Volume 21 — Georgia Appellate Reports

Foreclosure of mortgage; from Coffee superior court — Judge Summerall. February 9, 1916.

Trover; from Eulton superior court — Judge Bell. May 6, 19-16.

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

<p>Complaint; from Ben Hill superior court — Judge George. April 10, 1916.</p>

<p>Indictment' for misdemeanor; from Lowndes superior court-judge Harrell presiding.</p>

<p>Complaint; from city court of Macon — Judge Guerry. July 8, 1916.</p> <p>J. S. Schofield’s Sons Company sued' Williams Manufacturing Company for $366.75, on an account,- the first item of -which was dated October 2, 1912, and the last dated November 30, 1912. Practically the entire account was for castings. Williams Manufacturing Company filed a plea in which was set up the course of dealing for several years between the parties, consisting in the manufacture of castings for a hay-press, and that the Williams Manufacturing Company owned a patent right granted by the United States, which gave the Williams Manufacturing Company the exclusive right to make and sell the hay-press, and further alleging that they furnished to the plaintiff a particular kind of pattern used for the purpose of making the chilled castings; that owing to the friction in the operation of certain described parts, to prevent wear, it was necessary that these parts should be very hard, and for this reason the defendant furnished the pattern necessary 'to make this particular kind of casting; also that, owing to the course of dealing for several years, it was fully understood between the parties that these particular parts should be chilled, and that the plaintiff had been making these parts of the necessary quality for several years, until about May, 1912, when the plaintiff furnished the defendant a large lot of eastings of a-very inferior quality, and so soft as to. be absolutely useless in the operation of the hay-press, for the reason that they would wear out in a few hours, whereas, when properly made, they would last from seveh to eight years; and that notwithstanding that the plaintiff knew at the time it furnished these castings that they were soft and unfit for the use intended, no notice of their quality was given to the defendant. Attached to the plea was a copy of the contract between the parties, as follows: “Macon, Ga., Mar. 9, 1912. J. S. Schofield Sons Co. agree to make five (500) sets of hay-press castings at two cents per pound, for the Williams Manufacturing Company. Settlement by note on the 5th of each month. Due November 10. It is agreed that all orders for parts of sets during this year will be furnished and billed at the above prices and terms, and further that parts for power press as heretofore furnished, will be made at the above price. Said Schofield Sons agree to furnish properly all eastings needed by the undersigned, whether of the exact pattern now used or not. Said Schofield Co. agree to keep pattern in good repair at their own expense. Said Schofield Sons agree to replace free of charge all defective castings furnished by them.” In the original plea it was alleged that by reason of the fact that the defendant was ignorant of the inferior quality, it had equipped presses with these parts and.shipped them through a large territory, and was unable to designate which presses these parts were used upon until complaints were made, and for that'reason asked leave to amend their plea later. On July 5, 1916, the defendant filed an amendment to its plea, exhibiting a list of items and expenses amounting to $1,339.89. Immediately upon offer of this amendment the plaintiff demurred to both the'original plea and the amendment, as follows: “Plaintiff demurs to the plea and answer of the defendant as amended, on the following grounds: 1. Because the same sets out no defense to plaintiff’s petition, and is not good as a plea of recoupment or set-off. 2. Because the damages sought to be recovered áre too remote and can not be traced solely to the alleged breach of the contract, and are not capable of exact computation, and are speculative in their nature. 3. It specially demurs to so much of said plea and answer as amended as seeks to recover expenses incurred, because said expenses do not appear to have been necessary expenses incurred in complying with the contract, but were expenses incurred by the defendant in the conduct of its business independent of the contract. 4. Because by the express terms of the contract relied upon by the defendant, plaintiff’s warranty was to replace, free, all defective castings; and the contract therefore excluded the recovery of damages for defective castings accepted and used by the defendant. 5. Specially to so much of the plea and answer as amended as seeks to recover for injury to defendant’s businéss and for loss of trade and business, because.such damages are remote and speculative and not capable of exact computation and can not be traced solely to the alleged breach of the contract. 6. Specially to so much of said plea and answer as amended as seeks to recover damages for injury to trade and business, because it does not appear specifically or definitely how or wherein defendant was injured. 7. Specially to so much of the amended plea and answer as seeks to recover expenses, salary, and price on account of hay-presses shipped to Laurenburg and Augusta, because the said damages are not itemized and no bill of particulars is attached. 8.’ Specially to so much of the amended plea and answer as seeks to recover damages for loss of hay-presses shipped to Parlin & Orendorff Company, because the damages are not itemized and no bill of particulars is attached showing the items therefor.” (Paragraphs 9 and 10 of the demurrer are the same as paragraph 8 except as to the parties.and places to which the presses were delivered.) "11. Specially so much of said amended plea and .answer as seeks to recover damages upon resale of hay-presses shipped to Winnewood, Oklahoma, because the damages are not itemized, and it is not shown when, where, .or to whom said resales were made, or that the plaintiff was notified of the time and place df resale, and because said damages are not recoverable, defendant not establishing by its plea and answer a proper measure of damages. 12. Specially to so much of said amended plea and answer as sets up the loss of sales, because it is not shown what sales were lost, or to whom, or when, or how, or wherein plaintiff was responsible for such loss of sales,- and because such damages especially are speculative and are not the direct result of the alleged breach of the contract, or within contemplation of the parties when said ¡contract was made.”</p> <p>' The demurrer was sustained on each and all the grounds thereof. Additional pleas were filed, but need not be considered here. The trial resulted in a verdict for the plaintiff, for $187.00, principal, and $46.95, interest.</p>

Complaint; from city court of Cairo — Judge Willie. July 19, ■ 1916. The Bank of Whigham sued R. H. Jones on his promissory note, payable “to the order of myself,” and indorsed by him and others, the bank alleging that it was the holder and owner of the note, and that the note was due and unpaid. The defendant filed a plea in which he admitted a prima facie ease in the plaintiff, and assumed the burden of,proving his defenses.

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

<p>Trover; from Dooly superior court — Judge George. August 18, 1916.</p>

<p>Complaint (account for services of tax assessor); from Emanuel superior court — Judge Hardeman. July term, 1916.</p>

<p>Action upon bond; from city court of.Reidsville — Judge Collins. December 6, 1916.</p>

<p>Action upon fire-insurance policy; from city court'of Macon— Judge Guerry. November 3, 1916.</p>

<p>Complaint; from city court of Cartersville — Judge Moon. November 8, 1916.</p>

<p>Complaint; from city court of Jefferson — Judge Mahaffey. December 12, 1916.</p> <p>To an action on a promissory note the defendant filed at. the first (June) term a plea which was but a general denial of the several paragraphs of the petition. A demurrer to this plea was filed at the.same term, on the ground that it set up no legal'defense, amounted merely to the general issue, and was insufficient in law. No action on the demurrer was taken at the June term. At the September term the case was continued. At the December term the defendant offered an amendment to his plea, which was disallowed, and he excepted as follows: “Upon a demurrer being filed by the plaintiff in the above-stated case, at the first term, to the sufficiency of said plea, and heard at this term, but not being heard until an amendment to said plea had been offered, but not passed on, setting up a plea of recoupment or damages, then the plaintiff insisted on said demurrer being heard before allowing amendment, which said demurrer was sustained, and defendant’s plea stricken, and amendment disallowed. Pendente lite exception is hereby taken to said rulings of said court on allowing demurrer and disallowing amendment. The above amendment and demurrer were offered as above set out, and the ruling of the court was as above set out.” TJpon certifying to the foregoing the trial judge added this note: “Plaintiff’s counsel objected to the proposed amendment, on the ground that there was nothing to amend by, and that there was nothing in the original plea suggesting any legal defense whatever. The court was called on to .hear the demurrer and amendment at the same time.”</p> <p>Judgment was rendered for the plaintiff for principal, interest, attorney’s fees, and costs; and defendant excepted.</p>

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

<p>Complaint; from Calhoun superior court — Judge Cox. December 30, 1917.</p>

<p>Complaint; from Telfair superior court — Judge Highsmith presiding. December 6, 1916.</p>

<p>Complaint; from city court of Asbburn — Judge Tipton. December 24, 1916.</p>

<p>Trover; from city court of Cartersville — Judge Moon. December 12, 1917.</p>

<p>Complaint; from Emanuel superior court — Judge Hardeman. November 7, 1916.</p>

<p>Complaint; from city court of Fort Gaines — Judge Turnip-seed. February 13, 1917.</p>

<p>Accusation of keeping lewd house; from city court of Dublin— Judge Flynt. April 19, 1917.</p>

<p>Indictment for making intoxicating liquor; from Paulding superior court-^Judge Bartlett. April 14, 1917.</p>

<p>Indictment for misdemeanor; from Habersham superior court— Judge J. B. Jones. April 14, 1917.</p>

<p>Accusation of larceny from the person; from city court of Carrollton — Judge Beall. April 21, 1917.- ■</p>

<p>1. Where a female passenger about 60 years old was carried by a railroad-train past a flag station which was her destination, through the negligence of the conductor in charge of the train, in failing to stop the train at that place, and the conductor, when the train stopped at the next station, said to her that he would have a conveyance to take her from there to her home, and she then left the train and he requested a telegraph operator of the railroad company at that station to hire a conveyance and send her to her home, and the telegraph operator engaged a young man about 21 years old to convey her in a buggy to her home, about two miles distant, and on the way the driver made improper proposals to her, the driver could not be held to be an agent of the railroad company, in the absence of' any evidence that would authorize the jury to find that either the conductor or the telegraph operator was specially authorized to employ a subagent, or was acting within the scope of his authority in engaging the driver; nor was the injury to the feelings of the person insulted by the driver a proximate result of the breach' of the railroad company’s contract of carriage.</p> <p>2. Even if it be conceded that both the conductor and the telegraph operator were charged generally with the duty of providing for the safety of the passenger at the station, and that therefore the carrier would be responsible if there was negligence on their part in entrusting her to a drunken or dissolute man, there was no evidence to support the inference that when the driver was engaged to transport her to her home, either the telegraph operator or the conductor knew anything whatever derogatory to his character or habits; but, on the contrary, the undisputed evidence showed that the employee who engaged his services knew him to be a man of previously unblemished reputation, and had no reason even to suspect that he was a drinking man or had been recently imbibing intoxicants, or to anticipate (in the light of his reputation and apparent condition) that he would be capable of insulting an elderly woman entrusted to his care. Therefore no recovery against the railroad company on this theory was authorized.</p> <p>3. While a recovery of nominal damages would have been proper under the evidence, the verdict for $1,000 was unauthorized; and the trial judge erred in overruling the motion for a new trial.</p>

<p>Indictment for burglary; from Morgan superior court — Judge Park. May 7, 1917.</p>

<p>1. The fact that the judge, in the exercise of the broad discretion vested in him, allowed the solicitor-general during the trial, over the objections of the accused, to propound leading questions to a witness for thq State is not cause for a new trial, it not appearing that such discretion was abused. Russell v. State, 94 Ga. 594 (20 S. E. 422); Doster v. State, 93 Ga. 43 (3) (18 S. E. 997); MeGrary v. State, 137 Ga. 784 (74 S. E. 536); Wade v. State, 11 Gá. App. 411 (7) (75 S. E. 494).</p> <p>2. The excerpt from the charge of the court to the jury, complained of- in the 3d ground of the amendment to the motion for a new trial, when considered in connection with its context, does not require a new trial.</p> <p>3. There was some evidence which authorized the giving of the charge complained of in the 4th ground of the amendment to the motion for a new trial, and it was not erroneous for any other reason assigned.</p> <p>4. The excerpt from the charge complained of in the 5th ground of the amendment to the motion for a new trial was not erroneous for any reason assigned.</p> <p>5. Under the’ facts of the case the court did not err in refusing to charge: “If the female’s consent was obtained by the defendant by promise of marriage and fear of bodily harm, then in that event you would not be authorized to find him guilty of the charge of seduction.”</p>

<p>Accusation of misdemeanor; from city court of Columbus— Judge Tigner. May 5, 1917.</p>

<p>Indictment for forgery; from Gordon superior court — Judge Tarver. May 31, 1917.</p>

<p>Certiorari; from Effingham superior court — Judge Sheppard. May 5, 1917.</p>

<p>Accusation of misdemeanor; from city court of Tifton — Judge Price. June 4, 1917.</p>

<p>' Indictment for larceny; from Bryan superior court — Judge Sheppard. May 9, 1917.</p>

<p>Conviction of assault with intent to rape; from Wayne superior court — Judge Highsmith. May 26, 1917.</p>

<p>Indictment for selling intoxicating liquor; from Franklin superior court — Judge Cobb. July 11, 1917.</p>

<p>Adultery, etc.; from city court of Macou — Judge Guerry. July 13, 1917.</p>

<p>Indictment for larceny; from Fulton superior court — Judge Hill. June 30, 1917.</p>

<p>Accusation of larceny; from city court of Dublin — Judge Flynt. July 25, 1917. .</p>

<p>Indictment for malicious mischief; from Worth superior court— Judge Eve. July 28, 1-917.</p>

<p>Accusation of misdemeanor; from city court of LaGrange— Judge Harwell. July 31, 1917.</p>

<p>Indictment for felony; from Colquitt superior court — Judge Thomas. August 25, 1917.</p>

<p>Indictment for pointing pistol at another; from Cobb superior court — Judge Morris. July 28, 1917.</p>

<p>Action upon insurance policy; from city court of Waycross— Judge McDonald. June 24, 1915.</p>

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

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

<p>Appeal; from Decatur superior court — Judge Cox. December 18, 1916. ■</p>

<p>1. An. executory contract of employment of an agent, which contains a stipulation that a part of his commissions on sales shall be applied in payment of a pre-existing debt due to the principal, does not remain in effect after the agent’s discharge in bankruptcy from such previous indebtedness, so that its continued compliance could be thereafter enforced; but so long as the parties, by subsequent acquiescence in its terms and performance of its conditions, elect to treat the contract as still subsisting, they are bound by its provisions. -</p> <p>2. A novation of the nature or terms of a contract, made without the consent of the surety thereon, works a discharge of the surety.</p>

<p>Complaint; from city court of Blacksbear — Judge Mitchell. December 13, 1913.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. March 24, 1917.</p>

<p>Certiorari; from Fulton superior court — Judge' Bell. March 27, 1917':</p>

<p>Action for damages; from DeKalb superior court — Judge • Smith. March 7, 1917.</p>

<p>Appeal; from Hancock superior court — Judge Park. March 33, 1917.</p>

<p>Distraint; from city court of Zebulon — Judge Dupree. March 15, 1917.</p>

<p>Affidavit of illegality of execution; from city court of Zebulon— J'udge Dupree. March 15, 1917.</p>

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

<p>Description and counsel as in case next preceding.</p>

<p>Money rule; from city court of Greenville — Judge Revill. January 34, 1917.</p> <p>J. A. Thrash & Company obtained four judgments in a justice’s court against Aleck Watson. On December 8, 1914, executions were issued, and on December 36, 1914, two of these executions were levied on a black horse-mule as the property of Aleck Watson. The mule was advertised for sale by the constable and was sold for $153. J. A. Thrash & Co. obtained a rule against the constable, who answered, admitting the facts stated in the rule. Cal and Charles Harman filed an intervention in which they alleged that the mule from the sale of which the fund in controversy arose was not the property of Aleck Watson, but belonged to them, because of the fact that on January 18, 1913, they sold the mule to Lou venia Watson, taking from her a note for the purchase-price, in which note they retained the title to the mule; that the note was duly recorded on January 19, 1913; that no part of the purchase-price of the mule has ever been paid, and that Aleck Watson and his wife, Louvenia Watson, were both insolvent. They prayed that “the- funds arising from said sale of said mule, after deducting legitimate cost, be ordered paid over to intervenors.” It was agreed by the parties that the facts set out in the rule, the answer, and the intervention, were “all that is necessary to a clear understanding of. the facts in said case, and that the facts contained in each are true.” The case was submitted, by agreement, to the judge without the intervention of a jury. He awarded the fund to the Harmans.</p>

<p>Complaint; from Calhoun superior court — Judge Cox. December 5, 1916. •</p>

<p>Complaint; from Toombs superior court — Judge Hardeman'. January 18,'1917.</p>

<p>Certiorari; from Wilcox superior court — Judge Crum. March 30, 1917.</p>

<p>Trover; from Haralson ^superior court — Judge Bartlett. April 10, 191?.</p>

<p>Action for damages; from Catoosa superior court — Judge Tarver. March 31, 1917.</p> <p>Hill brought suit by attachment against the Chattanooga Railway & Light Company, a foreign corporation, claiming damages for personal injuries alleged to have been inflicted by defendant’s agents in the negligent operation of its street-car. The petition alleged that on July 17, Í914, plaintiff: undertook to board one of defendant’s ears in Rossville at a point where the car- turned into Rossville Boulevard, and just-as he was attempting to board the car as a passenger of the defendant, as was usual and customary for passengers to do at said point, the employees of the defendant in charge of the car caused it to start suddenly and with a jerk, throwing him to the ground and inflicting on him described injuries. It was alleged that the defendant’s agents in charge, of the car were negligent in stopping it upon a curve, where the car, when started, would start with a swing and would tend to throw passengers to the ground, and in failing to keep a" lookout and to wait until the plaintiff could get safely aboard, and also in starting the car before he had safely gotten upon it, and in starting the car with a sudden jerk, so as to throw him to the ground, and in not giving him warning of the starting of the ear and of the intention to start it. The defendant in its answer denied the material allegations of the petition, and the case went to trial before a jury.</p> <p>Hpon the trial the plaintiff gave testimony in his own behalf in support of the allegations of his petition. He swore that defendant’s car had stopped at its customary stopping place, just before turning into Rossville Boulevard; that the car was stopped on a sharp bend; that just as he put his right foot on the step to board the car, his right hand grasping the right support and his left hand carrying his sample case, the conductor rang the signal for the car to start; the car started with a jerk, and plaintiff’s foot was caught between the step of the car and the curbstone, the plaintiff all the while holding on to the right support. He further testified that “the conductor or anybody in control of the car did nothing to stop the car.” The conductor in .charge of the car testified that on the occasion in question his car stopped at its customary place; that no passengers got on or off the car; that the car started off and had gone about a car’s length when he saw the plaintiff running towards the car, trying to catch it, with his sample case in his left hand; that just as the plaintiff approached within four feet of the car his foot slipped on a round rock, causing him to fall and his right leg to slide under the step of the car and receive the injuries claimed. His testimony further showed that the injury occurred beyond the State line and in'the State of Tennessee. The testimony of the motorman on this car and of several disinterested bystanders was in all material respects the same as that of the conductor. Both sides closed, and the jury, after being charged by the court, returned a verdict in favor of the defendant railway company. The plaintiff excepted to the refusal of a new trial,</p>

<p>Action for damages; from Walker superior court — Judge Tarver. February 21, 1917.</p> <p>T. F. Madden filed suit in attachment against S. L. Mitchell Automobile Co., S. L. Mitchell, and Lookout Mountain & Chattanooga Sight-seeing Company. Briefly stated, the material allegations of the petition are as follows: That the defendants were, on May 15, 1914, operating motor , trucks over a described route, for sight-seeing parties; that at a certain point on said route stood a large monument, known as the Iowa Monument, and at this point is a playground where a number of children, between the ages of six and fifteen years, collect and play during the day, and that defendants and their agents were fully aware of said fact; that the motor ears of the defendants, in passing this playground, were accustomed to move at a slow rate of speed, namely, from three to six miles an hour, and that the drivers of defendants’ cars had been accustomed to permit the children to hoard and ride the cars while passing this point at said slow rate of speed,' such custom having been a continuous one for some months prior to May 15, 1914; that it was the duty of defendants’ agents operating its ears, being aware of this custom, to anticipate that the children would attempt to hoard the cars at this point, and their said agents were.under a duty to take proper measures to prevent injury to these children. The petition fhrtner alleged that.plaintiff’s son, of the age of eleven years, together with several companions, was at said playground on the forenoon of May 15, 1914; that one of defendants’ cars, in charge of its agent, Burns, entered the playground running very slowly, said agent knowing at the time that children were in the habit of jumping upon the steps or running-board of the. car at this point; that upon entering the playground the car was running at a speed of about three miles an hour, and soon after it entered the ground petitioner’s son, together with three others, ran out to jump upon the running-board and ride, two of the boys running across the road in front of the car and boarding the left side of the car, while plaintiff’s son and another attempted to swing on the running-hoard on the right side; that petitioner’s son missed the running-hoard of the ear, was hurled under it, and the right wheel of the car ran over him, inflicting injuries from which' he soon died. It is alleged that the driver of the car, just at the time petitioner’s son undertook to board the same, applied more power to the machine, causing it to move faster, and that by such sudden motion of the car the boy was tripped ’ up and killed. The petition^ further alleged that deceased was lacking in experience and discretion, and was incapable of appreciating the danger of undertaking to board the ear while in motion; that Burns, the driver, had full control and management of the car, and knew that deceased had on previous occasions mounted and ridden on his car at this point, as he was undertaking to do at this time; that divers other boys of about the age of the deceased had prior to this time, with the knowledge of Burns and without objection from him, jumped upon his ear at this point, when going in this direction, and that said driver was aware of the lack of discretion and experience on their part, and their inability to appreciate the danger in their conduct in so boarding the ear. The driver was charged to' be negligent in that, although he knew of the children’s custom of boarding his car at said point, and had often so permitted them to do, and though he knew their lack of experience and realized the danger they incurred in so boarding the car, and knew, or ought to have known, that deceased was attempting to board his car, he on this occasion failed to ascertain whether any of the children had boarded, or were attempting to board, his car as he passed the playground, but instead of so ascertaining he speeded up his ear at this point, contrary to his usual custom. There were further allegations as to the earnings of deceased, his contribution to the support of plaintiff and his family, and the attachment proceedings theretofore had in aid of this suit.</p> <p>At the conclusion of the plaintiff’s evidence on the trial the court, on motion, granted a nonsuit; to which the plaintiff excepted. The evidence adduced at the trial is stated in the opinion.</p>

<p>Action for breach of contract; from city court of Atlanta— Judge Reid. April 14-, 1917.</p> <p>A. J. Evans brought suit against the Atlanta Paper Company, alleging that the defendant had made with him a contract to furnish him 100,000 corrugated shipping-cases; and that the contract was represented by an order from plaintiff to defendant, dated Eeb. 4, 1916, and by acceptance of .said order by the defendant, which acceptance was evidenced by two letters, the first of which was written to Evans on Eeb. 9, 1916, -by Rosenberg; the agent of defendant, and the second was written by defendant to Evans on Feb. 28, 1916. This order and the two letters are here set out in full:</p> <p>“Atlanta Paper Co., Atlanta, 6a. Date 2/4, 1916.</p> <p>“Order No.-Ship to A. J. Evans,"at Fort Valley, 6a. '</p> <p>“How ship--When: July 30. Terms, 5% off 30</p> <p>days. Salesman Rosenberg.</p> <p>“15 M No. 2 Corrugated.............................$52.4-5</p> <p>“50 M No. 2y2, Shipping............................ 68.50»</p> <p>“35 M No. 3 Cases.................................. 76.50</p> <p>“Less freight. Print on two ends.</p> <p>“This order given subject to crop conditions and decline in price.</p> <p>“Atlanta Paper Co., Atlanta, Ga., 2/9/16.</p> <p>“Mr. A. J. Evans, Fort Valley, Ga.</p> <p>“Dear Mr. Evans: I am writing to yon, as per my promise, that it will he perfectly satisfactory to have the Southern Brokerage Co. handle our account on peach cases and p,each pads for this season, and I sincerely hope that with your co-operation it will mean a big business for me. I have instructed the house to run up for yori about 5 M 2’s, 15 M 2%, and 10 M 3’s. I am doing this so that I will have them ready'when the peach season opens up, and so that there will be no delay in making you this first shipment. I would like very much for you to write me just, about when you think you will want this first shipment, so that we can make our arrangements accordingly. Since I last saw you the raw material out of which these corrugated boxes are made has advanced about twenty-five per cent., and naturally we want to protect ourselves as much as possible. For that reason I would appreciate very much if you would give me an idea, as soon" as you can, of how many boxes you will need this season, and I will then cover for that amount. I would also like for you to try and find out how many Mr. Roberts will use this year, as we want to take care of that business also, and want to protect ourselves accordingly. I know that you will understand just exactly what information I am after; and with kindest regards and’best wishes for a big crop this year, I remain,</p> <p>“Yours very truly, L. J. Rosenberg.” -</p> <p>“Atlanta Paper Co., Atlanta; Ga., 2/28/16.</p> <p>“Mr. A. J.- Evans, Fort Valley, Ga.</p> <p>“Dear Sir: We take the liberty of writing you with reference , to the order which you kindly placed with our Mr. Rosenberg for boxes. The conditions that confront us to-day with reference to board are serious, and in order to protect ourselves it is necessary that we send in specifications to the mill and bring the paper to Atlanta. We would therefore appreciate your kindly looking into this matter thoroughly, advising us what quantities you would want to take out on your first shipment, so that we can have the board made up! . We feel sure that you will understand our position in the matter, and remain,</p> <p>“Yours very truly, Atlanta Paper Co., Moss, Treas.”</p> <p>The petition further alleged that before the time for performance the defendant repudiated its contract and refused to perform it, and that by virtue of such breach the plaintiff was obliged to pay for said corrugated shipping-cases the sum of $9250, the market price of> them at the time of the breach, and that said sum was $2360.75 in excess of the price contracted to be paid defendant, this excess sum being the amount of damage sustained by the plaintiff, for which he prayed judgment.</p> <p>To this petition the defendant demurred generally, and specially upon several grounds. The principal ground was that “there is in the petition set up no binding contract in writing, upon which a recovery can be had against this defendant. The offer of the plaintiff, while signed by him, is not, as demanded by the statute of frauds, accepted by this defendant, and as a result thereof there is set up in the petition no contract in writing by which this defendant is bound and under which the plaintiff can recover.” The plaintiff amended his petition to meet the grounds of special demurrer, and added the allegations, that the defendant, by writing the letters hereinbefore quoted, lulled the plaintiff into the belief that it would fill the order in accordance with the terms of their contract, and that the plaintiff relied on the contract and allowed the material embodied in the order to advance in price before the contract was breached, and thus suffered damage; and “that defendant and plaintiff treated the contract as a valid, binding contract.” To the petition as amended the defendant demurred upon the ground that the allegation that the defendant “by said letters lulled the plaintiff into the belief that it would fill the order” was a conclusion not justified by the letters themselves ; that writings which simply “lulled” the plaintiff into a belief that the order would be filled were not a compliance with the statute of frauds; and that the allegation that plaintiff and defendant treated the contract as valid and binding was a conclusion of the pleader and too general in its statement.</p> <p>The trial judge sustained the general demurrer to the petition as finally amended, and the plaintiff excepted.</p>

<p>Action upon bond; from Jasper superior court — Judge Park. March 16, 1917.</p>

<p>Accusation of- larceny; from city court of Sparta — Judge Moore. May 10, 1917.</p>

<p>Accusation of making intoxicating liquor, etc.; from city court of Polk county — Judge John K. Davis. May 14, 1917. ■</p> <p>The defendant was charged with the offense of manufacturing liquor, and with having in his possession more than two quarts of liquor. He was found guilty, and he filed a motion for new trial on the general grounds only. Briefly stated, the evidence showed a still in active operation; the defendant’s presence at the still, with two other persons; that the defendant, from the woods near by, brought to the still an armful of pine-knots and threw them down at the still; that he picked up a jug and carried it to where the other two persons at the still were measuring out whisky; that he squatted down by the side of the “other ’fellow” who was measuring out the whisky, “all close together”; that later, when the officers arrived on the scene, the defendant, with the same two “fejlows,” was at the still; that all three ran when the officers appeared; that defendant stumbled and fell, jumped up, and continued to run until the officer told him .he need not run, as the officer knew him; and that defendant then stopped, but did not say anything. In a subsequent conversation with this officer, defendant stated that he was not there. Other circumstances in evidence need not be recited. The defendant was convicted of manufacturing liquor, "and a new trial was denied. . -</p>

<p>Indictment for 'murder; conviction of manslaughter; from Houston superior court — Judge Mathews. May 21, 1917'.</p>

<p>Certiorari; from Koekdale superior court — Judge Smith. April 23, 1917.</p>

<p>Indictment for seduction'; from Polk superior court — Judge Bartlett. June 12, 1917.</p>

<p>Indictment for larceny from the person; from Bibb. superior court — Judge Mathews. June 9, 1917.</p> <p>McDonald and Jenkins were jointly indicted for larceny from the person of money and a pocket-book of one Andrews. Jenkins was tried and convicted, and the judgment of the court overruling his motion for new trial was reviewed and affirmed by the Court of Appeals. Jenkins v. State, 19 Ga. App. 626 .(91 S. E, 944). McDonald, the defendant in-the instant ease, was afterward tried and convicted. His motion for new trial was overruled, and he excepted. The testimony for the State, briefly stated, shows that as Andrews, the prosecutor, was in the act of taking out his pocket-book and money for the purpose, of purchasing a ticket at the terminal station in Macon,. Ga., Jenkins and the defendant pressed up against him; that at the time he replaced the pocketbook and money in his pocket the defendant engaged him in conversation about changing a dollar bill; that he stepped away from the ticket-window, and, immediately missing his pocket-book and money, made an outcry; that Jenkins was seen by another witness for the State to take a pocket-book from the pocket of the. prosecutor, motion to the defendant, go out of the door with him, and, when they got out of the sitting-room, reach in his pocket and give the defendant the pocket-book, and then saw the defendant go off; that when Andrews cried out that he had lost his pocket-book this witness rushed after Jenkins, who ran and hid; that the next morning this witness saw the defendant in Atlanta, and, together with some officers, tried to catch him, but he ran, and they lost sight of him; that afterward, when the defendant was seen by the officers, he broke and ran, but was finally caught and arrested. The defendant denied the charge against him, and claimed that he was in Atlanta at the time which the prosecutor testified was the time of the larceny, and he offered evi-dence to support his defense of alibi.</p>

<p>Indictment for larceny; from Miller superior court — Judge Worrill. June 9, 1917. .</p>

<p>Certiorari; from Appling superior court — Judge Highsmith. June 4, 1917.</p>

<p>It affirmatively appearing from the extraordinary motion for new trial that all of the alleged newly discovered testimony was either known to the defendant at the time of trial, or inadmissible as being hearsay, or impeaching in its character, the trial court properly overruled the motion. . '</p>

<p>Certiorari; from Upson superior court — Judge Searcy. June 30, 1917.</p>

<p>Certiorari; from Upson superior court — Judge Searcy. July 10, 1917.</p>

<p>Indictment for murder; conviction of manslaughter; from Troup superior court — Judge Terrell. June 11, 1917.</p>

<p>Accusation of larceny; from city court of Macon — Judge Guerry. June 23, 1917.</p>

<p>1. The court did not err in allowing the witness Wynn to testify that he was jointly indicted with this defendant and had pleaded guilty to the same charge, the jury being sufficiently instructed that “any plea, he made would not bind the defendant.”</p> <p>2. An attorney is both competent and compellable to testify, for or against his client, as to any matter or thing, knowledge of which he may have acquired in any other manner than by virtue of his relations as ■ attorney, or by reason of his anticipated employment as attorney. Penal Code (1910), § 1037 (5).</p> <p>3. The charge of the court excepted to in ground 3 of the amendment to the motion for a new trial, when considered together with the general charge, fully and fairly instructed the jury on the subjects of presumption of innocence and burden of proof, and is not subject to any of the criticism made thereon.</p> <p>4. The court did not err in defining to the jury a principal in the first degree and a principal in the second degree, and in instructing them that all persons aiding and abetting in the perpetration of a misdemeanor are indictable as principals.</p> <p>5. The court sufficiently instructed the jury on circumstantial evidence and reasonable doubt, and the exceptions taken to the charge in grounds 5 and 6, complaining that the court failed so to do, are therefore without merit.</p> <p>6. The remaining ground of the motion for a new trial, not being argued in brief of counsel for the plaintiff in error, will be treated as abandonea.</p> <p>7. The evidence authorized the verdict, and the court committed no error in refusing the defendant a new trial.</p>

<p>Indictment for murder; conviction of manslaughter; from Dougherty superior court — Judge Harrell. June 9, 1917.</p> <p>The defendant, Sam Conley, and his mother were croppers on the plantation of Melvin, who had sent for the defendant to pick cotton. He and his mother came to the place, and were met by Melvin, who insisted on the defendant’s picking cotton for him. The mother objected to this, and insisted that the defendant should pick his own cotton. Hot words between the mother and Melvin followed. Fannie Glover was in the lot, and Fannie White was on the porch of her home; each only a few yards away. The former testified: “I went to the gate and I says, ‘Sam, you all hush so much jawing, and go on,’ and Mr. Melvin told me to hush and go back and milk the cows, and I went on .back* and I heard Fannie White say, ‘Oh,.Sam has done killed Cap’n!’ And I broke and run back to the gate, and when I got there Sam was right at his feet; and he says, ‘I told you, God damn you, that I would kill you if you hit my mother.’ Mr.' Melvin was lying down at that time and Sam was standing right up; and I says, ‘Sam, don’t hit him no more.’ I told him then to go and get Mr. ■ Bennett.</p> <p>■. . Mr. Melvin did not speak any more. After Sam" Conley cursed him and told him he would kill him, God damn him, he called his mother and started on down the road. The woman, Carrie Conley, was also lying on the ground, and Sam helped her up and carried her on with him. They both, Mr. Melvin and Carrie, lay there on the ground together, one on face and the other on back. Carrie was not hurt, and I didn’t see any sign of a wound on her. I saw a stick and a steelyard pea lying there on the ground where Mr. Melvin was. The stick was a long slabby piece-of board. I do not know just how long it was. I do not [know] what it was nor what it had been used for, but he had it then for a gate-latch. . . It only took me about a minute from the time I came to the cow-pen to where the two bodies lay. Fannie White told me that Sam knocked Mr. Melvin with tho steelyard pea, that him and Carrie was tussling over the gate-latch, and Mr. Melvin slung the gate-latch loose'and that Sam struck him. She said Mr. Melvin had the gate-latch and struck Carrie and knocked her down, and then the boy hit him with the steelyard pea. That is all she said at that time. She did not say that Mr. Melvin first struck her with his fist, but that he hit her one time when he flung the gate-latch away from her. She said the blow knocked her down. And then is when the boy struck him with the steelyard weight. Fannie White told me right then and there that Carrie jerked the latch out of the gáte and run twixt Mr. Melvin and Sam with the latch. Carrie had the latch, and said Sam [Mr. Melvin?] grabbed the latch, and they were tussling over the latch, and when he slung her loose from the latch he knocked her with it, and she said that when he knocked Carrie that Sam knocked him with the steelyard pea. She said Carrie took the latch out of the gate and run between Sam and Mr. Melvin when she got it. That is all she said about it right then. She did not say anything about why they both had hold of it. Sam had picked up his mother and gone down the road with her when she told me this. She said that Mr. Melvin and Carrie had hold of the latch. I never asked her then and there where Carrie got the latch from.” There was evidence that the steelyard pea was of iron and weighed about four pounds; that the gate-latch was about five feet long, two inches wide, and seven eighths of an inch thick; and that each was a weapon likely to produce death.</p>

<p>The evidence authorized the verdict, and there was no error in overruling the motion for new trial.</p> <p>Accusation of possessing intoxicating liquor; from city court of Brunswick — Judge Krauss. May 11, 1917.</p>

<p>Accusation of larceny; from city court of Cartersville — Judge Aubrey. June 15, 1917.</p>

Indictment for burglary; from Harris superior court — Judge Howard. June 23, 1917. Freeman Lawson was convicted of the burglary of the drug-store of one McDonald, and he excepts to the overruling of his motion for new trial, based on the gen eral grounds only. The only question that is raised is, whether there is sufficient evidence connecting the defendant with the burglary, independent of the testimony of one James Hamlin, a self-confessed accomplice.

<p>. Accusation of misdemeanor; from city court of Macon — Judge Guerry. July 6, 1917.</p>

<p>Accusation of possessing intoxication liquor ; from city court of Jefferson — Judge Mahaffey. July 6, 1917.</p>

<p>In an indictment for larceny the ownership of personal property may be laid in an agent having lawful possession of the property for another; but is not properly laid in a servant having the 'mere custody of goods for his master. The ownership in this case was properly laid in the husband, who had charge of the plantation as agent for his wife, and was properly not laid in the superintendent of the plantation.</p>

<p>Petition for certiorari; from Jones superior court — Judge Park. May 15, 1917.</p>

<p>Indictment for larceny; from Dodge superior court — Judge Littlejohn presiding. June 27, 1917.</p>

<p>Accusation of selling intoxicating liquor; from city court of Dublin — Judge Flynt. July 20, 1917.</p>

<p>1. The instruction of the court to the jury that they should disregard any language the solicitor might use in reference to the defendant, but should pass upon the case upon the evidence and the defendant’s statement, rendered harmless the improper remark made by the State’s counsel in his argument to the jury.</p> <p>2. The evidence supports the verdict of guilty of shooting at a dwelling-house, and the fact that the defendant may have been guilty, in the same transaction, of unlawfully shooting at another does not render this verdict illegal.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Jesup — Judge Clark. July 14, 1917.</p>

<p>Indictment for larceny; from city court of Macon — Judge Guerry. July 14, 1917.</p>

<p>Indictment for burglary; from Bacon superior court — Judge Summerall. July 12, 1917.</p> <p>The defendant, with two others, was indicted for breaking and entering the depot of the Atlanta, Birmingham and Atlantic Railroad Company, and stealing therefrom thirty quarts of whisky. The evidence for the State showed that the depot was broken into and certain liquors taken therefrom, as alleged in the indictment. Early Thomas, an accomplice jointly indicted with this defendant, testified that he, the defendant, and Herschel Johnson went to the depot, and, while he watched, the other two broke and entered the depot and obtained the liquor. The only evidence, except that of the accomplice, by which the State sought to connect the accused with the crime, was that of H. W. Andrews and L. S. Guthrie, and a rule nisi granted at the November adjourned term, 1915, preceding the trial of the accused in October, 1916. Andrews testified: “I know Joe Courson; I remember the day his case was called for trial here at the November adjourned term of the court in 1915. I saw him here in town immediately before his case was called. I saw him some time that morning before "his case was called for trial, down on the street. I heard his case called. I had seen him down town some time that morning. I don’t know whether he was gone or not, but he was not in the court-room; but I couldn’t swear positively whether he was gone or not; he was not around the court-room. I didn’t see him leave.” Guthrie testified as follows: “I was a bailiff at the November adjourned term of this court in the year 1915. I was in court when Joe Courson’s case was called. Joe Courson was not in court then. I had just passed him a few minutes before then on the street before I came up here. I don’t think anybody said for me to go down there and hunt him. That wds the first_time the case was called. He never did appear. He didn’t appear in court at that term. I had gone down the street after some other witnesses, and saw him down there, and come right on back in a hurry. His case was sounded and the bond forfeited right after I got in the court-house.”</p>

<p>Accusation of misdemeanor; from city court of Hinesville— Judge W. C. Hodges. July 17, 1917.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. July 28, 1917.</p>

<p>Accusation of misdemeanor; from city court of Leesburg— Judge Martin. August 8, 1917.</p>

<p>Certiorari; from Brooks superior court — Judge Thomas. December 9, 1916.</p>

<p>Complaint; from city court of Houston county — Judge Greer presiding. January 5, 1917.</p>

<p>Mortgage foreclosure; from Irwin superior court — Judge George. December 19, 1916.</p>

<p>Complaint; from Decatur superior court — Judge Spooner presiding. January 22, 1917.-</p>

<p>1. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate.” Civil Code (1910), § 4222.</p> <p>2. In order for a contract of purchase to become effective when entered into by correspondence through the mails, the offer to buy must be accepted by the seller unequivocally, unconditionally, and without variance of any sort, so that the minds of the parties shall meet and assent to the same thing in the same sense. Robinson v. Weller, 81 Ga. 704 (8 S. E. 447). If the terms of purchase as executed by the buyer are varied, the seller is privileged to repudiate the contract in its entirety, but a ratification of a part of the executed contract so varied is a ratification of the whole, and the contract as so altered becomes binding in its entirety upon each of the parties thereto. Hunter v. Stembridge, 17 Ga. 243 (1), 247; Barclay V. HopTcims, 59 Ga. 562, 566; Howard v. Cassels, 105 Gd. 412, 418 (31 S. E. 562, 70 Am. St. R. 44).</p> <p>3. When it is possible to do so without contravening any rule of law, the courts will construe a contract as binding on both the parties, where, from the language of the contract, the conduct of the parties, and all the attendant circumstances, it appears that the intention of the parties was that both should be bound by the sale, and substantial justice requires that the contract be given effect. Civil Code (1910), § 4268 (3) ; Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636 (1), 637 (85 S. E. 943); Mutual Life Ins. Co. v. Durden, 9 Ca. App. 797 (3), 800 (72 S. E. 295).</p> <p>4. Under a contract of conditional sale, providing that if default should be made in payment the vendee is to return the property to the seller, the former has not the right to return the goods upon the condition being broken. Upon such default by the vendee the seller has an option to demand return of the property, and the vendee has a duty to deliver it upon demand. Finlay v. Ludden & Bates Southern Music House, 105 Ga. 264 (2) (31 S. E. 180).</p> <p>5. Where the contract involved is one that is covered by the statute of frauds, the complete contract, including an adequate description of the property purchased, must be in writing. But where the contract has been fully executed, the statute of frauds does not apply. Civil Code (1910), § 3222 (7). And where the terms of the sale are agreed upon and the bargain struck, and everything that the seller has to do with the goods is completed, the contract of sale becomes absolute and the property rests in the buyer. Wholesale Mercantile Co. v. Jachson, 2 Ga. App. 776, 782 (59 S. B. 106), quoting 2 Kent’s Com. 491. However-, the writing will itself furnish sufficient description of the property purchased, when it serves to separate it from the mass or gives such description as will render it capable of identification. Huntington v. Chisholm, 61 Ga. 270, 271. See also Thomas Furniture Go. V. T. & C. Furniture Go., 120 Ga. 879 (48 S. E. 333).</p>

<p>Complaint; from city court of Baxley — Judge Sellers. December 30, 1916.</p>

<p>Certiorari;-, from Bibb superior court — Judge Mathews. February 9,, 1917.</p>

<p>Action for damages; from city court of Macon — Judge Guerry. January 31, 1917.</p>

<p>Trover; from Toombs superior court — Judge Hardeman. January .31, 1917.</p>

<p>' Certiorari; from Muscogee superior court — Judge Howard. February 27, 1917.</p>

<p>Certiorari; from Grady superior court — Judge Harrell. March 14, 1917.</p>

<p>Appeal-; from Grady superior court — Judge Won-ill presiding. March 5,1917.</p>

<p>1. It was not error to admit in evidence a paper purporting to be a bill of sale from one Scott to the plaintiff, over objection that it appeared to have been recorded but not to have been acknowledged before a notary public; there being testimony that Scott signed it, and he as a witness admitting that he so signed.</p> <p>2. The trial judge did not abuse his discretion in continuing the trial of the case for one day.</p> <p>3. Other assignments of error appear to have been abandoned. It was not error to overrule the certiorari.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. March 14, 1917.</p>

<p>Action for damages; from Catoosa superior court — Judge Tarver. February 5, 1917.</p>

<p>The petition for certiorari and the answer showing that the defendant admitted buying. and receiving the books for the price of which the suit was brought, signing the contract of purchase, and failing to pay as contracted, it was not error to sustain the certiorari after judgment in favor of the defendant in the trial court.</p>

<p>Complaint; from Wayne superior court — Judge Highsmith. April 19, 1917.</p>

<p>The court erred in not sustaining the demurrer on the ground that the superior court of Lowndes county had no jurisdiction, and in directing a verdict for the plaintiff.</p> <p>Complaint; from Lowndes superior court — Judge Patterson presiding. November 18, 1915.</p>

<p>Distraint; from Haralson superior court — Judge Bartlett. April 10, 1917.</p>

<p>The court erred in not sustaining the demurrer on the ground that the superior court of Lowndes county" had no jurisdiction, and in directing a verdict for the plaintiff.</p>

<p>Complaint; from city court of Hall county — Judge Wheeler. January 6, 1917.</p>

<p>It was not error to sustain the demurrer to the plea, and to direct a verdict in favor of the plaintiff.</p>

<p>Garnishment; from city court of Milieu — Judge Dekle. April 19, 1917.</p>

<p>Trover; from Worth superior court — Judge Eve. March 20, 1917.</p>

<p>Complaint; from city court of Ashburn — Judge Tipton. April 21, 1917.</p>

Indictment for assault with intent to murder; from Gwinnett superior court — Judge Cobb. June 4, 1917.

<p>Indictment for stabbing; from Cobb superior court — Judge Morris. May 21, 1917.</p> <p>The indictment charged the defendant with the offense of stabbing. The charge grew out of a fight between two negro women. In this fracas both were cut and stabbed. In the motion for new trial it was insisted that a new trial should be granted upon the ground of alleged newly discovered evidence that the prosecutrix had, some time prior to the trial, entered a plea of guilty to stabbing, on an indictment growing out of the same transaction. The movant admitted knowledge of this fact at the time of trial, but asserted that she had no idea of its importance, and through pure ignorance failed to communicate it to her attorneys, “nor did she think to put this fact in her statement when she was on the stand making her statement.” Her counsel were ignorant of it until told by her after the trial.</p>

<p>Indictment for murder; conviction of manslaughter; from Barrow superior court — Judge Cobb. July 11,1917.</p>

<p>Indictment for perjury; from Floyd superior court — Judge Wright. July 19, 1917.</p>

<p>Indictment for murder; conviction of manslaughter; from Fulton superior court — Judge Hill. June 30, 1917.</p>

<p>Complaint; from Gordon superior court — Judge Fite. December 11, 1916.</p> <p>On or about June 14, 1910, the plaintiff, Shores-Mueller Com-' pany, entered into an agreement with A. J. Bell as principal, and P. C. Bell, J. H. Littlefield, and W. A. Tate as guarantors, whereby it was agreed that the plaintiff was to furnish to the principal such medicines, extracts, spices, and other goods as he. might from time to -time order; the principal agreeing to pay for such articles, and having the right, under the agreement, “to pay his said account by remitting in cash each week to the company an amount equal to one half of the receipts from his business until the account is balanced.” There were other provisions of the contract, including one requiring the purchaser to furnish to the company weekly reports of his business. This suit was brought on May 4, 1915, as on an “account stated,” and in the petition it was alleged: “that on the 5th day of November, 1912, the said A. J. Bell acknowledged his indebtedness in the said amount of $617.86 in the following manner, to wit: ‘Auditing department, Shores-Mueller Company, Tripoli, Iowa. Gentlemen: I hereby acknowledge receipt of, your monthly statement of my account, dated 11-5-12, for month of October, 1912, showing a balance due to Shores-Mueller Company of $617.86, . . which is true and correct and agrees with my books.’” It was also shown by the petition that after November 5, 1912, the defendant A. J. Bell returned certain articles included in his purchases, and was entitled ■to a credit of.$264.93 for them, leaving a balance due the plaintiff of $415.40. In his answer he admitted the execution of the contract, and denied the allegations contained in that paragraph of the petition which set up the acknowledgment of indebtedness, but did not deny the correctness of the account sued on, as to the balance due for artidles furnished, except that he denied all indebtedness to the plaintiff, alleging a failure of consideration under the contract, in that the goods furnished were themselves worthless. The guarantors disputed their liability and denied generally the allegations of the several paragraphs of the petition; one df the guarantors, P. C. Bell, also pleading specially that her contract of guaranty was void because of the fact that she was a married woman and therefore, at the time she signed the agreement, was unable legally to bind herself thereby. The plaintiff demurred to the answer of A. J. Bell, on the ground “that the suit filed in this case is a suit based on an account stated, which operates as a confession, and a fixed liability, and there are no facts alleged in said plea which would as a matter of law entitle defendant to such relief . . as is sought to be made in and by said plea.” The demurrer was overruled, and on the trial a verdict was returned for the defendants. The plaintiff excepted to the overruling oi its demurrer and of its motion for a new trial.’</p>

<p>Taxation of costs; from Chattooga superior court — Judge Wright. January 3, 1917.</p> <p>In the absence of the judge of the superior court, the ordinary granted an order permitting the speedy sale of certain personal property under a superior court fi. fa., in accordance with the provisions of the Civil Code (1910), § 6068. The ordinary filed with the sheriff his bill of costs in the sum of $5, made up of the following items: “Beceiving application for order to sell, $1.25; filing and docketing, $2.00; recording same, 350 words at 15 cts. per hundred, .50; order allowing sale, .50; recording order, .75;” and the amount of the bill was retained by the sheriff from the proceeds of the sale. The defendant in error filed a motion in the superior court to strike the bill of costs, except the item of fifty cents for the order allowing sale. The motion was heard upon an agreed statement of facts, and was sustained by the court, and the ordinary excepted.</p>

<p>1. Where payment on a written evidence of debt is made to a person as agent for another, the production of the written evidence of debt raises an implication of his authority to receive, the payment as agent, but where it is not produced there is no such implication, and the burden is upon the person making the payment to establish such authority.</p> <p>2. Declarations of an alleged agent are not by themselves admissible to prove agency, but the fact of agency may be established by prooí of circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances, independently of and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as a part of the ,res gestse of the transaction, be considered.</p> <p>3. Where it is shown that a payment so made reaches the hands of the principal, or the hands of another who is his authorized agent to receive it, the authority of the person to whom the money was actually paid need not be shown.</p> <p>4. Under the ruling stated in the second headnoté, the admission of the receipt signed by Armstrong as agent was not erroneous. Nor do we think the court expressed any opinion as to the evidence; nor was the charge upon the subject of agency erroneous in itself, or so inadequate as to require a reversal on that ground, it not appearing that a request for more specific instructions on this issue had been. made.</p>

<p>1. As the act of 1912 creating the city court of Millen (Ga. L. 1912, p. 245) does not provide for entering judgments of default, or limit the time allowed for the filing of pleas, and as the record in this case negatives the idea that the judge had promulgated any rule governing the time for filing pleas, the unauthorized entry of “in default,” made at the first term, would not prevent the defendant from subsequently filing a plea prior to final judgment, although the plaintiff could have taken final judgment at the first term, under the act creating the court, which permits but does not require final judgment when no defense is filed on the call of the ease at the first term.</p> <p>2. As the judgment of the court below shows on its face that the merits of the proffered plea were not considered, but that it was dismissed solely on the ground that it was not filed in time, this court will not now undertake to determine as to the merits of the plea.</p>

<p>1. There was no error in overruling the plea to the jurisdiction or the demurrer to the plaintiff’s petition.</p> <p>2. An assignment of error upon a charge as a whole, on the ground “that the charge of the court, exhibit ‘B,’ was not applicable to the case; that the court erred in not charging the jury under the admitted facts, and that the defendant was not liable to the plaintiff,” presents nothing for the consideration of this court.</p> <p>3. In view of the sharp conflict in the evidence as to whether or not the goods in question were in the legal custody of the Barnwell Lumber Company, and in view of direct and positive testimony to the effect that the plaintiff verbally and by letter specifically notified the defendant railroad company to hold up shipment of the goods until further notice, the following excerpt from the charge of the court was not error: “If, however, after a railroad company issues a bill, of lading, they have information that the party delivering the goods to the railroad is not the true owner of the goods, and the true owner instructs the railroad not to deliver the goods to the person that brought them to the, road, and the railroad disregards the instruction of the true owner and ships the goods, the railroad acts at its peril.”</p> <p>4. All three of the 'written request to charge were not correct statements of law, and were therefore properly refused.</p> <p>5. The verdict seems to be excessive, in that it included interest, while the plaintiff’s petition does not seek to recover interest, and-the motion in arrest of judgment should have been sustained. However, the judgment is affirmed on condition that the interest be written off with- . in 10 days after the filing of the remittitur.</p> <p>6. The evidence authorized the verdict.</p>

<p>Certiorari; from Hart superior court — Judge W. L. Hodges. Arpril 24, 1917.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. March 29, 1917. (See 18 Ga. App. 392.)</p>

<p>Where a horse approaching a county bridge becomes frightened for some unexplained reason apart from any defect in the construction of the bridge or its abutment, and escapes from the control of its driver, and, running away rapidly and violently, is crossing the bridge, when a bystander intercepts him on the bridge, and, by an effort to stop the flight of the animal, causes it to swerve or wheel suddenly to one side, and, in consequence, horse, buggy, and driver are precipitated from the bridge to the water below, the county, is not liable, notwithstanding the bridge is unprotected by barriers, as the proximate cause of the accident is the ungovernable nature of the runaway horse and- the abortive efforts of the bystander to stop it. The court did not err in granting a nonsuit.</p>

<p>1. An action against a county, to recover an amount alleged to be due and “evidenced by certain warrants drawn upon the treasurer of said county for their respective amounts [not further described], which are and were legal charges against” the county; and the payment of which had been .refused by the treasurer, was not amendable by making the treasurer a party defendant, and by praying that he be required by mandamus to pay the warrants referred to.</p> <p>2. A county is not legally liable to a deposed officer for “future services.”</p> <p>3. If a county treasurer improperly refuses to pay legal .warrants drawn upon him, the remedy is by mandamus against him, and net by direct suit against the county.</p>

<p>Affidavit of illegality of execution; from city court of Floyd county — Judge Nunnally. March 31, 1917.</p>

<p>Complaint; from Colquitt superior court — Judge Thomas. April 6, 1917.</p>

Action for damages; from city court of Carrollton — Judge Beall. April 14, 1917. Hill brought suit against the Central of Georgia Railway Company, claiming damages on account of personal injuries.

<p>Indictment for carrying concealed weapon; from Whitfield superior court — Judge Tarver. April 12, 1917.</p>

<p>Indictment for larceny; from Liberty superior court — Judge Sheppard. May 30, 1917.</p>

<p>1. There was no abuse of discretion by the trial judge in refusing to give counsel for defendant a longer time than two hours for argument of the case.</p> <p>2. The exception to the charge of the court, that it was argumentative of the State’s case, is not well taken. The charge fully and fairly presented the contentions of the defendant.</p> <p>3. There is no merit in the exception to the charge of the court set out in ground 6 of the motion for a new trial. The court fully instructed the jury upon the law of reasonable fears as applied to the defense set up by the accused.</p> <p>4. Under the evidence in this case the court did not err in failing to charge the jury upon the subject of involuntary manslaughter. Under no theory was the killing unintentional or involuntary. Neither was the charge erroneous for any of the other reasons assigned in ground ■ 8 of the motion for a new trial.</p> <p>3. The excerpt from the charge of the court set out in ground 9 of the motion for a new trial is not subject to the criticism that it “intermingled the law of justifiable homicide and mutual combat.” This excerpt, in connection with the part of the charge immediately following it, correctly stated the law as found in sections 70 and 71 of the Penal Code (1910), and applied it to the defendant’s theory of justifiable homicide.</p> <p>6. The evidence authorized the charge on voluntary manslaughter, and the instruction set out in ground 5 of the motion for a new trial is not subject to the exceptions taken.</p> <p>7. Grounds 10 and 11 of the motion for a new trial, not having been argued by counsel for plaintiff in error, will be treated as abandoned.</p>

<p>Indictment for misdemeanor; from Terrell superior court-judge Worrill. 1 June 9, 1917.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Savannah — Judge Bourke. August 6, 1917.</p>

<p>Indictment for assault and battery; from Haralson superior court — Judge Bartlett. July 18, 1917.</p>

<p>Accusation of obstructing legal process; from city court of Brunswick — Judge Krauss. August 10, 1917.</p>

<p>1. Since the act of the General Assembly approved August 21st, 1911 (Acts 1911, p. 149 (3)), where the judge finally passed on the merits of a motion for a new trial and the parties acquiesced in his entertaining it at that time, without any question being then raised to the sufficiency of the filing and approv.al of the grounds of such motion, no question as to these matters can be subsequently entertained by this court; and therefore the motion of defendant in error to strike the order of the lower court approving and certifying the amended motion for new trial, and to dismiss the amended motion, is without merit. But apart from the provisions of the act cited, it has been held that when the judge is not put on his guard to see that dates are correct, or to explain them if incorrect, there is a stronger presumption that a mistake was made in dating a judicial act than that the act was performed on Sunday. Swindle v. Poore, 59 Qa. 336 (2).</p> <p>2.. The amended plea setting up payment was-sufficiently exact in that it did not fail to show, when, how, and to whom the alleged payment was made.</p> <p>3. Tiie declaration of an agent is not competent evidence against his principal where it does not appear that such declaration was made while engaged in the business of the master or principal, k. Where in a trover suit brought by the vendor under a conditional sale the plaintiff elects to take a judgment within the amount of the indebtedness for the highest proved value of the property between the time of the conversion and the trial, it is error to direct a verdict for plaintiff where under the evidence the value of the property in any lesser amount could he found. ,</p>

<p>Action for damages; from city court of Richmond county— Judge Black. December 27, 1917.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. February 6, 1917.</p>

<p>1. (a) Ordinarily the only duty which a railway company owes to a trespasser upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered. Ashworth v. Southern Ry. Go., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592). But failure to exercise ordinary care to prevent the injury to a trespasser after his presence has become known is usually so much akin to wilfulness or wantonness as to create liability on tlie part of the company, where the failure to exercise that degree of care would render it liable. Charleston Railway Co. v. Johnson, 1 Qa. App. 441 (57 S. E. 1064); L. & N. Railroad Co. v. Plunkett, 6 Qa. App. 684 (65 S. E. 695).</p> <p>(6) Generally the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks,’ and the duty of exercising such care and diligence does not in such case arise until the presence of the trespasser becomes known. Southern Ry. Co. v. Chatman, 124 Qa. 1026 (53 S. E. 692, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675) ; Nashville <&c. Ry. Co. v. Priest, 117 Ga. 767 (45 S. E. 35).</p> <p>(c) The mere fact that the public may have been accustomed to travel, on foot along a' certain portion of the right of way belonging to a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute the persons so using the track licensees of the company; and, in the absence of the company’s permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser. Southern Ry. Co. v. Barfield, 112 Qa. 181, 184 (37 S. E. 386).</p> <p>(d) Where,' however, from the locality, circumstances, and known habits p of the public generally, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then the duty of anticipating the presence of and danger to such trespassers devolves upon the employees of the company operating the train; and upon the discovery of ap person in such peril, ordinary and reasonable care and diligence must be exercised by the company not to injure him. Southern Ry. Co. v. Chatman,' supra.</p> <p>(c) Whether or not the locality, the time, and the circumstances of an injury to one using the right of way, and the known habits and frequency of the public in using it, create such a condition as will charge the servants of the company operating the locomotive and'cars with the special duty of looking out for the presence of a trespasser at the time and place of the injury is generally a question for the jury to determine, in the light of all the evidence introduced.. Crawford v. Southern. Ry. Co., 106 Ga. 870 (33 S. E. 826) ; Wright v. Southern Ry. Co., 139 Ga. 448 (77 S. E. 384). See also Gulf Line Railway Co. v. Way, 137 Ga. 109, 110 (72 S. E. 917).</p> <p>(f) Where an action is brought for the homicide of a trespasser, shown to have been occasioned by the operation of defendant’s cars, the presumption of negligence does not arise against the defendant, unless it appears that at the time of the injury there was due from the company to the person injured a degree of diligence to prevent such injury. Holland v. Sparks, 92 Ga. 753 (18 S. E. 990). But where it appears from the circumstances of the case that such diligence did devolve upon the company, and that it did owe a duty to anticipate the presence of the trespasser at the time and place of the injury, then, upon proof of the homicide by the company, such presumption of negligence against it does arise. Crawford v. Southern Ry. Co., supra.</p> <p>2. The verdict was warranted by the evidence;, and the charge to the jury is not subject to the criticisms made in the exceptions taken.</p>

<p>Removal of cause to TJ. S. court; from Grady superior court— Judge Worrill presiding. March 7, 1917.</p>

<p>Affidavit of illegality of execution ; from city court of Nashville — Judge Christian. March 21, 1917.</p>

<p>Accusation, of bastardy; from city court, of Richmond county— Judge Black, July 3, 1917.</p>

<p>Indictment for murder; conviction of manslaughter; from Talbot superior court — Judge Howard. August 4, 1917.</p> <p>Charles Ellison was indicted for the murder of his brother, Richard Ellison. It appears, from the evidence, that on the night of the homicide they went to a frolic at the home of Frank Ellison, their kinsman; that the deceased left the frolic before the defendant did, and went to the defendant’s home, where the defendant’s wife was alone; and that the defendant shortly afterward also went to his home. The next time the defendant was seen he reT appeared at the frolic with a. shot-gun in his hand, stated to the crowd there that he had killed Richard, and said that some one had better go and see about it. A certain witness who was also at this frolic and gone from it to the defendant’s home, and there found the body of Richard Ellison on the floor before the hearth, with a shot-gun wound in the breast, and found no one in the room but the defendant’s wife, but on his return with a doctor, an hour later, he found the defendant in the room. He did not find any ax in the room or elsewhere. The defendant, in his statement on the trial, asserted that his brother Richard “had been kinder running over him about his wife;” on a former occasion, when he found Richard at his house, Richard drew a knife on him and put the knife around his throat, and he told Richard to leave and not come back any more; that on the night of the homicide, when he returned from the party, Richard was on the outside of his house; that he (the defendant) went into the house and shut the door, and Richard got the ax, which was on the outside of the porch, and told him to open the door; that, upon his refusal to do so, Richard bulged against the door, broke the door down, and came in with the ax drawn back on his shoulder; that he (the defendant) then reached up in the rack, got his gun, and told Richard to get back; that Richard continued to advance on him, and he fired, not intending to kill, but intending only to prevent Richard from hurting him. In rebuttal of this statement the State produced a witness who testified that the defendant, after the killing, gave him an entirely different account of the homicide, claiming that it was accidental. The jury found the defendant guilty of voluntary manslaughter, and to the overruling of his motion for a new trial he excepted.</p>

<p>Under the evidence it was not error to grant a nonsuit.</p>

<p>Complaint; from city court .of Americus — Judge Harper. January 6,1917.</p>

<p>1. The petition set forth a cause of action, and the court erred in sustaining the general demurrer.</p> <p>2. The 15th paragraph of the petition, inasmuch as it sought to recover general damages on the ground that the plaintiff was humiliated, mortified, or shocked, was specially demurrable; since, where the injury complained of is not a personal tort, but an injury to property, there can</p> <p>’ be no recovery for mental suffering. Stovall v. Oaverly, 139 Ga. 243 (4), 246 (77 S. E. 29).</p>

<p>1. While it is true that the principal debt stated as such in a promissory-note, and the amount of attorney’s fees agreed thereby to be paid, both constitute an aggregate principal debt, and where "both are sued for, and the gross sum exceeds one hundred dollars, a judgment for any portion thereof in a justice’s court is void for want of jurisdiction (Ashworth V. Harper, 95 Ga. 660, 22 S. B. 670; Almand v. Almand, 95 Ga. 204, 22 S. E. 213; Peeples v. Strickland, 101 Ga. 829, 29 S. E. 22; Morgan V. Kiser, 105 Ga. 104, 31 S. E. 45), yet where the justice’s court summons is silent as to giving the ten days notice of intention to sue for attorney’s fees, as is now provided for as a condition precedent to their recovery by section 4252 of the Civil Code of 1910, the suit can not be treated as claiming attorney’s fees, and the justice’s court has jurisdiction of the cause if the amount of the stated principal sued for be within one hundred dollars, and can render legal judgment therefor, with interest. DeLamater v. Martin, 117 Ga. 139 (43 S. E. 459) ; Godfree v. Brooks, 126 Ga. 627 (55 S. E. 938) ; MacDonald V. Ware, 17 Ga. App. 450 (87-S. E. 679). Prior to the enactment of the statute now of force, requiring the giving of notice as to attorney’s fees as a condition preceden;; to their recovery, the rule was different, Hill v. Haas, 73 Ga. 122. Thus, it was not error for the court, in a money-rule proceeding, to admit in evidence the justice’s court executions each for $100 principal, besides interest and attorney’s fees, where it was also shown that; the summons from the justice’s court in which they were obtained failed to state the giving of- the statutory notice for attorney’s fees, and where each of the executions had entered thereon the following: “The attorney’s fees shown in within fi. fa. not having been sued for, the same are hereby disclaimed and written off.” Sháhan v. Myers, 130 Ga. 724 (61 S. E. 702) ; Smith v. Knowles, 12 Ga. App. 715 (78 S. E. 264) ; Latimer v. Sweat, 125 Ga. 475 (54 S. E. 673).</p> <p>2. The lien of a common-law judgment binds the property of the defendant from its date, while the lien of a distress warrant, upon property other than crops raised on the rented premises, attaches^ only from the date of its levy. The lien given to landlords for supplies, etc., furnished to their tenants in the making of crop's can be foreclosed only on such crops of the year in which the advances are made, and a ff. fa. issued under such a foreclosure can not be levied upon or claim other property. The award of the fund as made by the trial judge was- in accordance with law.</p>

<p>Action for money had and received; from city court of Nashville — Judge Christian. February 28, 1917.</p> <p>Suit was brought by Hattie Taylor. The allegations of her petition, briefly stated, were as follows: P. D. Lewis is the duly and legally qualified administrator on the estate of Thomas S. Taylor, late of Berrien county, Georgia. As such administrator he declines to prosecute this suit, and has duly assigned the claim herein sued on to petitioner, the widow of Thomas S. Taylor, deceased, and therefore a distributee of said estate, in order that she may prosecute this suit in her own name. A copy of the assignment is attached to the petition as an exhibit. The Georgia Loan & Trust Company is a corporation of the City of Macon, Bibb county, Georgia. R. A. Hendricks, doing business in the name of Hendricks, Mills & Hendricks, is a resident of Berrien county, Georgia. On the first day of September, 1909, Thomas S. Taylor executed and delivered his three promissory notes to the Georgia Loan & Trust Co., for the sum of $1000 each, payable five years after date, together with five coupons attached to each note, representing the annual interest on said indebtedness. In order to secure these notes, Thomas S. Taylor executed and delivered to the Georgia Loan & Trust Company a security deed to land described in the petition. Thomas S. T'aylor departed this life during the year 1913, long before the maturity of said notes. By the terms of the deed it was provided that in the event the said Thomas S. Taylor defaulted in the prompt payment of either one of the interest coupons or principal notes, or insurance premiums, or failed to pay the taxes promptly assessed against the property therein- described, it should immediately become the right and power of the holder of said notes to declare all of said indebtedness then and there due, and to proceed to collect the same at law or to exercise the power of sale contained in said deed. Default having been made in the payment of the interest due, on the 1st day of October, 1913, the Georgia Loan & Trust Co., by its agent and attorney at law, E. A. Hendricks, then doing business in the name of Hendricks & Hendricks, of Nashville, Ga., proceeded to advertise in the Nashville Herald the lands described, offering the same for public sale before the court-house door in Berrien county, Georgia, on the first Tuesday in December, 1913; said advertisement and sale being made under and by virtue of the-power of sale contained in said deed. At the time of exercising the power of sale the Georgia Loan & Trust Co. claimed that the said Thomas S. Taylor was indebted to it in the sum of $3,247, for which sum the advertisement was had and the sale made for the purpose of cancelling said indebtedness. On December 2, 1913, before the court-house door in Berrien county, the premises were offered for sale at pub-lic outcry, after being duly advertised for thirty days, under and by virtue of the power of sale in the security deed, and were knocked off to John A. Gaskins for the sum of $3,631. In pursuance of said sale, the Georgia Loan & Trust Co. caused to be executed and delivered to John A. Gaskins a deed to the premises, which was recorded on Janaary 16, 1914, in Book 36, page 72. The total sum of $3,631 was paid by Gaskins to E. A. Hendricks for and in behalf of the Georgia Loan & Trust Co. The difference in the indebtedness due by Thomas S. Taylor to the Georgia Loan & Trust Co. and the amount that said lands sold for under the power of sale is the sum of $384, which sum the plaintiff is entitled to receive for the payment of debts and for- distribution among the heirs of said estate, it being the overplus above thé indebtedness of said Taylor to the Georgia Loan & Trust Co. at the time of making the sale. The plaintiff has demanded this sum of the defendants, and payment of it has been refused. There now remains in the hands of the defendants, E. A. Hendricks and the-Georgia Loan & Trust Co., the sum of $384 now owing and due to the estate of Thomas S. Taylor, deceased, which they fail and refusp to pay over to petitioner, she being the legal representative of the estate of Thomas S. Taylor in the collection of this particular claim. It is necessary to collect said $384 for the purpose of paying the indebtedness of the said Thomas S. Taylor and making distribution among his heirs. In the power of sale before referred to, the Georgia Loan & Trust Co. agreed, in the event of sale of said premises under said power, that the proceeds of said sale would be applied first to the payment of said debt, interest, and expenses of the proceeding, and the remainder, if any, to the said Thomas S. Taylor, or his legal representative. The Georgia Loan & Trust Co. and E. A. Hendricks have jointly appropriated to their own use said $384, and failed and refused to account to the estate for said amount in accordance' with the terms of said power of sale contained in said deed. The plaintiff prays that she may recover of the defendants the sum of $384 principal, with interest at seven per cent, per annum since the 2d' day of December, 1913.</p> <p>The defendants, after filing a demurrer to the petition, which was overruled, filed an answer in which they either denied, or alleged that for the want of sufficient information they could neither admit nor deny, the allegations of the petition.</p>

<p>Action for damages; from Walker superior court — Judge Tarver presiding. February 21, 1917.</p>

<p>Complaint; from city court of Blakely — Judge Sheffield. Feb- • ruary 19, 1917.</p>

<p>Action for damages; from Wilkes superior court — Judge Park. November 35, 1916.</p>

<p>Certiorari'; from DeXalb superior court — Judge Smith. March 38, 1917.</p>

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

<p>Mortgage foreclosure; from city court of Baxley — Judge Sellers. September 21, 1916.</p>

<p>The court did not err in sustaining the plaintiff’s demurrer, and in striking the defendant’s plea as amended.</p>

<p>Complaint; from city court of Tifton — Judge Eve. December 30, 1916.</p>

<p>Indictment for adultery and fornication; from Camden superior court- — Judge Highsmith. May 26, 1917.</p>

<p>Action upon bond; from Calhoun superior court — Judge Harrell. June 6, 1917.</p> <p>A mortgage fi. fa. in favor of the Bank of Edison against John T. Eish was levied upon certain personal property as the property of the defendant. A forthcoming bond, signed by J. T. Eish and E. L. Eish as security, conditioned upon the delivery of the property at the time and place of sale, was given to the sheriff. The property was advertised, in the Calhoun County Courier, for sale on the first Tuesday in November, 1915. The levy recited: “Levied on and to be sold as the property of John C. Eish by virtue of a mortgage fi. fa. in favor of the Bank of Edison against said John C. Eish.” The property was not forthcoming on the day of sale, and, the sheriff having died, J. M. Clements was appointed his administrator. Thereafter suit was brought by J. M. Clements, administrator of the estate of W. L. Calhoun, sheriff,for the use of the Bank of Edison, against J. T. and E. L. Eish, on the forthcoming bond. The defendants insisted, by way of defense, that there had never been any breach of the bond, because there had never been any legal advertisement. They alleged that two -newspapers, the Calhoun County Courier and the Edison News, both published in Calhoun County, had been,, ever since January 1, 1911, designated by the clerk, ordinary, and sheriff as the official organ for the publication of advertisements in Calhoun County, and that the. sheriff had never advertised the sale of this mortgaged property in the Edison News. After the introduction of evidence the trial judge directed a verdict in favor of the plaintiff, to which the defendants excepted, contending that'the evidence demanded a verdict in favor of themselves and against the plaintiff.</p> <p>The evidence showed, that, prior to January 1st, 1911, the Calhoun County Courier was the official organ of Calhoun County, but .that after the passage of the act of 1910, giving the'right of selecting the official organ jointly to the sheriff, clerk, and ordinary, these officials, in the year 1910, attempted to change the official organ, and selected both the Calhoun County Courier and the Edison News, newspapers published in Calhoun County, as the official organ of the county. The Calhoun County Courier is a weekly newspaper published in Arlington, in Calhoun County, Ga., and was in existence during all the year 1915. A notice was published in both papers, signed December 9, 1910, by the county officials, to the effect that after January 1, 1911, the official advertising organ of said county would be the Calhoun County Courier, published at Arlington, Ga., and the Edison News, published at Edison, Ga., and that all sheriff’s sales and other legal advertisements would be published in both of said papers and the fees for such advertising divided equally between said papers. Testimony of the ordinary of the county showed that, since the attempted change in the county organ, he had' caused all citations, notices, and orders to be published in both papers, but he did' not • know what the officers of the county other than himself had done with reference to advertising. John T. Eish testified, that he had no notice of the intended sale' of the property on the first Tuesday in November, 1915; that he took the Edison News, and had noticed all issues of that paper for the four weeks preceding the day of sale; and that there was no advertisement of the property in those issues.. It was admitted by the defendants that the property levied on was not before the court-house door in- Morgan, Calhoun County, on the day of sale, between the legal hours of sale. The mortgage fi. fa. and the forthcoming bond and the issues of the Calhoun County Courier published in October, showing the due advertisement of the property in that paper, were introduced, in evidence. It was further admitted that Calhoun, sheriff of the county, had died, and that Clements was his administrator.</p>

<p>Certiorari; from Decatur superior court — Judge Harrell. May 24, 1917.</p>

<p>Certiorari; from Calhoun superior court — Judge Harrell. June 6, 1917.</p>

Complaint; from city court of Savannah — Judge Davis Freeman. May 17, 1917. Entelman brought suit against Harms on an account for rent, alleging that on September 1, 1911, he leased certain described premises -in Savannah to one Renken for a term of five years, beginning on that date and ending August 31, 1916. The rent was payable monthly on the first day of each month.

<p>1. In an action ex contractu, where a cross-action is filed by the defendant, which sets up a conversion of the defendant’s property by, the plaintiff, the cross-action can not be maintained unless it is affirmatively shown that such property has been converted into money. Unless this fact is shown, the cross-action can not be construed as an action for money had and received, and a wai.Ver of the tort, but will be construed as an action ex delicto, which ordinarily can not be maintained as a cross-action in an action ex contractu.</p> <p>2. The verdict was demanded by the evidence, and it is therefore immaterial whether or not there were errors in the .charge of the court. Accordingly it is unnecessary to consider the various exceptions to the charge.</p>

Indictmeñt for murder; conviction of. manslaughter; from Jasper superior court — Judge Park. June 2, 1917. Sam Key was indicted for the murder of Cohen Malone, and was convicted of voluntary manslaughter.

<p>Indictment for sodomy; from Muscogee superior court — Judge Howard. June 18, 1917.</p>

<p>Complaint; from Cobb superior court — Judge Morris. May 31, 1917.</p>

<p>1. Where an indictment was headed “State of Georgia, Bacon County,” this was sufficient to show the county for which the grand jurors were drawn and served, and of what county they were.</p> <p>2. On the trial of one charged with the offense of seduction, evidence that he endeavored to induce the female alleged to have been seduced to take medicine,, for the purpose of causing an abortion, was admissible, as tending to show that he had carnal intercourse with her.</p> <p>3. The trial judge did not abuse his discretion in allowing the case to be reopened for the introduction of additional material testimony, nor in allowing the prosecutrix, when recalled as a witness in rebuttal of the defendant’s statement at the trial, to be asked and to answer certain questions not strictly in rebuttal.</p> <p>4. There is no merit ir. the exceptions to portions of the charge of the court, or to the failure of the court to give the charge set forth in ground 5 of the amendment to the motion for a new trial.</p> <p>5. The evidence authorized the verdict.</p>

<p>Complaint; from city court of Nashville — Judge Christian. ‘ June 11, 1917.</p>

<p>Action.-for damages; from Bibb superior court — Judge Mathews. December Í8, 1916.</p>

<p>Action for damages; from Walton superior court — Judge Brand. ■ January 20, 1917.</p>

<p>Certiorari; from Morgan superior court — Judge Park. March 24, 1917.</p>

<p>Buie for contempt; from city court of Nashville — Judge Chris-, tian. February 15, 1917.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. February 26, 1917.</p>

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

<p>Certiorari; from Fulton superior court — Judge Bell. March 26, 1917.</p>

<p>Petition for certiorari; from Berrien superior court — Judge Thomas. April 14, 1917.</p>

<p>Certiorari; from Fayette superior court — Judge Searcy. March 22, 1917.</p>

<p>Action for damages; from Miller superior court — Judge Worrill. April 23, 1917'.</p>

<p>Appeal; from Clinch superior court — Judge Summerall. April 28, 1917.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. March 27, 3917.</p>

<p>Garnishment; from Tift superior court — -Judge Eve. May 12, 1917.</p>

<p>Action for damages; from Murray superior court — Judge Wright presiding. May 19, 1917.</p> <p>Mrs. Eogers brought suit against the railroad company for personal injuries, alleging, that, in alighting from the defendant’s train she was injured by the negligence of its agents; that when she started’ to get off the train she had a child in her arms, and that no stool was placed for her upon which to step; that the bottom step was some distance from the ground; and that as she started to step off, the train suddenly started forward, causing her to step, or fall, with considerable force to the ground. Her testimony supported, in the main, the allegations of the petition. It showed that she was a passenger on the train of defendant company; that when the train stopped at the station she started to get off, carrying a small child in her arms; that no stool was placed for her to step upon in getting down; that the flagman was on the bottom step, and did not give her any assistance; that as she started to alight the signal was given for the train to start, and that it suddenly started as she was alighting, causing her to fall or step with considerable force to the ground, with the child in her arms; that she was pregnant at the time, and had been so for four or four and a half months; that the sudden step and the force with which she came down to the ground injured her; that “wasting” set in, her health went down, she suffered pain, and finally, about three months after the- occurrence, she had a miscarriage, which she alleges was a result of the injury; and that since then she has continued to suffer pain and her health has been bad. There was considerable testimony tending to support her claim that she had been hurt by this occurrence, and that her health had suffered thereby. The testimony of the defendant’s witnesses contradicted that of the plaintiff, and tended to show that no such occurrence as she detailed actually occurred. While the employees of the train did not remember the plaintiff being there on the occasion alleged, they testified as to their custom in assisting passengers from the train. Other testimony was offered in an effort to show that the injury did not happen as the plaintiff had testified, that she had not been injured, and that her health was good, etc. The jury found for the plaintiff $3,500. The court overruled a motion for a new trial, and defendant excepted.</p>

<p>1. “The evidence is overwhelming that the defendant is guilty; and where such is the ease, even errors in the admission or rejection of testimony, or in the charge of the court, will not operate so as to require a new trial.”</p> <p>(a) “To authorize the granting of a new trial where evidence is adduced which fully warrants the verdict rendered, not only error but injury must be shown.”</p> <p>2. The court properly reformed the sentence. “Where a verdict of guilty is rendered on a number of counts, a sentence which does not pxeeed that which may legally be imposed on any one count is supported by the indictment, if any count is good.”</p>

<p>Indictment for murder; conviction of manslaughter; from Franklin superior court — Judge Cobb. August 10, 1917.</p>

<p>A policy of fire insurance issued in the year 1915, covering a “stock” of intoxicating liquors described as “merchandise,” which under the terms of the policy were required to be kept in a described building within this State, occupied by the owner for “mercantile purposes,” is void as being in furtherance of and directly connected with an act prohibited by law.</p>

Action for damages; from city court of Atlanta — Judge Reid. January SO, 1917. The plaintiff sought to recover damages from the City of Atlanta for the death of her husband.

Aetion for penalty. Before Judge Meldrim.- Chatham superior court. March 26, 1917.

<p>1. In a suit against a railway company, where an agent, whose name is not disclosed, is described as the company’s agent in charge of a specified ticket-office of the company at a specified time and place, it is error to sustain a special demurrer calling for the name of such agent. The company is presumed to know the name of the person it employs to perform such a duty at a particular time and place, while the public or a patron of the company is not presumed to possess any such knowledge or to acquire it during the transaction of purchasing a ticket. Atlanta Ice & Goal Co. v. Reeves, 136 Ga. 294 (3) (71 S; E. 421, 36 L. R. A. (2ST. S.) 1112); Bryant v. A. C. L. R. Co., 19 Ga. App. 536 (4) (91 S. E. 1047) ; Eaynie v. Gen. Ry. Co., 20 Ga. App. 599 (93 S. E. 258).</p> <p>2. An allegation in a suit against a railway company, that the plaintiff was unlawfully ejected from one of the company’s passenger-trains after being carried 5 or 6 miles beyond a designated station,' “and was forced to walk back to” such station, is not subject to special demurrer on the ground that “it does not appear why plaintiff, was .forced to walk back.” Especially is such a demurrer without merit where, as in this ease, the petition elsewhere shows that the plaintiff was wholly without money or means of conveyance, and that the train was stopped at such place for the specific purpose of ejecting the plaintiff therefrom.</p> <p>3. A demurrer to the allegation referred to in the preceding heádnote, on the ground that “it does not appear . . why he did not stay at Carbondale,” is in this case a speaking demurrer, for the reason that the petition as a whole discloses neither the proximity nor the existence of any such place as “Carbondale,” and the courts judicially know nothing of it, there being no such incorporated municipality in this State. It was therefore error to sustain this ground of the demurrer, even if it might otherwise have been meritorious.</p> <p>(a) A speaking demurrer is one which alleges some new matter, not disclosed by the pleading against which the demurrer is aimed and not judicially known or legally presumed to be true. Such a demurrer presents no question for decision, and should never be sustained.</p> <p>4. The action is brought to recover damages from the railway comj)ány for the acts of its agents in unlawfully ejecting the plaintiff from one of its passenger-trains. The plaintiff alleges, among other things, that, while walking from the place of his ejection to the station last passed by the train, through a section o-f country in which he was a stranger, “he was accosted by a strange white man and notified that no colored person could safely traverse that section of the country, and petitioner was forced to hire said white man to escort him through that section, giving him therefor a five-dollar watch-chain.” To the allegations here quoted the defendant demurred, on the ground that they “are immaterial and irrelevant, and set forth no element of recovery against the defendant.” Eeld: (a) Such allegations are by no means essential to the plaintiff’s alleged cause of action, and partake more of the nature of evidence than of pleading; -but they are nevertheless so closely connected with the transaction in controversy as not to be subject to the criticism that they are wholly irrelevant. Bryant v. A. C. L. B. Co., supra.</p> <p>(&) While such allegations do not contain any element of recovery against ■ the defendant, they are not set forth for any such purpose, and would be subject to.demurrer if they were set forth for such purpose, because they are not accompanied by additional allegations to show the defendant’s duty to anticipate and prevent the particular injury there- ' by disclosed.</p> <p>(c) The allegations in question should not have been stricken upon the particular grounds of demurrer urged; but, upon proof of such allegations, the jury should (upon proper request) be so instructed as not to attach any undue importance to such matter.</p> <p>4. The petition in this case contains only one count, wherein the plaintiff seeks a recovery upon two contradictory versions of the same transaction, namely: . (1) That he purchased from the defendant’s agent at Chattanooga, Tenn., a ticket to Rome, Ga., and the defendant’s conductor wrongfully ejected him from the train at Dalton, falsely claiming that the ticket was to such intermediate station only; (2) that while he called for and paid for a ticket to Rome, the Chattanooga agent wrongfully furnished a ticket to Dalton only, and he did not discover the error until Dalton was passed, when the conductor so advised him and ejected him from the train for his inability to pay additional fare from Dalton to Rome, notwithstanding he. explained to the conductor the kind of ticket he had called for and paid for. Such a petition is clearly duplicitous, and the court properly sustained the demurrer based upon such ground. The plaintiff should have amended, . either by preserving the two contradictory versions in two separate and distinct counts, or else by striking one of the alleged versions altogether.</p> <p>(a) A plaintiff may, in one petition, set out as many contradictory versions of the same transaction as he deems advisable to meet the probable evidence, provided each separate version is set forth in a separate and distinct count, itself constituting a complete cause of action of such a nature that it may properly be joined with the other alleged causes of action, and varies from all the other counts in some material particular. The purpose of the rule is to prevent variance and nonsuit, also to prevent defendants from ofttimes defeating the ends of justice by proving an equally meritorious, though materially different,. right of action in the plaintiff. But a petition which" contains, in one count two such contradictory versions of the same transaction is subject to demurrer for duplicity.</p> <p>6. There were several grounds of special demurrer, but no ground of general demurrer, aimed at the petition. One ground of the demurrer was meritorious; the others should have been overruled. The court passed an order directing “that the same be and it is hereby sustained, unless plaintiff amend within five days from this date, so as to meet the complaints thereof.” The plaintiff failed to amend, and his petition was consequently dismissed. Held, that,.since the judgment .sustaining the ground of demurrer attacking the petition for duplicity was proper, the court did not err in dismissing the petition.</p>

<p>Complaint; from Wayne superior court — Judge Highsmith. January 29, 1917.</p>

<p>Certiorari; from Decatur superior court — Judge Harrell. May 34, 1917.</p>

<p>1. ' The general rule of law, that it is the duty of the master to exercise ordinary care and diligence in providing a reasonably safe place of work for his servants, does not apply to a case where the very work for which the servant is employed is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety. The hazards thus arising as the work proceeds must be regarded as being the ordinary dangers of the employment, and the servant necessarily assumes them. 3 Labatt’s Master and Servant (2d ed.), 3140, § 1177. Thus, where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality, and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable. 3 Labatt’s Master and Servant (2d ed.), 2466, § 924; Ludd v. Wilkins, 118 Ga. 525. (45 S. B. 429); Hagins v. Southern Bell Telephone &c. Go., 134 Ga. 641 (68 S. E. 428, 137 Am. St. R. 270, 20 Ann. Cas. 248) ; Southern Railway Go. v. Taylor, 137 Ga. 704 (73 S. E. 1055)'; Byrd v. Thompson, 146 Ga. 300 (91 S. B. 100) ; Holland v. Durham Goal do. Go., 131 Ga. 715 (63 S. E. 290); Robertson v. Merchants do. Trans. Go., 18 Ga. App. 568 (90 S. E. 104) ; Gulf &c. Ry. Co. v. Jackson, 65 Bed. 48 (12 C. C. A. 507).</p> <p>2. In a suit by a servant for personal injuries arising from the negligence of the master in failing to comply with the duties set forth in section 3130 of the Civil -Code of 1910, it must appear that the master knew or ought tp have known-of the incompetency of the other servants, or of the defects or danger in the machinery supplied; and it must also appear that the injured servant did not know and did not have equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof. Civil Code (1910), § 3131.</p> <p>3. In a suit brought by an employee of a common carrier by railroad against the company, for personal injuries, he can not recover if his injuries were caused by his own carelessness amounting to a failure to exercise ordinary care; or if by the exercise of ordinary care he could have avoided the consequences of the defendant’s negligence. Civil ' Code (1910)', §§ 2781, 4426.</p> <p>4. Even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with such order, the servant be injured, he can not recover of the master. Southern Railicay Co. v. Taylor, supra; ' Hightower V. Southern Ry. Co., 146 Ga. 279 • (91 S.' E. 52, L. R. A. 1917C, 481) ; Southern Cotton Oil Co. V. Gladman, 1 Ga. App. 259 (6), 260 (58 S. E. 249); Attleton v. Bibh^Mfg. Col, 5 Ga. App. 777 (63 S. E. 918) ; Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117 (89 S. E. 158).</p> <p>5. in an action by a servant against a master for alleged failure of duty by the latter in not giving to the former warning of a danger incident to his employment, if the danger was-obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning to the servant. Crown Cotton Mills v. McNally, 123 Ga. 35 (3) (51 S. E. 13); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712- (68 S. E. 483).</p> <p>6. In a suit for personal injuries, under repeated rulings of this court and of the Supreme Court, while questions of negligence, including the question whether the plaintiff by the use of ordinary care could have avoided being injured, are for the jury to determine, yet where the finding of the jury on such issues is not supported by any evidence, such finding should be set aside and a new trial granted.</p>

<p>1. All claims against a county must be presented to tbe proper county authorities by written demand within 12 months after they accrue or become payable, or they will be barred under the provisions of section 411 of the Civil Code of 1910, “unless held by minors or other persons laboring under disabilities.”</p> <p>2. The bringing of a suit against a county may constitute the presentation in writing of a claim to the county officials within the meaning of the code section, where the petition is both filed and served within 12 months after the claim accrues.</p> <p>3. Where in an action for damage resulting from the flooding of lands, caused by a partial removal of earth from an embankment on the lands of the plaintiff, the petition was filed and served within 12 months after the injury caused by the flooding, but more than 12 months after the original trespass which ultimately caused the overflow, and nothing whatever was done, -from the time of the original trespass by the county, towards the maintenance of the nuisance thereby created, and no knowledge on the part of the defendant of its existence' is alleged, the action would be barred by the provisions of section 411 of the Civil Code, where no other notice of the intention to sue was given. ■</p>

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

<p>Certiorari; from Douglas superior court — Judge Bartlett. December 20,:.1916. . •</p>

<p>Complaint; from Worth superior court — Judge Cox. December 30, 1916.</p>

<p>Complaint; from Worth superior court — Judge Cox. December 9, 1916.</p>

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

<p>Certiorari; from Fulton superior court — Judge Bell. March 24, 1917.</p>

<p>Certiorari; from Appling superior court — Judge Highsmith. April 11, 1917.</p>

<p>1. Á mere general assignment that a portion of a charge to the jury is error presents nothing for the consideration of this court, except as.to-its abstract correctness. A correct statement of law embraced in a charge is not erroneous because the court failed in the same connection to give the jury additional instructions.</p> <p>2. The charge of the court on the weight to be given to, the defendant’s statement was sufficient, in. the absence of a request for further instructions.</p> <p>3. The charge of the court on the subject of alibi was not subject to the criticisms made thereon.</p> <p>4. The court did not err in overruling the motion for new trial.</p>

<p>Action, for penalty. Before Judge- Cox. Calhoun superior court. ■ December 6, 1916.</p> <p>This was a suit brought by Z. T. Rabun to recover a statutory penalty of $1 per day per car for an alleged failure of the defendant to furnish cars upon the plaintiff’s demand. The plaintiff relied upon three written orders, as follows: “Morgan, Ga. 9/3/1914. Agent, C. of G. Ey. Co., Williamsburg, Ga. Dear Sir: Please get for me and send them out on Friday, 4th inst., 2 any length flat cars to be loaded with lumber for 0. of Ga. Ey. 1 40-ft. flat car to be loaded with lumber for C. of Ga. Ey. The above cars are for Stubbs siding. I want you to please get for. me each day for the next six days four 40-ft. flats each day to be loaded with logs for shipment to Macon, Ga. Yours very truly, Z. T..Eabun.” “Morgan, Ga. 8/29/14. Agent, Cen. of Ga. Railway Co., Williamsburg, Georgia. Dear- Sir: Please get for me at once eight forty-ft. flat cars to be loaded with poplar logs for shipment to Macon, Ga. I want them in lots of four a day, and no more. Will be glad if .you can get four for Monday 1st, and four for Tuesday 2nd, prox. I also want.one car at once in which to load cottonseed for shipment to Macon, Ga. Yours truly, Z. T. Rabun.” The plaintiff introduced also an order dated Morgan, Ga., September 4, 1914, addressed to the agent of the Central of Georgia Railway Company, at Williamsburg, Ga., and signed by the plaintiff, as follows (after referring to previous orders) : “I want, in addition to the above, five more forty-foot flats on which to load logs for shipment to Macon, 6a.” At the conclusion of the plaintiff’s evidence the court overruled a motion for nonsuit, and thereafter directed a verdict for the plaintiff. The grounds of contention relied upon by the plaintiff in error are as follows: (1) In no one of the orders was there any statement in reference to the point at which the cars were to be delivered to the plaintiff. (2) That, since the plaintiff testified that the bills of lading for the logs which he expected to ship in the cars de-. mandad were issued to J. W. Griffith, and that Griffith owned the logs which were to be shipped for Griffith’s account and in his own name, the penalty, if any should he allowed, exists in favor of Griffith, the consignor, and who was the real shipper. (3) That since the only evidence as to the delivery to the defendant of the demands for cars was that of the plaintiff himself, and since he only testified that he delivered them to his engineer, Mr. Floyd, to he in turn delivered by him to the railroad agent at Williamsburg, and that he did not know whether or not these orders were in fact delivered, except from the fact of the subsequent though delayed compliance with the demands, there was no proof of the delivery:</p>

<p>Complaint; from Chattooga superior court — Judge Wright. February 16, 1917.</p>

<p>Affidavit of illegality of execution; from city court of Camilla— Judge Bush. August 11, 1915.</p>

<p>An affidavit of illegality, denying service, is of itself sufficient to raise that issue only when no return of service exists; since a return of service is conclusive upon that question, in the absence of a timely traverse. Such traverse must show that it is filed at the first term after notice of the return is had, and must make the officer making the return a party to the proceeding. If the return be made not by the sheriff,’ but by a deputy, then not only such deputy actually making the entry, but the sheriff also, must be joined. (See Cochran v. Whit-worth, ante, 406). If such traverse fails, as originally filed, to make proper parties, the defect may be cured by amendment at a subsequent term, and legal service may then be perfected. Stone v. Bichardson, 76 Ga. 97. Although the traverse is a distinct and independent proceeding from the affidavit of illegality, yet it is permissible to include the former with the latter (O’Bryan v. Calhoun, 68 Ga. 215; Dozier v. Lamb, 59 Ga. 461); but in order for a timely traverse, however made, to stand as such and furnish the basis of such an amendment as indicated, it must plainly and unequivocally deny the truth of the return as shown by the entry of service.</p>

<p>Action for breach of contract; from Muscogee superior court— Judge Howard. March 30, 1917.</p>

<p>Action for damages; from Effingham superior court- — -Judge Sheppard. April 17, 1917.</p>

<p>Action upon bond; from Bulloch superior court — Judge Hardeman. October 25, 1916.</p>

<p>Trover; from city court of Savannah — Judge Freeman. March 19, 1917.</p>

<p>Writ of error; from Mitchell superior court.</p>

<p>Processioning; from Whitfield superior court — Judge Fite. December 1, 1916.</p>

<p>1. Where the jury, on the trial of a joint action against two cosureties, finds against the plea filed by one of them, the relationship, unknown until after verdict, within the prohibited. degrees, of a juror to the other surety, who filed no plea, will require the grant of a new trial, since the failure of such surety to sustain his plea gives to his co-surety a right, of contribution against him, and furnishes a motive to such a juror to find against his plea. Under these circumstances the relationship is not presumed to be in favor of, but is presumed to be prejudicial to, the interests of the complaining party.</p> <p>2. It is not necessary to pass upon the remaining grounds of the motion for a new trial, since the errors therein complained of are not likely to occur upon another trial.</p>

<p>Complaint; from city court of Floyd county — Judge Nunnally. May 21, 1917.'</p>

<p>Claim; from Cherokee superior court — Judge J. B. Jones presiding. May 9, 1917.</p> <p>The Canton Fertilizer Company, holding a fi. fa. against E. M. Hunt & Company, T. J. Hunt, and J. G. Hunt, had summons of garnishment served on Spears, sheriff. In his first answer the sheriff said he had $500 in money belonging to T. J. Hunt, one of the defendants; but in his answer as amended he denied indebtedness to the defendants, and made allegations in the nature of an interpleader, the substance of which is, that a bank check for $500 had been placed in his hands by T. J. Hunt as security for the appearance of J. G. Hunt at the August term, 1914, of Cherokee superior court, and from term to term thereafter until a criminal case against J. G. Hunt should be finally disposed of; that the cheek, which was signed by Mrs. S. F. Hunt, had been cashed on the sheriff’s indorsement, and the money was in his hands; and that, so far as he knew, no indictment had been returned in said matter up to the time of the answer. Mrs. S. F. Hunt filed an intervention, asking to be made a party, and setting up, briefly, that she was the mother of J. G. Hunt; that the bank check was turned over to her husband, T. J. Hunt, to be turned over to the sheriff as security for the appearance of her son, J. G. Hunt, to answer a criminal charge against him; that said money was her individual money; that neither of the defendants had any interest in it; and she prayed that it be awarded to her. This petition was not sworn to. The judge of the superior court passed an order making her a party claimant. At the trial the plaintiff in fi. fa. made a motion to dismiss the claim filed by Mrs. Hunt, for the reasons that (a) the garnishee admitted having in his possession the sum of $500 under the conditions above stated, and this answer had never been traversed by the claimant; and (&) the claimant had never given bond and dissolved the garnishment, neither had she filed a claim and given a forthcoming bond, or filed a claim and given a pauper affidavit, as provided by law, and (c) she had not filed any claim under oath, and was-not, under the law, a party. The motion was overruled, and to this the plaintiff in fi. fa. excepted. The claimant assumed the burden of proof, and on hearing the evidence the court directed a verdict awarding the $500 in question to the claimant; to which the plaintiff in fi. fa. exceptéd.</p>

Action, for damages. Before Judge Bell. Fulton superior court. May 31, 1917. Mrs. Dougherty sued Woodward for the financial value of the life of her son, alleged to have been killed by the defendant’s son in the negligent operation of defendant’s automobile.

<p>Action for damages; from city court of Savannah — Judge Freeman. April 18, 1917.</p>

<p>Attachment; from Appling superior1 court — Judge Highsmith. May 17, 1917.</p>

Complaint: from Webster superior court — Judge Littleiohn. June 15, 1917. Swift & Company brought suit against Terry on a promissory note given for the purchase of fertilizers. The defendant admitted giving the note, but pleaded that the fertilizers failed to come up to the guaranteed analysis, and claimed on that account a deduction from the purchase-price in the total sum of $821.61.

<p>Complaint; from city court of Biehmond county — Judge Black. January 15, 1917.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. March 20, 1917.</p>

<p>Certiorari; from Morgan superior court — Judge Park. March 8, 1917.</p>

<p>Complaint; from city court of Dublin — Judge Flynt. March 10, 1917.</p>

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

<p>Complaint; from Pickens superior court — Judge Patterson. November 25, 1916.</p>

<p>1. A motion for a new trial is not an appropriate remedy to contest the jurisdiction of the court. 29 Cyc. 759; Evans v. Allgood, 16 Ga. App. 24, 27 (84 S. E. 603) ; Beery v. Burkhalter, 113 Ga. 1043 (39 S. E. 406) ; Hawkins v. Chambliss, 120 Ga. 614 (2) (48 S. E. 169).</p> <p>2, The evidence demanded the verdict for the plaintiff, and the court did not err in directing it.</p>

<p>Action for damages; from Eandolph superior court — Judge Worrill. March 10, 1917.</p>

Complaint; from city court of Atlanta- — Judge Reid. March 13, 1917. The action was by W. H. Benson against the Georgian Company. The petition alleges: The defendant publishes newspapers at Atlanta known as The Georgian and Hearst’s Sunday American.

<p>Complaint; from city court of Dublin — Judge Flynt. • March 10, 1917.</p>

<p>Action for damages; from Mitchell superior court — Judge Cox. December 26, 1916.</p> <p>This was a suit by a passenger claiming damages for an alleged illegal assault by the operating officials of the railroad company, and an unwarranted ejectment from the train, followed by an unjustified arrest and detention of the plaintiff, alleged to have been instigated by the defendant’s officials. The order of the trial judge overruling the motion for a new trial was in terms as follows: “The motion for a new trial in the above-stated cause regularly coming on for hearing before me at this time and place, and after hearing argument of counsel, the court wishes” to make the observation that he was not iihpressed with the plaintiff in this case, nor with his testimony or his case. The evidence tended to show that he boarded defendant’s train in an intoxicated or semi-intoxicated condition, and that he was probably at fault in the alleged first difficulty upon defendant’s train, and brought upon himself, the assault complained of; but this does not so strongly appear to be the ease as to the alleged second assault or trouble. The court, however, is impressed with the idea that the issues in the ease were fairly submitted, and the jury having passed upon the same, a new trial is reluctantly refused movant.”</p> <p>The record shows, that, on the day of the occurrence on which the plaintiff bases his claim for recovery, the conductor of the train made out and signed a report on a regular printed form, covering the events involved in the controversy, and forwarded it to the superintendent of transportation of the defendant company; that notice to produce this report at the trial, in order that it might be used as evidence by the plaintiff, was served on the defendant and its counsel; and that at the trial counsel for the defendant objected to its production, on the grounds that “they were in custody of said report in their capacity as counsel and attorneys for said defendant; that they, as division counsel of the defendant, were the official custodians of these reports; that said report was made out by the agent of the defendant for the purpose of being submitted to defendant’s'counsel for the purpose of having defendant’s counsel advise defendant as to whether or not there was any liability on the part of the defendant for anything connected with the transaction reported, and to enable said counsel to prepare for the defense of the defendant, if litigation ensued; and that said report was therefore a confidential communication between client and attorneys, and was a paper of clients held by the attorneys.” The record shows that this statement was accepted as evidence, and was not disputed.</p>

<p>Action for damages; from Whitfield superior court — Judge Tarver. May 4, 1917.</p>

<p>Money rule; from Tattnall superior court — Judge Sheppard. January 9, 1917.</p>

<p>Trover; from Cobb superior court — Judge Searcy presiding. April 24, 1917.. ■ '</p>

<p>To make good the lien of a" materialman for material furnished, it is necessary that his claim of lien be recorded “within three months after the completion of the work, or within three months after such material . . is furnished, in the office of the clerk of the superior court in the county where such property is situated.” The mere filing of such a claim is insufficient.</p>

<p>Complaint; from city court of Jefferson — W. W. Stark, judge pro hae vice. June 15, 1917.</p>

<p>Where the return day for filing suits in a court is the 15th. of the month and a petition is filed on that day, a notice to bind for attorney’s fees, served on the 5th of the same month, is served “ten days before suit is brought."</p>

<p>Complaint; from Hall superior court — Judge J. B. Jones. February 2, 1917.</p>

<p>Complaint; from Liberty superior court — W. B. Stubbs, judge pro hae vice. March 15, 1917.</p>

<p>1. A general rule of law is that a surety who has paid the debt of his principal is subrogated, both at law and in equity, to all the rights of the creditor. Park’s Ann. Code, § 3567. An exception to this rule, however, exists where in a legal proceeding there are successive sureties. In such a case the last surety is regarded as the primary one; and if he pays the debt of his principal, he has no right of subrogation - against the preceding sureties. This is true whether the dispute is between successive sureties in the legal proceeding itself, or between the surety given in the legal proceeding and the surety in the original transaction upon which the legal proceeding is based. In the latter instance the surety given in the legal proceeding is regarded as a volunteer; and where he pays the debt of his principal, he has no right of recovery over against the surety in the original cause of action, but his sole recourse is against his principal. Park’s Ann. Code, § 5008; Brandt on Suretyship and Guaranty, §§ 288, 518; Justices of the Inferior Court v. Selman, 6 Ga. 432, 440; Schnitzel’s Appeal, 49 Pa. 23; Moore v. Lassiter, 84 Tenn. 630, 633; Hartwell v. Smith, 15 Ohio St. 200, 204; Fidelity & Deposit Co. v. Bowen, 123 Iowa, 356 (98 N- W. 897, 6. L. R. A. (N. S.) 1021, note; Pott v. Nathans, 1 Watts & Serg. (Pa.)-155, 157 (37 Am. D. 456); Hinckley v. Kreitz, 58 N. Y. 583. Tennessee Hospital v. Fuqua, 69 Tenn. 608; Briggs v. Hinton, 82 Tenn. 233; McCormick’s admr. v. Irwin, 35 Pa. Ill, 117; 27 Am. & Eng: Enc. Law (2d ed.), 225. See also ¿Etna Life Ins. Co. v. Middleport, 124 U. S. 537 (8 Sup. Ct. 625, 31 L. ed. 537).</p> <p>2. Under the foregoing ruling and the authorities cited, no cause of action against the National Surety Company was set out in the petition as amended, and the court erred in overruling the general demurrer.</p>

<p>Eviction; from city court of Nashville — Judge Christian. June 11, 1917.</p>

<p>1. A bona fide holder of a negotiable promissory note purchased for value and before maturity is protected against the defense that the amount of the note has been paid to the original payee; and where a negotiable note payable at a future date is indorsed by the payee to the plaintiff, in the absence of proof to the contrary the law will presume that the plaintiff took the note before maturity, for value, and without notice.</p> <p>2. Where an amendment to a plea is offered before an auditor to whom a case has been referred, and the amendment is treated by the auditor and both parties as having been formally allowed, and evidence in support of it is admitted without objection, and the auditor states in open court that the amendment was so filed and allowed and treated as allowed, but that through inadvertence he failed to sign it as allowed, his mere failure so to sign the amendment will not exclude it from the pleadings.</p> <p>3. Under the particular facts of this case, the evidence demanding a finding for the plaintiff, the trial court did not err in rendering final judgment in its favor for the principal, interest, and attorney’s fees as sued for.</p>

<p>1. Where one is employed for a certain time at a specified monthly salary under an express contract, and after the expiration of that time, without further agreement, continues to serve his employer, who accepts his services, a promise' by the employer to pay therefor at the rate prescribed in the contract is implied. Hence there is no merit in the contention of the plaintiff in error that no contract between the parties was shown, as alleged in the petition. Standard Oil Oo. V. Gilbert, 84 Ga, 714, 717 (11 S. E. 491, 8 L. R. A. 410) ; Tippin v. Brockwell, 89 Ga. 467 (15 S. E. 539).</p> <p>2. The court did not err in allowing another of the defendant’s employees to testify: “I am not working on the six per cent, basis myself.” Although, as contended by the plaintiff in error, any contract under which, another employee was working would not illustrate the contract between plaintiff and defendant, this evidence was admissible for the purpose of contradicting the witness’s former testimony that both his own and the plaintiff’s contract of employment had been changed from a salary basis to a commission basis.</p> <p>3. The court did not err in charging the jury as follows: “If you find from the evidence that the plaintiff was employed as a salesman by the defendant under a contract which terminated on January 1st, 1917, at $65 per month, and you find that there was no further express contract between the parties, and the plaintiff continued to work for the defendant in his store as a salesman, then the plaintiff would be entitled to recover for the time he served in said store at' the rate of $65 per month, less any deduction of any- amounts paid him.” This charge was a correct statement of the law applicable to the facts in this case.</p> <p>4. The evidence authorized the jury to find that the facts enumerated by the judge in the-charge quoted above were true; and, the plaintiff having written off from the verdict the amount of set-off proved by the defendant, the court did not err in refusing the defendant a new trial.</p>

Action for damages; from city court of Cairo — Judge Willie. June 19, 1917.

Complaint; from Fulton superior court — Judge Bell. April-20, 1917.

<p>Accusation of sale of liquor; from city court of Blackshear— Judge Mitchell. August 4, 1917.</p>

<p>Accusation of misdemeanor; from city court of Blackshear —Judge Mitchell. August 4, 1917.</p>

<p>• Accusation of gaming; from city court of Wrightsville — Judge Blount. September 8, 1917.</p>

<p>Certiorari; from Upson superior court — Judge Searcy. September 14, 1917.</p>

<p>Accusation of sale of liquor; from city court of Brunswick— Judge Krauss. September 8, 1917.</p>

<p>Conviction of assault and battery; from Catoosa superior court —Judge Tarver. September 8, 1917.</p>

<p>Accusation of larceny; from city court of Hall county — Judge Wheeler. September 15, 1917.</p>

<p>Accusation of misdemeanor; from city court of Greenville— Judge Eevill. September 5, 1917.</p>

<p>Conviction of misdemeanor; from city court of Savannah— Judge Rourke. September 29, 1917.</p>

<p>Conviction of manslaughter; from Grády superior court— Judge Harrell. September 12, 1917.</p>

<p>Accusation of misdemeanor; from city court of Eastman— Judge Griffin. September 11, 1917.</p>

<p>Accusation of misdemeanor; from.city court of Eastman — Judge Griffin. September, 11, 1917.</p>

<p>Conviction of misdemeanor; from Forsyth, superior court— Judge Morris. September 21, 1917.</p>

<p>The act of transporting whisky subsequently to the act of 1917' (Acts 1917, Ex. Sess. p. 8, see. 1) is in itself a violation of the prohibition laws of this State. Accordingly, when on an accusation charging the defendant with a violation of such law in several different ways the verdict finds him “guilty of .transporting whisky,” the verdict is not a special verdict stopping short of the facts requisite to a conviction, but is a finding that the defendant violated the prohibition law by transporting whisky.</p>

<p>Accusation of misdemeanor; from city court of Richmond county —Judge Black. September 26, 1917.</p>

<p>Accusation of larceny; from city court of Richmond county— Judge Black. September 35, 1917.</p>

<p>Accusation of gaming; from city court of Thomasville— Judge W. H. Hammond. October 4, 1917.</p>

<p>Indictment for misdemeanor; from Cobb superior court— Judge Morris. September 21, 1917.</p>

<p>Certiorari; from Grady superior court — Judge Harrell. September 13, 1917.</p>

<p>Accusation of misdemeanor; from city court of Hall county— Judge Wheeler. September 26, 1917.</p>

<p>There is sufficient evidence to support the verdict of guilty, and the' trial judge did not err in overruling the motion for a new trial, based upon the general grounds only.</p>

<p>Certiorari; from Grady superior court — Judge Harrell. September 13, 1917.</p>

<p>Indictment for misdemeanor; from Haralson superior court— Judge Bartlett. September 29, 1917.</p>

<p>Accusation of misdemeanor; from - city court of Brunswick— Judge Krauss. September 29, 1917.</p>

<p>Accusation of misdemeanor; from city court of Griffin — Judge Goodrich. October 6, 1917.</p>

<p>Conviction of misdemeanor; from city court of Savannah— Judge Rourke. September 29, 1917.</p>

<p>Certiorari; from Hall superior court — Judge J., B. Jones. February 5, 1917.</p>

<p>Description and counsel as in Broolcs v. State, ante, 510.</p>

<p>Description and counsel as in Broolcs v. State, ante, 510.</p>

<p>Complaint; from Calhoun, superior court — Judge Cox. December 4, 1916. ’ •</p>

<p>1. The evidence authorized a finding against the plea of minority.</p> <p>2, 3. The instructions to the jury upon which error was assigned were appropriate. There was no error in the rulings upon admission of testimony; and no merit in the other special grounds of the motion for new trial.</p> <p>4. The verdict, being sustained by evidence and approved by the trial judge, can not be set aside.</p>

<p>Accusation of misdemeanor; from city court of Macon — Judge Guerry. October 8, 1917. •</p>

<p>-Petition for certiorari; from Miller superior court — Judge Worrill. December 8, 1916.</p>

<p>Complaint; from Dooly superior court — Judge George. De- . eember 16, 1916.</p>

<p>Petition for- certiorari; from Berrien superior court — Judge Thomas. December 22, 191.6.</p>

<p>Eviction; from Meriwether superior, court — Judge E. W. Freeman. December 26, 1916.</p>

Complaint; from city court of Thomasville — Judge W. H. Hammond. December 22, 1916. The Georgia Fertilizer & Oil Company filed suit to the June term, 1915, of the city court of Thomasville against J. N. Butler and L. D. Johnson on a promissory note reciting “I promise to pay,” signed by each of the defendants apparently as principals. At the appearance term no defense of any sort was made by Butler, and judgment by default was entered as to him.

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. January 34, 1917.</p>

<p>Money rule; from^Troup superior court — Judge Terrell. February 13, 1917’.</p>

<p>Action for damages; from city court of Baxley — Judge Sellers. December 2, 1916.</p>

<p>Complaint from Baldwin superior court — Judge H. C. Hammond presiding. March 5, 1917.</p>

<p>Action for damages; from Gordon superior court — Judge Tarver. March 3, 1917.</p>

<p>Action for damages; from Whitfield superior court — Judge Fite. November 26, 1916.</p>

<p>Action for damages; from Camden superior court — Judge High-smith. February 16, 1917.</p>

<p>Motion to set aside judgement; from Jackson superior court — ■ Judge Brand. November 17, 1916.</p>

<p>Distraint; from Sumter superior court — Judge Graham presiding. October 30, 1916.</p>

<p>Action for breach of contract; from Clay superior court — JudgeWorrill. December 3, 1916.</p>

<p>Complaint from Lee superior court — Judge Littlejohn. November 24, 1916.</p>

<p>Appeal; from Murray superior court — Judge Fite. December 20, 1916. (See 147 Ga. 432, 94 S. E. 556.)</p>

<p>Action for breach of contract;'from Fulton superior court— Judge Ellis. October 28, 1916. ' '</p>

<p>Money rule; from Hart superior court — Judge Worley. December 28, 1916.</p>

<p>Money rule; from Hart superior court — Judge Worley. December 28, 1916.</p>

<p>1. The petition alleged a permanent injury to the freehold of the plaintiff, for which damages were sought, and the court did not err in overruling the general demurrer.</p> <p>2. The special demurrers, not being argued in the brief of counsel for the plaintiff in error, will not be considered.</p> <p>3. There was evidence to sustain the verdict, and the general grounds of the motion for a new trial are therefore without merit.</p> <p>4-16. The special grounds of the motion for a new trial are without any substantial merit.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. February 14, 1916.</p>

<p>Action for daúiages; from city coirt of Columbus — Judge Tigner. March 10, 1917. ,</p>

<p>Complaint; from city court of LaGrange — Judge Harwell. December 21, 1917.</p>

<p>Attachment; from Jasper superior court — Judge Park. February 21, 1917.</p>

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

<p>Where a corporation brought an action for the amount of an alleged indebtedness, and prayed that the judgment therein be declared a special lien upon certain land, alleged to have been conveyed by the defendant to P. G. Hanahan, vice-president and general manager of the plaintiff corporation, as security for the debt, and, from the evidence at the trial, it appeared that the conveyance referred to was an ordinary warranty deed to P. G. Hanahan individually, although it was testified that there was an agreement between him and the defendant that the deed should be security for the defendant’s indebtedness to the corporation, it was error for the court to charge the jury that if they should find that the deed was “made to Hanahan, vice-president and general manager, for the use and benefit of the plaintiff, to secure that indebtedness,” they “would further find that the plaintiff have a special lien upon the tract of land set out in the petition,” to secure the indebtedness. Under the pleadings and the evidence, a judgment establishing such a lien was unauthorized.</p> <p>Such of the special grounds of exception not dealt with above as are relied on in the brief of counsel for the plaintiff in error are not in proper form for consideration. There was sufficient evidence to support the verdict as to the defendant’s indebtedness. The error pointed out above can be cured by striking from the judgment that part which relates to a special lien on the land described; and the judgment overruling the defendant’s motion for a new trial is affirmed on condition that the judgment against him be molded in accordance with the opinion of this court.-</p>

<p>Complaint; from city court of Greenville — Judge Revill. April 13, 1917.</p>

Complaint; from Stewart superior court — Judge Littlejohn. April 20, 1917. • Suit on a promissory note signed, “E. L. & J. B. Carter, by J. B. Carter,” and payable to Franklin Buggy Company, was brought by the payee against E. L. and J. B. Carter, who were alleged to be a partnership.

<p>Complaint; from Butts superior court — Judge Searcy. May 5, 1917.</p>

<p>Complaint; from city court of Hinesville — Judge W. C. Hodges. May 5, 1917.</p>

<p>Motion to set aside judgment; from Fulton superior court— Judge Ellis. March. 10, 1917. (See 145 Ga. 515 (89 S. E. 487); 147 Ga. 492 (94 S. E. 561)).</p>

<p>The mere fact that the wife received the benefit of goods bought by her husband on his own credit would not make her liable in law to the seller for the price of the goods.</p>

<p>Trover; 'from city court of Eastman — Judge Eeese. May 10, 1917.</p> <p>An action of trover for certain bales of cotton was brought by Mullís, sheriff, for the use of Improved Guano Company, against Farmers Gin Company. The case was tried on an agreed statement of facts, and the court directed a yerdict for the defendant. A new-trial was refused, and the plaintiff excepted. The agreed statement of facts was in substance as follows: On September 13, 1914, a mortgage fi. fa. in favor of Improved Guano Company, and a distress warrant in favor of another plaintiff, both against C. C. Adams, were levied “upon the cotton which is the subject-matter of this suit, which said cotton was found in the cotton warehouse of the Yancey Gin Company and the cotton warehouse of the Farmers Gin Company, where said cotton was levied upon and left there' properly tagged with notices of said levies.” The levy of the distress warrant was met by a claim filed on November 3, 1914, by J. C. Studstill, who gave a claim bond and a forthcoming bond, which the levying officer accepted, for the cotton claimed. The levy of the mortgage fi. fa. was not arrested by any proceeding, and the bales of cotton levied on “were advertised to be sold, and were offered for sale, and sold to the Improved Guano Company, but the sheriff was unable to deliver them to the purchaser at said sale, for the reason that said cotton had been removed from the warehouse where the same was stored at the time said levies were.made, without any authority from the Improved Guano Company, the plaintiff in the mortgage fi. fa., Or from the levying officer, except whatever authority was given by his taking and accepting the said claim bond and forthcoming bond.”</p>

<p>1. Where a contract of accident insurance, prepared by the insurer, contains a word susceptible of being construed, without violence, as having more than one meaning, the meaning most favorable to the interests of the insured and most unfavorable to the interests of the insurer must be given to it.</p> <p>(a) This court will take judicial cognizance that it is the universal custom of insurance companies to prepare their contracts of insurance.</p> <p>2. Under a contract of accident insurance which provides that the insurer will be liable if the insured is killed by “the collapse of a building,” liability arises when the insured is killed by the collapse of any substantial portion of a building.</p> <p>3. The word “building,” in its legal sense, is ambiguous, and is susceptible of being construed, without violence, as including many different kinds of structures and edifices erected by man.</p> <p>4. Keeping in view the rulings made in the preceding notes, the word “building,” as used in the contract of limited accident insurance sued upon, included the structure, the collapse of a substantial portion of which caused the death of the insured.</p>

<p>The Civil Code (1910), § 3367, provides that “in all foreclosures of liens on personalty, in -which the property levied on is replevied, and in which verdicts shall be found for the plaintiff, the plaintiffs shall enter up judgments against the defendants and their securities in the same manner, and to the effect, as in cases of appeal.” In the absence of a counter-affidavit, the plaintiffs in this case were authorized, under the foregoing code-section, to enter up judgment on the replevy bond, against the defendant and his surety, in the same manner as in cases of appeal. Giddens v. Gaskins, 7 Ga. App. 221 (66 S. E. 560). See also Argo v. Fields, 112 Ga. 677 (37 S. E. 995). The court did not err in sustaining the demurrer to the rúotion to vacate the judgment, and the judge of the superior court did not err in overruling the certiorari.</p>

Motion to set aside judgment; from city court of Quitman— Judge Long. July 9, 1917. • E. E. Hodges, as administrator of J. G. Hodges,- brought suit to the January term, 1917, of the city court of Quitman against M. F. Jones. The suit was for an indebtedness of $2,000, and alleged that a deed to a certain tract of land described in the petition was given by Jones to J. C. Hodges to secure that indebtedness.

<p>Action for damages; from Fulton superior court — Judge Pendleton. June 20, 1917.</p> <p>Mrs. Flournoy brought suit against the American Hat Manufacturing Company for damages on account of personal injuries alleged to have been caused by negligence of the defendant in failing tó furnish her a safe place in which to labor. In the original petition she alleged that she was an employee of the defendant, at work on the third floor of the place of business operated and controlled by it; that a stairway leading from the second to the third floor of tbe said building was used by the employees of the defendant; that this stairway was located near the center of the building, and there was an electric light about half way down the stairway from the third to the second floor, for the purpose of lighting the stairway; that in the afternoon of the date alleged in the petition, to wit, September 9, 1915, at about 5:30 o’clock, she stopped work on the third floor and started down to the second floor, where she was required to register, and the only way provided for her and the other employees as a means of ingress and egress was down the stairway described in the petition; that at the time she started down said stairway the electric light over the stairway was not burning, and the stairway was dark, and the steps of the stairway were made of wooden boards or planks, which were old and had become worn by constant use until they were slick; that at the time she started down said stairway and when she had gone down one or two steps from the third floor, she fell some six feet down the stairway. Plaintiff amended her petition and alleged: that the room in which she worked was separated from the stairway by means of a swinging door that swung to and from the room in which she worked; that opposite this door was another door of like kind; that these doors were so arranged as to lead from the stairway on the third floor directly to the stairway running from the third to the second floor, and these doors were- so constructed as to work upon spring hinges, and were always closed except when being pushed outwardly or inwardly by those passing through, and that when they were pushed open for the purpose of affording ingress or egress to and from the room, they immediately sprung back into a closed position; that on the date alleged, at about 5:30 o’clock in the afternoon, she prepared to leave by means of these doors described; that when coming through, the door swung back into position, leaving her in absolute darkness at the top of the stairway; that the space between the door and the top of the stairway was scarcely big enough for a person to turn around there, it being a little vestibule between the doors and top of the stair, about two or three feet in width and from four to five feet in length; that during the whole time she worked for the 'defendant it had been the policy of the company to have suspended from the ceiling of the second floor an electric drop-light, in the position about- half way down the stairway described, and that this was so suspended as to give a perfect illumination up the stairway, and when burning furnished a safe exit to the employees, and that during her whole term of service for defendant company, covering a period of three or four years before the date alleged, she had never known this light not to be burning at the time when the employees were leaving at night or late in the afternoon; that she could not have known that the light was not burning, prior to coming through the door, and that, the door swinging back into position while she was in a walking position, she missed the stairway leading to the second floor and fell down the steps, sustaining certain injuries described in her petition; that she could not by the exercise of ordinary care have known of the dangerous position in which she was placed, and that in stepping out in utter darkness in the manner described, she hit the open stairway, falling down the steps as alleged in the original petition. She charged that under the facts as stated in the petition as amended, the defendant was guilty of negligence in failing to provide her with a lighted stairway, and that she could not, by the exercise of ordinary care, have avoided the injury sustained.</p>

<p>Action for damages; from Mitchell superior court — Judge Cox. December 29, 1916.</p>

Protest to proeessioners’ return; from Lincoln superior court— Judge Walker. September 13, 1916. There was a trial of an issue made by a protest to the return of proeessioners. The jury found in favor of the return. The case is here on exceptions to the refusal to grant a new trial.

<p>Attachment; from city court of Floyd county — Judge Nunnally. March 20, 1917.</p>

<p>Trover; from Fulton superior court- — Judge Pendleton. January 20, 1917.</p> <p>A bank in Chattanooga held a note made by Kirkland and indorsed by Kyle, dated January 23, 1914, and due April 23, 1914. The Chattanooga bank sent this note for collection to a bank at Gadsden, Alabama, of which Kyle was vice-president, and after its maturity the Chattanooga bank authorized Kyle to procure from Kirkland a renewal note for the principal, which note should mature three months from April 23, 1914, and to secure which Kirkland was to attach certain stock certificates as collateral, in lieu of Kyle’s indorsement, it being then further agreed by the Chattanooga bank that this renewal note would be itself extended so as to allow Kirkland to “pay five hundred in nine months, five hundred in twelve months, one thousand every ninety days thereafter until paid in full.” Kirkland agreed with Kyle upon the terms of this arrangement, and sent to him the ninety-days renewal note together with the collateral specified. Kyle returned to Kirkland the collateral, stating as the reason that it had not been properly assigned by a previous owner, and made the request that it be transferred in blank and returned. Kirkland procured the transfer requested, and the previous owner, after signing it, mailed the stock certificate direct either to Kyle or to the bank at Gadsden, and it reached the bank on July 23, 1914, the day on which the renewal note was to mature. Thereupon the Gadsden bank wrote to Kirkland as follows: “Mr. D. H. Kirkland, Atlanta, Ga. Dear Sir: We this morning received the certificate of stock from Mr. Young, properly transferred, and I went immediately to our files-to get the paper for the renewal, whereupon I ascertained that the renewal paper is due today.. I called Mr. Kyle over the phone, and he advises me that his agreement with you was to give you one renewal of the renewal paper. We are, therefore, enclosing paper made out for an extension'of three months from this date, which we would thank you to execute and return in the first mail with your check for $80, interest, when we will return to you the old note. Please get this back as promptly as possible. We are enclosing the paper due today, which as you understand has not been used. Yours truly, S. McGaughey, Vice-pres’t.” Kirkland retained the -note and stock thus sent to him, and the Chattanooga bank brought suit in bail-trover therefor. The Chattanooga bank still holds the old note made by Kirkland and indorsed by'Kyle, and has made no tender thereof to Kirkland. On the trial its president, after stating that it expected to hold the Gadsden bank, said: “We will hold Mr. Kyle also. I do not know whether we will make him pay it or the First National Bank of Gadsden. We are holding the note. We authorized him to surrender the note of January 23 upon receipt of these papers.” He said also: Hpon the return of the collateral note “we will give you that [the old] paper. I do not know that we will renew it now, but we agreed to do it.” The jury found in favor of the defendant.</p>

<p>Complaint; from city court of Yaldosta — Judge Cranford. March 30, 1917.</p>

<p>Complaint; from city court of Dublin — T. E. Hightower, judge pro hac vice. April 16, 1917.</p>

<p>Action for damages; from city court of Tifton — Judge Price. April 7, 1917.</p>

<p>Lien foreclosure; from Hart superior court — Judge W. L. Hodges. March 3, 1917.</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. March 30, 1917.</p>

<p>Trover; from city court of Morgan — Judge Miller. April 14, 1917.</p>

<p>Complaint; from city court of Millen — Judge Dekle. April 3, 1917.</p>

<p>Action for damages; from city court of Hall county — Judge Wheeler. April 33, 1917.</p> <p>■ Miller bought mules at Miller Union Stock Yards, Atlanta, Ga., and at his direction the vendors delivered them to the Southern Railway Company to be shipped for him to Gainesville, Ga. In this suit he sought to recover damages on account of injuries to the mules. He alleged that the injuries were caused by breach of public duty of the railway company to provide a safe means of shipment and a safe, dry, and sanitary car for the shipment of the mules, and that the company was negligent, in that the car furnished had a defective roof, through which the .rain poured into the car, and that the mules contracted pneumonia on account of the defective condition of the car, through the negligence and tortious conduct of the railway company. The defendant in its answer denied the material allegations of the plaintiff, and set up certain stipulations of a contract of affreightment, signed in the name of Miller Union Stock Yards, as owner or shipper, and made in consideration of a reduced rate of freight, in which it is stated that the shipper “has examined and has found in good order and condition the car or cars provided by the railway company for the transportation of said live stock, and hereby accepts the same and agrees that they are, as thus provided, suitable and sufficient for said purpose.” The trial of the case resulted in a verdict against the railway company, its motion for a new trial was overruled, and it excepted.</p>

<p>Motion to amend judgment; from city court of Beidsville — J. Y. Kelley, judge pro hác vice. April 2, 1917.</p>

<p>Complaint; from Warren superior court — Judge Walker. May •2, 1917.</p>

<p>Complaint; from Camden. Motion to dismiss.</p>

<p>Complaint; from Gwinnett superior court — Judge Cobb. April 37, 1917.</p>

<p>Complaint; from Harris superior court — Judge Howard. April 9, 1917. -</p>

<p>Action upon bond; from "Whitfield superior court — Judge Tarver. April 14, 1917. ' •</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. April 21, .1917.</p>

<p>1. While a seller ordinarily can not convey a greater title than he owns, one of the exceptions to this rule is that the bona fide purchaser of a negotiable paper not dishonored will be protected in his title, though the seller had none. Civil Code (1910), §'4118. Thus, if such an instrument be complete in .form and duly signed, but prior to its delivery is feloniously taken by the payee, and prior to its maturity is indorsed and passed by the unlawful taker to a bona fide holder for • value, the innocent purchaser is protected in his title, and can recover against the maker. Sarrell v. National Bank, 128 Ga. 504, 506 (57 S. E. 869) ; 3 R. C. L. 1000, § 210.</p> <p>2. The defense of non est factum can be successfully pleaded to a suit on a negotiable promise to pay, even as against a bona fide holder who took it prior to maturity and without notice of such defense. Civil Code (1910), § 4286. Thus, a valid and completed contract can only be enforced against the maker in the form in which it-was executed, and if such a completed instrument be intentionally, fraudulently, and materially altered by a person claiming a benefit under it, the alteration voids the whole contract, at the option of the other party. Civil Code (1910), § 4296; Simons v. McDowell, 125 Ga. 203 (53 S. E. 1031); Sill v. O’Neill, 101 Ga. 832 (28 8. B. 996) ; Wilson v. Barnard, 10 Ga. App. 98 ( 2) (72 8. E: 943).</p> <p>3. One who signs his name to a blank paper and proceeds to entrust the ' signature to another, with authority given the latter to incorporate above the. signature a promissory note, so as to bind the signer, or one who signs an instrument having the form of a negotiable promise to pay, but in which are left spaces of such a character as manifestly indicate that the instrument is incomplete until they shall be filled out, is liable to one who in due course and by valid indorsement becomes a hona fide holder of the instrument, according to its actual tenor and effect, although the person to whom it was entrusted by the signer violated his trust and exceeded his authority in writing or completing the obligation; the theory being, so far as innocent holders in due course are concerned, that the delivery of such a signature for such a purpose constitutes the one who receives it the agent of the signer to write out and complete the note; and that the delivery of such a blank negotiable note, signed but incomplete, carries with it, so far as such innocent holders are concerned, an implied authority, on the part of the one so receiving it, to perfect the instrument as the agent of the signer. If loss be sustained by reason of a violation of such trust imposed, it must he borne by the maker or signer whose act thus made possible the loss, and not by an innocent taker of the instrument as subsequently written or filled out. Moody v. Threlkeld, 13 Ga. 55 (9) ; Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170, 181 (86 S. E. 434) ; Wilkes v. Pope, 4 Ga. App. 36 (2) (60 S. E. 823) ; 3 E. C. L. 1011, § 220; 8 C. J. 730, § 1012; 2 Am. & Eng. Ene. Law (2d ed.), 254-258.</p> <p>4. If a note in the form of a negotiable instrument is signed in blank, with spaces left which could easily be filled out without exciting suspicion, and, while in such incomplete form and prior to any actual delivery, it is feloniously taken from the possession of the maker and completed, it does not follow that the instrument becomes a valid obligation even in the hands of a bona fide holder for value. Prima facie, where the note is both incomplete and not delivered, the maker is not liable, since the implied authority to complete it by filling in the blanks arises in favor of one receiving it by virtue of its delivery. But the question of actual liability in such a case should be determined by reference to whether or not, under the evidence, negligence of the maker in permitting the instrument to get into circulation constituted the proximate cause of the fraud, such as would estop him from denying a valid delivery. Hancock v. Empire Cotton Oil Co., supra.</p>

<p>Forfeiture of recognizance; from Glascock.</p>

Complaint; from Bibb superior court — Judge Mathews. May 4, 1917. This was a suit by J. F. Stokes against Mrs. M. S. Walker, executrix of the estate of B. S. Walker Jr., based upon the following contract: Georgia, Bibb County. January 24th, 1912.

<p>Complaint; from city court of Fort Gaines — Judge Turnipseed. February 12, 1917.</p>

<p>Action for damages; from city court of Floyd county — Judge Nunnally. May 8, 1917.</p>

<p>Conviction of manslaughter; from Barrow superior court— Judge Cobb. May 15, 1917.</p> <p>John Watson was indicted for murder and was convicted of voluntary manslaughter. The indictment alleged that the murder was committed “by hitting and striking said Jim Mahaffey with a certain soda-water bottle on the head.” In the defendant’s motion for a new trial it was alleged (in addition to the general grounds) that the court erred in charging the jury as follows: “It is incumbent upon the State in the trial of a criminal case to prove to the satisfaction of the jury, beyond a reasonable doubt, all of the material averments in the bill of indictment. If an indictment in a ease of murder alleges the weapon to be of a certain character, then the evidence must satisfy the jury, beyond a reasonable doubt, that the killing was done with the weapon alleged in the indictment, or a weapon of similar nature. If you believe from the evidence, beyond a reasonable doubt, that the killing was done in the present case with a soda-water bottle, and also believe that the other material parts of the indictment have been proved to your satisfaction beyond a reasonable doubt, the State would have carried the burden which rested upon it. And if it should appear to you that the killing was done, not with a soda water bottle, but with another instrument, of similar nature, — a blunt instrument, which would inflict a wound of the same character of wound that might have been inflicted with a soda-water bottle, — if you believe this beyond a reasonable doubt, then that averment in the indictment would be sufficiently proved. If, however, you believe from the evidenec in the case and all the circumstances in the case, taking into consideration the defendant’s statement, that the killing was not done with a soda-water bottle and not done with an instrument of like nature of a soda-water bottle, or you have any doubt on your mind as to whether it was done with a similaf instrument, or similar weapon, then you should give the defendant the benefit of the doubt and find in his favor on this- allegation of the indictment, which would be a material averment in the indictment, or if you have a reasonable doubt as to any of the material allegations in the indictment, give the defendant the benefit of the doubt and find a verdict of not guilty.” It is alleged also that the judge erred in refusing to charge as.follows: "If you believe from the evidence, when considered in connection with the defendant’s statement in this case, that the defendant struck the deceased with a brick, and you believe from the evidence that this was the mortal blow, and that it was from the effect of this blow with a brick that the deceased died, you would not be authorized to find the defendant guilty in this ease.” It is further alleged that the court erred in refusing to charge as follows: “Every allegation in the indictment must be proven beyond a reasonable doubt. Hence,- if there is a reasonable doubt resting on your minds as to which of two instruments (if the evidence in this case shows the use of two instruments) caused the death of the deceased, it would be your duty to give the defendant the benefit of the doubt as to which of the two instruments inflicted the mortal wound.”</p>

<p>1. The right to open and conclude the argument having been claimed by counsel for the plaintiff, without objection on the part of the defendant’s counsel and without any ruling of the court being invoked thereon, the defendant, after trial, will not be heard to complain.</p> <p>2. Error can not be assigned successfully upon the court’s failure to submit to the jury instructions as to defenses not made by the pleadings. The court fully and fairly submitted to the jury the issue made by the defendant’s plea. '</p> <p>3. No error of law was committed, the verdict was authorized by evidence, and the trial judge did not err in overruling the motion for a new trial.</p>

<p>Certiorari; from Muscogee superior court — Judge Howard. August 11, 1917. '</p>

<p>1. The exceptions taken to certain portions of the court’s charge, and to the failure of the court to give in charge certain instructions to the jury, are without merit.</p> <p>2. The evidence authorized a verdict in favor of the defendant on his plea of failure of consideration, and the trial judge did not err in overruling the plaintiff’s motion for a new trial.</p>

<p>Action for money had and received; from Calhoun superior court — Judge Harrell. July 21, 1917.</p>

<p>Action for money had and received; from city court of Cairo— Judge Willie, July 19, 1917.</p> <p>The plaintiff in error, under an indictment charging him with seduction, was convicted in Grady superior court of the offense of fornication, and was sentenced to work in the chain-gang for twelve months and to be confined in jail for six months, the chain-gang and jail sentence to be discharged on payment of a fine of $1,000, without costs of prosecution. The sentence further provided that $900 of this amount should be paid to the prosecutrix for the use of herself and her child, and $100 be paid to the State. This sentence was afterwards modified by the court, upon the dismissal of the defendant’s motion for a new trial, and it was ordered "that the fine of $1,000 heretofore imposed on the defendant in said case be, and the same is hereby, reduced to $500.” It was further ordered that $100 of this amount be paid to the clerk of the superior court of Grady county, to be applied as provided by law, and that the remaining $400 of the fine be paid by the defendant, within fifty days from the date of the order, but that the $400 should be paid to the ordinary of Grady county, and be applied by the ordinary to the use and benefit of Julia Davis (the person named in the indictment as the seduced female) from time to time, as her needs and condition, in the ordinary’s judgment, might require. The defendant paid the $500, but $400 of it, which was paid to the ordinary, was paid under protest. He afterward brought suit in the city court of Cairo against W. C. Barrow, ordinary, to recover this amount of $400, alleging,' that he'was advised by the authorities having charge of the convicts of said county that, unless the sum of $400 was paid by him to the ordinary, on or before a certain date, he would be arrested by said authorities and confined at labor for a period of twelve months, and in jail for six months; and that he paid this amount in order to prevent said illegal arrest and detention, and paid it under protest, and that said payment was. not voluntary. He attached to his suit a copy of the sentences and the written protest referred to above.' Miss Julia Davis asked to intervene and to be made a party defendant in the case. The plaintiff moved to dismiss this intervention, but the motion was overruled. The ordinary and Miss Davis each filed a general demurrer, setting forth that no cause of action was alleged, and a special demurrer was filed by Miss Davis. The court sustained the general demurrers and dismissed the suit, and the plaintiff excepted.</p>

<p>Action for damages; from Pike superior court — Judge Searcy. July 21, 1917. .</p> <p>The error assigned in the bill of exceptions is the overruling of a motion for a new trial, the grounds of which are not stated. The motion for a new trial was not sent up, and was not specified as a part of the record material to an understanding of the ease.</p>

<p>Action for damages; from Tift superior court — Judge Eve. July 21, 1917.</p>

<p>Trover; from Coweta superior court — Judge Terrell. July 25, 1917.</p>

<p>Indictment for felony; from Walton superior court — Judge Cobb. September 22, 1917.</p> <p>Ward, Carter, and Crisp were convicted .under an indictment charging them and another person with having distilled and made alcoholic and spirituous liquors. Ward and Carter made, a motion for a new trial, which was refused, and they excepted. From the evidence it appeared, that a constable and a town marshal discovered the defendants at a distillery, where corn whisky was being made, on a branch in the woods on the land of J. E. Tuck, about nine o’clock in the morning. Ward and Carter were not doing anything. They were standing, talking and listening to Crisp talk, and Crisp punched the fire with wood under the furnace of the distillery. The officers holloaed at them and they ran. A path led from there through the woods to Carter’s house, about 300 yards away. He worked land about.200 yards from the distillery. Ward lived about a half mile away. Several families lived near there. Carter, in his. statement at the trial, said that he went down to the branch to get water, and heard cutting, and heard men talking, and found the other defendants there, and was there about five minutes when the officers appeared and called “Halt!” and he was scared and ran; that he did not know what the distillery was, and had never seen anything like it before. Ward stated that he went there suspecting that a distillery was there, and got a drink, and the officers came and called “Halt!” and said “I will kill you,” and he ran.</p> <p>Griffin v. State, 2 Ga. App. 534; Lawrence v. State, 68 Ga. 289 (2); Lowery v. State, 72 Ga. 649; Thornton v. State, 119 Ga. 437.</p>

<p>1. Testimony showing'tliat the conduct of the prosecutrix was good, offered by the State in rebuttal, for the purpose of sustaining her character for chastity, after it had been attacked by evidence offered in behalf of the defendant, was admissible for that purpose.</p> <p>2. Testimony of the aunt of the prosecutrix, that she had practically raised the girl, and that the latter would come to the house of the witness and call it her home, which was offered in rebuttal by the State, for the purpose of sustaining the character of the prosecutrix, was admissible for the purpose of showing the knowledge of the witness as to the character and conduct of the prosecutrix.</p> <p>3. It was complained that the court refused to permit the defendant’s counsel to argue to the jury as to the conduct of the solicitor-general in offering to introduce evidence to show that the prosecutrix was an orphan, which evidence was objected to by the defendant’s counsel and ruled out by the court. Generally, whatever occurs in the presence of . the jury as a part of the history of the trial, such as the conduct of the parties and of witnesses during the trial of the case, is a matter of legitimate discussion by counsel in argument to the jury; but this court is not prepared to say that under the circumstances of this case the trial judge committed error in controlling the argument. If error at all, it was not such as would require the grant of a new trial.</p> <p>4. The State having made a counter-showing to the alleged newly discovered evidence, this court can not say that the trial judge abused his discretion in overruling the grounds of the motion for a new trial based on such evidence.</p> <p>5. The verdict was authorized by the evidence, and the court did not err in overruling the general grounds of the motion for a new trial.</p>

<p>So much of the act approved November 30, 1915 (Ga. L. Ex. Sess. 1915, p. 113), regulating the use of automobiles, as undertakes to make penal the failure of any operator of a motor-vehicle, when meeting any vehicle approaching in the opposite direction, to “turn his vehicle to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference,” is too uncertain and indefinite in its terms to be capable of enforcement.</p>

<p>Indictment for misdemeanor; from Dooly superior court — Judge Crum. October 15, 1917.</p>

<p>Certiorari; from Fulton superior court — Judge-Bell. October 8, 1917.</p>

<p>The recent possession of the stolen property by the defendant having been fully explained by the uncontradicted testimony of several witnesses in his behalf, the evidence did not authorize the verdict, and the court erred in overruling the motion for a new trial'. Williams v. State, 125 Ga. 268 (54 S. E, 166); Peeples v. State, 5 Ga. App. 706 (53 S. E. 719).</p>

<p>Action for damages; from Elbert superior court — Judge W. L. Hodges. October 12, 1917.</p>

<p>Certiorari; from Lowndes superior court — Judge Thomas. October 6, 1917.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 4, 1917.</p> <p>The original assignment of error in the bill of exceptions was, that the certiorari “was sustained and judgment rendered against the defendant J. E. Hunnicutt Có.; to which judgment defendant excepted and now excepts and says-the court erred in not dismissing said certiorari.” The motion to dismiss the writ of error was on the grounds: “(1) The record does not disclose that any motion to dismiss the certiorari was made in the court below, whereas in the bill of exceptions, .the only error complained of is the failure of the court below to dismiss the certiorari. (2) Neither the record nor the bill of exceptions sets out the grounds upon which said dismissal was ashed, nor the reasons why the court erred in not dismissing the certiorari. (3) There is not a sufficient assignment of error, the grounds recited in the bill of exceptions being too general.” The motion to amend the bill of exceptions was that the word “overruling” be substituted for the word “dismissing,” so that the exception should be that the court erred in “not overruling the petition for certiorari.” Cited by counsel in support of the motion to amend: Parles v. Johnson, 79 Ga. 567; Civil Code (1910), §§ 6184, 6188. Cited contra: Ocean Steamship Go. v. Blumberg, 16 Ga. .App. 861.</p>

Complaint; from city court of Floyd county — Judge Nunnally. September 6, 1917.

<p>Indictment for kidnapping; from Dooly superior court — Judge Crum. October 27, 1917.</p>

<p>Action for breach of contract; from city court of Sandersville— Judge Jordan. September 24, 1917.</p>

<p>Indictment for misdemeanor; from city court of Savannah— Judge Bourke. September 29, 1917.</p>

<p>Action for damages; from city court of Springfield — Judge Shearouse. December 27, 1916.</p> <p>cited: Gainesville éc. R. Co. v. Edmondson, 101 Ga. 747; Southern Ry. Go. v. Myers, 108 Ga. 164; Southern Ry. Go. v. Pace, 114 Ga. 712; Talmadge V. Central Ry. Go., 125 Ga. 400; Southern Ry. Go. v. Herrington, 128 Ga. 438; Ga., Fla. & Ala. Ry. Go. v. Summer, 133 Ga. 134; Seaboard &c. Ry. v. Jarrell, 145 Ga. 688; Atlantic Coast Line R. Co. v. McRee, 11 Ga. App. 790-93; Atlantic Coast Line R. Go. v. McElmurray, 12 Ga. App. 233; s. c. 14 Ga. App. 197; Ga. Ry. & Elec. Go. v. Harris, 1 Ga. App. 714, 716; Ga. >S'. & F. Ry. Go. v. Thompson, 111 Ga. 731; Seaboard &c. Ry. v. Walthour, 117 Ga. 427; Macon &c. R. Go. v. Revis, 119 Ga. 333; Ivey v. L. & N. R. Go. 434 (4).</p> <p>Southern Ry. Go. v. Herring-ton, supra; Atlantic Coast Line R. Go. v. McRee, supra; Southern Ry. Go. v. Thompson, 129 Ga. 367 (8); W. & A. R. Co. v. Tate, 129 Ga. 526 (2); Southern By. Co.-v. Black, 141 Ga. 39; Atlantic Coast Line B. Co. v. Davis, 5 Ga. App. 214 (2), 217; Atlantic Coast Line B. Co. v. McElmurray, supra.</p>

<p>Where the superior court was in possession of funds arising from the sale of real property under proper order of that court in partition proceedings, and the distributive share of one of the cotenants was paid into its registry, under order of the court, on information as to the existence of certain outstanding liens against him, of file and record in the court, and certain creditors of his filed, by permission of the court, an intervention claiming the impounded fund, under and by virtue' of general judgment executions in their favor against him, and, within four months from the granting of the order impounding the fund and from the filing of the intervention, he was adjudicated a bankrupt, and within this period of four months the trustee in bankruptcy filed in the superior court a petition asking that the fund in its hands be awarded to him for distribution, the judge of the superior court properly directed the award of the fund to the trustee in bankruptcy. The fund in the possession of the superior court at the time of the adjudication in bankruptcy was not derived from the enforcement of any lien, and the intervention by which it was sought to appropriate the fund otherwise coming into the hands of the superior court to certain judgment liens (more than four months old), being itself filed within less than four months from the time the defendant in execution had been adjudicated a bankrupt, the bankruptcy court was entitled to administer the fund.</p>

<p>Action lor damages; from city court of Atlanta — Judge Reid. January 30, 1917.</p>

<p>Action for breach of contract; from Floyd superior court — Judge Wright. February 7, 1917. See post, 805.</p>

<p>Action upon life insurance policy; from Bibb superior court— Judge Mathews. February 2, 1917.</p>

<p>Action upon life insurance policy; from Randolph superior court —Judge Worrill. January 10, 1917.</p>

<p>Attachment; from Bartow superior court — Judge Tarver. January 25, 1917.</p>

<p>Description and counsel as in case next preceding.</p>

<p>Certiorari; from Eulton superior court — Judge Ellis. ■ March 9, 1917.</p>

<p>Motion to set aside judgment; from city court of Savannah— Judge Freemen. March 16, 1917.</p> <p>On November 22, 1911, J. Maril brought suit on a certain rent contract against Adella C. Boswell, as principal, and B. S. Jones, as. surety, the suit being made returnable to the February term,' .1912, of the city court of Savannah. On the same date, but after the filing of the suit, Maril caused a summons of garnishment to issue from a justice’s court, returnable to the February term, 1912, of the city court, and directed to the Pittsburg Plate Glass Company, requiring that company to answer what money, property, or effects it had on hand belonging to the defendants Adella C. Boswell and Bl S. Jones. The summons of garnishment was duly served on the Pittsburg Plate Glass Company on November 22, 1911. At the February term, 1912, of the city court the defendants Boswell and Jones duly filed pleas in abatement, which the ' court sustained, and Maril thereupon sued out a writ of' error to the Court of Appeals of Georgia, and this court on December 21, 1912, rendered a decision of reversal. On February 24, 1913, ■-the defendant Jones filed an application in writing for a stay of the proceedings in the ease, upon the ground that on February 15, 1913, he was duly adjudged a bankrupt. A judgment was ’ taken against the defendant Boswell on March 14, 1913, and on May 14, 1913, the defendant Jones was discharged as a bankrupt. On April 24, 1916, the case of Maril against Jones, and the case against the Pittsburg Plate Glass Company, as garnishee, came on for trial before the judge, of the city court, sitting without the. intervention of a jury, and a judgment was rendered against Jones for $340, besides interest and costs, with a perpetual stay of execution against him, and on that judgment the court ordered that a judgment be taken by the plaintiff against the Pitts-burg Plate Glass Company, as garnishee, for the full amount of the judgment against Jones, on the ground that the garnishee had not filed an answer at the February term, 1912, of the said court, or at any time thereafter to the summons of garnishment served on it, and had therefore been in default as such garnishee since that term. On April 27, 1916, after the rendition of these judgments, and within the time allowed by law, the defendant Jones and the garnishee filed a joint and several motion for a new trial, which was overruled; they excepted to the overruling of the motion and carried the case to the Court of Appeals, and on February 1, 1917, this court rendered a judgment dismissing the writ of error. See Jones v. Maril, 19 Ga. App. 216 (91 S. E. 445). After the remittitur from the Court of Appeals had been made the judgment of the lower court the Pittsburg Plate Glass Company filed a motion to set aside the judgment against it, and Maril filed a demurrer to this motion, the court sustained the demurrer and dismissed the motion, and it is to the dismissal of this motion that the plaintiff in error now excepts.</p>

<p>Complaint; from city court of Thomasville^-Judge W. H. Hammond. March 24, 1917.</p>

<p>Action for damages,' from Gwinnett superior court — Judge Hardeman presiding. February 19, 1917.</p>

<p>Action upon fire insurance policy; from Richmond superior court —Judge H. C. Hammond. March 30, 1917.</p>

<p>1. The suit as amended remained an action ex contractu, notwithstanding the addition of allegations relating to the manner in which the contract which was its basis was breached, and characterizing the breach as wrongful or in bad faith.</p> <p>2. Notwithstanding the estimate which the contract contained as to the probable output of cotton linters to be produced by the defendant during a particular season, the contract by its terms covered the entire output of such linters by the mill for that season, when operated at normal capacity and in good faith, and the delivery of the estimated number of bales by the defendant would not serve to discharge the defendant from liability on account of its unexplained failure to operate the mill and produce the usual and normal output for the period covered by the contract.</p> <p>3. The petition as amended set out a cause of action, and the court did not err in overruling the demurrers.</p>

<p>. Complaint; from city court of Dawson — Judge Edwards. May 12, 1917.</p>

<p>Complaint; from Toombs superior court — Judge Hardeman. February 27, 1917.</p>

<p>Complaint; from Dekalb superior court — Judge Smith. April 17, 1917.</p>

<p>Action upon indemnity-insurance policy; from Bibb superioi court — Judge Mathews. December 9, 1916.</p>

<p>Action for damages; from Brooks • superior court — Judge Thomas. December 2, 1916.</p>

Action on bond; from city court of Bainbridge — Judge Spooner. February 26, 1917. The Georgia, Florida and Alabama Eailway Company brought suit against H. C. Draper upon a bond.

<p>Illegality of execution; from 'Sumter- superior court — Judge Littlejohn. April 28, 1917.</p>

<p>Complaint; from Bibb superior court — Judge Mathews. April 33, 1917.</p>

<p>Complaint; from Colquitt superior court — Judge Thomas. May 3, 1917.</p>

<p>Before suit against the purchaser for the. entire purchase-price of goods shipped by common carrier as in this case can be maintained by the seller, title must be relinquished by the seller and must pass to the purchaser. The seller can not retain the goods and also recover the full price.</p>

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

Complaint; from Pulaski- superior court — Judge Grabam. March 14, 1917. The motion to dismiss the writ of error was on the ground that “there is no sufficiently specific assignment of error, the bill of exceptions having been filed to the judgment of the court on an agreed statement of facts, and the-only assignment of error being that the judgment was contrary to law.” Cited in support of the motion: Lamar, Taylor & Riley Drug Co. v. Southern School Booh Go., 18 Ga.

<p>Complaint; from Floyd. Motion to dismiss.</p>

<p>Action, for damages; from Stephens superior court — Judge J. B. Jones. July 27, 1917.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. July 28, 1917. '</p>

<p>Action for damages; from Dooly superior court — Judge George. December 19, 1916.</p>

<p>Money rule; from city court of Oglethorpe — Judge Greer. October 12, 1917.</p>

<p>Action for damages; from Hart superior court — Judge'Worley. December 28, 1916.</p>

<p>Action for damages; from Fulton superior court — Judge Bell. November 11, 1916.</p>

<p>Action for damages; from McIntosh superior court — Judge Sheppard. December 3Ó, 1916.</p>

<p>Affidavit of illegality of execution; from Fulton superior court —Judge Ellis. November 4, 1916.</p>

<p>, Mortgage foreclosure; from Evans superior court — Judge Sheppard. March 9, 1917.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge Eeid. December 2, 1916.</p>

<p>Action, for damages; from Polk superior court — Judge Bartlett. February 38, 1917.</p>

<p>Complaint; from city court of Wrightsville — Judge Blount. May 16, 1917.</p>

<p>Under the rulings of the Supreme Court on questions certified in this case, the trial judge did not err in sustaining the demurrer to the petition and in dismissing the action.</p>

<p>• Complaint; from city court of Bainbridge — Judge Spooner. January 29, 1917.</p>

<p>Description and counsel as in case next preceding.</p>

<p>The grounds presented by the affidavit of illegality set out no fact showing that the execution for the affiant’s proportion of the expense of street-paving was illegally issued; and it was error to overrule the demurrer to the affidavit.</p>

<p>Complaint; from DeKalb superior court — Judge Smith. March 5, 1917.</p>

<p>Complaint; from Marion, superior court — Judge Howard. April 26, 1917.</p>

<p>Trover; from Bacon superior court — Judge Summerall. April 81, 1917.</p>

<p>Garnishment; from city court of Athens — Judge West.</p>

<p>Action upon bond; from Chatham superior court — Judge Kent presiding. December 16, 1916.</p>

<p>1. The court did not err in its ruling on the demurrer to the original petition, or in overruling the demurrer to the petition as amended.</p> <p>2. The record shows that at the time the defendants attempted to countermand the order, there had been such part performance of the contract as to take it out of the operation of the statute of frauds.</p> <p>3. The testimony of D. P. Phillips was not inadmissible for the reasons urged.</p> <p>4. The other alleged errors are not such as are likely to recur when the case is retried.</p> <p>5. Under the facts of the instant case the remedy of the seller is by a suit for breach of contract, or by pursuing one of the statutory remedies pointed out in the Civil Code (1910), § 4131.</p>

<p>Action upon life-insurance policy; ‘from Baldwin- superior court ■ — Judge Park. February 17, 1917.</p>

<p>Complaint; from Murray superior court — Judge Wright presiding. February 20, 1917.</p>

<p>Claim; from Taylor superior court — Judge Munro. November 25, 1916.</p>

<p>Under tlie particular facts of this ease the defendant was not guilty of violating section 412 of the Penal Code (1910).</p>

<p>Condemnation of vehicle under liquor law; from city court of Griffin — Judge Goodrich. October 6, 1917.</p>

<p>Indictment for cheating and swindling; from Gwinnett superior court — Judge Cobb. October 26, 1917.</p>

<p>Indictment for larceny the house; from Putnam superior court — ■ Judge Park. October 30, 1917.</p>

<p>Indictment for murder; conviction of manslaughter; from Elbert superior court — Judge W. L. Hodges. November 24, 1917.</p>

<p>Indictment for misdemeanor; from Clarke superior court— Judge Cobb. November 14, 1917.</p>

<p>1. The first indictment charged the defendant with entering the store of Joseph Ayoup on Dasher street, with intent to steal goods therefrom. The second indictment charged the defendant with entering the store of Joseph Eyoup, situated at the corner of Ashley and Valley streets, with intent to steal goods therefrom. Held: The indictments showing that the stores alleged to have been entered were at different places, the larcenies must necessarily have been different transactions, and a plea of autrefois acquit to the second indictment, based on an acquittal under the first indictment, was properly stricken on demurrer.</p> <p>2. The evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.</p>

<p>Accusation of receiving stolen goods; from city court of Swainsboro — Judge Kirkland. November 16, 1917.</p>

<p>Indictment for assault and battery; from Camden superior court — Judge Highsmith. November 17, 1917.</p>

<p>Indictment for misdemeanor; from Glynn superior court— Judge Highsmith. October 19, 1917.</p>

<p>Indictment for forgery; from White superior court — Judge J. 'B. Jones. November 10, 1917.</p>

<p>Indictment for possessing intoxicating liquor; from Thomas superior court — Judge Thomas. April 23, 1917.</p>

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

<p>1. It appearing that after the defendant had been arrested and bound over and had given bond for his appearance at the term of the superior court at which the indictment was found, he had ample time to have his witnesses summoned and to prepare for trial, the trial judge did not abuse his discretion in overruling the motion for a continuance.</p> <p>2. The verdict was authorized by the evidence.</p>

<p>Indictment for larceny; from Worth superior court — Judge Eve. September 14, 1917.</p>

<p>There was sufficient evidence to authorize the conviction of riot.</p>

<p>1. Where a hid for the purchase of municipal bonds provided: “We are to be furnished with a full and complete certified copy of transcripts establishing 'the legality of the issue as a direct obligation of Rome, Georgia, satisfactory to our attorneys, prior to our acceptance and payment for the bonds,” it was a conditional bid; and a bona fide opinion rendered by such attorneys, to the effect that the legality of the issue had not been satisfactorily shown, would prevent the -forfeiture and require the return of a deposit made with the bid. City of San Antonio v. Rollins, Tex. (127 S. W. 1166); Trowbridge v. New York, 24 Mise. 517 (53 N. Y. Supp. 616). ’</p> <p>2. The question in such, a case is, not whether the bonds were in fact valid or invalid,, but whether the opinion was bona fide and not rendered capriciously or in bad faith. City of Great Rails v. Theis, 79 Red. 943.</p> <p>3. In a suit by the bidder to recover a forfeited deposit which had accompanied the bid, where it was shown that the opinion rendered by its attorneys was to the effect that the 'legality of the issue was not satisfactorily shown from the transcripts furnished to it, and where the evidence was within itself without conflict; and nothing was disclosed tending to show collusion between the bidder and its attorneys, or any fraudulent purpose on the part of the latter, and the legal opinion thus rendered contained nothing within itself by which it could be reasonably inferred that it was capriciously or fraudulently made, it was not error for the court to direct a verdict in favor of the plaintiff.</p> <p>4. The foregoing ruling being controlling in the case,' it Is unnecessary to pass upon the question as to whether, under the city’s advertisement for bids, it had the right to forfeit the bidder’s accompanying deposit, upon a failure to comply with the terms of the bid.</p>

<p>Complaint; from Cherokee superior court — Judge J. B. Jones presiding. May 9, 1917.</p>

<p>Trover; from city court of Albany — Judge Clayton Jones. May 5, 1917.</p> <p>The suit was for the recovery of a mare which had been traded by the plaintiff to the defendant for a horse. The plaintiff testified that the horse swapped to him was worthless, and that he knew nothing about it at the time of the trade; that when the defendant brought the horse to him for the purpose of trading, he said to the defendant: “Do you guarantee this horse to be sound? If you don’t I will not trade.” The defendant replied that he guaranteed the horse to be as sound as a dollar.' The plaintiff then told his servant to “take the horse out.” He further testified: “I do not know where Randolph [the defendant] got this horse from, nor how long he had had him, but I do know that he guaranteed the horse to be sound, and I wouldn’t have traded if he hadn’t done it. Randolph did say at first that he would trade' just as the horses stood, but I knew him and I wouldn’t trade with him, unless he would agree to guarantee the horse to be sound.” There was no evidence tending to show knowledge on the part of the defendant that the horse was unsound at the time the sale was consummated. The trial resulted in a verdict for the plaintiff. The defendant’s motion for a new trial, the refusal of which was excepted to, was based on the grounds that the verdict was contrary to law, evidence, etc.</p>

<p>Trover; from city court of Zebulon — Judge Dupree. May 15, 1917.</p>

<p>Claim; from Fayette superior court — Judge Searcy. May 17, 1917.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. April 25, 1917.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. May 1, 1917.</p>

<p>Processioning; from Fayette superior court — Judge Searcy. July 14, 1917.</p>

<p>1. There was no proof that the engine alleged to have communicated the fire which injured the peach orchard of the plaintiff, adjacent to the railroad right of way, was actually emitting sparks at the time it passed the property, or that it caused the fire; and while there was proof that the engine was equipped with a spark-arrester which was inspected and found to be in good condition the day before and the day after the fire, there was no evidence that the engine was equipped with the best appliance of this character in general usé, the use of which was consistent with its practicable operation, or that the spark-arrester was of an approved or standard type or kind. “The measure of diligence which the law places upon a railroad company, in respect to the</p> <p>• providing and keeping in repair of spark-arresters or other appliances for the prevention of fire, is to use ordinary care and diligence to apply to its engines the best appliances in general use, the use of which is consistent with the practicable operation of its engines, and to use reasonable. care and skill in keeping the same in good order.” Southern By. Co. v. .Thompson, 129 Ga. 367 (7) (58 S. E. 1044). See Wrightsville & Tennille B. Co. v. Mullís, 11 Ga. App. 482 (75 S. E. 825); Western & Atlantia B. Co. v. Mallard, 139 Ga. 407 (3) (77 S. E. 399). Nothing herein ruled conflicts with the decision in the case of Seaboard Air-Line By: v. Jarrell, 145 Ga. 688 (89 S. É. 718), in which ease there was evidence “to show that the two engines which passed on the day of the fire and prior thereto were properly equipped with approved -[italics ours] spark-arresters, which evidence was uncontradicted.” The circumstances in proof as to the condition of the right of way, the time when the fire occurred, etc., were therefore sufficient to authorize the conclusion that the defendant was negligent as alleged, and to support a recovery.</p> <p>2. There is no merit in any of the special grounds of the motion for a ■new trial. The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.</p>

<p>Complaint; from Grady superior court — Judge Thomas. August 27, 1917.</p>

<p>Action for damages;’ from Whitfield superior court — Judge Tarver. September 8, 1917.</p>

<p>Attachment; from Morgan superior court — Judge Park. November 8, 1917.</p>

<p>Complaint; from Upson superior court — Judge Searcy. July 14, 1917.</p> <p>The action was by Mayme T. Alford against the executors of Lizzie T. Hannah, deceased. The petition alleges, that the defendants, as executors, are indebted to the plaintiff in the sum of $1,800, by reason of the following facts: (Paragraph 3.) On or about October 1, 1906, the plaintiff, at the solicitation of the said Lizzie T. Hannah, moved into her home for the purpose of looking after and caring for her for the remainder of her life. She was old and feeble, practically an invalid, unable to wait on herself, and without any immediate family or other person to care for her. Plaintiff, from June 1, 1907, to February 6, 1916, the date of her death, administered to all her wants and did everything possible to make her life happy and comfortable, rendering such services as waiting on her, making and mending her clothes and seeing to it that they were properly laundered and returned, making her fires, cleaning her room and keeping it in order, etc. She was helpless, and it was necessary for plaintiff to remain constantly in her room or at her bedside day and night. All of these services were rendered in pursuance of a contract entered into between her and plaintiff on June 1, 1907, whereby she agreed to give plaintiff $2,000, or in lieu thereof the' home in which they were then living (described), at her death, as compensation for plaintiff’s services in waiting on and caring for her during the remainder of her life. Plaintiff elected to accept the house and lot or its value at her death in lieu of the $2,000. (Paragraph 4.) Plaintiff has complied fully with the terms of the contract as set ■ forth above, and in good faith, bel'ieving 'all along that the said Lizzie T. Hannah had left a provision in her will directing her executors either to pay the $2,000 or to deed plaintiff the house and lot described above, as she assured plaintiff time and time again, as well as other people, that such a provision had been made in her will, and that the house and lot they were then living in would belong to plaintiff at her death, as compensation for the services rendered her during her lifetime. (Paragraph 5.) The said house and lot were worth $1,800, as they were sold by the executors of said Lizzie T. Hannah at public sale for that amount. (Paragraph 6.) Plaintiff’s services for the nine years she waited on and cared for the said Lizzie T. Hannah were reasonably worth $1,800, which was the value of the said house and lot; for which amount she sues. The grounds of the demurrer are sufficiently indicated in the foregoing decision.</p>

<p>Complaint; from city court of LaGrange — Judge Harwell. July 12, 1917.</p>

<p>Accusation of adultery and fornication; from pity court of Floyd county — Judge Nunnally. September 28, 1917.</p>