, and the owner of the property interposes an affidavit of illegality which recites merely “that the execution [describing it] is illegal, and that the whole of the amount of $93.93 stated in the execution is not due, and the deponent denies that any part of it is due; wherefore deponent makes this affidavit, that the same shall be returned to the superior court of Chatham county and there tried and the issue determined as in case of illegality,” the affidavit, when returned to the superior court, is not subject to a general demurrer or an oral motion to dismiss, but is not good as against a timely special demurrer which . sets forth that the affidavit “does not allege any facts to show why the said execution is illegal, nór why the amount of the same is not due, either in whole or in part.”</p> <p>2. The court did not err in sustaining the special demurrer interposed to the affidavit of illegality as amended, and in dismissing- the affidavit.</p>

<p>The ease being, in default and being so marked on the docket, the court erred in allowing the defendant to file an answer at a term after the trial term.</p>

<p>Complaint; from Hall superior court—Judge J. B. Jones. August 12, 1916.</p>

<p>Complaint; from city court of Macon—Judge Guerry. January 3, 1917..</p>

<p>1. A judgment by the Court of Appeals, awarding damages for carrying up a case for the purpose of delay only, is given not only as a penalty upon the plaintiff in error, but also as compensation for the delay, cost, and vexation occasioned thereby to the defendant in error.</p> <p>2. Where the plaintiff obtains a verdict and judgment on a suit upon a promissory note secured by a deed to land, and a judgment overruling a motion for a new trial of the case is affirmed by this court, with damages for delay, the damages become a part of the debt sued for; the other parts being the principal, the interest, the costs, and (in a proper ease therefor) attorney’s fees. In such a case the judgment for damages is a special judgment, and is a superior lien to a general judgment obtained prior thereto but after .the execution of the deed.</p> <p>3. The judgment in favor of the transferee of the bond to-reconvey the land, although obtained subsequently to a general judgment against the transferer of the bond, rendered after the transfer, was superior to the older judgment and had a superior claim to the fund derived from the sale of the land covered by the bond. It had, however, an inferior claim to the fund derived from the sale of the land of the transferer not covered by the bond.</p>

<p>Money rule; from city court of LaGrange—Judge Harwell. December 13, 1916.</p>

<p>Money rule; from Fulton superior court—Judge Ellis. July 31, 1917.</p> <p>The original petition alleges: Three mortgages on described land in Fulton county, Georgia, made by W. R. Moore to the petitioner, were foreclosed in the superior court of that county, fi. fa. issued under the foreclosure was levied on the land, and the land was sold by C. W. Mangum, sheriff of the county, on the first Tuesday in June, 1915, for $2,000 to the petitioner. At the date of the sale there was due on the fi. fa. $1,727.14, and after payment of the fi. fa. there remains in the hands of the sheriff, as the proceeds of the sale, $262.86. Two fi. fas. in favor of Marie R. Thomas against W. R. Moore, on each of which there is due $80, have been placed in the hands of the sheriff' for the purpose of .claiming enough .of the said fund to satisfy them. Each of the said three mortgages of Moore to the petitioner contains a clause ■ as follows: “It is expressly agreed that said party of the first part will pay all taxes and assessments of every kind on said property within sixty days after the same become due and payable, . . and if said party of the first part fails to pay said taxes or assessments as aforesaid, . . said party of the second part is authorized to pay said taxes [and] assessments, . . and this mortgage is given also to secure said sum or sums so paid, and interest thereon at 8% as part of said loan.” W. R. Moore, after •the date of the said mortgages, made a bond for title to Rarantha & Turner, agreeing to convey described land, which included ,the property in the said mortgages and also certain property on which the saidfi. fas. of Marie R. Thomas against W. R. Moore were-a special lien; to all of which liens the said bond for title was subject. Parantha & Turner returned the property to the City of Atlanta for city taxes for 1914, and failed to pay the taxes, and afterwards surrendered to W. E. Moore all interest held by them under the bond for title. The taxes were not returned or paid by W. E. Moore or any one else, but fi. fas. therefor were, issued ' against Parantha & Turner, and were levied on all of the said property as the property of Parantha & Turner, and sold thereunder on March 2, 1915, and purchased by the City of Atlanta at the sale. Petitioner did not know of the nonpayment of the taxes by Parantha & Turner and W. E. Moore to the City of Atlanta for 1914 until the said sheriff’s sale, under which petitioner acquired title to a part of the said property, and for this reason did not exercise its' right to .pay the said taxes and include the amount so expended in the'foreclosure of the said mortgages, which right it then had and' now has under the terms of the mortgages. The loan deeds given by W. E. Moore to Marie E. Thomas, on which the fi. fas. above stated are based, are younger in date and record than the petitioner’s said mortgages, and are upon parts of the property included in the said tax sale, but not part of the property bought 'by petitioner at the sheriff’s sale. Petitioner, in order to protect its title acquired at the said sheriff’s sale, has been compelled to pay the amount necessary to redeem the property sold under the said tax sale to the City of Atlanta. Marie E. Thomas owns part of the property sold under the said tax sale, and W. E. Moore and the petitioner own the rest of the property sold under the tax sale, and Marie E. Thomas and W. E. Moore and their said properties, in equity- and good conscience, are liable to the petitioner for their proportionate part of the said taxes, and should not be allowed to take any part of the fund now in the hands of the sheriff until the petitioner has been reimbursed for the amounts paid by. it to redeem the land from the said tax sale. Pemand has been made upon C. W. Mangum, sheriff, that $190.60 be paid- to petitioner out of the said fund, to reimburse it for the said taxes as expended, and the demand has been refused. It is prayed that a rule nisi be issued against the said Mangum, sheriff, requesting him to show cause why he has not paid over to petitioner so much of the said fund in his hands as shall be sufficient to reimburse petitioner for the amount paid by it to redeem the land from the tax sale, and that Marie E. Thomas and W. E. Moore be made parties to the rule and be bound by any decision thereon. By amendment it is alleged, that at the time the petitioner paid the money and redeemed the property from the tax sale, petitioner received a deed duly executed by the City of Atlanta, conveying to petitioner the property sold at the said tax sale, which was duly filed for record June 30, 1915, and recorded July 3, 1915,.in Deed Book 430, page 379, of the Fulton county records, in the office of the derk of the superior court of Fulton county, Georgia, in compliance with sections Í169 and 1170 of the Code of Georgia for 1895, and petitioner relies upon the said statutes in its claim that the amount that it paid out to redeem the said property from the tax sale be paid to it with interest thereon out of the said fund in the hands of the sheriff.</p> <p>W. E. Moore demurred to the petition, on the grounds: (1) No ’cause of action is set forth. (2) The facts as alleged do not entitle the plaintiff to the relief sought. (3) It appears from the petition that at the time of the alleged foreclosure and sale the title to the property had’ passed from the petitioner to the City of Atlanta, and the said proceedings in their entirety are null and void.</p>

<p>1. The general demurrer bringing into question the jurisdiction of the court over the defendant Peacock, and the various special demurrers to the petition, were properly overruled.</p> <p>2. The evidence .did not demand the conclusion that the stock purchased by the plaintiff was wholly without value at the time the purchase was induced by the alleged misleading and untruthful representations as to the financial condition of the corporation, made by the defendant Peacock, on account of which the plaintiff sued; and therefore the following charge to the jury was error: “If you believe he is entitled to recover, gentlemen, the measure of damages would be the amount he paid for the stock—that is, whatever money he -lost.” The amount the plaintiff lost would not be identical with that expended by him for the stock, unless such stock was absolutely worthless at the time of the purchase. This instruction likewise amounted to an expression of opinion by the court upon a contested point in the ease: whether the loss sustained by the plaintiff was equal to or less than the full amount paid by him for the stock. For the same reasons, the court erred in charging the jury as follows: “If you should allow the plaintiff to recover, you may increase the amount he paid for his stock by a sum equivalent to interest, as stated to you,” as this instruction likewise gave as the measure of damages the amount paid by the plaintiff for the stock.</p> <p>3. There is no substantial merit, under.the facts of this case, in the three remaining special grounds of the motion for a new trial.</p> <p>4. There was some evidence to support all the material allegations' in the petition, except that the stock alleged to have been sold to the plaintiff by a conspiracy between the two defendants, and through certain false representations as to its value and as to the solvency of the corporation, was entirely worthless when purchased; and the judgment is reversed solely on account of the error in the charge of the court, referred to in the 2d headnote.</p>

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

<p>The alleged aet of the railway company’s employee on its switch-engine, in striking and knocking from the engine to the track his subordinate, who was run over by the engine and killed, did not, under the allegations of the petition, give a cause of action against the company. To render the employer liable in such a ease, it must clearly appear not only that the aet was done in the prosecution of the employer’s business, but also that it was within the scope of the doer’s employment and was not prompted solely or primarily by malice.</p>

<p>Action for damages; from Bibb superior court—Judge Mathews. August 38, 1916.</p>

<p>Action for damages; from city court of LaGrange—Judge Harwell. October 25, 1916.</p>

<p>Action for damages; from Warren superior court—Judge Walker. August 1, 1916.</p>

<p>1. It is conceded in the brief of counsel for the plaintiff in error that under the charge of the court there was some evidence to authorize the verdict.</p> <p>2. There is no merit in those grounds of the motion for a new trial in which excerpts from the charge of the court are complained of upon the ground that the court therein failed to confine the'jury to the ascertainment of the precise damages alleged in the plaintiff’s petition. As there was no contention as to any element of damage or negligence except that set forth in the petition and supported by some proof, the jury could not have been misled by the general terms employed by the court.</p> <p>3. Where one of the defenses interposed to a suit against a railroad company for personal injuries received by a passenger in alighting from a train at a station was that the injuries resulted solely from lack of ordinary care on the part of the passenger, it was error for the court to charge as follows: “Now, if you believe that she [the plaintiff] did negligently and of her own act, and without exercising ordinary diligence, bring about the injuries, then, if you believe that the railroad has exercised extraordinary diligence in protecting her and believe both of these things to appear in this case, she would not be authorized to recover. ”</p>

<p>Action for damages; from Muscogee superior court—Judge Gilbert. April 29, 1916.</p>

<p>Certiorari; from Emanuel superior court—Judge Hardeman. April 19, 1916.</p>

<p>Complaint; from Baldwin superior court—Judge Park. May 1, 1916.</p>

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

<p>Complaint; from Laurens superior court—Judge Kent. May 29, 1916.</p>

<p>Complaint; from Toombs superior court—Judge Hardeman. December 11, 1916.</p>

<p>Complaint; from city court of Savannah—Judge Davis Freeman. January 8, 1916.</p>

<p>1. In order for a defendant to sot aside a verdict and judgment on account of illness of a member of his family, he must not only show to the court that he had a meritorious defense to the action, but must go further and show the facts upon which such defense is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the verdict might be different on another trial.</p> <p>2. An attorney employed in two different suits which involve the same issues, and in which the different interests of his clients are of the same character, may stipulate that the trial of one shall determine the issues in the other.</p>

<p>1. Jurisdiction in matters of partition is in the superior courts alone; and a petition to a city court for a partition of personal property is therefore a nullity, and not amendable.</p> <p>2. An amendment changing a petition for partition of personalty into an action for conversion is not allowable.</p>

<p>Where a duly attested mortgage on realty has been properly filed for record, the filing is notice to all persons, without regard to whether the mortgage is so defectively recorded that the record itself is not such notice; and where such a mortgage, attested by a notary public and another witness, with proper evidence of such filing, and without any entry of satisfaction or cancellation thereon, had been introduced in evidence by the mortgagee, its elfeet could not be impaired by proof that the record of the mortgage did not show attestation by two witnesses, and contained an entry tending to show cancellation; and the court did not er.r in refusing to admit in evidence a certified copy of such a record.</p>

<p>Complaint; from Henry superior court—Judge Searcy. December 23, 1916.</p>

<p>Complaint; from city court of Sandersville—Judge Jordan. January 22, 1917.</p>

<p>Action on official bond; from Fulton superior court—Judge Ellis. January 22, 1917.</p>

<p>Complaint; from Monroe superior court—Judge Searcy. February 15, 1917.</p>

<p>Trover; from city'court of Baiubridge—Judge Spooner. Jan.uary 16, 1917.</p>

<p>Complaint; from Chattooga superior court—Judge Wright. September 3, 1916.</p>

<p>Action for damages; from city court of Newnan—Judge Post. October 13, 1916.</p>

<p>Action for damages; from Wilkes superior court—Judge Walker. March 9, 1917.</p>

<p>Action for damages; from Fulton' superior court—Judge Pendleton. March 28, 1916.</p>

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

<p>Certiorari; from Bryan superior court—Judge Sheppard. November 7, 1916.</p>

Certiorari; from Gordon superior court—Judge Fite. December 'll, 1916. In this case the plaintiff sought .to recover for the killing of his • pig by an automobile. He obtained a verdict and judgment in a justice’s court, and the defendant sued out certiorari, and finally brought the case to this court on exceptions to the overruling of the certiorari. The killing of the pig by the automobile was admitted, and there was evidence as to its value.

<p>Action on contract; from city court of Valdosta—Judge Cranford. January 1, 1917.</p>

<p>Action for damages; from city court of Carrollton—Judge Beall. January 13, 1917.</p>

<p>Action for damages; from city court of Jesup—Judge Clark. January 16, 1917.</p>

<p>Action on contract; from city court of Cairo—Judge Willie. February 12, 1917.</p> <p>W. J. Hancock sued T. S. Copeland for damages on account of an alleged breach of a contract for an option to purchase certain land, which had been leased by the defendant to the plaintiff for five years beginning October 22, 1910, under a lease containing a provision that the lessee should have the option to buy the land at any time during the period of the lease, at the price of $450. The petition alleged, that in July, Í915, the plaintiff informed the defendant that he was ready to pay this sum and “get his deed” to the land, and was then informed by the defendant that the land had been sold to others, and ascertained that the defendant sold it on January 26, 1915, to F. M. Brannon and T. A. Stringer; and that by the defendant’s failure to perform the contract the .plaintiff was damaged in the sum of $550, this being the difference between the contract price of the land and its market value at the time of the breach of the contract. The defendant, in his answer, denied the. alleged breach of the contract, and averred that the sale to third persons, alleged in the petition, was made subject to the contract between the plaintiff and himself, and that the purchasers agreed to perform the contract on his part and held themselves ready to do so until voluntarily released by the plaintiff. It was further pleaded that before that sale the plaintiff breached a provision of the lease that he should pay the taxes on the land as a part of the rent, or pay the plaintiff an equivalent sum. The trial of the case resulted in a verdict against the defendant for $200, and in his bill of exceptions he complains of the overruling of his motion for a new trial, in which it is- alleged that the verdict was not supported by evidence.</p> <p>At the trial the plaintiff testified, that on July 1, 1915, he sent his son to tell the defendant that “some time during the month of September every dollar of his money would be ready,” and that he (the plaintiff) “would want title to the place;” that he “never did offer Mr. Copeland the money, but told him that the money would be ready;” he lived on the plaee until the contract expired. As to the taxes he testified, that he paid them one year only, and did not pay the amount of the taxes to the defendant; that the defendant told him that he (the defendant) would pay the taxes. Alex. Hancock, the plaintiff’s son, testified: “I came to Cairo to see Mr. Copeland on the 2d of July, 1915, . . in behalf of my father. . . I told him that his money would be ready for him in September, 1915. He said, . . ‘I have done sold it . . and got my money.’ I said, ‘What are we going to do about that ?’ He said, ‘Whatever you and the other fellow can do will be all right with me.’ He told me to go to the Citizens Bank and see Mr. Searcy. He then turned away and left. . . The place was worth more than $1,000 at that time. He never told me whom he had sold the place to. . . I did not have the money when I went to see Mr. Copeland, but I told him the money was ready; . . that my father would have the money some time in September, then he would be ready to take up the contract. I never did go to him with the money and offer to take up the contract. I went to the Citizens Bank to see Mr. Searcy. He said he did not know a thing about it. . . I got Mr. Weathers to write a letter to Mr. Brannon about this land, at the instance of my father.” It was testified that the plaintiff received, in reply to that letter, a letter introduced in evidence, signed I1. M. Brannon, dated “7/19/15,” requesting to be informed as to the number of acres in the place referred to in the preceding letter, and the price per acre, and saying, “Will then advise you further in the matter. We bought more than one tract from Mr. Copeland.” It was testified that “land around there is selling for $20 and $30 per acre;” and the land in question was 45 acres.</p> <p>The defendant testified, that he traded the land in question, with two other places, to Brannon and Stringer, for some land in Alabama; that the consideration recited in the conveyance was about $2,500 “for 105 acres in the whole tract;” that the value of the 45 acres in this land was about $400; that he sold it subject to the option that Hancock had; that neither of the Hancocks ever tendered him the money for the place in compliance with the option; and. that he never told Hancock not to pay the taxes. He testified that Stringer signed a paper (introduced in evidence) as follows: “Cairo, Ga., Jan. 26, 1915. This is to certify that we, the undersigned, agree to carry out the contract between W. J. Hancock and W. H. Brock and Leandy Smith and T. S. Copeland, who has the privilege of buying said farm at $20.00 per acre. W. H. Brock is to pay the undersigned $100.00 a year rent. ~E. Brannon Bealty Co., by T. A. Stringer, Yice-Pres.” W. S. Wight testified: “I acted as agent for Stringer and Brannon in handling the property which they traded for from T. S. Copeland. During this time Í had some dealings with Mr. Hancock—Mr. Alex. Hancock. . . I was authorized to close this land deal with Mr. Hancock according'to the terms of the option from Mr. Copeland. I notified Mr. Hancock that I was prepared to comply with the option which he held. Mr. Hancock never offered to comply with his part of the contract. After Mr. Hancock failed to comply with the contract and after the option had expired I sold the place to John Johnson for $400. Mr. Alex. Hancock came to me several times, and eventually told me that he could not get the money to close the deal. Early in the fall of 1915 I notified them that I would make them a deed.” The brief of the evidence states -that a letter was exhibited to Mr. Wight, which he admitted signing; and the brief contains a fragment of a letter, without address and with the signature, “W. S. Wight,” dated October 23, 1915,. which says that he has at last heard from Mr. Brannon, and “he can not accept your offer.” William Searcy testified, that he wrote a letter to Brannon for Alex. Hancock, who told him to write that he would not be able to make the payment and asked for an extension of time; he thought this was in the summer. Alex. Hancock testified, in rebuttal: “On the second Monday in July, when I came to see Mr. Copeland, he told me that he had sold the place and had got his money for it. He did not say anything about this contract between him and Mr. Stringer, and did not tell me who he sold the place to. He told me to go and see Mr. Searcy. At the time I went to see Mr. Copeland we had part of the money and had made arrangements to get the balance from J. N. Carter in September.”</p>

Action for damages; from Whitfield superior court—Judge Pite. November 27, 1916. William and Lou Smith brought an action under the Civil Code (1910), § 2782 et seq., against the Southern Railway Company and the Western and Atlantic Railroad Company for the homicide of their minor son, alleged to be eighteen years of age, who had never married, and upon whose estate there was no administration. The deceased was employed by the Southern Railway Company.

<p>Action for damages; from Fulton superior court—Judge Bell. September 30, 1916.</p>

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

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

<p>Motion to set aside judgment; from Campbell superior court— Judge Smith. June 13, 1916.</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton. December 7, 1916.</p>

<p>Indictment for arson; from Emanuel superior court—Judge Hardeman. February 24, 1917.</p>

<p>Under the evidence the plaintiff, who sought to recover a promissory note and a cow he had given for a horse, was not entitled to a rescission of the trade; and the verdict in his favor was unauthorized.</p>

<p>The reasonable value of the services of a person conducting an auction as a private individual can not be illustrated by testimony as to commissions for sheriff’s sales, such commisions being fixed by law as emoluments of the sheriff’s office.</p>

<p>Affidavit of illegality; from Eichmond superior court—Judge Henry C. Hammond. January 15, 1917.</p>

<p>Complaint; from municipal court of Macon—Judge Chambers. November 13, 1916.</p>

Complaint; from Bartow superior court—Judge Fite. July 1, 1916. This was a suit on a promissory note, brought by The Cosmopolitan Life Insurance Company as holder against S. I. Sheats. The defendant admitted the execution of the note, pleaded a special defense by way of avoidance, and assumed the burden of proof.

Petition for certiorari; from Berrien superior court—Judge Thomas. January 15, 1917. From the petition for certiorari it appears, that on November 15, 1916, an affidavit for the foreclosure of a lien for labor as a washerwoman was made by Martealy Seely before a justice of the peace.

<p>1. The suit was brought under the Federal employer’s liability act, but not on account of any violation of the Federal statute for the protection of employees; and hence the doctrine of assumption of risk was available as a complete defense; and no presumption of negligence existed against the defendant.</p> <p>2. The plaintiff was a section-hand in the employ of the defendant and was injured while carrying on the work he was engaged to perform, and the uncontradicted evidence showed no want of ordinary care on the part of the defendant for his safety. The verdict was not warranted by the evidence.</p>

<p>Action, for damages; from Gordon superior court—Judge Fite. September 5, 1916.</p>

<p>1. While the code provides that in an action to recover damages on account of an alleged malicious prosecution, “want of probable cause shall be a question for the jury, under the direction of the court” (Civil Code of 1910, § 4440), yet where the material facts are not in dispute, the existence or non-existence of probable cause for the prosecution is a question of law for determination by the court.</p> <p>2. In this ease, while the.good faith of the person against whom the defendant instituted the prosecution alleged to be malicious may be reasonably inferred from facts and circumstances in proof, it is clear, according to the undisputed facts in the case, that there was probable cause for the prosecution; and therefore the verdict in favor of the plaintiff was contrary to law.</p>

<p>The plaintiff was a trespasser upon the premises of the defendant. The duty to a trespasser does not arise out of any relationship between the parties; there is no rightful relationship. It .arises only with knowledge of the perilous position of the trespasser. The duty is, therefore, not to anticipate, but to refrain from wanton or wilful injury to -the trespasser after knowledge of his peril. The failure to exercise ordinary care and diligence is in many instances the equivalent of wantonness and wilfulness, but, manifestly, only after the perilous position of the trespasser is known. Under the undisputed evidence, the plaintiff was not entitled to recover, and the court erred in overruling the defendant’s motion for a new trial.</p>

<p>Action for damages; from Henry superior court—Judge Searcy. July 24, 1916.</p>

Action for damages; from Randolph superior court—Judge Worrill. September 1, 1916. The action was by Mary Reddick, a minor, by her next friend, against Mrs. A. C. Moye.

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

<p>1. The option contract which was the basis of the suit was not so vague, uncertain, or indefinite that the property therein referred to could not be identified#with the aid of extrinsic testimony. The petition set forth a cause of action, and the court did not err in overruling the general demurrer.</p> <p>2. There was no error in admitting in evidence the option contract without proof of its execution, since, irrespective of all else, it appears that proof of its execution and delivery was later submitted without objection.</p> <p>3. The alleged newly discovered evidence was clearly cumulative and impeaching in character, and therefore it can not be said that the court abused its discretion in refusing a new trial on this account.</p> <p>4-6. In the light of the entire charge of the court, the various assignments of error as to the charge are without substantial merit. The court did not err in overruling the motion for a new trial.</p>

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

Certiorari; from Fulton superior court—Judge Bell. October 5, 1916. The telegraph company was sued in the municipal court of Atlanta for damages on account of an alleged error in the transmission of a telegram.

Certiorari; from Fulton superior court—Judge Bell. October 12, 1916. Mrs. Element sued Brandt in the municipal court of Atlanta for $72, alleging than he was indebted to her in this sum for rent collected by him for property belonging to her.

<p>Certiorari; from Fulton superior court—Judge Pendleton. December 6, 1916.</p> <p>The action was by the Menter Company against R. R. Jackson Jr., in the municipal court of Atlanta. In what is referred to “as a copy of the cause of action attached to the process” the name and address of the plaintiff and the words, “Clothing for men, women, and children,” are .followed by these items:</p> <p>6/10/16 L suit $18.00 6/10/16 Cash $1.00</p> <p>” ” 2.00</p> <p>6/17/16 ” 1.00</p> <p>6/27/16 ” • 1.00.</p> <p>Bal. $13.00</p> <p>$18.00</p> <p>The items are followed by the name of the defendant.</p> <p>The grounds of the demurrer were: “The alleged cause of action attached to the process . . sets forth no cause of action against the defendant, and does not show for what the defendant is being sued, and does not show that defendant is indebted to plaintiff; the same does not show whether the alleged cause of action is on contract, assumpsit, or what plaintiff is proceeding on or for.” The defendant, in his answer, denied indebtedness, and alleged that he had never had any dealings with the plaintiff and that no other person had authority to represent him in any dealings with the plaintiff. The evidence for the plaintiff consisted of the testimony of one witness and a written contract. The testimony of this witness is stated as follows: “that he was employed by the plaintiff as its manager; that at the time this sale was made he’did not know the defendant, except by reputation, and neither did he know defendant’s wife; that Mrs. Jackson, wife of the defendant, came into the store and picked out the. goods in question, and asked about having them charged, and witness, knowing that defendant was responsible, told her he could only charge them to her husband, at the same time having her execute one of their usual contracts in her husband’s name; that three payments were made • on the account, and thereafter defendant refused to pay, stating that his wife had left him.” The written contract referred to was signed, “R. R. Jackson, by Mrs. Helen Jackson,” and was an agreement to pay $18 in weekly installments for a “suit.” On it were credits amounting to $4. The defendant testified as follows: “I do not owe the bill sued on, nor any part of the same. I know nothing about anything being sold, if it was sold. I never promised to pay the bill. I did not authorize anything to be bought. I did not authorize the signing of my name to this contract. I have never ratified the signing of the same. I do not ratify it now. Mrs. Helen Jackson is not my wife. I do not live with her, and was not living with her when the goods were bought, if any was bought, or when the contract was made.” There was no further evidence. The court rendered a judgment against the defendant for $13. In his petition for certiorari it was alleged that this judgment was contrary to law and the evidence, and that the court erred in overruling the demurrer.</p>

<p>1. Where a suit brought within the time prescribed by the statute of limitations, in a court having jurisdiction of. the subject-matter, is dismissed solely for want of jurisdiction of the person, it may be renewed within six months, under the provisions of section 4381 of the Civil Code of 1910, which should be.construed liberally so as to allow renewal where the suit is disposed of on any ground not affecting its merits.</p> <p>2. Where a suit against a railroad company, for injuries alleged to have been caused by its negligence while both the plaintiff and the defendant were engaged in interstate commerce, was bi’ought within two years from the date of the infliction of the injuries, and was dismissed because the court had no jurisdiction over the defendant, and within six months after the dismissal the action was renewed in a court which had jurisdiction of both the subject-matter and the person, and by amendment all reference to interstate commerce and the resulting liability of the defendant under the Federal employer’s liability act was stricken from the renewal suit, so that- a suit for damages incurred while the plaintiff was engaged in intrastate commerce alone remained, the court erred in sustaining a demurrer on the ground that the action was barred by the Federal statute of limitations requiring such a suit to be brought within two years from the time of the injury.</p>

<p>Appeal; from Carroll superior court—Judge R. W. Freeman. December 38, 1916.-</p>

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

Certiorari; from Gordon superior court—Judge Tarver. February 10, 1917. The petition for certiorari describes the suit as “an action for damages to steamer trunk in transit from Washington, D. C., to Atlanta; value $35.00;” and the answer to the certiorari admits that this is true.

<p>Action on contract; .from Stephens superior court—Judge J. B. Jones. November 6, 1916.</p>

<p>1. The amendment of the plaintiff’s petition in its description .of the certificate of stock sued for, and the amendment as to the amount of money for which the stock was pledged, did not change the cause of action, and the court did not err in allowing the amendments.</p> <p>2-4. Where an administrator lent money of the- estate represented by him, and a certificate of stock of a corporation was delivered to him as collateral security for the promissory note given for the loan, and the pledgor afterwards borrowed the certificate for the purpose of using it as collateral security for another loan, agreeing to return it after that purpose had been served, and he refused to return It on demand as agreed, the administrator could maintain bail-trover for the recovery of the certificate.</p> <p>5. The plaintiff proved his case substantially as alleged, and the trial judge erred in awarding a nonsuit. Certain conclusions stated by the plaintiff in his testimony in his own behalf should have been rejected by the court, but failure to exclude these conclusions will not require a reversal on defendant’s cross-bill of exceptions.</p>

<p>1. The covenant of general warranty of title to the timber described in the conveyance on which was based the defendant’s claim of breach of warranty is to be construed in connection with the other parts of the deed and with the contemporaneous written agreement of the parties to the conveyance. “If a deed purport to convey the right, title, and interest of the grantor in and to certain described realty, instead of conveying the realty itself, the covenants in the deed will be limited to the right or interest which the grantor has in the property.” The conveyance here construed, however, although it expressly conveys tha grantor’s “right, title, and interest” in the timber described, contains language which, taken in connection with the contemporaneous written agreement, shows that it was intended .to operate as a conveyance of the timber itself; and therefore the covenant of general warranty is • not to be construed as limited to the right or interest of the grantor.</p> <p>2. The jury were authorized to find that there was a breach of warranty of title to the timber which was the consideration of the note sued on, and that such other facts existed as were necessary to sustain the plea of failure of consideration; and, under the evidence, it was a question for the jury whether the circumstances were sufficient to have put the plaintiff on notice of this defense before purchasing the note.</p>

<p>1. A contract of suretyship, and not of guaranty, is made where, in a writing signed by persons designated therein as sureties, in consideration ofJ one dollar paid by a named company and the execution of a contemporaneous agreement between the company and a third person for the sale of goods to him by it, and an extension of the time of payment of his existing indebtedness to it, the persons signing as sureties promise and “guarantee” the payment of that indebtedness and payment for the goods as provided in the agreement referred to.</p> <p>(а) The dollar which is a part of the consideration stated is not such a benefit to the parties signing as sureties as is contemplated by the section of the code which says that a contract of suretyship “differs from a guaranty in this, that the consideration of the latter is a benefit flowing to the guarantor” (Civil Code of 1910, § 3538) ; the substantial consideration for this contract being the credit and indulgence given to the third person named.</p> <p>(б) A fundamental distinction between a guaranty and suretyship is that in a contract of guaranty the person obligating himself to pay the debt of another is primarily, and not merely secondarily, liable for its payment.</p> <p>2. The court erred in holding that the contract sued upon was one of guaranty, and in sustaining the demurrer to the petition.</p>

Complaint; from Iiandolph.-superior court—Judge Worrill. November 6, 1916. Machinery for an ice manufacturing plant was sold by the York Manufacturing Company to the Cuthbert Ice Manufacturing Company under a written contract made in December, 1911, and, after installation of the machinery, the purchaser gave purchase-money notes, dated in June, 1912, and due in December, 1912. ■ This suit was based on renewal notes given on the date of maturity of the original notes.

<p>Complaint; from city court of Millen—Judge Dekle. March 5, 1917.</p>

<p>Complaint; from city court of Ashburn—Judge Tipton. February 30, 1917.</p>

<p>Trover; from Gordon, superior court—Judge Tarver, March 7, 1917.</p>

<p>1. Under the laws of Ihis State, a contract of insurance, fire or life, “to he binding, must be in writing; but delivery is not necessary if, in other respects, the contract is consummated.” Civil Code (1910), §§ 2470, 2499. “A contract of life insurance is consummated upon the unconditional written acceptance of the application for insurance by the company to which such application is made.” New Yorlc Life Ins. Co. v. Bdbcoclc, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. R. 134). “The receipt by an agent from his insurance company of a policy to be unconditionally delivered by him to the applicant is, in law, tantamount to a delivery to the insured, although the agent never parts with possession of the policy, and although its delivery to.the applicant is by contract made essential to its validity.” Id.</p> <p>2 “The manual delivery of the policy is not necessary where the policy has been issued by the company and simply retained by the agent for his individual protection until reimbursed by the insured.” Fireman’s Fund Ins. Go. V. Pehor, 106 Ga. 1 (31 S. E. 779) ; Mechanics’ & Traders’ Ins. Go. v. Mutual ctc. Asso., 98 Ga. 262 (25 S. E. 457).</p> <p>3. The actual payment in advance of the first premium upon a policy of life insurance is not necessary to the validity of the contract, unless the payment of the first premium is, by the express terms of the policy, or by necessary implication, made a condition precedent to any liability of the insurer on the contract.</p> <p>4. It follows from the above that, where the petition alleged, in effect, that the plaintiff was the beneficiary named in a life-insurance policy, that the insured made application to the local agent of the company for a policy of life insurance, that the applicant was examined by the company’s physician, and his application for insurance accepted by the company, that the policy of insurance was duly issued by the company and was actually forwarded and received by the local agent, who on the date of the death of the insured had it ready for delivery to him, but, after learning of his death by accident, refused to deliver it, and that on account of this refusal a copy of the contract was not attached to the petition, the petition set forth a cause of action, and was not demurrable upon the ground that it did not aver that the first premium had been paid, or that the policy was in force on the date of the dc-ath of the insured. The remaining grounds of the demurrer were likewise without merit. The court, od demurrer, could not determine that the contract was not in force at the time of the death of the insured, or that the payment of the first premium was a condition precedent to any liability of the insurer on the contract, no copy of the contract having been attached to the petition!</p> <p>5. The policy was introduced in evidence. By its terms the payment of the first weekly premium while the insured was alive and in sound health was made a condition precedent to the liability of the insurer. . under the contract, and it contained a further provision that the agent was without power to make, alter, or change any term of the contract. The policy, by its terms, did not require actual delivefy to the insured. The court charged the jury as follows: “If, as contended by the plaintiff in this case, the application was made by the insured, and he arranged with the insurance agent that the insurance agent was to pay the first premium, and he was to return it personally to the insurance ■ agent, and he sent in his application in that way, and you should find that the insurance agent reported to his company that it was paid— the first premium, and that thereupon his company issued the policy and forwarded it to the agent to be delivered to the insured, then that would be a binding insurance contract between that company and the assured.” Held, that this charge was error. It was not shown that the agent was a general agent of the company, but, under the undisputed evidence in the record, he was a special agent, with limited authority. His mere statement to his company, made in writing or otherwise, that the first premium had been paid, if in fact it had not been paid, did not, under the terms of the policy, alter that part of it by which the payment of the first weekly premium was made a condition precedent to the liability of the insurer. Reese v. fidelity Mutual Life Asso., Ill Ga. 482 (36 S. E. 637); Mutual Life Ins. Go. v. Olaney, 111 Ga. 865 (36 S. E. 944) ; Mutual Reserve Asso. V. Stephens, 115 Ga. 192 (41 S. E. 679); Brown V. Mutual Benefit Ins. Go., 131 Ga. 38 (61 S. E. 1123).</p> <p>6. The policy of insurance was dated October 11, 1915, but was executed by the company prior to that date, and on the 8th or 9th of the month was actually received by the local agent of the company for delivery to the insured. The insured was killed in an explosion at 8:15 o’clock a. m. on October 11, 1915. The contract provided that the company, “in consideration of the payment of the premium mentioned in the schedule below, on or before each Monday, doth hereby agree . . to pay, upon receipt of proofs of death of' the insured, . . the amount stipulated in said schedule. Provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health; but should the proposed insured not be alive or not be in sound health on said date, any amount paid to the company as premiums shall be returned.” Held, that if a binding contract had been otherwise consummated, the time for the commencement of the risk had arrived when the insured met his death.</p> <p>7. The provision of the code that “a policy of life insurance runs from midday of the date of the policy, and the time must be estimated accordingly, if the policy is limited to a specified number of years” (Civil Code of 1910, § 2501), is not applicable where, as in this case, the parties to the contract make provision as to the time of the commencement of the risk. The provision of the policy that “no obligation is assumed by the company prior to the date hereof, nor unless on said date [italics ours] the insured is alive and in sound health,” protected the company from liability for the death of the insured at any time prior to the 11th day of October. . The date set for the obligation to begin was October 11th, and when that day began, the obligation began with it.</p> <p>8. If no time for the commencement of the risk is fixed in the contract of insurance, the provisions of code-section 2501, supra, are to be read into the policy as a term thereof, and the policy runs from midday of the date thereof. The policy of insurance in this case expressly provided against liability “prior to the date” of the policy, and (construing the policy most strongly against the company) fixed the commencement of the risk with the beginning of the day on which the policy went into effect.</p> <p>9. On account of the error in the charge quoted in the 5th headnote of this decision, the court erred in overruling the motion for a new trial. The further assignments of error, based upon the charge of the court, are without substantial merit. No opinion upon the sufficiency of the evidence is here expressed, since the ease is to be retried.</p>

<p>Action for damages; from city court of Biehmond county— Judge Black. October 17, 1916.</p>

<p>Action for damages; from Bartow superior court—Judge Fite. June 10, 1916.</p>

<p>1. The provision of section 5197 of the Civil Code of 1910 that the answer to the writ of certiorari “shall not be written or. dictated by either of the parties, or their attorneys, or any other person interested in the case,” is mandatory.</p> <p>2. Where it appeared that the answer of a magistrate, merely adopting the allegations in the petition for certiorari, was prepared by one who had been the petitioner’s attorney in the same ease and had prepared a previous petition for certiorari therein, of which this petition was a renewal, though, at the time of preparing the answer, he was no longer of counsel and not interested in the result of the case, the trial judge erred in not striking the answer, upon objection thereto.</p>

<p>Levy and claim; from Colquitt superior court—Judge Thomas. December 19, 1916.</p>

<p>Indictment for cheating and swindling; from Gordon superior court—Judge Tarver. March 31, 1917.</p>

<p>Action for damages; from Laurens superior court—Judge Kent. March 31, 1917.</p>

<p>Indictment for larceny after trust; from Fulton superior court— Judge Hill. April 14, 1917.</p>

<p>1. Under the law of this State, “an action of assumpsit for money had and received will not lie, unless the property of the plaintiff has been converted into 'money, or that which is its equivalent; and the consumption of the property by the defendant is not sufficient to authorize this remedy.” Compare Spencer v. Eewett, 20 Ga. 426; Barlow v. Stalworth, 27 Ga. 517.</p> <p>2. “Where one wrongfully takes the personal property of another and converts the same to his own use in some other manner than by a sale, and does not receive any money therefor, the owner has a right of action ex delicto against such wrong-doer, and is restricted to this form of action.” He can not in such a case waive the tort and sue upon an implied contract, “for the reason that, until the wrong-doer has received money [or that which is its equivalent] to which the owner of the property is entitled, there can be no . . implied promise to pay money.” Gragg Arendale, 113 Ga. 181 (4), 182 (38 S. E. 399); Southern Ry. Go. v. Born Sleel Range Go., 122 Ga. 658 (2)~ (50 S. E. 4S8) ; Woodruff v. Zaban, 133 Ga. 24 (65 S. E. 123, 134 Am. St. R. 186, 17 Ann. Cas. 974) ; Southern Ry. Go. v. Roberson, 136 Ga. 146 (71 S. E. 129) ; Cherokee Graphite cGc. Go. v. Gentral Ry. Go., 17 Ga. App. 52 (86 S. E. 258).</p> <p>3. A consumption of personal property wrongfully taken, winch results from the mere use of it, is not a conversion of it into money, or that which is its equivalent, under the law of this State. See Barlow V. Stalworth, supra.</p> <p>4. An exception to the general rule, recognized by the courts of this . State, arises where the property converted was acquired rightfully, or by virtue of a oontraet between the parties; in which case the tort may be waived and the owner may sue in assumpsit, even though the property has not been converted into cash, or that which is its equivalent, by the wrong-door. Compare Bates v. Bigby, 123 Ga. 727 (51 S. E. 717); Rhodes Furniture Go. v. Freeman, 2 Ga. App. 473 (58 S. E. 696).</p> <p>5. The Supreme Court has refused to overrule the decisions in Spencer V. Bewett, Barlow v. Stalworth, and Gragg V. Arendale, supra (see Wood-ruff v. Zaban, and Southern Ry. Co. v. Roberson, supra) ; and while the general rule obtaining in a majority of States may be a more reasonable ohe, this court is bound by the decisions of the Supreme Court. Nothing in Farmers &c. Bank v. Bennett, 120 Ga. 1012 (48 S. E. 398), Buchanan v. MeClaim, 110 Ga. 477 (35 S. E. 665), and Reynolds v. Padgett, 94 Ga. 347 (21 S. E. 570), is in conflict with the rule so firmly fixed in the law of this State. The statement by Justice Simmons in Reynolds V. Padgett, supra, refers to the general rule obtaining elsewhere.</p> <p>6. The present action is a suit upon an implied contract for the value of .personal property wrongfully taken and converted to the use of the defendant, otherwise than by a conversion of it into money or the equivalent of money; and the suit was properly dismissed upon demurrer. It follows that the appellate division of the municipal court of Atlanta erred in overruling the decision of the trial judge of that court, and the judge of the superior court erred in overruling the petition for certiorari, brought to review the judgment of the appellate division.</p>

<p>Indictment for assault with intent to rape.; from Jasper superior court—Judge Park. April 16, 1917.</p>

<p>Indictment for felony—issue of insanity at time of trial; from Hancock superior court—Judge Park'. April 9, 1917.</p>

<p>Accusation of misdemeanor; from city court of Savannah—■ Judge Rourke. May 1, 1917.</p>

<p>Accusation of sale of liquor; from city court of Carrollton— Judge Beall. May 4, 1917.</p>

<p>Accusation of carrying concealed weapon; from city court of Fort Gaines—Judge Turnipseed. April 9, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. March 29, 1917.</p>

<p>(The action being for principal, interest, and attorney’s fees on promissory notes, and the verdict being for a lump sum, without mention of principal, interest, or attorney's fees, and the amount of the verdict being much greater than the principal sued for, but less than the aggregate amount of the principal, interest, and attorney’s fees, or of the prin- ■ cipal and the interest, and not divisible or sustainable under any view of the pleadings or the evidence, the court erred in not granting the plaintiffs’ motion for a new trial, in which the verdict was complained . of on this ground.</p>

<p>Complaint; from Twiggs superior court-—Judge Kent. January 24, 1916.</p>

<p>. Action for damages; from Eulton superior court—Judge Ellis. September 30, 1915. , ;</p>

<p>Money rule; from Fulton superior court—Judge Bell. MaTch 23, 1916.</p>

<p>Trover; from Fulton superior court—Judge Bell. September 22, 1916.</p>

<p>Complaint; from DeKalb superior court—Judge Smith. June 10, 1916.</p>

<p>Complaint; from Toombs superior court—Judge Hardeman. March 1, 1916.</p>

<p>Processioning; from Grady superior court—Judge Cox. October 5, 1916.</p>

<p>Processioning; from Grady superior court—Judge Cox. October 5, 1916.</p>

<p>The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.</p>

<p>Money rule; from city court of Carrollton—Judge Beall. February 15, 1917.</p>

<p>Processioning; from Bichmond superior court—Judge Henry C. Hammond. March 17, 1917.</p>

<p>Complaint; from White superior court—Judge J. B. Jones. April 9, 1917.</p>

<p>Complaint; from Liberty superior court—Judge Sheppard. March 24, 1917.</p>

<p>Complaint; from city court of Cairo—Judge Willie. January 20, 1917.</p> <p>Lib Barwick sued Chastain on a .promissory note, payable to the plaintiff, for $159 and interest. The defendant, in his answer, admitted the execution of the note, alleged that before and on the date of signing the note the plaintiff was owing him $652.50, for money and property which the plaintiff had received from him, and further pleaded as follows: “4. Defendant further says that plaintiff paid defendant said sum on the date, and said note was given for the reasons and purposes hereinafter stated. 5. That said plaintiff had sold to a negro named Tom Beaman a horse for the sum of $100, and that said horse was unpaid for, and that L. L. Barwick, brother of plaintiff, had bought said horse and had become paymaster for same. 6.. Plaintiff, Lib Barwick, stated to defendant that L. L. Barwick owed him, Lib Barwick, the $100 for the horse which he transferred to defendant, and that L. L. Barwick would pay defendant upon demand. 7. Defendant further says that the plaintiff had in his possession corn, hay, and cottonseed of the probable value of $60, belonging to defendant, which plaintiff was to check up and enter as credit on this note when amount was ascertained, .which was left to plaintiff to do, as lie claimed to have record of it at home. 8. Defendant says that when he called on L. L. Barwick fo,r the $100 which he was to pay-as a payment upon said note, the said L. L. Barwick denied owing him, L. L. Barwick [ ?], that sum or any other sum, and said that Lib Barwick was owing.him, L. L. Barwick, and said that there was a settlement to be had between them, Lib Barwick and L. L- Bar-wick, and for that reason positively refused to pay said sum. 9. Defendant further says that had said sum of $100 beenpaid.by L. L. Barwick as stated by Lib Barwick that he would do^'and the said checking of the property herein named and credit entered, th,at' said note would have been fully satisfied, and defendant, says for the reasons herein stated that said note is and should be satisfied. Wherefore defendant prays he be given credit for the account of $100 and for the corn, hay, and cottonseed of value of $60 upon said note, and that he be discharged with costs.”'</p>

<p>Complaint; from city court of Macon—Judge Mathews presiding. March 27, 1917.</p>

<p>Money rule; from Walker superior court—Judge Wright. April 23, 1917.</p>

<p>Accusation of sale of liquor; from Glynn superior court—Judge Highsmith. February 24, 1917.</p>

<p>Accusation of misdemeanor; from city court of Columbus— Judge Tigner. April 14, 1917.</p>

<p>Accusation of misdemeanor; from city court of Dublin—Judge Elynt. April 17, 1917.</p>

<p>Indictment for manufacture of liquor—conviction of attempt to manufacture liquor; from Jasper superior court—Judge Park. May 7, 1917.</p>

<p>Indictment for bastardy; from Paulding superior court—Judge Bartlett. April 14, 1917.</p> <p>Paragraph 3 of'the decision relates to the following instruction: “When a witness is impeached by general bad character, it is for you to determine what weight shall be given the attacking evidence, —that is, the evidence that attacks, as well as the attacked evidence. It is for you to determine. So take the case and look at it, and consider what witnesses, if any, have testified as to bad character, and as to whether or not the attempt to impeach has been successful, and what credit, as before stated, should be given both the attacking and the attaclmd evidence.” It was alleged that this was error, because “it instructed the jury in effect that although they might find that a witness had been impeached successfully, still the jury had a right, after so finding, to believe such impeached witness in preference to the witness by whom such impeachment was made,” and because it tended to lead the jury [to the conclusion?] that there had only been an attempt to impeach, and that the impeachment had not been complete;” and further, because the word “attempt” was “the improper word to use in charging the jury, and the court should have left off said word entirely and used another word instead.” An- additional ground of tlie motion was that the charge of the court on the subject of impeachment of witnesses was not sufficiently full and specific.</p>

<p>Affidavit of illegality of-execution; from Miller superior court— Judge Worrill. June 17, 1916.</p>

<p>Accusation of larceny; from city court of Jesup—Judge Clark. May 5, 1917.</p>

<p>Complaint; from Toombs superior court—Judge Hardeman. August 29, 1916.</p>

<p>When the agent of a railroad company receives for shipment a number of bales of cotton, weighs them, and inserts in the bill of lading the number of bales and their total weight, and the number of pounds inserted is in excess of the actual weight, and the shipper attaches to the bill of lading a draft, which is paid by an innocent transferee, the railroad is bound by the error of its agent, unless the amount erroneously inserted in the bill of lading is so very large that the error would be apparent upon its face.</p> <p>The demurrer was properly overruled on all the grounds thereof.</p>

<p>Complaint; from Jenkins superior court—Judge Henry C. Hammond. March 13, 1917.</p>

<p>Action on stock assessment; from Walker superior court—Judge Wright. February 22, 1917.</p> <p>This was a suit by the receiver of a national bank to collect an assessment on the capital stock of the bank, it being alleged that at the time of the appointment of the receiver it appeared on the books of the bank that the defendant was the holder of a certain number of shares of its capital stock; that the comptroller of the currency, in order to pay the debts of the bank, ordered an assessment on all its shareholders of $75 for each share of the capital stock owned by them, and that the receiver had given the defendant timely written notice of the levy of the assessment. The defendant refused to pay the assessment, denying that he was the owner of the stock which stood in his name on the hooks of the bank. On the trial it appeared, from undisputed testimony, that the defendant had been the holder of a certificate representing ten shares of' the capital stock of the bank, and that prior to two months before the appointment of a receiver for the hank he sold and delivered this certificate to S. A. Hunt Jr., the cashier of the bank; that though this sale was to Hunt in his private capacity, Hunt, at the time of the sale and delivery, was requested, as cashier of the bank, to transfer the certificate upon the books of the bank, but that this transfer had never been made; and that at the time of the sale the defendant had no reason to believe that the bank was insolvent, or was about to become so.</p>

<p>The admissions in the plea, as to the note sued on, were not such as would entitle the defendant to the opening and conclusion of the argument; and the error in allowing the defendant to open and conclude requires a new trial.</p>

<p>Attachment; from city court of Macon—Judge Mathews. March 27, ■ 1917. ■</p>

<p>Trover; from city court of Nashville—Judge Christian. February 13, 1917.</p>

<p>1. The act of 1915 (Ga. L. 1915, Extraordinary Session, p. 99, § 16) made it a penal offense, punishable as a misdemeanor, for any person to re- . ceive, accept delivery of, possess, or have in possession at one time, or ■within any périod of thirty consecutive days, whether in one or more places or whether ir original packages or otherwise, more than two quarts of spirituous liquors or other intoxicating or prohibited liquors.</p> <p>2. “A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.” Penal Code (1910), § 81. Criminal intent is a necessary element in.the commission of any of the offenses njade penal by the prohibition act of 1915; but criminal intent in such connection is simply the intention to do the act which the legislature has prohibited.</p> <p>3. The evidence demanded a verdict of guilty, and the exception to the charge of the court is without merit.</p>

<p>Action for damages; from Stephens superior court—Judge J. B. Jones. June 10, 1916.</p>

<p>Action for damages; from Rabun superior court—Judge J. B. Jones. September 1, 1916.</p>

Action for damages; from city court of Richmond county— Judge Black. December 31,1916.

<p>Action for damages; from Catoosa superior court—Judge Fite. July 38, 1916.</p>

<p>Action on contract; from Toombs superior court—Judge Hardeman. November 5, 1916.</p>

<p>Certiorari; from Coffee superior court—Judge Summerall. March 2, 1917.</p>

<p>Action for damages; from city court of Yaldosta—Judge Cranford. March 20, 1917.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. February 19, 1917.</p>

<p>Action for damages; from Berrien superior court—Judge Thomas. March 21, 1917.</p>

<p>1. The judgment of a trial court, sitting without a jury, on a question of ■ fact, will not be disturbed by the Court of Appeals, where there is legal evidence to sustain the finding of the court.</p> <p>2. The lien of a chattel mortgage executed prior to the act of 1916 (Georgia Laws, 1916, p. 48), as security for a loan of money, for the use of which interest at a rate greater than five per cent, per month has been reserved or charged, may be asserted for the principal and lawful interest on the debt. Where such a mortgage has been executed since the act of 1916, the lien may be asserted for the principal amount actually loaned or advanced. The fact that the charging or taking of interest in excess of five per cent, per month is made a misdemeanor, punishable by fine and imprisonment, does not render the mortgage absolutely void, since the laws of this-State provide for'the status of usurious contracts, including mortgages, when the subject of an action in a civil court.</p>

<p>Certiorari; from Washington superior court—Judge Hardeman. March 16, 1917.</p>

<p>Certiorari; from Pulton superior court—Judge Bell. March 28, 1917.</p> <p>The plaintiff was the owner and holder of a note payable to its order, made by Henderson & Vandegriff, of Nacoochee, Georgia, and instructed one of its traveling salesmen, Powell, to call on the makers of the note and collect it. He was authorized to accept either a check or currency, as the makers might prefer. He did not have the note in his possession. On April 13, 1916, he was given a check by the makers, payable to the order of the plaintiff. Without notice to the plaintiff or authority so to do, Powell indorsed the check in the name of the plaintiff, and cashed it at the bank of the Clermont Banking Company, of Clermont, Georgia. That bank forwarded the check to the Citizens Bank of Gaines-ville, which indorsed and in turn forwarded the cheek to the Central Bank and Trust Corporation, of Atlanta, the defendant. The defendant in turn indorsed the check and sent it through the Atlanta Clearing House to the drawee, the White County Bank, of Cleveland, where it was paid on April 18, 1916, and charged to the account of the makers. The defendant did not at any time own any interest in the cheek, but acted as an agent in collecting it. When the defendant received from the drawee bank the proceeds of the check, it accounted for them to the Citizens Bank of Gaines-ville; and it knew nothing of any irregularity in the indorsement for several months thereafter. After the giving of the check, the plaintiff by letter called on the makers of the note to pay it, and was notified that it had been paid by check to Powell, and that the check itself had been paid.' The plaintiff then Avrote to the makers that if Powell had received the check and indorsed it in the plaintiff’s name and collected the proceeds, and if the makers would send to the plaintiff the check bearing such indorsement, the plaintiff would mark the note paid and surrender it to the makers. The makers complied with this proposal, and the plaintiff canceled the note and returned it to the makers, with full knowledge of all the circumstances relating .to the indorsement and collection of the check. The plaintiff thereafter called on Powell to pay over to it the proceeds of the cheek, and he promised to do so. After some delay he disappeared; and the plaintiff called upon the defendant to make good the amount of the cheek, the defendant refused to do so, and suit was brought in the municipal court of Atlanta. A judge of that court, sitting without a jury, heard the facts and gave judgment in favor of the defendant. The superior court, on certiorari, affirmed the judgment of the municipal court, and the plaintiff excepted.</p>

<p>Certiorari; from Eulton superior court—Judge Ellis. January 31, 1917.</p>

<p>Appeal; from Appling superior court—Judge Highsmith. March 12, 1917.</p>

<p>Levy and claim; from city court of Nashville—Judge Christian. February 13, 1917.</p>

<p>Certiorari; from Habersham superior court—Judge J. B. Jones. March 16, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 20, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. March 20, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 28, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. March 20, 1917.</p>

<p>Action for damages; from Gwinnett superior court—Judge Hardeman. March 17, 1917.</p>

<p>Levy and claim; from Newton superior court—Judge Smith. April 10, 1917.</p>

<p>Conviction of assault with intent to rape; from Dawson superior court—Judge J. B. Jones. April 28, 1917.</p>

<p>Accusation of misdemeanor; from city court of Polk county—■ Judge John 3L Davis. May 14, 1917.</p>

Action for damages; from city court of Atlanta—Judge Eeid. May 5, 1917. Hagan, by his next friend, sued the City of Atlanta for damages.

<p>Certiorari; from Chatham superior court—Judge Meldrim. May 3, 1917.</p>

<p>Indictment for assault with intent to murder; from Hart superior court—Judge Hodges. April 21, 1917.</p>

<p>Action for damages; from Dade' superior court—Judge Tarver. March 22, 1917.</p>

<p>Action for damages; from Bibb superior court—Judge Mathews. August 14, 1916.</p>

<p>Appeal; from Burke superior court—Judge Hammond. March 2, 1917.</p>

<p>Action for damages; from city court of Atlanta—Judge Beid. January 27, 1917.</p>

<p>Where a purchaser at sheriff’s sale refused to comply with his bid and the property was resold and an action for a deficiency in the amount realized was brought against him by the sheriff, for the use of different holders of executions, and, pending the suit, he filed a petition in bankruptcy, listing the sheriff as a creditor, thus: “James Hester, sheriff, suing for the use of the Mount Vernon Bank et ah,” and the sheriff thus designated was notified of the pendency of the bankruptcy proceeding, and the petitioner therein was adjudicated a bankrupt and was duly granted his discharge hv the bankruptcy court, and an attorney at law, representing all the parties for whose use the sheriff was suing, at the time of the adjudication in bankruptcy, knew of the adjudication, and these facts appeared from the pleadings and the agreed statement of facts on the trial of the sheriff’s suit, the judge, who tried the case without a jury, did not err in holding that the discharge in bankruptcy included the claim involved in the suit, although none of the parties for whose use the sheriff was suing, other than the Mount Vernon Bank, were named in the bankruptcy proceeding or in any notice given therein, and none of them were themselves notified of its pendency, and no proof or payment of any ela'im on their part was made in the bankruptcy court.</p>